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2015 DIGILAW 1954 (MAD)

Lilly v. Thamimul Ansari

2015-04-21

PUSHPA SATHYANARAYANA

body2015
Judgment :- The legal representatives of defendants 3 and 4 in the suit have projected the instant Civil Revision Petition seeking to set aside the order dated 27.01.2015 passed by the District Judge, Karaikal, in I.A. No. 3 of 2014 in I.A. No. 159 of 2008 in O.S. No. 20 of 2000 wherein and by which the application moved by first respondent herein under Section 151 CPC to reopen the case, which is posted for arguments, for the purpose of letting oral evidence, was allowed. 2. From the materials available on record, it is seen that suit O.S. No. 20 of 2000 was filed for partition of 1/4th share of the plaintiffs and a counter claim was also filed by the third defendant. The learned Additional District Judge, Pondicherry at Karaikal, passed a preliminary decree on 07.6.2007 declaring that the third defendant is entitled to 3/6 shares on the suit scheduled properties and ordered partition thereof by metes and bounds. Subsequently, the present petitioners filed I.A. No. 159 of 2008 for passing a final decree allotment of the divided portions and separate possession. In the meanwhile, one Tamimul Ansari, who is a third party, filed I.A. No. 218 of 2011 in I.A. No. 159 of 2008 under Order I, Rule 10 CPC to get himself impleaded claiming that he purchased the property from one Ossanna and plaintiffs 1 and 2 on 11.4.2003 for a valuable consideration. The learned District Judge, on consideration of the materials available on record, finding that the petitioner therein, who claims to have purchased the property, is a necessary party to decide the issue, allowed the application by order dated 21.09.2011 impleading him as seventh respondent in I.A. No. 159 of 2009. 3. The newly impleaded seventh respondent in I.A. No. 159 of 2008 / the first respondent herein, filed I.A. No. 3 of 2014 before the Additional District Judge, Karaikal, seeking to reopen the case which is posted for advancing arguments for the purpose of letting in oral evidence. The said application was resisted by the legal representatives of defendants 3 and 4 contending that the claim of the first respondent herein that he is not the party to the preliminary decree, is not legally sustainable. The learned District Judge, by order dated 27.01.2015, allowed the said application permitting the petitioner therein to adduce oral evidence on his side. The said application was resisted by the legal representatives of defendants 3 and 4 contending that the claim of the first respondent herein that he is not the party to the preliminary decree, is not legally sustainable. The learned District Judge, by order dated 27.01.2015, allowed the said application permitting the petitioner therein to adduce oral evidence on his side. Being aggrieved and dissatisfied with the said order, the present Revision Petition has been focused by the legal representatives of the defendants 3 and 4. 4. Heard the learned counsel appearing for the revision petitioners and the learned counsel for the first respondent and perused the records. 5. The only question that has to be decided before this Court is whether there is any perversity or illegality in the order passed by the learned District Judge in I.A. No. 3 of 2014 in allowing the application to reopen the case at the instance of the third party, who got impleaded himself after the passing of preliminary decree. 6. The one and the only contention of the learned counsel appearing for the revision petitioners before this Court is that the original sharers, who are the parties to the suit, transferred the property without the permission of the Court and knowledge of the other parties and according to him, any order passed against the vendors of the first respondent would bind on him and he cannot claim any better right than declared by the preliminary decree. 7. The suit is of the year 2000. It is not in dispute that the first respondent is only a subsequent purchaser and as such, the very sale is hit by doctrine of lis pendens. The first respondent is only bound by the decree passed by his vendor and he cannot claim any independent right. Merely because the first respondent was impleaded in the proceedings, it does not mean that he can challenge the preliminary decree. It is also pertinent to note that the first respondent was impleaded in the case during September 2011. While so, having waited from 2011, the first respondent has filed the application to reopen the case which is posted for arguments, only in the year 2014. Therefore, it is clear that the very application has been filed by the first respondent only to procrastinate the proceedings. While so, having waited from 2011, the first respondent has filed the application to reopen the case which is posted for arguments, only in the year 2014. Therefore, it is clear that the very application has been filed by the first respondent only to procrastinate the proceedings. Further more, the impact of the final decree on the rights of the first respondent, who is the subsequent purchaser pending litigation, is purely a question of law and it requires no evidence and adjudication. If at all the first respondent is aggrieved and wanted to canvas his rights in the proceedings, he could have done so immediately after the impleadment. The first respondent herein, having waited for the completion of proceedings and when the matter is posted for arguments, with an intention to drag on the proceedings, has filed the petition to reopen the case. 8. It is well settled principle that reopening of case cannot be allowed for the sake of mere asking. Such relief should be exercised by the Courts sparingly. As such, the order of the learned District Judge, Karaikal, allowing the petition to reopen the case is arbitrary and per se cannot be sustained as it is not in accordance with the principles of law and the same is liable to be set aside. In view of the above discussion and the settled legal position, the impugned order dated 27.01.2015 passed in I.A. No. 3 of 2014 in I.A. No. 159 of 2008 in O.S. No. 20 of 2000 is set aside and the Civil Revision Petition is allowed but without costs. As a sequel thereto, the connected Miscellaneous Petition is closed.