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2016 DIGILAW 435 (ORI)

Sukanti Kar v. Gajendra Mishra

2016-06-21

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. 1. This Civil Miscellaneous Petition arises out of an order dated 22.03.2016 passed by the Civil Judge (Sr. Divn.), Jaleswar in C.S. No. 141 of 2013 rejecting an application for amendment at the instance of the plaintiff-petitioners, particularly bringing in the developments concerning the lispendent purchase pending determination of the main suit and also an attempt to bring the lispendent purchaser to the fold of the suit. 2. The undisputed fact involved in the case is that the suit at the instance of the plaintiffs/petitioners is for specific performance of contract with the pleading that the O.P. No.1-defendant No.1 executed an agreement with the plaintiffs-petitioners but on failure to perform his part of the contract for selling some portion of the property involved in the agreement constrained the plaintiffs-petitioners to file the suit. 3. Learned counsel appearing for the petitioners contended that after closure of the petitioners’ evidence and examination and cross-examination of the opposite party No.1 they gathered the information from the evidence that pending final adjudication of the suit, the opposite party No.1 on 24.02.2016 admitted to have sold Ac.0.02 dec. of land and the said fact constrained them to file application for amendment considered vide the impugned order. Depending upon such information and after making some inquiry in the said regard, the petitioners came to know that there has been some transactions by the opposite party No.1 vide Registered Sale Deed No.592 dated 26.05.2015 and the transaction very much relates to the disputed property. Being aware about the above, the petitioners sought for amendment of the suit bringing in the above developments only and claimed that facts brought by way of amendment are relevant for effective adjudication of the suit. 4. Amended application was seriously objected by the opposite parties on the premises that for the pleadings in the plaint and the reliefs sought for therein neither the subsequent sale has anything to do with the suit nor there will be failure of effective adjudication of the suit and as such, opposite parties submitted that the amendments are wholly irrelevant for the purpose of adjudication of the suit. Based on the above, learned counsel for the opposite party No.1 contended that there is no infirmity in the impugned order. 5. Based on the above, learned counsel for the opposite party No.1 contended that there is no infirmity in the impugned order. 5. There is no denial to the fact that the suit is directed against the opposite parties with specific pleadings with regard to transactions in between the parties to the suit involving the parties. The pleadings in suit also disclose in respect of some particular transaction and assurance. During course of argument, learned counsel for the petitioners vehemently urged that the amendments the petitioners sought to introduce were available to the petitioners subsequent to the disclosure on these aspects by the D.W. No.1 and therefore, it was not otherwise possible on its part to bring these aspects originally. 6. In support of his case, learned counsel for the petitioners also cited two decisions as reported in AIR 1999 SC 976 a case in between (Savitri Devi Vs. District Judge, Gorakhpur and Others) and 1992 (1) OLR 17 a case in between (Sri Jagannath Mahaprabhu, represented by Marfatdar Jagannath Ballav Endowment Trustee Board through the Executive Officer Vs. Pravat Chandra Chaterjee and Others). In the case in between Sri Jagannath Mahaprabhu, represented by Marfatder Jagannath Ballav Endowment Trustee Board through the Executive Officer Vs. Pravat Chandra Chaterjee and others as reported in 1992 (1) OLR 17 the full Bench of this Court considering a similar issue in paragraph No.9 held as follows: (9) Though in Basanta Ram’s case (supra), it has been held that a lis pendens transferee is not a proper party, we are of the view that even if a lis pendens transferee is not a necessary party and the plaintiff can ignore the transfer even if he has notice thereof and a decree or order obtained by him would be binding on the lis pendens transferee, when a motion is made by the lis pendens transferee to be impleaded as a party, the Court may, in exercise of it discretion judicially, add him as a proper party to prevent multiplicity of suits. Similarly in a case in between Savitri Devi Vs. Similarly in a case in between Savitri Devi Vs. District Judge, Gorakhpur and Others as reported in AIR 1999 SC 976 the Hon’ble Apex Court in paragraph Nos.8 & 9 held as follows: (8) The facts set out by us in the earlier paragraphs are sufficient to show that there is a dispute as to whether the first defendant in the suit was party to the order of injunction made by the Court on 18.8.92. The proceedings for punishing him for contempt are admittedly pending. The plea raised by him that the first respondent had played a fraud not only against him but also on the Court would have to be decided before it can be said that the sales effected by the first defendant were in violation of the order of the court. The plea raised by respondents 3 to 5 that they were bona fide transferees for value in good faith may have to be decided before it can be held that the sales in their favour created no interest in the property. The aforesaid questions have to be decided by the Court either in the suit or in the application filed by respondents 3 to 5 for impleadment in the suit. If the application for impleadment is thrown out without a decision on the aforesaid questions respondents 3 to 5 will certainly come up with a separate suit to enforce their alleged rights which means multiplicity of proceedings. In such circumstances, it cannot be said that respondents 3 to 5 are neither necessary nor property parties to the suit. (9) Order I, Rule 10 C.P.C. enables the Court to add any person as party at any stage of the proceedings if the person whose presence before the Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision in the Code. In a case in between A. Nawab John and others vs. V.N. Subramaniyam as reported in 2012 (2) OJR 255 (SC) and in a case in between Smt. Saila Bala Dassi vs. Nirmala Sundari Dassi and another as reported in AIR 1958 SC 394 the Hon’ble Apex Court held that justice requires a pendente lite purchaser should be given an opportunity to protect his right. In this judgment Hon’ble Apex Court after examining several judgments categorically held that the preponderance of opinion of the Apex court is that a pendente lite purchaser’s application for impleadment should normally be allowed or considered liberally. In the case in between Amit Kumar Shaw & Anr. vs. Farida Khatoon & Anr. as reported in 2005 (11) SCC 403 the Apex Court held as follows:- “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 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 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.” In the case in between Mirza Golam Jelani Baig vs. Sri Prabir Kumar Samal and others as reported in 2015 (2) OLR 663 , this court in a single Bench in paragraph-6 held as follows:- (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. From reading of all the above decisions, law has been well settled that there is no strict prohibition for bringing in a lispendent purchaser to the fold of the suit. Law has even gone to the extent of saying that by impletion of such party rather there may be avoiding of multiplicity of litigation. Looking to the stage of suit, this Court finds addition of a new party at such stage of suit at best may delay completion of proceeding and requiring reopening of evidence, ultimately prejudicing a party but such prejudice can be mitigated by way of cost. From the above and in view of catena of decisions referred to hereinabove, this Court finds the reasonings of the trial court in rejecting the application under Order 6 Rule 17 of C.P.C. is bad which is accordingly interfered with and set-aside. But however, considering the timing of filing the application under Order 6 Rule 17 of C.P.C. and the prejudice likely to be caused to the defendants/opposite parties and for reopening of the trial even going to the extent of permitting the defendants to have their additional written statement, this Court while allowing the application under Order 6 rule 17 of C.P.C. imposes a cost of Rs.5,000/- (Rupees Five thousand only) to be paid to the defendants in the court below within a period of two weeks. This Court further directs that the petitioners upon payment of such cost to the defendants within two weeks hence, will also file consolidated plaint within the same period. Consequently, the opposite parties will be permitted to file their additional written statement and looking to the request of the respective parties, it is further directed that evidence will be reopened. The trial Court will also see that the suit be disposed of by end of this year. The Civil Miscellaneous Petition stands allowed subject to however, payment of Rs.5,000/- (Rupees Five thousand only) as cost to be paid to defendants and with the other directions indicated hereinabove.