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2017 DIGILAW 300 (ORI)

Ilarani Ray v. Jayaprakash Rout

2017-03-20

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. The sole question that hinges for consideration of this Court is as to whether lis pendens purchaser can be impleaded as a party in a final decree proceeding ? 2. Pradip Chandra Ray, the predecessor-in-interest of the petitioners, instituted C.S. No. 175 of 2005-I in the court of the learned Civil Judge (Senior Division), Bhadrak for partition impleading opposite parties 1 to 24 as defendants. The suit was decreed. Thereafter, they levied final decree proceeding. In the final decree proceeding, opposite party nos.25 and 26 filed an application for intervention. The same having been rejected, the instant petition under Article 227 of the Constitution has been filed. 3. Mr. Jujharsingh, learned counsel for the petitioners, submits that the lis pendens purchasers are neither necessary nor proper parties in the final decree proceeding. In view of the same, learned trial court fell into patent error of law in allowing the petition. 4. An identical matter came up for consideration in the case of Janaki Das v. Sidheswar Das and others (CMP No. 1347 of 2014 disposed of 17.03.2017. This Court held : “07. In Mumbai International Airport Private Limited (supra), the apex Court held thus:- xxx xxx xxx The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure (‘the Code”, for short), which provides for impleadment of proper or necessary parties. xxx xxx xxx Order 1 Rule 10(2) C.P.C. is not about the right of a nonparty to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice. 8. The distinction between a necessary party and a proper party is well known. In Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and another, AIR 1963 SC 786 , the apex Court held that a necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. 9. In Dhanalakshmi and others vs. P. Mohan and others, AIR 2007 SC 1062 , the apex Court held that the appellants have purchased the undivided shares of the respondents Nos. 2, 3, 4 & 6. The first respondent P. Mohan has got an undivided share in the said suit property. The apex Court held that Section 52 deals with a transfer of property pending suit. Because of the purchase by the appellants of the undivided share in the suit property, the rights of the first respondent in the suit or proceeding will not affect his right in the suit property by enforcing a partition. The appellants having purchased the property from the other co-sharers are entitled to come on record in order to work out the equity in their favour in the final decree proceedings. 10. This Court in the case of Parameswar Panda vs. Adikandand Panda and others, 2004 (II) OLR 427 , had the occasion to deal with the case arising out of a suit for partition in final decree proceeding. 10. This Court in the case of Parameswar Panda vs. Adikandand Panda and others, 2004 (II) OLR 427 , had the occasion to deal with the case arising out of a suit for partition in final decree proceeding. The Court held that the purchaser pendente lite has right to be impleaded as a party in final decree proceeding to avoid multiplicity of litigation. That apart all the disputes have to be adjudicated once for all in final decree proceeding so that parties thereto shall not institute fresh suit. The same view was taken by this Court in the case of Shuvam Construction Pvt. Ltd. vs. Smt. Babita Mohanty and another, 109 (2010) CLT 368, that a lis pendens transferee is bound by the final decree that may be passed in the suit, but it is only just and proper that he should be brought on record, so as to enable him to protect his right, more so, when the transferee have lost any further interest to contest the suit. 11. In a suit for partition, the plaintiff is bound to implead as defendant: (i) the heads of all branches; (ii) females who are entitled to a share on partition; (iii) the purchaser of a portion of the plaintiff’s share, the plaintiff himself being a coparcener; (iv) if the plaintiff himself is a purchaser from a coparcener, his alienor. The above are necessary parties and if any of them is not joined, the suit is liable to be dismissed. The entire joint family must be represented either expressly or implicitly. (Article 332 of Mulla Hindu Law). Article 332 further provides that it is desirable that the following persons should be made parties; though not necessary parties, they are proper parties to the suit: (i) a mortgagee with possession of the family property or of the undivided interest of a coparcener; (ii) simple mortgagees of specific items of the family property; (iii) purchaser of the undivided interest of a coparcener; (iv) persons entitled to provision for their maintenance and marriage, i.e., widows, daughters, sisters and such like and distinguished heirs; (v) any person entitled to maintenance from the family. The plaintiff may also implead any other coparcener or any person interested in the family property such as a mortgagee or a lessee. Such a person may himself apply and be made a party.” 5. The plaintiff may also implead any other coparcener or any person interested in the family property such as a mortgagee or a lessee. Such a person may himself apply and be made a party.” 5. The offshoot of the above discussion is that the impugned order of the learned trial court is indefeasible. The same cannot be said to be perfunctory or flawed warranting interference of this Court under Article 227 of the Constitution. Accordingly, the petition is dismissed.