Research › Search › Judgment

Madhya Pradesh High Court · body

2013 DIGILAW 412 (MP)

Surendra Babu v. Abhay Sharan

2013-03-25

SUJOY PAUL

body2013
JUDGMENT 1. The order dated 3.12.2012 passed in case No.5/2001 (12-A/ 2001) is called in question in this petition filed under Article 227 of the Constitution. By the said order, the application (Annexure P/4) preferred by defendants No.2 to 4/petitioners was rejected. 2. A suit for partition, declaration and permanent injunction was filed. During pendency of the suit, the plaintiff sold his property to Maharaj Singh and Lokendra Singh. A sale-deed was executed in this regard. By filing application, Annexure P/4, the defendants No.2 to 4 prayed that the said persons be impleaded in the suit. It was rejected by the Court below on the ground that plaintiff cannot be compelled to implead anybody as defendant. It is further stated that if any sale has taken place, the said persons are bound by the decree of the Court as per the principle of lis pendens. It is further held by the Court below that matter is pending since 2005 and if the said application is allowed, it will further delay the proceeding. 3. Criticizing the said order, Shri Jain, learned counsel for the petitioners, submits that the Court below has erred in rejecting the said application. He relied on certain judgments in support of his 2 W.P. No.9219/2012 argument. 4. it is opposed by Shri S.B.Mishra, learned Senior counsel for respondent No.2, on the ground that as per Section 52 of the T.P. Act, purchaser pendente lite is bound by the judgment/decree. He relied on AIR 1994 Kerala 122 (K.A. Khader Vs. Rajamma John Madathil and others). 5. Shri Sohanlal Dixit, learned counsel for respondents No.12 to 17 supported the stand of Shri Mishra, learned senior Advocate for respondent No.2. 6. I have heard learned counsel for the parties and perused the record. 7. The singular question to be answered is whether the purchaser pendente lite is a necessary party and whether Court below has erred in rejecting the said application. 8. In the opinion of this Court, the point involved is no more res-integra. In (2005) 6 SCC 733 (Kasturi Vs. Iyyamperumal and others), it was held that a purchaser is a necessary party as he would be affected if he had purchased the property in question. If there is a right to same relief against such party, he should be impleaded as a respondent. In (1992) 2 SCC 524 (Ramesh Hirachand Kundanmal Vs. In (2005) 6 SCC 733 (Kasturi Vs. Iyyamperumal and others), it was held that a purchaser is a necessary party as he would be affected if he had purchased the property in question. If there is a right to same relief against such party, he should be impleaded as a respondent. In (1992) 2 SCC 524 (Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and others), it was held that Court has jurisdiction under Order 1 Rule 10(2) CPC to exercise its discretion having regard to the facts and circumstances of a case. In exercise of this discretion, Court can direct a plaintiff, though dominus litis, to implead a person as a necessary party/defendant. It was held that where the presence of a party is necessary for complete and final decision on the question involved in the proceeding, the addition of party is permissible and such exercise of judicial discretion cannot be said to be without authority of law. In 1992 (1) M.P.J.R. 56 (M.P. Electricity Board, Rajgarh (Bisora) Vs. Rukminibai & Ors.), this Court held that all persons who may be directly or 3 W.P. No.9219/2012 indirectly interested either in the title to the land or for compensation etc. should be given opportunity to appear before the Court and put forth their case. 9. Considering the aforesaid, in my opinion, it will be in the fitness of things if the said application, Annexure P/4, is allowed. The Court below has taken a mechanical view of the matter while opining that the plaintiff is the dominus litis and he cannot be compelled to implead certain defendants. This runs contrary to the judgment of the Apex Court cited above. In this view of the matter, order dated 3.12.2012 cannot be permitted to stand. Consequently, this order is set aside. The application, Annexure P/4, is allowed. The Court below is directed to take further steps from this stage in accordance with law. Petition is allowed.