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2009 DIGILAW 825 (ORI)

Shuvam Construction Pvt. Ltd. v. Babita Mohanty

2009-10-27

S.C.PARIJA

body2009
ORDER S.C. Parija, J. 1. The order of the Ad hoc Addl. District Judge, Fast Track Court No. II, Bhubaneswar, dated 03,03.2008, passed in C.S. No. 120 of 2003, rejecting the petitioner's application under Order 1 Rule 10(2) read with Section 151 C.P.C., is under challenge in the present writ application. 2. The facts, giving rise to the present writ application is that the plaintiff-opposite party No. 1 filed C.S. No. 120 of 2003 in the court of the Civil Judge (Senior Division), Bhubaneswar, against the defendant-opposite party No. 2, for eviction, recovery of arrear rent and mesne profit. During the pendency of the civil suit, the plaintiff-opposite party No. 1 sold her right, title and interest in the suit property to the present petitioner by registered sale deeds dated 16.06.2004. After the sale of the suit property, as the plaintiff-opposite party No. 1 did not pursue the civil suit in the right earnest and as the present petitioner, being a Us pendens transferee had vital interest in the suit, the petitioner filed an application under Order 1 Rule 10(2) read with Section 151 CPC for being impleaded as plaintiff in the civil suit. The said application was objected to by the defendant-opposite party No. 2, though no objection was raised by the plaintiff-opposite party No. 1. 3. Learned Trial Court taking into consideration the fact that the plaintiff has sold the suit property during the pendency of the civil suit without obtaining permission of the court and as the sale deeds executed in favour of the present petitioner has not been acted upon and that the sale of the suit property in favour of the present petitioner is hit by the doctrine of lis pendens provided under Section 52 of the Transfer of Property Act (in short "T.P. Act"), proceeded to hold that the petitioner is neither a proper party nor a necessary party and accordingly rejected its application for being impleaded as party to the civil suit. 4. Learned Counsel for the petitioner submits that as the petitioner has purchased the suit property from the plaintiff-opposite party No. 1 by registered sale deeds dated 16.06.2004, on payment of valuable consideration, he has a vital interest in the civil suit and therefore he is a proper party to the proceeding. 4. Learned Counsel for the petitioner submits that as the petitioner has purchased the suit property from the plaintiff-opposite party No. 1 by registered sale deeds dated 16.06.2004, on payment of valuable consideration, he has a vital interest in the civil suit and therefore he is a proper party to the proceeding. It is further submitted that the plaintiff having sold the suit property to the present petitioner, the plaintiff is not taking proper steps and not pursuing the civil suit and therefore, the petitioner being the lis pendens transferee having right, title and interest over the suit property, he should have been impleaded as a party to the proceeding, so as to enable him to protect its interest in the suit. It is also submitted that as the plaintiff is a dominus litis of the suit and no objection having been raised by the plaintiff to the application of the present petitioner for being impleaded as a party to the civil suit, the impugned order of rejection is not proper and justified. 5. Learned Counsel for the petitioner, in support of his contention has relied upon a Full Bench decision of this Court in the case of Sri Jagannath Mahaprabhu v. Pravat Chandra Chatterjee and Ors. AIR 1992 Orissa 47 : 1992 (I) OLR 18 (FB), wherein a similar case, while considering the rights of a lis pendens transferee to be impleaded as a party in a pending suit, this Court observed that a transferee pendente lite to the extent he has acquired interest from the defendant, is vitally interested in the litigation, whether the transfer is of the entire interest of the defendant, the latter having no more interest in the property, may not properly defend the suit and may collude with the plaintiff. Order 22, Rule 10(1) CPC enables such a lis pendens transferee to continue the suit with the leave of the court and though there is no bar operating against the transferr or continuing the suit for the benefit of the transferee, Order 22, Rule 10 CPC is an alternative procedure which safeguards against the danger that the original plaintiff being no longer interested in the proceedings might not vigorously prosecute the same or might even collude with the adversary. This Court further observed that though the plaintiff is under no obligation to make a lis pendens transferee a party, the court has discretion in the matter, which must be judicially exercised and an alienee pendente lite would ordinarily be joined as a party, to enable him to protect his interest. This Court proceeded to hold that even if a lis pendens transferee is not a necessary party, when a motion is made by such lis pendens tranferee to be impleaded as a party, the Court may, in exercise of its discretion judicially, add him as a party to prevent multiplicity of suits. Accordingly, this Court held that even if an application is filed under Order 1, Rule 10 CPC, the court should ignore the labelling of such an application and treat the same as one filed under Order 22, Rule 10(1) CPC, if the ingredients thereof are satisfied. 6. Learned Counsel for the petitioner has also relied upon a decision of the Apex Court in the case of Amit Kumar Shaw and Anr. v. Farida Khatoon and Anr. AIR 2005 S.C. 2209 , in support of his contention that the power of a Court to add a party to the proceeding cannot depend solely on the question whether he has interest in the suit property. The question is whether the right of a person may be affected if he is not added as a party. Such right, however, will include necessarily an enforceable legal right. In the said decision, the Supreme Court, while considering the scope of Order 1 Rule 10 CPC and Order 22 Rule 10 CPC, came to find that under Order 22 Rule 10 CPC, no detailed inquiry at the stage of granting leave is contemplated. The court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit by or against the person on whom the interest has devolved by assignment or devolution. The question about the existence and validity of the assignment or devolution can be considered at the final hearing of the proceedings. Hon'ble Court further observed that since under the doctrine of lis pendens a decree passed in the suit, during pendency of which a transfer is made binds the transferee, his application to be brought on record should ordinarily be allowed. Hon'ble Court further observed that since under the doctrine of lis pendens a decree passed in the suit, during pendency of which a transfer is made binds the transferee, his application to be brought on record should ordinarily be allowed. The Hon'ble court proceeded to hold as follows: The doctrine of lis pendens applied only where the lis is pending before a Court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the count has discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, whether the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party; under Order XXII Rule 10 an alienee pendente lite may be joined as a party. As already noticed, the Court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The Court has held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where the transferee pendente lite is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case. 7. Learned Counsel for the petitioner has also relied upon the decision of the Apex Court in the case of Dhanalakshmi and Ors. v. P Mohan and Ors. AIR 2007 SC 1062 : 2007 (II) OLR (SC) 494, where the Supreme Court, while interpreting Section 52 of the T.P. Act and Order 1 Rule 10 CPC, held that a lis pendens purchaser is a necessary and proper party to the suit. 8. v. P Mohan and Ors. AIR 2007 SC 1062 : 2007 (II) OLR (SC) 494, where the Supreme Court, while interpreting Section 52 of the T.P. Act and Order 1 Rule 10 CPC, held that a lis pendens purchaser is a necessary and proper party to the suit. 8. Learned Counsel for the defendant-opposite party No. 2 submits that as the suit property is alleged to have been sold to the present petitioner, during the pendency of the civil suit, without obtaining permission of the Court, the same is hit by the doctrine of lis pendens as provided in Section 52 of the T.P. Act and therefore such a lis pendens transferee is neither a necessary party nor a proper party to the civil suit. It is further submitted that as the alleged sale deed in respect of the suit property, executed by the plaintiff in favour of the petitioner, has not been acted upon, as has been found by the Trial Court, the present petitioner, as a lis pendens purchaser has no right to intervene in the suit. It is also submitted that as the suit filed by the plaintiff-opposite party No. 1 against the defendant is for eviction, recovery of arrear rent and mesne profit, the present petitioner, as a lis pendens transferee cannot be impleaded as a party in the said suit, as the same would expand the scope and change the nature and character of the civil suit. In this regard, learned Counsel has relied upon a decision of this Court in the case of Pravat Kumar Misra and Anr. v. Prafulla Chandra Misra and Anr. AIR 1977 Orissa 183 and a recent Division Bench decision of this Court in the case of Panjum Bibi @ Ramjan Bibi and 7 Ors v. Najma Alim and Anr. 2008 (II) OLR 747 . 9. On an analysis of the principles of law, as discussed above, it is evident that the proposition of law that a lis pendens purchaser is not a necessary party to the suit is not an absolute one and the question depends upon facts and circumstances of each case and the Court in a given case has the discretion to add a pendente lite transferee as a party to the suit for a substantial justice and effectual adjudication of the suit, and also to avoid multiplicity of litigations. As per the provision of Section 52 of the T.P. Act, a transferror pendente lite is treated in the eye of law as a representative-in-interest of the transferee, who shall be bound by the decree that may be passed against the transferror. Therefore a transferee pendente lite has vital interest in the suit property. In a contingency where the transferror after alienating the suit property and having no more any interest, does not properly defend the suit and colludes with the adversaries, the alienee pendente lite may be joined as a party and on motion being made, the Court should exercise its discretion judicially and an alienee should ordinarily be allowed to join the suit as a party to enable him to protect his interest. 10. The power of a Court to add a party to the proceeding may not depend solely on the question whether such party has any interest in the suit property. The court has also to consider whether right of the said person may be affected if he is not added as a party to the suit. As a lis pendens transferee is bound by the final decree that may be passed in the suit, it is only just and proper that he should be brought on record, so as to enable him to protect his right, more so when the transferror has lost any further interest to contest the suit. 11. In the instant case, as the petitioner is admittedly a lis pendens transferee, it has vital interest in the litigation and its apprehension that the plaintiff having sold her interest in the suit property, may not take interest in pursing the civil suit is justified and therefore in the interest of justice and in order to ensure effectual adjudication of the suit and avoid multiplicity of litigation, it is just and proper that the petitioner should be impleaded as a party to the civil suit. 12. Applying the principles of law as discussed above to the facts of the present case, the impugned order rejecting the petitioner's application under Order 1 Rule 10(2) read with Section 151 CPC, for being impleaded as a party to the civil suit is not proper and justified and the same is accordingly quashed. The petitioner is permitted to be impleaded as a party to the civil suit. 13. The petitioner is permitted to be impleaded as a party to the civil suit. 13. The question regarding validity or otherwise of the sale deeds executed by the plaintiff in favour of the present petitioner, in respect of the suit property and the effect of such assignment may be considered by the trial Court at the final hearing of the civil suit, on which no opinion is expressed. 14. The writ application is accordingly allowed.