Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 14 (PAT)

Kailash Prasad v. Shiv Dhani Prasad

2012-01-04

MUNGESHWAR SAHOO

body2012
ORDER Heard the learned counsel for the plaintiff-petitioner and the learned counsel appearing on behalf of respondent no.1 and respondent no.3. 2. This application under Article 227 of the Constitution of India has been filed by the plaintiff praying for setting aside the order dated 20.05.2011 passed by Sub Judge X, Patna in Title Partition Suit No.527 of 2009 whereby the learned court below rejected the application filed by the plaintiff under Order 1 Rule 10 read with Section 151 C.P.C. for adding some of the purchasers as defendant in the suit. 3. The learned senior counsel appearing on behalf of the petitioner submitted that it is settled principles of law that a purchasers during the pendency of the suit should be added as party-defendant to protect the interest but the learned court below on the ground that the subsequent purchasers are not necessary party rejected the application. 4. On the other hand, the learned counsel appearing on behalf of the defendant no.1-respondent no.1 relying upon AIR 2010 Patna 5 (Anita Kuwar and others Vs. Chandra Bhushan Singh and others) submitted that the subsequent purchasers are not the necessary party. 5. The learned counsel appearing on behalf of the respondent no.3 supports the submission of the respondent no.1. 6. So far decision relied upon by the learned counsel for the respondent no.1 is concerned, it appears that it was not a partition suit. In that case also, it has been held that the transferee pendente lite cannot be impleaded as a party in all cases. Therefore, there is no absolute bar that the transferee pendente lite cannot be impleaded in any case. 7. In AIR 2005 Supreme Court 2209 (Amit Kumar Shaw and another Vs. Farida Khatoon and another), the Apex Court held 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. 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. 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. 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.” Therefore, only on the ground of Section 52 of the T.P. Act, the application cannot be rejected. It depends upon the facts of the case. Admittedly, the defendant no.1 who has transferred the property in favour of the purchasers during the pendency of the present partition suit has a share in the property and, therefore, on transfer being made by him title and interest of the defendant no.1 to the extent transferred by him vest on the subsequent transferee. The Apex Court in the aforesaid case held that a transferee pendente lite of a 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 merit of the case. 8. In (2010)7 SCC 417 (Mumbai International Airport Private Limited Vs. Regency Convention Centre and Hotels Private Limited and others), the Apex Court has held that in exercise of the judicial discretion under Order 1 Rule 10 Sub Rule 2 of the Code of Civil Procedure, the Court has to act according to reason and fair play and not according to whims and caprice. The Court has the discretion to either allow or to reject an application of a person claiming to be a proper party depending upon the facts and circumstances of each case. At paragraph 24.1, the Apex Court in that decision held that if a plaintiff makes an application for impleading a person as a defendant on the ground that he is a necessary party, the court may implead him having regard to the provisions of Rules 9 and 10(2) of Order 1. In the present case, admittedly, the plaintiff has filed the application for adding the subsequent purchasers as party-defendant in the suit. In the present case, admittedly, the plaintiff has filed the application for adding the subsequent purchasers as party-defendant in the suit. In the aforesaid decision, the Apex Court has held that plaintiff is the dominus litis and he is the best person to choose against whom he will fight the litigation. 9. Recently, in the case of Gauri Shankar Pathak & Ors. Vs. Dr. Shankaranand Upadhyay and Ors, 2011(2) PLJR 547 , it has been held that court has discretion in the matter of impleading a party under Order 1 Rule 10 C.P.C. which must be judicially exercised and alienee would normally be joined as party to enable him to protect his interest. Here, admittedly, the defendant no.1 has sold the property and, therefore, the purchaser’s right is not peripheral right but after registration of the sale deed, they have acquired a substantive right on the suit property. 10. In view of the above facts and circumstances of the case, in my opinion, the learned Court below should have added the subsequent purchasers as defendant in the suit but rejected the application only on the ground of Section 52 of the T.P. Act. In my opinion, therefore, the learned Court below has not exercised a jurisdiction vested in it by law. 11. Thus, this writ application is allowed and the impugned order is set aside. The subsequent purchasers as prayed for by the plaintiff are added as defendant in the suit.