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2016 DIGILAW 360 (RAJ)

Shaukat Ali v. Bhag Chand

2016-03-03

ARUN BHANSALI

body2016
JUDGMENT : Hon'ble BHANSALI, J.—This writ petition has been filed by the petitioner aggrieved against the order dated 21.04.2015 passed by the trial court, whereby the application filed by the plaintiffs under Order I, Rule 10 CPC has been allowed and the petitioner, inter alia, has been impleaded as party-defendant to the suit. 2. The respondent No.1-plaintiff filed a suit for specific performance of contract dated 07.04.2004. In the written statement, it was, inter alia, indicated that the suit property was already transferred before the suit was filed. 3. The plaintiff filed an application on 11.04.2008 under Order I, Rule 10 CPC seeking to implead the subsequent purchasers as party-defendants. The application was opposed and the trial court by its order dated 24.09.2010 dismissed the application filed by the plaintiff. Feeling aggrieved, plaintiff filed S.B. Civil Writ Petition No.562/2011, the writ petition filed by the plaintiff was disposed of by order dated 19.12.2013, inter alia, with the following observations and directions:- “In the written statement Banshi Lal, respondent No.1 (defendant no.1) had alleged that he has already sold the suit property to (1) Sheokat Ali, (2) Panna Lal, (3) Chhitar Mal, (4) Smt. Shanti Bai, (5) Smt. Manbhar Devi and (6) Bhanwar Lal. The petitioner himself wants that the subsequent purchasers should be made a party in his suit otherwise the decree which might be obtained by him against other respondents will be of no use. In the circumstances of the case, the alleged subsequent purchasers, may they be bona fide purchasers or not, appear to be proper parties even if they may not be necessary parties. In the circumstances of the case, application filed under O. I R.10 CPC by the petitioner-plaintiff should not have been rejected by the court below and so the impugned order dated 24.9.2010 is hereby quashed and set aside to the extent that the application filed on 4.11.2008 under O. I R. 10 CPC by the petitioner-plaintiff in the trial court should be decided afresh by the trial court in the light of the observations given in this order.” 4. Whereafter, the trial court by its impugned order dated 21.04.2015, accepted the application filed by the plaintiff under Order I, Rule 10 CPC and ordered for impleadment of the subsequent purchasers as party-defendants to the suit. 5. Whereafter, the trial court by its impugned order dated 21.04.2015, accepted the application filed by the plaintiff under Order I, Rule 10 CPC and ordered for impleadment of the subsequent purchasers as party-defendants to the suit. 5. It is submitted by learned counsel for the petitioner that the trial court committed error in accepting the application filed by the plaintiff. It was submitted that no notice of the application under Order I, Rule 10 CPC was issued to the petitioner either at the earlier stage when the application was dismissed or after the matter was remanded by the High Court and the application has been accepted by the trial court by the order impugned. It was emphasized that the application has been accepted without providing any opportunity of hearing and, therefore, the order impugned deserves to be quashed and set aside. 6. Learned counsel for the respondents supported the order impugned. 7. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 8. It is true that before a new party is impleaded under provisions of Order I, Rule 10 CPC, notice must be issued to the proposed party and it is not appropriate or correct procedure that notice be issued after the Court comes to the conclusion that the proposed party is a necessary party. However, even if a party is impleaded without issuing any notice to it as a proposed party, an opportunity to file application under Order I, Rule 10(2) CPC is always available to such party to plead that it in fact is not a necessary party to the suit and the trial court after hearing the parties can take a view different from the view taken by it at the time of passing the order impleading the said party. 9. However, the position becomes a bit different in a case where against rejection of application by the trial court, a challenge is laid before the High Court by way of writ petition under Article 227 of the Constitution of India. 9. However, the position becomes a bit different in a case where against rejection of application by the trial court, a challenge is laid before the High Court by way of writ petition under Article 227 of the Constitution of India. In the writ petition, a notice must be issued to the proposed party as in case the writ petition is accepted and it is held that the proposed party is a necessary party, the opportunity to file application under Order I, Rule 10(2) CPC before the trial court, would thereafter be not available to the party, which is ordered to be impleaded under the orders of the High Court. 10. In the present case, when previously the application was rejected by the trial court, in the writ petition filed by the plaintiff, the petitioner herein and other similarly situated subsequent purchasers were not impleaded as party to the writ petition and as quoted hereinbefore, this Court opined that the subsequent purchasers were proper parties, even if they may not be necessary parties and that the trial court should not have rejected the application and directed for decision of the application afresh. 11. It would be noticed that in view of the observations made by this Court while deciding the previous writ petition (supra), the trial court was left with very little discretion so far as impleadment of subsequent purchasers is concerned, and therefore the application was allowed. 12. The plea raised by counsel for the petitioner regarding non-issuance of notice may have substance, however, in view of the fact that the order dated 19.12.2013 passed by a coordinate Bench of this Court (supra) has become final, there is very little that the petitioner could have done even if the notice was issued to him as essentially there is no dispute in the facts that the part of the suit property was purchased by the petitioner after the date of agreement to sale, which is the subject matter of the suit in question and, therefore, the petitioner would fall within the category of a subsequent purchaser and would definitely be affected by the present suit in view of the provisions of Section 19(b) of the Specific Relief Act, 1963. 13. 13. In unusual circumstances of the case as noticed hereinbefore, no interference can be made in the order impugned and, therefore, the writ petition filed by the petitioner has no substance, the same is, therefore, dismissed.