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2017 DIGILAW 1240 (JHR)

Naresh Lodha v. Divisional Forest Officer

2017-07-24

AMITAV K.GUPTA

body2017
JUDGMENT : AMITAV K. GUPTA, J. 1. The petitioner is seeking quashing of the order dated 19.05.2016, passed by the learned District Judge-II, Bokaro, rejecting the prayer for impleadment of the petitioner in Title Appeal No. 38/1998. 2. The facts as narrated by the petitioner is that he had purchased some land from respondent Nos. 4, 6 & 14 (the plaintiffs of Suit No. 16/93 and respondents of Title Appeal No. 38/98). It is stated that he had purchased part of the suit land when Title Appeal preferred by the respondent No. 1 of the present writ, had been dismissed for default on 10.01.2000 and the restoration petition was also dismissed on 12.08.2005. The order of dismissal was upheld by the High Court where-after the respondent preferred S.L.P No. 36399 of 2014 and the Hon'ble Supreme Court by order dated 30.10.2015 remanded the matter for rehearing to the learned lower appellate court. It is at this stage that the petitioner moved a petition dated 16.04.2016 before the learned lower appellate court for impleading him as a party in the appeal which was rejected by the impugned order. 3. Learned counsel for the petitioner, while assailing the impugned order, has contended that neither the appellant nor the respondents had filed any written objection to the prayer, of the petitioner, for his impleadment as a party in the appeal. It is submitted that the petitioner had purchased part of the suit property after the suit was decreed in favour of the respondents/vendors. It is argued that he has stepped into the shoes of the contesting respondents and has acquired a valuable right to protect his right, title and interest in the property. It is submitted that since the respondents have transferred their right, title and interest, they have lost interest in contesting the appeal and in case the respondents/vendors do not prosecute the case sincerely then it shall adversely affect the interest of the petitioner. On the said grounds it is submitted that the court below has failed to appreciate the mandate of Order XXII, Rule 10 and Order 1, Rule 10 of the Code of Civil Procedure and erred in law in rejecting the petition for impleadment of the petitioner as a party in the appeal. On the said grounds it is submitted that the court below has failed to appreciate the mandate of Order XXII, Rule 10 and Order 1, Rule 10 of the Code of Civil Procedure and erred in law in rejecting the petition for impleadment of the petitioner as a party in the appeal. To buttress the argument reliance has been placed on the decision in the case of Thomson Press (India) Ltd. v. Nanak Builders & Investors (P) Ltd., (2013) 5 SCC 397 . 4. The contesting defendant/respondent No. 1 has filed the counter affidavit objecting and resisting the claim of the petitioner stating that, the petitioner had purchased the property despite being aware about the pendency of the proceeding before the appellate court. It is contended that if the appeal is decided against the respondents/vendors they are bound to compensate the petitioner by refunding the consideration amount, therefore it shall not prejudice the right of the petitioner. It is argued that the impugned order does no suffer from any infirmity. 5. Heard the learned counsels. Admittedly Order XXII, Rule 10 confers discretionary power to implead any person who has purchased the suit property during pendency of the suit. Even the doctrine of lis pendens, in Section 52 of the Transfer of Property Act does not create an absolute bar on impleadment of a party in a suit or proceeding. The doctrine lays down that decision of the court in a suit shall be binding not only on the litigating parties, but also on those who derive title through them. Obviously, such pendente lite transfer itself does not invalidate any conveyance or the transfer of interest rather renders it subservient to the rights of the contesting litigants. Thus purchaser pendente lite is bound by the result of the litigation. 6. However, if the vendors do not contest the appeal/proceeding it might affect the interest of transferee-petitioner thereby causing substantial loss to him. The Hon'ble Supreme Court in the case of Thomson Press (India) Ltd. (Supra), which is relied upon by the petitioner, has also approved the impleadment of such transferee pendente lite. It has been observed that such transferee shall avail only such defences as available to the original vendors. The Hon'ble Supreme Court in the case of Thomson Press (India) Ltd. (Supra), which is relied upon by the petitioner, has also approved the impleadment of such transferee pendente lite. It has been observed that such transferee shall avail only such defences as available to the original vendors. The provisions of C.P.C under Order 12, Rule 10 and Order 1, Rule 10 also lay down the above principle of law that such assignee of interest is entitled to be impleaded as a necessary party and courts ought to exercise the discretion judiciously, while considering such claim, for complete and effective adjudication of case. The discretion should not be exercised in a capricious manner so as to put a party to irreparable loss. 7. In view of the settled proposition, in the considered opinion of this Court, it is held that the petitioner is a necessary party whose right ought to be protected by giving him an opportunity to contest the case before the lower court. Therefore, the order dated 19.05.2016 is set aside. The court below is directed to implead the petitioner on the file of Title Appeal No. 38/98, subject to the condition that petitioner shall not raise any new defence save and except those raised by the transferee/respondents. In the result, this writ stands allowed.