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2017 DIGILAW 363 (ORI)

Maheswar Panika v. Urba Panika

2017-04-05

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 19.04.2016 passed by the learned Civil Judge (Sr. Divn.), Kantabanji in C.S. No. 34 of 2014. By the said order, learned trial court rejected the applications of defendant no.2 under Order 1 Rule 10 C.P.C. to implead the lis pendens purchaser and others whose names have been recorded in the remarks column of ROR as defendants. 2. Opposite party no.1 as plaintiff instituted the suit for partition impleading the petitioner and opposite party nos.2 to 5 as defendants. Pursuant to issuance of summons, the defendant nos.1 to 3 entered appearance and filed written statement denying the assertions made in the plaint. While the matter stood thus, the defendant no.2 filed an application under Order 1 Rule 10 C.P.C. to implead the lis pendens purchaser as well as the persons whose names find place in the remarks column of ROR as defendants. It is stated that the plaintiff has sold some portions of the suit land by means of a registered sale deed to one Ratindra Kumar Rai and others. The name of other intervenors has been recorded in the remarks column of the ROR. The plaintiff filed objection. Learned trial court came to hold that the plaintiff is the master of his suit. He will decide to whom he will implead as a party. If any necessary party has not been impleaded as party, the defendant may bring that fact to the notice of the plaintiff in his written statement and may take the plea of non-joinder of necessary parties. In such a contingency, the plaintiff may implead him as a party. Held so, learned trial court rejected the application. 3. Heard Mr. B.B. Mishra, learned counsel for the petitioner. None appears for the opposite parties in spite of valid service of notice. 4. An identical matter came up for consideration before this Court in the case of Janaki Das vs. Sidheswar Das and others (disposed of on 17.03.2017 in C.M.P. No. 1347 of 2014). This Court held: “07. 3. Heard Mr. B.B. Mishra, learned counsel for the petitioner. None appears for the opposite parties in spite of valid service of notice. 4. An identical matter came up for consideration before this Court in the case of Janaki Das vs. Sidheswar Das and others (disposed of on 17.03.2017 in C.M.P. No. 1347 of 2014). This Court held: “07. In Mumbai International Airport Private Limited vs. Regency Convention Centre and Hotels Private Limited and others, (2010) 7 SCC 417 , 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 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.” (emphasis laid) 8. The distinction between a necessary party and a proper party is well known. 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.” (emphasis laid) 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. 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 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. 12. The instant case may be examined on the anvil of the decisions cited supra. 13. Sanatan Das is the vendor of the intervenors. He was the defendant no.1 in the suit. He is dead. Such a person may himself apply and be made a party. 12. The instant case may be examined on the anvil of the decisions cited supra. 13. Sanatan Das is the vendor of the intervenors. He was the defendant no.1 in the suit. He is dead. Whether the sale deeds are void ab initio or not is a question to be decided in the suit. The intervenors have direct interest over the suit schedule land. The intervenors are bona-fide purchasers of the suit property for value. They are proper parties to the suit. 14. The decision of the apex Court in the case of Kasturi vs. Iyyamperumal and others, (2005) 6 SCC 733 is distinguishable on facts. In Kasturi (supra), the question arose whether a stranger to the contract is necessary or proper party in a suit for Specific Performance of Contract. The instant case is the suit for partition. The decision in the case of Bibi Zubaida Khatoon vs. Nabi Hassan Saheb and another, AIR 2004 SC 173 has been referred to in Parameswar Panda (supra). This Court after survey of decisions held that the purchaser pendente lite has right to be impleaded in a suit for partition. 15. The logical sequitur of the analysis made in the preceding paragraphs is that the petition, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.” 5. In view of the same, the order dated 19.04.2016 passed by the learned Civil Judge (Sr. Divn.), Kantabanji in C.S. No. 34 of 2014 is quashed. The petition is allowed. Learned trial court shall implead the lis pendens purchaser only.