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2004 DIGILAW 575 (MAD)

Kesari Jabamani v. V. Radhakrishnan

2004-03-30

K.GNANAPRAKASAM

body2004
Judgment :- 1. This civil revision petition is directed against the order dated 5.9.2003 passed in I.A. No. 170 of 2003 in O.S. No. 968 of 1984 on the file of the First Additional District Court, Tirunelveli. 2. The revision petitioner is the plaintiff in the suit, who has filed the suit for permanent injunction. The first respondent herein has filed an application under Order 1 Rule 10(2) and Section 151 of the Civil Procedure Code to implead himself and one Mariappan as defendants 6 and 7 in the suit. The same was allowed. Aggrieved by the same, the plaintiff has preferred his civil revision petition. 3. Heard learned advocate for the revision petitioner and the respondents. 4. The first respondent herein who sought to implead himself as a defendant in the suit, has stated in the affidavit filed in support of the petition before the lower Court that he had purchased 52 cents of land in the suit property from the first defendant on 2.12.1996 and the remaining 21 cents was purchased by one Mariappan under the sale deed dated 3.5.2001. He claims that the suit property originally belonged to one Muppudathi Thevar who had purchased the same under the sale deed dated 26.3.1909. Subsequently, the land was re-surveyed and after the death of Muppudathi Thevar, the first defendant and others, by means of registered partition deed dated 12.3.1984, divided the properties and the first defendant was allotted 18.1/4 cents of land and the remaining lands were allotted to Manisankar, Eswaramoorthy Thevar, Daniel Jaydoss and Ben Thomas, all are sons of Muppudathi Thevar and thus the entire extent of 73 cents was partitioned. The owners of the said extent of 73 cents of land have executed a power of attorney in favour of one Navaneethakrishnan on 23.7.1993 and on the strength of the said power of attorney, he had sold the property to the first respondent and to one Mariappan. He claims that he is in possession and enjoyment of the property purchased by him. He also stated that the said Navaneethakrishnan filed the suit in O.S. No. 128 of 2002 pending on the file of Sub-Court, Tirunelveli based upon a false agreement set up with the help of Chakkravarthy, in which the first respondent is also one of the defendants and the said Navaneethakrishnan as ninth defendant and the said suit is also pending. He also stated that the said Navaneethakrishnan filed the suit in O.S. No. 128 of 2002 pending on the file of Sub-Court, Tirunelveli based upon a false agreement set up with the help of Chakkravarthy, in which the first respondent is also one of the defendants and the said Navaneethakrishnan as ninth defendant and the said suit is also pending. The first respondent also stated that he is contesting the said suit. It is also stated in the said suit about the pendency of this suit, namely O.S. No. 968 of 1984 and only thereafter, he came to know of this suit and therefore, he has filed this petition to implead himself and also one Mariappan as defendants 6 and 7 in the suit. 5. The revision petitioner/plaintiff resisted the said petition by filing counter, wherein he has stated that the first defendant in the suit had no right or title to the suit property and the sale deed in favour of the proposed parties is not valid and they are fraudulent transactions. He also denied the tile claimed through Muppudathi Thevar. The power of attorney in favour of Navaneethakrishnan is also questioned as a fraudulent document and it is stated that this document is created only to fabricate the documents. The plaintiff claims that he is in possession of the suit property and he is not a party to the suit in O.S. No. 128 of 2002 said to have been filed by Navaneethakrishnan. The plaintiff is also not aware of the person Chakkravarthy or the sale in favour of the third parties. 6. The trial Court came to the conclusion that the first respondent is a necessary party to the suit and allowed the petition. But however, his claim in respect of Mariappan to implead him also as a party to the suit was dismissed. Aggrieved by the same, the plaintiff has preferred this civil revision petition. 7. Learned advocate for the revision petitioner would contend that the first respondent/proposed party is neither a necessary party nor proper party to the suit. The plaintiffs suit is for permanent injunction and it is for the plaintiff to prove his possession of the suit property and the defendants are all contesting the suit. 7. Learned advocate for the revision petitioner would contend that the first respondent/proposed party is neither a necessary party nor proper party to the suit. The plaintiffs suit is for permanent injunction and it is for the plaintiff to prove his possession of the suit property and the defendants are all contesting the suit. From the affidavit filed by the first respondent herein to the said I.A., it is made out that the proposed third party had purchased a portion of the suit property in the year 1996 and the other person Mariappan had purchased in the year 2001. The suit had been filed by the plaintiff in the year 1984 and therefore, the purchase of property by third parties is only during the pendency of the suit. Learned advocate for the revision petitioner therefore contends that the purchase is not valid and binding upon the plaintiff and it is also hit by Section 52 of the Transfer of Property Act. 8. Section 52 of the Transfer of Property Act reads as follows: “52. Transfer of property pending suit relating thereto-During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.” 9. Section 52 of the Transfer of Property Act is so clear that during the pendency of the suit, the property cannot be transferred or otherwise dealt with, except by the permission of the Court and that too, on the terms that would be imposed by the Court. Admittedly, the first respondent/third party has not obtained any permission from the Court to purchase the property. 10. It is also pointed out that the first respondent has not even claimed that he is a bona-fide purchaser of the suit property without notice of the pendency of the suit. 11. Admittedly, the first respondent/third party has not obtained any permission from the Court to purchase the property. 10. It is also pointed out that the first respondent has not even claimed that he is a bona-fide purchaser of the suit property without notice of the pendency of the suit. 11. I have also perused the affidavit filed by the first respondent herein in the said I.A. and nowhere he has stated in the affidavit that he is a bona-fide purchaser of the suit property without notice of the pendency of the suit. As such, the purchase made by the first respondent is squarely hit by Section 52 of the Transfer of Property Act. 12. But however, learned advocate for the first respondent would contend that there is no total bar for impleading a purchaser of the property in respect of which the suit is pending and the impleadment of the said party is necessary for proper adjudication of the suit and also to avoid multiplicity of proceedings. In support of the abovesaid contention, he relied upon the case of Ramesh H. Kundanmal v. Municipal Corpn. of Greater Bombay ( 1992 (2) SCC 524 = 1992-2-L.W. 720), wherein, the Apex Court had observed as follows: “The object of Rule 10(2) of Order 1 is not to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objective. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in th e correct solution of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. A clear distinction has been drawn between suits relating to property and those in which the subject matter of litigation is a declaration as regards status or legal character. In the former category, the rule of present interest as distinguished from the commercial interest is required to be shown before a person may be added as a party. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead t o a result which will affect him legally that is by curtailing his legal rights. The rule does not contemplate joining as a defendant a person whose only object is to prosecute his own cause of action.” 13. Learned advocate for the first respondent also relied upon another judgment of the Supreme Court in the case of Savitri Devi v. District Judge, Gorakhpur & Others (1999 (3) L.W. 277), wherein the Supreme Court had observed as follows: “9. Order 1, Rule, 10 C.P.C. enables the Court to add any person as party at any stage of the proceedings if the person whose presence before the Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision in the code.” 14. In the said case reported in 1999 (3) L.W. 277, the Supreme Court further relied upon the case of Surjit Singh and others v. Harbans Singh and others ( 1995 (6) SCC 50 ) and held that the suit was for partition and the Court extracted relevant passage from the said case and in the said case, finally it was held as follows: “The principles of lis pendens are altogether on a different footing. We do not propose to examine their involvement presently. All that is emphasised is that the assignees in the present facts and circumstances had no cause to be impleaded as parties to the suit.” But however, the Apex Court had distinguished the said case in view of the facts in the said case, as the Supreme Court felt that their impleadment as parties was warranted. 15. All that is emphasised is that the assignees in the present facts and circumstances had no cause to be impleaded as parties to the suit.” But however, the Apex Court had distinguished the said case in view of the facts in the said case, as the Supreme Court felt that their impleadment as parties was warranted. 15. In the case of Bibi Zubaida Khatoon v. Nabi Hassan Saheb ( AIR 2004 SC 173 ), the Supreme Court considered both the provisions of Order 1 Rule 10 C.P.C. and also Section 52 of the Transfer of Property Act and ultimately held as follows: “9. It is not disputed that the present petitioner purchased the property during pendency of the suit and without seeking leave of the Court as required by S. 52 of the Transfer of Property Act. The petitioner being a transferee pendente lite without leave of the Court cannot, as of right, seek impleadment as a party in the suits which are long pending since 1983. It is true that when the application for joinder based on transfer pendente lite is made, the transferee should ordinarily be joined as party to enable him to protect his interest. But in instance case, the trial Court has assigned cogent reasons for rejecting such joinder stating that the suit is long pending since 1983 and prima facie the action of the alienation does not appear to be bona fide. The trial Court saw an attempt on the part of the petitioner to complicate and delay the pending suits.” 16. From the abovesaid decisions, it is clear that there is a distinction between the party sought to be impleaded under Order 1 Rule 10(2) C.P.C. as a necessary and proper party on the one hand and the person who has purchased the suit property pending the suit on the other. In the former case, impleadment of the parties depends upon the facts and circumstances of each case. But in the latter case, i.e. purchase of property during the pendency of the suit, it has been uniformly held that such purchasers are not necessary parties to the suit, especially when they are not bona-fide purchasers. 17. In the former case, impleadment of the parties depends upon the facts and circumstances of each case. But in the latter case, i.e. purchase of property during the pendency of the suit, it has been uniformly held that such purchasers are not necessary parties to the suit, especially when they are not bona-fide purchasers. 17. As I have already adverted to, that the first respondent herein nowhere in his affidavit filed before the lower Court has stated that he is a bona-fide purchaser of the suit property, which is also a telling feature against him for non-impleadment as a party to the suit. That apart, the first respondent has also stated that there is some other suit filed by one Navaneethakrishnan in O.S. No. 128 of 2002 in respect of the very same suit property, in which he is a defendant and is also contesting the suit. 18. It is open for the first respondent herein to agitate his right, if any, in the said suit O.S. No. 128 of 2002. As far as this suit (O.S. No. 968 of 1984) is concerned, it is seen that the first respondent had purchased the suit property knowing fully well that the suit is pending and his purchase is subject to the decree that would be passed in the present suit. If the first respondent is not entitled to any right in the said suit, then the same would automatically follow with regard to his right claimed in the present suit. As such, I come to the conclusion that the first respondent is not a necessary and proper party to the suit, as he has purchased a portion of the property during the pendency of the suit, that too without obtaining any permission from the Court. The trial Court has really fallen into error in allowing the said application and the same is liable to be set aside. Accordingly, the impugned order is set aside. 19. In the result, the civil revision petition is allowed. No costs. Consequently, C.M.P. No. 18174 of 2003 is closed.