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2014 DIGILAW 179 (ORI)

Bhagirathi Mahalik v. Markanda Barik

2014-03-19

B.R.SARANGI

body2014
JUDGMENT : Dr. B.R.SARANGI, J. – The defendant-petitioner has filed this writ petition assailing the order dated 24.10.2000 passed by the learned Civil Judge (Junior Division). Bhadrak in O.S.No. 310 of 1992 allowing the application filed by the plaintiffs-opposite parties under Order 1, Rule 10 of the Code of Civil Procedure (in short 'CPC') to add the third parties lis pendens purchases as plaintiff nos. 2 and 3. 2. The short fact of the case is that opposite party No.1 being plaintiff No.1 filed a suit bearing O.S.No. 310 of 1992 in the Court of learned Civil Judge (Junior Division), Bhadrak seeking for permanent injunction simplicitor in respect of suit schedule plot, i.e. M.S.Plot No. 502 measuring an area Ac. 0.53 dec. under M.S.Khata No. 93 situated in mouja Baro under Tihidi Police Station in the district of Balasore. According to the plaintiff-opposite party No.1, he is the rightful owner in respect of the suit land. One Rupa Mahalik was the Choukidar and he was allotted with the case land and on abolition of Choukidary, the land was leased out by the Tahasildar permanently. Subsequently, after the death of Rupa, his son Bhairaba was the rightful owner in respect of the suit property. 3. The defendant-petitioner's case is, that his father was also a Choukidar and he was in possession of the suit schedule property and the suit land was given to him and he is in possession of the land all through. Therefore, the plaintiff No.1 filed the suit for permanent injunction against the defendant. 4. During pendency of the suit, the plaintiff-opposite party No. 1 sold the property to opposite party Nos 2 and 3 in the year 1997. After execution of the sale deed, an application for amendment under Order 6, Rule 17 CPC was filed by the plaintiff-Opp. party No.1 to implead the purchasers of the property as opposite parties 2 and 3 as co-plaintiff but the defendant-petitioner raised objection to such petition. However, the learned trial Court on consideration of the said petition, dismissed the same. 5. Subsequently, opposite party Nos. 2 and 3 being the lis pendens purchasers filed an application under Order 1, Rule 10 CPC to implead them as parties. Learned trial Court allowed the same on the basis of principle of impletion of lis pendens purchasers, which is under challenge in the present writ petition. 6. 5. Subsequently, opposite party Nos. 2 and 3 being the lis pendens purchasers filed an application under Order 1, Rule 10 CPC to implead them as parties. Learned trial Court allowed the same on the basis of principle of impletion of lis pendens purchasers, which is under challenge in the present writ petition. 6. In these factual background of the case in hand, it is to be considered whether lis pendens purchasers can be impleaded as a party in a suit for permanent injunction or riot. 7. For just and proper adjudication of the case in hand, it is beneficial to reproduce Order 1, Rule 10, Order XXII Rule 10 of the Code of Civil Procedure, 1908 and Section 52 of the Transfer of Property Act, 1882 which read as under : "Order 1 Rule 10 - (1) Suit in name of wrong plaintiff - Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted thought a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. (2) Court may strike our or add parties - The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name, of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary In order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. (4) Where defendant added, plaint to be amended - Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant. (5) Subject to the provisions of the [116] Indian Limitation Act, 1877 (15 of 1877), Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons." "Order XXII Rule 10 Procedure in case of assignment before final order in suit– (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. (2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of Sub-rule (1)." Section 52 of the Transfer of Property Act – "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 proceedings 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 any 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 by any law for the time being in force." 8. A combined reading of Order 1, Rule 10, Order XXII Rule 10, CPC and Section 52 of the Transfer of Property Act, can be taken into consideration to determine the status of the lis pendens purchaser for just and proper adjudication of the case in hand. 9. The object of Order 1, Rule 10, CPC is to discourage contests on technical pleas, and to save honest and bona fide claimants from being non-suited. The power to strike out or add parties can be exercised by the Court at any stage of the proceedings. Under this Rule, a person may be added as a party to a suit in the following two cases : (1) when he ought to have been joined as plaintiff or defendant, and is not joined so; or (2) when, without his presence, the questions in the suit cannot be completely decided. 10. The power of a Court to add a party to a 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. 11. The Constitution Bench of the Apex Court in Razia Begum v. Anwar Begum, AIR 1958 SC 886 in a majority view has held that it has been firmly established as a result of judicial decisions that, in order that a person may be added as a party to a suit, he should have a direct interest in the subject matter of the litigation, whether it raises questions relating to moveable or immovable property and that he should not have merely commercial or indirect interest. 12. 12. In Narahari Mohanty v. Ghanashyam Bal, ILR (1963) Cut 841 = AIR 1963 Orissa 186, this Court observed as follows : "Two conditions must, however, be satisfied before a party is considered to be a necessary party. They are : (i) there must be a right to some relief against the party not joined. This means that no decree can be passed without affecting the rights of the absentee-party and (ii) the presence of the absentee-party should be necessary in order to enable the Court as effectually adjudicate upon and settle all questions involved in the suit. This concept includes the idea that no decree should be passed by a Court which would be rendered infructuous or would become ultimately inexecutable. If a case satisfies these tests, then the absentee-party is a necessary party and the suit cannot be effectually and completely adjudicated upon in respect of all questions involved, without that party being impleaded in the suit." 13. In Damodar Mohapatra V. State of Orissa, Vol. 34 (1968) Cut LT 956, the question was examined from another point or view. It was contended therein that the plaintiff being generally dominus litis there was no principle of justice upon which he can be compelled to fight against some other litigant not of his own choice, unless such a person is required by positive rule of law. The expression "all the question involved in the suit" in Order 1, Rule 19(2) C.P.C. was canvassed to be confined only to questions as between the parties to the litigation. This narrow view of the powers conferred on the Court under Order 1, Rule 10(2) was not accepted in that case. It was laid down therein that in a suit relating to property, in order that a person may be added as a party he should have a direct interest as distinguishable from a commercial interest in the subject matter of the litigation. 14. Considering the above proposition of law, this Court in Daitari Prasad Naik and others v. Umakanta Nayak and others, AIR 1971 Orissa 44 has held that a third person, who in a suit for partition of property claims title to property adverse to plaintiff and defendant is a necessary party and is entitled to be impleaded in the suit. 15. Considering the above proposition of law, this Court in Daitari Prasad Naik and others v. Umakanta Nayak and others, AIR 1971 Orissa 44 has held that a third person, who in a suit for partition of property claims title to property adverse to plaintiff and defendant is a necessary party and is entitled to be impleaded in the suit. 15. This Court in Gokul Krushna Badu Mohapatra and others v. Girish Chandra Nayak and others, 1999 (I) OLR 582 has also taken the same view as stated in the foregoing paragraphs. However, in paragraph 4 of the said judgment, this Court has observed as follows : "At this juncture, it is necessary to delineate the scope and ambit of Order 1, Rule 10 of the Code and true purport of the provision. The object of Order 1, Rule 10 is not to change the scope and character of the suit by adding new parties or to enable them to litigate their own independent claims, but simply to help them to avoid litigation which might otherwise become necessary. There may arise cases where the Court feels that in spite of the opposition of the plaintiff, it is necessary to add a person as defendant since in the absence of that person it finds itself helpless and unable to effectively and completely settle the matter in controversy and that its failure to do so will lead to multiplicity of proceedings. The balance has, therefore, to be struck by the Court in each case by making a sound judicial approach and where it fails to do so, there is scope for interference. It is to be noted that the law is well-settled that the plaintiff is the dominus litis and as a result, therefore, no person should be impleaded as a party to the suit whom the plaintiff opposes. But at the same time it cannot be lost sight of that Order 1, Rule 10, Sub-rule (2) is meant to give every person an opportunity of being heard whose rights might be affected by the ultimate decree. But at the same time it cannot be lost sight of that Order 1, Rule 10, Sub-rule (2) is meant to give every person an opportunity of being heard whose rights might be affected by the ultimate decree. A bare reading of Order 1, Rule 10(2) of the Code shows that the Court has power to direct a person to be made a party to the suit if such a person is a necessary party or that the Court feels the necessity of impleading him with a view to adjudicate upon all the questions involved in the suit. The question involved in the suit would mean the questions concerning the parties to the suit and not with the questions concerning third party. In short the Court has to determine if such a person ought to have been joined as party. In other words, Court has to determine whether such a person is a necessary party without whose presence no relief can be granted to the plaintiff or the defendant. In the alternative the Court has to determine whether the presence of any such person was necessary to decide the disputes between the parties to the suit. In other words, it would mean that if a person was a necessary party the Court must order for the addition of that person as party to the suit. In case such a party was only a property party then that party can be added if the Court holds that to decide dispute between the parties, his presence was necessary. The object of the rule is to enable the Court to try and determine, once for all, material questions common to the parties and to third parties and not merely the questions between the parties to the suit. Two tests for determining the question who is a necessary party to a proceeding are firstly, there must be a right to some relief against such party in respect of the matter involved in the proceedings in question and secondly, it should not be possible to pass an effective decree in the absence of such a party. Sub-rule (2) covers two types of cases (a) of a party who ought to have been joined but not joined and is a necessary party, and (b) of a party without whose presence the question involved in the case cannot be completely decided. Sub-rule (2) covers two types of cases (a) of a party who ought to have been joined but not joined and is a necessary party, and (b) of a party without whose presence the question involved in the case cannot be completely decided. The former is called a necessary party and the latter a proper party, Sub-rule (2) of Order 1, Rule 10 therefore, is attracted when the question is covered by one of the above. (See Kanhu Gauda v. D.Kodandi Dora : 60 (1985) CLT 435). The Supreme Court in Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar : AIR 1963 SC 786 observed as follows : "To answer the question raised it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled, it is enough if we state the principle. A necessary party is one without whom no order can be made effectively, a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. A party seeking such a joinder as a proper party will have to prima facie established that such a party has interest in the subject-matter of the litigation and as such should be before the Court. The simple test in such controversy would be as to whether the presence of such a party is appropriate in view of the subject-matter in adjudication. If the answer be in the affirmative, joinder can be permitted. By reason of direct interest in the subject-matter or even by reason of eventual reliefs sought, such a test would be answered. Power being there, it is all a matter of appreciation of the controversy in issue and its possible ramifications. The last limb of Sub-rule (2) of Rule 10 of Order 1 of the Code relates to the party whose "Presence before the Court may be necessary" in order to enable the Court effectually and completely adjudicate upon and settle all the questions involved in the suit. Where the interest in the property is or would be an issue, the contender claiming such an interest in property would be entitled to join as proper parties. Where the interest in the property is or would be an issue, the contender claiming such an interest in property would be entitled to join as proper parties. It is not compulsive under the rule to show always that the presence of the party applying to be joined is necessary for the determination of the questions as between the parties already on the records. The Court is required simply to see, whether the addition is necessary and should not as a general rule apply the principle of dominus litis in favour of the plaintiff as a rule of universal application. The Court must examine the property or otherwise of the merits of the case as reflected and demonstrated in the petition of and it must arrive at a conclusion whether the addition is redundant or legal for effective and final adjudication of the litigation between the parties. The discretion of the Court in directing impletion of a party should be exercised in a reasonable manner so as not to cause inconvenience or embarrassment. Before directing a party to be impleaded, a Court has to be prima facie satisfied about the bona fides of the applicant, the plausibility of his claims and the genuineness of his interest in the litigation." 16. In these backgrounds of the provisions of law under Order 1, Rule 10, CPC, the provisions contained in Section 52 of the Transfer of Property Act now is to be adjudged. Discussing the principles of lis pendens the Privy Council in the case of Gouri Dutt Maharaj v. Sukur Mohammed and others, AIR 1948 PC 147, observed as under : "The broad purpose of Section 52 is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. The applicability of the section cannot depend on matters of proof or the strength or weakness of the case on one side or the other in bona fide proceeding. To apply any such test is to misconceive the object of the enactment and in the view of the Board, the learned Subordinate Judge was in error in this respect in laying stress, as he did, on the fact that the agreement of 8.6.1932, had not been registered." 17. To apply any such test is to misconceive the object of the enactment and in the view of the Board, the learned Subordinate Judge was in error in this respect in laying stress, as he did, on the fact that the agreement of 8.6.1932, had not been registered." 17. In case of Kedar Nath Lal and another v. Ganesh Ram & others, AIR 1970 SC 1717 , the apex Court referred the earlier decision in Samarendra Nath Sinha v. Krishna Kumar Nag, 1967 (2) SCR 18 : AIR 1967 SC 1440 and observed as follows : "The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so it must bind the person driving his right, title and interest from or through him. This principle is well illustrated in Radhamadhub Holder v. Monohar (1887) 15 IA 97 where the facts were almost similar to those in the instant case. It is true that Section 52 strictly speaking does not apply to involuntary alienations such as Court sales but it is well-established that the principle of lis pendens applies to such alienations. (See Nilakant v. Suresh Chandra (1885) 12 IA 171 and Moti Lal v. Karrab-il-Din (1897) 24 IA 170." 18. The aforesaid Section 52 of the Transfer of Property Act again came up for consideration before the apex Court in the case of Rajender Singh and others v. Santa Singh and others AIR 1973 SC 2537 and Their Lordship with approval of the principles laid down in Jayaram Mudaliar v. Ayyaswami and others, 1973 (1) SCR 139 : AIR 1973 SC 569 reiterated : "The doctrine of lis pendens was intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of a Court, in which a dispute on rights or interests in immovable property is pending, by private dealings which may remove the subject-matter of litigation from the ambit of the Court's power to decide a pending dispute of frustrate its decree. Alienees acquiring any immovable property during litigation over it are held to be bound, by an application of the doctrine, by the decree passed in the suit even though they may not have been impleaded in it. Alienees acquiring any immovable property during litigation over it are held to be bound, by an application of the doctrine, by the decree passed in the suit even though they may not have been impleaded in it. The whole object of the doctrine of lis pendens is to subject parties to the litigation as well as others, who seek to acquire rights in immovable property which are the subject matter of litigation, to the power and jurisdiction of the Court so as to prevent the object of a pending action from being defeated." 19. In Amit Kumar Shaw and another v. Farida Khatoon and another, AIR 2005 SC 2209 , the apex Court in paragraph 16 held as follows : "The doctrine of lis pendens applies 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 Court has a discretion to make him a party. But the transferee pendente lite can be added as a 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 later 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." 20. 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." 20. The apex Court in Thomson Press (India) Ltd. v. Nanak Builders and Investors P. Ltd. and others, 2013 (II) OLR (SC) 1, AIR 2013 SC 2389 , has held that the doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a Court in a suit should be binding not only on the litigating parties but on those who derive title pendente lite. The provision of this section does not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parties to a litigation. 21. It is well settled that the doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of the Court in a suit should be binding not only on the litigating parties but on those who derive title pendente lite. The provision of this section does not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parties to a litigation. 22. Having regard to the above proposition of law laid down by this Court as well as the apex Court, and applying the same to the present context, in a suit for permanent injunction, ancillary and corollary the right, title and interest of the parties is to be taken into consideration. Therefore, any transfer of the property during pendency of the proceeding, lis pendens purchasers have a right to be heard in the matter. The opposite parties 2 and 3 having purchased the property from plaintiff-opposite party No. 1 during pendency of the suit, they are to be heard in the matter as their rights will be substantially affected in the event any order at this stage adverse to their interest is passed in the suit itself, thereby, they should be given opportunity to participate in the proceeding by impleading them as parties in order to avoid multiplicity of litigation. 23. 23. For the foregoing reasons, this Court is of the view that the impugned order dated 24.10.2000 passed by the learned Civil Judge (Junior Division), Bhadrak in O.S.No. 310 of 1992 allowing the application filed under Order 1, Rule 10 CPC impleading the opposite parties 2 and 3 as plaintiff Nos. 2 and 3 is in conformity with the provisions of law and accordingly this Court is not inclined to interfere with the same. 24. The writ petition accordingly fails and the same is dismissed. No costs. Petition dismissed.