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2012 DIGILAW 422 (ORI)

Sadhu Charan Biswal v. Bombay Cardio Vascular & Surgical Pvt. Ltd.

2012-09-21

B.K.MISRA

body2012
JUDGMENT B.K. MISRA, J. : The petitioner being aggrieved with the impugned order passed by the learned Civil Judge (Jr. Division), Bhubaneswar in Title Suit No.753 of 2001 dated 17.05.2011 has approached this Court under Articles 226 and 227 of the Constitution of India praying therein to quash the impugned order under Annexure-1 and direct dismissal of the petition filed under Order-1 Rule-10 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as ‘C.P.C.’). 2.The present petitioner as plaintiff instituted Title Suit No.753 of 2001 for declaration of his right, title and interest over the suit land along with confirmation of possession and for permanent injunction impleading the State of Orissa represented through the Special Secretary, General Administration Department, Director of Estates, General Administration Department, Collector, Khurda and Bhubaneswar Development Authority. In the said suit the opposite party No.1 of this writ petition being represented through its Power of Attorney holder filed an application under Order-1 Rule-10 read with Section 151 of the C.P.C. praying therein to be impleaded as a defendant in Title Suit No.753 of 2001 contending therein that the Govt. of Orissa has leased out Ac.3.60 decimals of land i.e., the suit land under Plot No.332/1882 appertaining to Khata No.619 in Unit No.41, Chandrasekharpur, Bhubaneswar which stand recorded in the name of General Administration Department, Govt. Orissa, on payment of premium of Rs.90,00,000/- and execution of a Registered Lease Deed. It is the further case of the intervenor petitioner that the suit land has been mutated and the record of right has also been prepared in his name and he is paying land revenue to the Tahasildar, Bhubaneswar and therefore he has valid right and substantial interest over the land in question and the suit which has been filed by the plaintiff be heard in his presence which would help the Court in proper adjudication of the case. It is also alleged that the plaintiff deliberately and intentionally did not array him as a party i.e. defendant though he is a necessary party. It is also alleged that the plaintiff deliberately and intentionally did not array him as a party i.e. defendant though he is a necessary party. 3.The prayer of the intervenor petitioner was opposed tooth and nail by the plaintiff on the ground that the allegation that the plaintiff intentionally and with ulterior motive did not implead the intervenor as a party in the suit can hardly be tenable and accepted as admittedly, the intervenor was leased out Ac.3.60 decimals of land pertaining to revenue Plot No.332/1882 under Khata No.619 in Mouza-Chandrasekharpur only in November, 2006 i.e. much after filing of the suit by the plaintiff in the year 2006. It is also the case of the plaintiff that when in the suit the plaintiff has raised the plea of deemed tenancy, for deciding that fact the presence of the intervenor is not necessary and it cannot be construed that the intervenor is a proper or necessary party and therefore the provision of Order-1 Rule 10 of the C.P.C. is neither applicable nor Section 151 of the C.P.C. can come to the aid of the intervenor. 4.It is the further case of the plaintiff that when the State is participating in the hearing of the suit, it cannot be said that the defendants are careless or negligent in pursuing the litigation and the Court cannot invoke the discretionary power under Order-22 Rule-10 of the C.P.C. Accordingly, it was prayed that the Order-1 Rule-10 petition of the intervenor is thoroughly misconceived and filed under misconception of law and therefore should be dismissed. 5.Learned Civil Judge (Jr. Divn.), Bhubaneswar after hearing the learned counsel for the respective parties, by the impugned order allowed the prayer of the intervenor petitioner under Order 1 Rule 10 read with Section 151 of the C.P.C. on the ground that the intervenor petitioner has interest over the suit property as he has purchased the property by paying huge sum of money and the suit property has already been recorded in his name. This impugned order at Annexure-1 is under challenge in this writ petition. This impugned order at Annexure-1 is under challenge in this writ petition. Admittedly the said order was challenged in FAO No.30/72 of 2006-2007 and the learned Additional District Judge, Bhubaneswar disposed of the said FAO by remanding the matter to the trial Court for disposal of application which was pending under Order 7 Rule 11 of the C.P.C. and thereafter to dispose of the application filed by the petitioner under Order 39 Rule 1 of the C.P.C. The said order of the learned Additional District Judge, Bhubaneswar was challenged in a writ petition which was registered as W.P.(C) No.19039 of 2010 and this Court while setting aside the impugned order passed by the learned Additional District Judge, Bhubaneswar in FAO No.30/72 of 2006-2007 directed for re-hearing of the said appeal afresh. Admittedly, the said FAO has not yet been disposed of as contended by the learned counsel for the respective parties. 6.Mr. R.C. Sarangi, learned counsel appearing for the petitioner while challenging the impugned order at Annexure-1 contended that by allowing the prayer of the intervenor under Order 1 Rule 10 of the C.P.C., the learned trial Court has committed gross jurisdictional error and therefore, this Court should interfere on the basis that the intervenor has no legal right to pray for impletion on the basis of the so-called document, i.e. allotment of land measuring Ac.3.60 decimals of land appertaining to revenue Plot No.332/1882 under Khata No.619 in Mouza - Chandrasekharpur and the subsequent action in mutating the land and obtaining the record of right as those transactions are absolutely in flagrant violation of the restraint order passed in Civil Suit No.753 of 2001 which was filed by the present petitioner as plaintiff impleading the State of Orissa as defendant No.1, Director of Estates, General Administration Department and Collector, Khurda as defendant Nos.2 & 3. It was also contended that on the prayer of the plaintiff petitioner in Misc. Case No.632 of 2001 arising out of Title Suit No.753 of 2001 the learned Trial Court had directed maintenance of status quo over the suit land by both parties and not to change the nature and character of the suit land in any manner till disposal of the suit. 7.Mr. Case No.632 of 2001 arising out of Title Suit No.753 of 2001 the learned Trial Court had directed maintenance of status quo over the suit land by both parties and not to change the nature and character of the suit land in any manner till disposal of the suit. 7.Mr. Sarangi, learned counsel appearing for the petitioner very strenuously further urged that the plea of the intervenor that he is a bonafide lessee and he did not know about the pendency of the litigations over the suit land are blatant and brazen lies as the intervenor petitioner was well aware of the litigations pending over the suit land as his very document i.e. his trumpt card Annexure-A/1 starts with the paragraph “that Ac.3.60 decimals of land pertaining to revenue Plot No.332/1882 under Khata No.619 in Mouza-Chandrasekharpur, Bhubaneswar was allotted in favour of Dr. R.K. Panda for establishment of Asian Hospital and Research Centre at Bhubaneswar subject to final out come of the Civil Suit and FAO No.30/72 of 2006-2007 which were then pending in different civil Courts”. According to Mr. Sarangi, when despite the order of status quo which was within the knowledge of the State Government and when the intervenor himself was aware of such an interim order managed to create papers including Annexure-A/1 in violation of Courts order, he cannot be allowed to take any advantage by committing breach of an interim order, the Court has a duty to see that the orders are respected by the parties and directions are complied with and pendente lite transactions are not to be regularized and encouraged during pendency of the litigations. If any leniency or indulgence is shown in favour of the persons who violated the Courts order there will be an end of rule of law. Accordingly, it is contended by Mr. Sarangi that the intervenor petitioner who is a lis pendence purchaser by no stretch of imagination can be called a necessary party or a proper party in a declaratory suit for title as his presence is not at all required for arriving at a just decision of the case. Mr. Sarangi in support of his contentions placed reliance on several decisions of the Apex Court as reported in AIR 1996 S.C. 135 , Surjit Singh and others v. Harbans Singh and others etc., 2010 (II) CLR (S.C.) 103, Manohar Lal (D) by Lrs. v. Ugrasen (D) Lrs. Mr. Sarangi in support of his contentions placed reliance on several decisions of the Apex Court as reported in AIR 1996 S.C. 135 , Surjit Singh and others v. Harbans Singh and others etc., 2010 (II) CLR (S.C.) 103, Manohar Lal (D) by Lrs. v. Ugrasen (D) Lrs. and others, AIR 1999 S.C. 976 , Savitri Devi v. District Judge, Gorakhpur and others, AIR 2010 S.C. 3109 , Mumbai International Airport Pvt. Ltd., v. Regency Convention Centre and Hotels Pvt. Ltd., and others, 1996 Supreme Appeals Reporter (S.C.) 916, Sarvinder Singh v. Dalip Singh and others, 2007 (1) Civil Court Cases 401 (S.C.) Sanjay Verma v. Manik Roy and others, 2007 (1) Civil Court Cases 813 (S.C.), Sunil Gupta v. Kiran Girhotra and others, 2010 (II) CLR (S.C.) 1071, Har Narain (Dead) by LRs. v. Mam Chand (Dead) by LRs. and others, AIR 2005 S.C. 2209 , Amit Kumar Shaw and another v. Farida Khatoon and another. Besides the aforesaid decisions of the Apex Court reliance was also placed by the petitioner in the decisions rendered by this Court reported in 1992 (I) OLR 17, Sri Jagannath Mahaprabhu, represented by Marfatdar Jagannath Ballav Trustee Board through Executive Officer v. Pravat Chandra Chaterjee and others and 1993 (II) OLR 102; Rabindra Mohapatra and others v. Souri Prasad Malla and others. Accordingly, by placing reliance on the aforesaid decisions of the Apex Court and this Court Mr. Sarangi concluded his arguments by stating that on the assumption that a person is likely to secure a right/interest over a suit property after the suit is decided against the plaintiff will not make such person a necessary party or a proper party to the suit. 8.Mr. Subir Palit, learned counsel appearing for the opposite party No.1 while refuting the submissions of Mr. Sarangi, learned counsel appearing for the petitioner contended that the suit was filed by the present petitioner as plaintiff claiming title to the property on the strength of a “Hata Patta” which is nothing but a document fraudulently created and therefore according to the settled position of law fraud creates no equity and the Plaintiff’s suit is liable for dismissal and the interim order passed in Misc. Case No.632 of 2001 arising out of Title Suit No.753 of 2001 has no legal sanctity. Case No.632 of 2001 arising out of Title Suit No.753 of 2001 has no legal sanctity. On the other hand, the intervenor petitioner when has acquired valid title and interest over the suit property after taking out the said property on lease on the strength of the registered lease deed executed by the State Government in General Administration Department and when the State has been set ex parte in the original suit and the suit has not proceeded since 2001 the intervenor petitioner has every legal right to protect his interest over the suit property. By impleading the petitioner the Court would be in a better position to adjudicate the dispute effectively and multiplicity of litigation can also be avoided. It was also contended that in view of the guidelines laid down by the Apex Court in Surya Devi Rai v. Rama Chandra Rai, AIR 2003 S.C. 3044 , the impugned order at Annexure-1 does not merit any interference by this Court in exercise of the extra-ordinary power in the writ jurisdiction as there is nothing on record to show about the jurisdictional error or any error apparent on the face of the record to have been committed by the learned Civil Judge (Jr. Divn.), Bhubaneswar. Several citations were relied upon by the opposite party No.1 while buttressing the contentions, namely, AIR 1955 S.C. 328 , Sita Maharani v. Cheddi Mahto, AIR 1964 Patna 1 (FB) Ramanath Mandal v. Jojan Manda, 1995 (Suppl.3) SCC 249, State of Orissa v. Brundaban Sharma, 2009 (12) SCC 378 = AIR 2009 S.C. 2991 , *State of Orissa v. Harapriya Bisoi, 2010 (I) OLR 97 , Shuvam v. Smt. Babita, 2007(2) OLR 493 Shehalata Parija v. Gour, AIR 2007 S.C. 1062 , *Dhanalaxmi and others v. P. Mohan, (2010) 10 SC 408, State of Assam v. Union of India. 9.Mr. Sidhartha Mishra, learned Additional Government Advocate appearing for the opposite party Nos.2 to 5 and Mr. Sibananda Mohanty, learned counsel appearing for opposite party No.6 contended that the impugned order does not call for any interference by this Court when the learned trial Court did not commit any irregularity in allowing the prayer of the intervenor petitioner and such exercise of judicial discretion shall not be interfered with by this Court in a certiorari proceeding under Article 227 of the Constitution of India. 10.I have given my anxious hearing to the matter and also perused the plethora decisions cited at the Bar. Similarly, I have perused the impugned order. The only question that is required to be answered is as to whether the opposite party No.1 being a pendente lite purchaser has any locus standi to be impleaded as a party defendant in Title Suit No.753 of 2001. 11.Before proceeding to the matter in detail, let us examine the provisions of Section 52 of the Transfer of Property Act. “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 proceeding 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 the decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. Explanation- For the purpose of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof to any law for the time being in force.” 12.It is the settled legal position that the effect of Section 52 of the Transfer of Property Act is not to render transfers affected during pendency of a suit by a party to the suit void but only to render such transfers subservient to the rights of the parties to such suit, as may be, eventually determined in the suit. In other words, the transfer remains valid subject of course to the result of the suit. In other words, the transfer remains valid subject of course to the result of the suit. The pendente lite purchaser would be entitled to or suffer the same legal rights and obligations of his vendor as may be eventually determined by the Court. (2012 (2) O.J.R. 255 (S.C.), A. Nawab John and others v. V.N. Subramaniyam. 13.The Apex Court in Smt. Saila Bala Dassi v. Nirmala Sundari Dassi and another, AIR 1958 S.C. 394 held that “justice requires”, a pendente lite purchaser should be given an opportunity to protect his rights. 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. In Nawab John’s case (supra) their Lordships of the Apex Court have taken into consideration the various decisions of the Apex Court while deciding the question whether pendente lite purchaser is entitled to be impleaded as a party to the suit. Their Lordships after examining the various judicial pronouncement of the Apex Court have categorically held that the preponderance of opinion of the Apex Court is that a pendente lite purchaser’s application for impleadment should normally be allowed or considered liberally. 14.In a decision as reported in (2005) 11 SCC 403 , the Apex Court has held that :- “Further pending the suit, the transferee is not entitled as of right to be made a party to 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 si 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, where 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 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. 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 his predecessor-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case.” 15.In the instant case, the intervenor petitioner was granted permanent lease of an area Ac.3.60 decimals of land pertaining to revenue Plot No.332/1882 under Khata No.619 in Mouza-Chandrasekharpur, Bhubaneswar in the year, 2006 for establishment of Asian Hospital and Research Centre at Bhubaneswar subject to final out come of the Civil Suits and FAO No.30/72 of 2006 pending in different Civil Courts. After getting the lease of the land the same was mutated in the name of the intervenor petitioner as well as the record of right has also been prepared in the name of the purchaser Dr. R.K. Panda, Managing Director of Bombay Cardiovascular Surgical Pvt. Ltd., who is the present opposite party No.1 in this writ petition and was also intervenor petitioner in the Court below. Without going into the merits of the cases of the parties and whether the transfer of the property to opposite party No.1 that is the intervenor petitioner is valid or invalid at this stage for deciding the propriety of the impugned order (Annexure-1), suffice is to say that the intervenor petitioner being a pendente lite purchaser is entitled to be heard in the matter on the merits of the case and is entitled to be impleaded in the suit or other proceeding where his predecessor in interest is made a party to the litigation. Order 1, Rule 10 C.P.C. enables the Court to add any person as a party at any stage of the proceedings if his 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 proceedings is also one of the object of the said provision in the Code. Avoidance of multiplicity proceedings is also one of the object of the said provision in the Code. The plea raised by the present opposite party No.1 that he was a bonafide transferee for value in good faith is a question to be decided by the Court. If the application for impleadment is thrown out without a decision on the said question it may be that the opposite party No.1 may come up with a separate suit to enforce his right which means multiplicity of proceedings and therefore it cannot be said that the opposite party No.1 is neither necessary nor proper party to the suit in question. 16.I do not find anything wrong in the approach of the learned trial Court by allowing the prayer of the intervenor petitioner by the impugned order at Annexure-1. The present petitioner, in my humble view, does not suffer from any prejudice and his rights are in no way would be affected when the opposite party No.1 would be impleaded as a party defendant in Title Suit No.753 of 2001. I find the impugned order Annexure-1 is a speaking order and it cannot be said that such order has been passed in flagrant violation of the principles of law or rule of procedure or there has been gross jurisdictional error. When the impugned order shows that the prayer of the intervenor petitioner was allowed by the learned Court below not only in the best interest of justice but also to avoid multiplicity of proceeding, I am not inclined to interfere with the same. Accordingly, the writ petition stands dismissed. No costs. Petition dismissed.