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2015 DIGILAW 502 (ORI)

Mirza Golam Jelani Baig v. Prabir Kumar Samal

2015-08-26

A.K.RATH

body2015
JUDGMENT : Dr. A.K. Rath, J. Aggrieved by and dissatisfied with the order dated 23.3.2001 passed by the learned Civil Judge (Sr. Divn.), Bhadrak in Original Suit No.36/1970-I vide Annexure-1, the instant application has been filed under Article 227 of the Constitution. By the said order, learned trial court rejected the application filed by the petitioner under Order 1 Rule 10, C.P.C. for impleadment of party. 2. Bereft of unnecessary details the short facts of the case are that Rabinarayan Samal, the father of opposite party nos.1 and 2, laid Original Suit No.36/1970-I in the court of learned Civil Judge (Sr. Divn.), Bhadrak for partition. The preliminary decree was passed in the suit on 6.9.1975 declaring the shares of the plaintiffs and the defendants. Since the parties could not partition the property amicably, final decree proceeding was initiated. In the said proceeding, the present petitioner filed an application under Order 1 Rule 10, C.P.C. to implead him as a party. It is stated that on 29.12.1975, Rabinarayan Samal, plaintiff, executed a registered sale deed of an area of Ac.0.08 dec. out of Ac.0.10 dec. appertaining to Khata No.372, Plot No.3592 of mouza-Barala Pokhari, District-Bhadrak in his favour and delivered possession. After his death, he is in possession of the same and residing in the house constructed over it. By order dated 23.3.2001, learned trial court rejected the petition holding, inter alia, that it is open to the petitioner to agitate the claim in a separate suit. 3. Heard Mr. P.K. Rath, learned counsel for the petitioner. None appears for the opposite party nos.1 and 2 in spite of valid service of notice. 4. The seminal question that hinges for consideration before this Court is as to whether a person who was not a party to the suit, purchased certain property after the preliminary decree was passed in a suit for partition, can be impleaded as a party in the final decree proceeding ? 5. 4. The seminal question that hinges for consideration before this Court is as to whether a person who was not a party to the suit, purchased certain property after the preliminary decree was passed in a suit for partition, can be impleaded as a party in the final decree proceeding ? 5. Order 1, Rule 10(2) of the C.P.C. postulates that:-“xxx xxx xxx (2) Court may strike out 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.” 6. Sub-rule (2) of Rule 10 of Order 1 provides that the Court may either upon or without an application of either party, add any party 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. The object of the rule is to bring on record all the persons who are parties to the dispute relating to the subject-matter so that the dispute can be determined in their presence to avoid multiplicity of proceedings. 7. In Razia Begum v. Sahebzadi Anwar Begum and others, AIR 1958 SC 886 , the apex Court held that it is 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 immoveable property. 8. In Vidur Impex and Traders Private Limited and others v. Tosh Apartments Private Limited and others, (2012) 8 SCC 384 , the Supreme Court had the opportunity to consider all the earlier judgments. The fact of the case was that a suit for specific performance of agreement was filed. 8. In Vidur Impex and Traders Private Limited and others v. Tosh Apartments Private Limited and others, (2012) 8 SCC 384 , the Supreme Court had the opportunity to consider all the earlier judgments. The fact of the case was that a suit for specific performance of agreement was filed. The appellants and Bhagwati Developers though total strangers to the agreement, came into picture only when all the respondents entered into a clandestine transaction with the appellants for sale of the property and executed an agreement of sale which was followed by sale deed. Taking note of all the earlier decisions, the Court laid down the broad principles governing the disposal of application for impleadment. Para 41 of the report is quoted hereunder:- “41. Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are: 41.1. The court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the court is necessary for effective and complete adjudication of the issues involved in the suit. 41.2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the court. 41.3. A proper party is a person whose presence would enable the court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made. 41.4. If a person is not found to be a proper or necessary party, the court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff. 41.5. In a suit for specific performance, the court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation. 41.6. 41.5. In a suit for specific performance, the court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation. 41.6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the court or the application is unduly delayed then the court will be fully justified in declining the prayer for impleadment.” 9. On the anvil of the decisions cited supra, the case of the petitioner may be examined. The preliminary decree in the suit was passed on 6.9.1975. In the preliminary decree, the shares of all the co-sharers had been carved out. Thereafter the original plaintiff had alienated a portion of the suit schedule property in favour of the father of the petitioner. The vendor had no right to sell any particular portion of the joint family property. He had the right to sell his share only. The petitioner has no right to any particular property. His right is confined to the share allotted to his vendor. As held by this Court in Debendra Jena and others v. Umakanta Jena and others, AIR 1988 Orissa 11, the events happening subsequent to the passing of the preliminary decree can also be taken into consideration and decided at the stage of final decree proceeding. The petitioner has direct interest in the subject matter of litigation. He is a proper party to lis. 10. In the wake of the aforesaid, the order 23.3.2001 passed by the learned Civil Judge (Sr. Divn.), Bhadrak in Original Suit No.36/1970-I is hereby quashed. Learned trial court is directed to implead the petitioner as a party in the final decree proceeding and proceed with the same. It is made clear that this Court has not examined the validity of the registered sale deed said to have been executed by the father of the plaintiffs to the father of the petitioner. It is open to the court below to decide the same in the event such issue is raised. Accordingly, the petition is allowed.