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2009 DIGILAW 44 (MAD)

V. Ravimenon v. R. Ebinessar & Others

2009-01-06

S.PALANIVELU

body2009
Judgment :- 1. The petitioner is the first defendant in O.S. No.144 of 1999 on the file of the District Munsif at Alandur. The first respondent/Plaintiff has filed the said Suit for permanent injunction against the petitioner and the third respondent herein. Pending trial of the Suit, the first respondent filed an Application in I.A.No.2920 of 2006 under Order 1, Rule 10(ii) of Civil Procedure Code to implead the second respondent herein as the Second Plaintiff in the Suit. 2. In the affidavit filed by the first respondent, it is affirmed that he has sold the suit property in favour of the second respondent on 06.02.2004 and even though the sale was made during the pendency of the Suit, he has to be impleaded in the Suit. 3. The Petition was resisted by the petitioner in his counter by stating that the first respondent is an encroacher of the property belonging to him and the sale in favour of the second respondent is not at all valid and that there is no need to implead him as a party to the Suit. 4. The learned District Munsif, Alandur has allowed the Application by observing that even though the proposed party is a subsequent purchaser, he is a necessary party for deciding the issue and if the Petition is not allowed, it would result in multiplicity of proceedings and that the cause of action still survives. 5. Mr. P. Valliappan, learned counsel for the petitioner would argue that if anybody gets alienation pending trial of the Suit, the alienation is hit by the principles of lis pendens and he need not be made as a party to the suit since the result of the Suit will bind that party also. It is his further contention that the proposed party is neither a proper nor a necessary party and his presence is not at all essential for adjudication of rights of the parties in the Suit. 6. Conversely, Mrs. Anuradha Balaji, learned counsel for respondents I and 2 would contend that as per the settled principles of the Honble Supreme Court, even if a person purchases a property which is the subject matter of the Suit during pendency of the sale, he has necessarily to be impleaded in the Suit for complete adjudication in the case. 7. Conversely, Mrs. Anuradha Balaji, learned counsel for respondents I and 2 would contend that as per the settled principles of the Honble Supreme Court, even if a person purchases a property which is the subject matter of the Suit during pendency of the sale, he has necessarily to be impleaded in the Suit for complete adjudication in the case. 7. The learned counsel for the petitioner in support of his contention would place much reliance upon the decision of the Apex Court in Sanjay Verma v. Manik Roy and others, 2007 (2) CTC 562 (SC) : AIR 2007 SC 1332 , wherein their Lordships have observed that a transferee pendente lite is bound by the decree just as much as he was a party to the Suit. The principle of lis pendens embodied in Section 52 of the T.P. Act being a principle of public policy, no question of good faith or bona fide arises. Their Lordships further proceeded to observe that the mere pendency of a Suit does not prevent one of the parties from dealing with the property constituting the subject-matter of the Suit and that it is a trite law that if a person is not a party to a Suit, the decree does not affect him unless the judgment is in rem and not in personem. 8. The learned counsel for the petitioner also garnered support from two decisions of this Court. In S. Sathyamoorthy and another v. Poojari alias Kaveri and others, 2002 (1) MLJ 814 , this Court has observed that in a Suit for declaration complaining about the acts of the defendants, if the Petition is allowed to implead the proposed parties, it would be introducing a new cause of action and nature of the Suit itself will be changed and hence, it should not be permitted. In another decision reported in E. Somasekaran and another v. Kanchana and others, 2003 (3) MLJ 380 , the learned Judge has observed that in an Application of a third party, a subsequent purchaser from the third defendant, who herself was a subsequent purchaser during lis pendens, is a classical case of how parties drag on the proceedings by transferring the suit property from one hand to another to see that the litigation does not come to an end. It is also held that it is settled law that any alienation subsequent to the filing of the Suit is hit by the doctrine of lis pendens and the subsequent purchasers are aware of the proceedings and they are definitely bound by the decision in the Suit and the proceedings. 9. Summing up his arguments, the learned counsel for the petitioner would submit that it has been the considered opinion of this Court that a person pendente lite need not be impleaded in a Suit, that his impleadment is not at all essential and that nothing need to be decided in his presence. 10. The learned counsel for respondents 1 and 2 cites a Larger Bench decision of the Honble Supreme Court in Savitri Devi v. District Judge, Gorakhpur and others, AIR 1999 SC 976 , in which Their Lordships, while dealing with this subject, referred other judgments of the Honble Supreme Court and reached a conclusion that a person who is a purchaser of the subject matter of the suit during pendency of the same has got to be necessarily impleaded and heard. The following is the operative portion of the judgment: "8....The plea raised by respondents 3 to 5 that they were bona fide transferees for value in good faith may have to be decided before it can be held that the sales in their favour created no interest in the property. The aforesaid questions have to be decided by the Court either in the Suit or in the Application filed by respondents 3 to 5 for impleadment in the Suit. If the Application for impleadment is thrown out without a decision on the aforesaid questions, respondents 3 to 5 will certainly come up with a separate suit to enforce their alleged rights which means multiplicity of proceedings. In such circumstances, it cannot be said that respondents 3 to 5 are neither necessary nor proper parties to the Suit. 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. .10. Avoidance of multiplicity of proceedings is also one of the objects of the said provision in the Code. .10. In Khemchand Shankar Choudhari v. Vishnu Hari Patil, 1983 (1) SCC 18 : AIR 1983 SC 124 , this Court held that a transferee pendente lite of an interest in an immovable property which is the subject-matter of suit is a representative in interest of the party from whom he has acquired that interest and has a right to be impleaded as a party to the proceedings. The Court has taken note of the provisions of Section 52 of the Transfer of Property Act as well as the provisions of Rule 10 of Order 22, C.P.C. The Court said: .".... It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard he has got to be so impleaded and heard..." 11. In the said decision a reference has also been made in Razia Begum v. Anwar Begum, AIR 1958 SC 836, in which it is held that the person concerned must be having a direct interest in the action. While concluding, Their Lordships have made a mention that the impleadment of respondents 3 to 5 as parties to the Suit was warranted. .12. The learned counsel for the petitioner would make an attempt to distinguish the facts in the above said decision by saying that the proposed parties in the above said case are purchasers while the interim injunction was in force in the Suit and hence, the observations in the decisions were made. But the fact remains that the purchase was made during the pendency of the suit and all the principles formulated by the Honble Supreme Court after reference of other decisions are with respect to the circumstance wherein the property was alienated pending the trial of the case. 13. I respectfully follow the decision rendered by the Larger Bench of the Honble Supreme Court in Savitri Devis case cited supra and hold that the impleadment of second respondent in the Suit as Second Plaintiff is essential. It cannot be stated that the cause of action will change. 13. I respectfully follow the decision rendered by the Larger Bench of the Honble Supreme Court in Savitri Devis case cited supra and hold that the impleadment of second respondent in the Suit as Second Plaintiff is essential. It cannot be stated that the cause of action will change. Whatever rights the first respondent was possessing were derived by the second respondent and the cause of action as on the date of sale alone will get introduced in the Plaint and such fact would no way prejudice the rights of the petitioner. 14. In the light of the observations made above, I am of the considered opinion that the second respondents presence is very much necessary for the proceedings and for complete adjudication of rights of parties, since his interest has got direct impact on the facts of the case. There is no circumstance to upset the upshot of the Court below which has to be confirmed and accordingly, it is confirmed. In fine, the Civil Revision Petition is dismissed. There shall be no order as to costs. Consequently, connected Miscellaneous Petition is also dismissed.