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2010 DIGILAW 3322 (MAD)

C. Valliappan v. C. Sundaram

2010-08-03

K.MOHAN RAM

body2010
Judgment :- 1. The Defendant in O.S. No. 273 of 2004 on the file of the Additional Sub-Court, Salem, is the Petitioner in the above C.R.P. 2. The First Respondent herein has filed O.S. No. 273 of 2004 against the Petitioner herein for the following reliefs: a. Declaring that the Suit ‘A’ schedule property is a common cart track; b. Granting permanent injunction to restrain the Defendant and his men from interfering with the plaintiff’s peaceful possession and enjoyment of the Suit ‘A’ schedule property; c. Granting permanent injunction to restrain the Defendants and his men from interfering with the Plaintiff’s peaceful possession and enjoyment of the Suit ‘B’ schedule property. d. Granting permanent injunction to restrain the Defendant and his men from interfering with the Plaintiff’s peaceful user and enjoyment of ingress and egress of vehicles, machineries, etc. through the Suit ‘C’ schedule property and thereafter through Suit ‘A’ schedule property. e. Granting permanent injunction to restrain the Defendant and his men from interfering with the Plaintiff’s peaceful possession and enjoyment of the common well situated in the eastern side of the Defendant’s property in S. No. 136/1A along with the pipeline, water, electricity pump and electricity service connection for irrigating the coconut trees in the Suit ‘B’ schedule property. f. Directing the Defendant by means of mandatory injunction to lay a new 15 wide cart immediately north of the HT electricity meter board room and link the same to the existing common cart track (Suit ‘A’ schedule property) within a time specified by the Hon’ble Court and on his failure to comply with the order to pass a mandatory injunction directing the demolishment of the HT electricity meter board room; g. Directing the Defendant by means of mandatory injunction to remove the thatched structure (Suit ‘D’ schedule property); and h. Directing the Defendant by means of mandatory injunction to restore the gate at the eastern side of Suit ‘A’ schedule property. 3. Pending the Suit, the Respondents 2 and 3 filed I.A. No. 571 of 2008 under Order 1 Rule 10, r/W Section 151, C.P.C. to implead them as Plaintiffs 2 and 3 in the Suit. 4. 3. Pending the Suit, the Respondents 2 and 3 filed I.A. No. 571 of 2008 under Order 1 Rule 10, r/W Section 151, C.P.C. to implead them as Plaintiffs 2 and 3 in the Suit. 4. In the Affidavit filed in support of the Petition, it is averred as follows: a. The Respondents 2 and 3 have purchased the suit schedule properties and other properties under a Sale Deed, dated 24.7.2008 for a valid consideration from the Plaintiff/First Respondent herein and his wife J. Mangayarkarasi. The vendors have delivered the vacant possession of the properties to them. After taking possession, they are in enjoyment of the same. b. It is further averred that after taking possession they have altered the existing watchman’s shed in the suit schedule property and on 5.11.2000 when the Second Respondent went to suit property the Defendant’s manager came there and informed him that there is a Suit pending before the Court in respect of part of the properties purchased by the Respondents 2 and 3. But the Plaintiff and his wife did not inform about the pendency of the Suit at the time of negotiations and execution of the Sale Deed. After ascertaining the facts from the Plaintiff, the Petitioner have filed the present petition. c. It is the case of the Respondents 2 and 3 that, they are the bona fide purchasers of the suit properties and are the present owners of the suit properties and as such their interest has to be protected and therefore they are necessary and proper parties to the Suit. 5. The Plaintiff filed a Counter contending that he had informed the Respondents 2 and 3 about the pendency of the Suit at the time of negotiations. It is admitted that he furnished the Suit number and Suit hearing date and informed the Respondents 2 and 3 about the granting of injunction by the Court. The sale by the Plaintiff to the Respondents 2 and 3 is admitted. The Petition was not opposed by the Plaintiff. 6. The Defendant/Petitioner herein filed a separate Counter, inter alia contending as follows: a. The Respondents 2 and 3 have no locus standi to file the Petition. The Respondents 2 and 3 are not in possession of the suit properties. The Petition was not opposed by the Plaintiff. 6. The Defendant/Petitioner herein filed a separate Counter, inter alia contending as follows: a. The Respondents 2 and 3 have no locus standi to file the Petition. The Respondents 2 and 3 are not in possession of the suit properties. The Respondents 2 and 3 are fully aware of the Suit and there is no valid cause or reasons for impleading the Respondents 2 and 3 as plaintiffs. 7. The Court below on a consideration of the rival contentions allowed the Petition and being aggrieved by that the Defendant in the Suit before this Court. 8. Heard both. 9. Mr. R. Parthasarathy, the learned Counsel for the Petitioner submitted that the Respondents 2 and 3 were specifically informed about the pendency of the present Suit and there is an interim order in favour of the First Respondent. The Respondents 2 and 3 fully knew about the pendency of the present Suit between the Petitioner and the First Respondent and have purchased the property, which is under litigation and hence, they cannot claim to be the bona fide purchasers for value. The learned Counsel further submitted that since the Respondents 2 and 3 purchased the suit property pendente lite, any judgment and decree passed in the Suit is binding upon the Respondents 2 and 3. The learned Counsel submitted that the reasons assigned by the Court below for impleading the Respondents 2 and 3 as Plaintiffs are unsustainable. 10. The learned Counsel based reliance on the decision reported in R.R. Square, by Partner, Ramachand Rao v. Mrs. Shobalatha Debi, 1997 (2) LW 691 . In the said decision, in paragraphs 12 and 19, it has been laid down as under: “12 the principle for impleading a third party to a proceeding is a avoidance of multiplicity of proceedings and hence the Court has no jurisdiction to add a party, unless it is a necessary or proper party. A necessary party is one without whom no order can be made effectively and a proper party is one whose presence is necessary for a complete and final decision on the questions involved in the proceedings. If the question at issue can be worked out without any one being brought in, a stranger, should not be added to the litigation. A necessary party is one without whom no order can be made effectively and a proper party is one whose presence is necessary for a complete and final decision on the questions involved in the proceedings. If the question at issue can be worked out without any one being brought in, a stranger, should not be added to the litigation. The eventual interest of the party in the fruits of the litigation cannot be held to be a true test of impleading the parties according to the Code of Civil Procedure.” “19 This is a case where the subsequent agreement holder does not want to be made a party. He is willing to take the risk and as observed by the Bench in O.S.A. Nos. 57 and 58/95 any alienation subsequent to the filing of the Suit is hit by the Doctrine of lis pendens. The so-called subsequent purchaser is aware of the proceedings and he is definitely bound by the decision in the Suit. And again, if parties come to Court seeking for impleading one after another during the course of the proceedings, it will be next to impossible to keep on adding the parties and in such event the Suit can never come to end.” 11. The learned Counsel also relied upon the decision reported in Firm of Mahadeva Rice and Oil Mills and others v. Chennimalai Gounder, 1967 (80) LW 479 : AIR 1968 Mad. 287 . In the said decision, the following principles have been laid down for being applied while considering the Application filed under Order 1 rule 10, C.P.C. “If the cardinal test, namely, for a final adjudication of the “real controversy” such addition is necessary, is not satisfied, then it cannot be said with any reasonable certainty that the proposed party. 287 . In the said decision, the following principles have been laid down for being applied while considering the Application filed under Order 1 rule 10, C.P.C. “If the cardinal test, namely, for a final adjudication of the “real controversy” such addition is necessary, is not satisfied, then it cannot be said with any reasonable certainty that the proposed party. I am of the opinion that the following tests many be formulated usefully as a guidance in the case of adding of parties under Order 1 Rule 10, Civil.P.C (1) If, for the adjudication of the “real controversy” between the parties on record, the presence of a third party is necessary, then he can be impleaded; (2) It is imperative to note that by such impleading of the proposed party, all controversies arising in the Suit and all issuer arising there under my be finally determined and set at rest, thereby avoiding multiplicity of suits over a subject-matter which could still have been decided in the pending Suit itself; (3) The proposed party has a defined, subsisting, direct and substantive interest in the litigation, which interest is either legal or equitable and which right is cognizable in law; (4) Meticulous care should be taken to avoid the adding of a party if it is intended merely as a ruse to ventilate certain other grievances of one or the other of the parties on record which is neither necessary or expedient to be considered by the Court in the pending litigation; and (5) It should always be remembered that considerable prejudice would be caused to the opposite party when irrelevant matters are allowed to be considered by Courts by adding a new party whose interest has no nexus to the subject-matter of the Suit.” 12. The learned Counsel also relied upon the decision of the Apex Court reported in Sarvinder Singh v. Dalip Singh and others, 1996 (5) SCC 539 In the said decision, the following principles have been laid down, but ultimately, in that case, the purchaser pendente lite was not impleaded as a party: “5. Having regard to the respective contentions, the question that arises for consideration is whether the Respondent art’ necessary or proper parties to the Suit? Having regard to the respective contentions, the question that arises for consideration is whether the Respondent art’ necessary or proper parties to the Suit? It cannot, be disputed that the foundation for the exclusive right, title and interest in the property, the subject matter of the Suit, is founded upon the registered Will executed by Hira Devi, the mother of the Appellant as on 26.5.1952. The Trial Court noted that in a Suit filed on a previous occasion by the Appellant, the Will was propounded as basis for an exclusive right, title and interest in the said property. He impleaded Rajender Kaur, one of the daughters of Hira Devi, to the Suit along with two other sisters and the Suit came to be decreed by the Trial Court on 29.3.1974. The decree became final. In view of those facts, the necessary conclusion that can be deducted is that the foundation for the relief of declaration in the second Suit is the registered Will executed by Hira Devi in favour of the Appellant. On 26.5.1952. The Respondents indisputably cannot challenge the legality or the validity of the Will executed and legally available or tenable grounds, those grounds are not available to the Respondents. Under those circumstances, the Respondents cannot, by any stretch of imagination, be said to be either necessary or proper parties to the Suit. A necessary party is one whose presence is absolutely necessary and without whose presence the issue cannot effectually and completely be adjudicated upon and decided between the parties. A proper party is one whose presence would be necessary and effectually and completely adjudicate upon the disputes. In either case the Respondents cannot be said to be either necessary or proper parties to the Suit in which the primary relief was found on the basis of the registered Will executed by the Appellants mother, Smt Hira Devi. Moreover, admittedly the Respondents claimed right, title and interest pursuant to the registered Sale Deeds said to have been executed by the Defendants-heirs of Rajender Kaur on 2.12.1991 and 12.12 1991 pending Suit.” 13. Countering the said submissions, Mr. Moreover, admittedly the Respondents claimed right, title and interest pursuant to the registered Sale Deeds said to have been executed by the Defendants-heirs of Rajender Kaur on 2.12.1991 and 12.12 1991 pending Suit.” 13. Countering the said submissions, Mr. S. Parthasarathy, learned Senior Counsel appearing on behalf of the Respondents 2 and 3 submitted that the Plaintiff in the Suit, namely, the First Respondent herein having sold his entire interest in the suit property to the Respondents 2 and 3 will not have any interest in further prosecuting the Suit. If the relief as claimed in the Suit is granted, it will, enable the Respondents 2 and 3, as owners of the suit properties, to enjoy the suit properties conveniently and the access to the suit properties will be available. Therefore, the reliefs claimed in the Suit, are meant for convenient enjoyment of the suit properties. If the Plaintiff/First Respondent being the brother of the Petitioner herein colludes with be caused to the Respondents 2 and 3 herein. The Respondents 2 and 3 herein, being the purchasers of the suit properties pending the Suit, have got a vital interest in prosecuting the Suit to get the reliefs as prayed for in the Suit and therefore, they are proper and necessary parties to the Suit. In their absence, the Suit cannot be completely and effectively adjudicated. The reasons assigned by the Court below cannot be assailed. 14. The learned Senior Counsel further submitted that the right of the Respondents 2 and 3 in the suit property is substantial and not peripheral. In support of his contentions, the learned Senior Counsel relied upon the decision of the Apex Court reported in Salia Bala Dassi v. Nirmala Sundari Dassi and another, AIR 1958 SC 394 . a. In the said decision, in paragraphs 7, 8 and 9, it has been laid down as under: “7. ….. In support of his contentions, the learned Senior Counsel relied upon the decision of the Apex Court reported in Salia Bala Dassi v. Nirmala Sundari Dassi and another, AIR 1958 SC 394 . a. In the said decision, in paragraphs 7, 8 and 9, it has been laid down as under: “7. ….. It would follow from the above authorities that whoever is entitled to be but has not been brought on record under Order 22, Rule 10 in a pending Suit or proceeding would be entitled to prefer an Appeal against the decree or order passed therein if his assignor could have filed such an Appeal, there being no prohibition against it in the code and that accordingly the Appellant as an assignee of the Second Respondent of the mortgaged properties would have been entitled to prefer an Appeal against the judgment of P.B. Mukharji, J.” “8. ….. The right to file an Appeal must, therefore, be held to carry with it the right to continue an Appeal which had been filed by the person under whom the applicant claims, and the Petition of the Appellant to be brought on record as an Appellant in Appeal No. 152 of 1955 must be held to be maintainable under Section 146.” “9. …… As a purchaser pendente lite she will be bound by the proceedings taken by the First Respondents in execution of her decree, and justice requires that she would be given an opportunity to protest her rights.” 15. The learned Senior Counsel also relied upon the decision of the Apex Court reported in Amrit Kumar Shaw and another v. Farida Kahtoon and another, AIR 2005 SC 2209 . The Apex Court, in paragraphs 16, has laid down as under: “16. The Doctrine of lis pendens applies only where the lis is pending before a Court. Further pending the Suit, though the Court has a 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. 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 22, rule 10, an alienee pendente lite may be joined as party. As already noticed, the Court has direction 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.” 16. I have considered the aforesaid submissions made by the respective Counsel and perused the materials available on record. 17. It is not in dispute that the Respondents 2 and 3 have purchased the suit properties and other properties from the Plaintiff/First Respondent and his wife under a registered Sale Deed dated 21.7.2008 pending the Suit and as such the sale is hit by Section 52 of the Transfer of Property Act and they are bound by a decree that may be passed in the Suit. 18. The question that arises for consideration in the above C.R.P. is as to whether the Respondents 2 and 3 are proper and necessary parties to be impleaded as co – plaintiffs in the Suit. 19. The sale in favour of the Respondents 2 and 3 by the Plaintiffs/First Respondents is not disputed by the Defendant/Petitioner. The only objection raised by the Petitioner herein is that the Respondents 2 and 3 being the purchasers pendente lite they are not entitled to be impleaded as co-plaintiffs in the Suit. 20. It is no doubt true that the decision reported in R.R. Square, by Partner, Ramachand Rao v. Mrs. The only objection raised by the Petitioner herein is that the Respondents 2 and 3 being the purchasers pendente lite they are not entitled to be impleaded as co-plaintiffs in the Suit. 20. It is no doubt true that the decision reported in R.R. Square, by Partner, Ramachand Rao v. Mrs. Shabalatha Debi, 1997 (2) LW 691 , cited supra, it has been held that the purchaser pendente lite is not a necessary or proper party to the Suit, but it cannot be said to be good in law in the light of the decision reported in Amit Kumar Shaw and another v. Farida Kahtoon and another, 2005 (4) CTC 47 (SC): AIR 2005 SC 2209 . 21. The facts of the case in Sarvinder Singh v. Dalip Singh and others, 1996 (5) SCC 539 , cited supra, as has been culled out, in paragraph 5 of the said judgment, which has been extracted above, shows that the facts of that case are totally different from the facts of the case on hand. Therefore, the said case is not applicable to the case on hand. 22. In Firm of Mahadeva Rice and Oil Mills and others v. Chennimalai Gounder, 1967 (80) LW 479 : AIR 1968 Mad. 287 , the learned Single Judge while laying down the tests as a guidance in the case of adding parties under defined, subsisting, direct and substantive interest in the litigation, which interest is either legal or equitable and which right is cognizable in law, he can be impleaded. 23. One another test laid down by the learned Judge is as follows: “It is imperative to note that by such impleading of the proposed party, all controversies arising in the Suit and all issues there under my be finally determined and set at rest, thereby avoiding multiplicity if Suits over a subject matter which could still have been decided in the pending Suit , itself.” 24. If the aforesaid principle is applied to the facts the case, it could be seen that the Respondents 2 and 3 have a defined, subsisting, direct and substantive interest in the litigation and therefore, their presence is necessary to finally and effectively adjudicate the Suit and to avoid multiplicity of the Suits. 25. If the aforesaid principle is applied to the facts the case, it could be seen that the Respondents 2 and 3 have a defined, subsisting, direct and substantive interest in the litigation and therefore, their presence is necessary to finally and effectively adjudicate the Suit and to avoid multiplicity of the Suits. 25. In Smt. Saila Bala Dassi v. Smt. Nirmala Sundari Dassi and another, AIR 1958 SC 394 , cited supra, the Apex Court has laid down that whoever is entitled to be but has not been brought, on record under Order 22, Appeal against the decree or order passed therein if his assignor could have filed such an Appeal, there being no prohibition against it in assignor it in the Code. It has been further held that as a purchaser pendente lite, the purchaser will be bound by the proceedings taken by the First Respondent in execution of her decree, and justice requires that the purchaser would be given an opportunity to protest his rights. 26. If the aforesaid principles are applied, then the Respondents 2 and 3 have to be impleaded as co-plaintiffs. 27. The issue that arises for consideration in the above C.R.P. is directly answered in the decision reported in Amit Kumar Shaw and another v. Farida Kahtoon and another, 2005 (4) CTC 47 (SC): AIR 2005 SC 2209 , cited supra. 28. As rightly contended by the learned Senior Counsel, the interest of the Respondents 2 and 3 in the subject-matter of the Suit is substantial and not peripheral. The respondents 2 and 3 being the purchasers of the suit properties pendente lite to the extent they have acquired interest from the Plaintiff are vitally interested in the litigation and the Plaintiff having no more interest in the property may not properly defend the Suit. He may collude with the Defendant. Hence, though the Plaintiff is under no obligation to make a lis pendens transferee a party and under order 22, Rule 10, C.P.C., an alienee pendente lite may be joined as party. 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. Hence, though the Plaintiff is under no obligation to make a lis pendens transferee a party and under order 22, Rule 10, C.P.C., an alienee pendente lite may be joined as party. 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 entitles to be impleaded in the Suit or other proceedings where the transferee pendente lite is made a party to the litigation, he is entitles to be heard in the matter on the merits of the case. 29. Therefore, this Court is of the considered view that the Respondents 2 and 3 being the purchasers of the suit properties from the Plaintiff have got substantive interest in the suit property and they have got an interest in the outcome of the Suit and, therefore, they are proper and necessary parties to be impleaded in the Suit. This Court does not find any jurisdictional error to the order passed by the Court below. For the foregoing reasons, the Revision Petition fails and the same is dismissed. No costs. Connected M.P. is also dismissed.