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2015 DIGILAW 609 (JHR)

Surya Commodities Pvt. Ltd. v. Bharat Raj Singh

2015-05-08

P.P.BHATT

body2015
ORDER 1. Present writ petition has been filed under Article 227 of the Constitution of India, inter alia, praying for setting aside the order dated 10.3.2011 passed by the learned Munsif, Hazaribagh, in Eviction Suit No. 20/09, whereby the learned court-below illegally rejected the petition dated 19.07.2010 filed on behalf of the intervenor/ petitioner under Order-1 Rule 10 of the CPC. It is further prayed that necessary direction may be issued to the learned court-below to add the petitioner as a party in the suit. 2. Heard learned counsel for the petitioner as well as learned counsel appearing for the respondents and perused the impugned order dated 10.3.2011 and other materials placed on record. 3. It appears that the petition was filed under Order-1 Rule 10 of the CPC on behalf of the petitioner. Order-1 Rule-10 of the CPC reads as under: “10. Suit in name of wrong plaintiff.- (1) 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 through 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 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. (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 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.” 4. It appears that during pendency of the suit, plaintiffs have jointly transferred the land and house measuring an area of 6060 sq. ft. comprising of Plot Nos. 790 and 791 bearing Holding Nos. 212 and 213 respectively in favour of petitioner vide registered deed No.5430/5264, dated 28.04.2010 and hence, the petitioner became interested party in the suit. 5. It is submitted by the learned counsel for the petitioner that on filing of a fresh suit by the petitioner against the contesting defendant shall amount to multiplicity of the litigations as also various legal obligations and hence, it is desirable that in the interest of justice and equity, petitioner be added as party in the suit so that right, title and interest of the petitioner, which is acquired through registered sale deed can be safeguarded. 6. In support of his submission, learned counsel for the petitioner has referred to and relied upon the following decisions: (i) “Amit Kumar Shaw and another versus Farida Khatoon and another, reported in 2005 SAR (Civil) 515” and (ii) “Thomson Press (India) Limited versus Nanak Builders and Investors Private Limited and others, reported in (2013) 5 Supreme Court Cases 397” . 7.Paragraph- 16 of the decision, in the case of “Amit Kumar Shaw and another versus Farida Khatoon and another, reported in 2005 SAR (Civil) 515” is reproduced here-in-below: “16. 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. 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 proper 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 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 XXII 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. The Court has held that a transferee pendent 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.” Paragraph- 56 of the decision, in the case of “Thomson Press (India) Limited versus Nanak Builders and Investors Private Limited and others, reported in (2013) 5 Supreme Court Cases 397” is also reproduced here-in-below: “56. To the same effect is the decision of this Court in Amit Kumar Shaw v. Farida Khatoon wherein this Court held that a transferor pendente lite may not even defend the title properly as he has no interest in the same or may collude with the plaintiff in which case the interest of the purchaser pendente lite will be ignored. To avoid such situations the transferee pendente lite can be added as a party defendant to the case provided his interest is substantial and not just peripheral. This is particularly so where the transferee pendente lite acquires interest in the entire estate that forms the subject matter of the dispute. To avoid such situations the transferee pendente lite can be added as a party defendant to the case provided his interest is substantial and not just peripheral. This is particularly so where the transferee pendente lite acquires interest in the entire estate that forms the subject matter of the dispute. This Court observed: (SCC p. 411, para 16) “16. 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 proper 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, 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. 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. (emphasis supplied) ”To the same effect is the decision of this Court in Rikhu Dev v. Som Dass.” 8. 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. (emphasis supplied) ”To the same effect is the decision of this Court in Rikhu Dev v. Som Dass.” 8. Learned counsel for the respondents submitted that the petitioner is not having any locus in the Eviction Suit No. 20/09 filed on behalf of the original landlord and in view of the provisions contained in Section 52 of the Transfer of Property Act, during pendency of the suit, such transfer of property is not permissible and therefore, petitioner is not having any locus in the eviction suit, which has been filed by the original landlord against the defendant. It is also submitted that the petitioner is not having any right to lead evidence in view of the decision in the case of “Dhanna Singh and others versus Baljinder Kaur and others, reported in AIR 1997 Supreme Court 3720”. 9. As against that, learned counsel for the petitioner submitted that the petitioner has got no adverse interest against the plaintiff. Moreover, no prejudice is likely to be caused to the defendant if the prayer of the petitioner for impleadment is allowed. 10. Learned counsel for the petitioner made it clear that petitioner is not interested in leading any evidence in the present case, but impleadment of the present petitioner is necessary in the interest of justice because at the end of eviction suit, if the plaintiffs succeed in the suit defendant will have to hand over the possession as per the direction of the court and the present petitioner being lawful owner of the property in question, is necessary and proper party to the proceeding. Likewise, when the question of execution arises, the petitioner being a purchaser of the said property is not only interested person who can take steps for the execution. Under the circumstances, it is necessary to impleade the petitioner as a party in the suit. 11. According to above referred judgment, to add a party to a proceeding cannot depend solely on the question whether he was interest in the suit property. Under the circumstances, it is necessary to impleade the petitioner as a party in the suit. 11. According to above referred judgment, to add a party to a proceeding cannot depend solely on the question whether he was 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 included necessarily an enforceable legal right. Under Order 22 Rule 10(1) can be made in creation or devolution of any interest during the pendency of a suit. An alienee pendent lite is bound by the final decree that may be passed in the suit. An alienee can be brought on record both under this rule and also u/o 1, r 10(2). When an interest has been devolved during pendency of the suit upon the subsequent purchaser to protect his right the petition u/o. 1, r. 10(2) is well maintainable. O.22, R. 10(1) also empowers the court to make party to the subsequent purchaser during pendency of the suit in whose favour the interest over the property has been assigned, created or devaluated to become a necessary parties by the leave of the court, in fact a proper adjudication of the lis (suit) between the parties, since the interest of the subsequent purchaser suit also be protected. 12.In the facts and circumstances of the present case, since the valid title has been accrued in favour of the petitioner it can be said that the petitioner is having right, title and interest in the suit property and therefore, it is necessary to make him party to the proceedings. On persual of the order passed by the learned court-below, it appears that the issue, which has been discussed in the aforesaid two decisions has not been taken into consideration by the learned court-below and therefore, the impugned order dated 10.3.2011 deserves to be set aside and present petitioner is required to be impleaded as party-plaintiff No.3. Accordingly, the impugned order dated 10.3.2011 is ordered to be set aside and present petitioner is ordered to be impleaded as party-plaintiff No.3 in the suit. 13. This writ petition is allowed, accordingly.