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2019 DIGILAW 248 (JHR)

Gyanendra Nath Manna v. Radhika Manna

2019-01-24

ANUBHA RAWAT CHOUDHARY

body2019
ORDER : 1. Heard Mr. Saibal Mitra, counsel appearing on behalf of the petitioner. 2. Heard Mr. Soumitra Baroi, counsel appearing on behalf of the sole respondent. 3. This writ petition has been filed for quashing of order dated 20.5.2016 passed by Sri S.A. Prasad, Civil Judge (Jnr. Division), Ghatshila in Title Suit No. 23 of 2005 whereby and whereunder the learned Court below has rejected the petition dated 18.3.2016 under Section 153 read with Order 1 Rule 4 and Section 151 of the Code of Civil Procedure, 1908 filed by the petitioner 2010. Vide petition dated 14.05.2016 the provision of law was prayed to be read as u/s 153 read with Order 1 Rule 3 and Section 151 of the Code of Civil Procedure. The petition was filed to incorporate the name of purchaser of the suit land namely Smt. Chintamani Tudu as defendant in the suit along with the Deputy Commissioner, East Singhbhum as proforma defendant in the suit. 4. Counsel for the petitioner submits that the petitioner had filed a Title Suit No. 23 of 2005 for specific performance of contract and for cancellation of Sale Deed No. 1147 dated 07.05.2005 against the defendants. He submits that during the pendency of the title suit, on 13.01.2010 and 03.02.2010, the petitioner had filed application under Order 39 Rule 1 and Rule 2 of Code of Civil Procedure, 1908 for restraining the defendants from selling and executing sale deed in connection with the suit land. Vide order dated 23.08.2010, the petition for injunction was rejected and the suit property was sold. 5. He further submits that the purchaser of the suit property is a necessary party for just and proper adjudication of the suit. She belongs to a schedule tribe community and accordingly, a petition was filed for making her as defendant no. 3 and making Deputy Commissioner, East Singhbhum as defendant no. 4 in the suit. He submits that the sale deed in favour of the purchaser was executed on 18.01.2010 during the pendency of the injunction petition in the suit. 6. He submits that provisions of Order 22 Rule 10 of the Code of Civil Procedure provides the procedure in case of assignment before final order in the suit. 4 in the suit. He submits that the sale deed in favour of the purchaser was executed on 18.01.2010 during the pendency of the injunction petition in the suit. 6. He submits that provisions of Order 22 Rule 10 of the Code of Civil Procedure provides the procedure in case of assignment before final order in the suit. There is a clear provision that in cases of assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by the leave of the court, be continued by or against the person or person to or upon whom such interest has come or devolved. He submits that the petition was filed for impleading the subsequent purchaser, who had purchased the suit property during the pendency of the suit and accordingly in view of the Order 22 Rule 10, the subsequent purchaser was required to be made party to the proceedings. 7. He has referred to a judgment passed by Hon’ble Supreme Court reported in Thomson Press (India) Limited vs. Nanak Builders and Investors Private Limited and Others, (2013) 5 SCC 397 to submit that the learned court below ought to have allowed his petition. 8. He submits that the learned court below has rejected his petition on account of delay in filing the petition by stating that the property was sold in favour of the proposed defendant as back as in the year 2010, but no steps were taken by the plaintiff and the petition was filed after completion of defendants’ arguments and filing of written argument by the defendant no. 2. He submits that the learned court below has not considered the aforesaid law laid down by Hon’ble Supreme Court and has dismissed the petition filed by the writ petitioner, who was plaintiff in the suit. 9. Counsel appearing on behalf of the sole respondent submits that on the one hand, the petitioner has not filed a copy of the plaint along with this writ petition and on the other hand, it is apparent from the impugned order itself that there are two defendants in the suit. In the instant case, the petitioner has made only one of the defendants as respondent and accordingly, in absence of another defendant, no order can be passed in this particular writ petition. He submits that on this technical point the writ petition may be dismissed. 10. In the instant case, the petitioner has made only one of the defendants as respondent and accordingly, in absence of another defendant, no order can be passed in this particular writ petition. He submits that on this technical point the writ petition may be dismissed. 10. He further submits that admittedly, the petitioner was aware about the sale deed executed during the pendency of this case as back as on 18.01.2010, but did not take any steps for 6 long years and after hearing was concluded and written argument by defendant no. 2 was also filed, steps were taken by the plaintiff only to delay the proceedings. He submits that neither any explanation has been furnished in the petition filed before the learned lower court below nor in the writ petition filed herein as to why no steps were taken for 6 long years. 11. After considering the facts and circumstances of this case and after considering the materials on record, this Court finds that although a copy of the plaint has not been annexed by the writ petitioner along with this petition, but from the perusal of the impugned order itself, it is apparent that there are two defendants in the suit and in the writ petition only one of the defendants has been made party. 12. Accordingly, this Court is of the considered view that no relief can be granted to the writ petitioner in a case where all the necessary parties, who were parties before the learned lower court, have not been made party in this writ petition. 13. Further, this Court finds that admittedly on 13.01.2010, and 03.02.2010, petition under Order 39 Rule 1 and 2 for restraining the defendant no. 1 from selling and executing the sale deed in favour of Chintamani Tudu was filed. On 18.01.2010, the property was transferred during the pendency of the suit and on 23.08.2010, the learned lower court below dismissed the application for injunction. Apparently, the plaintiff/petitioner had full knowledge about the transfer of the property as back as on 18.01.2010, but he did not take any steps for impleading the purchaser during the pendency of the suit and only after the arguments were completed and written arguments were also filed by the defendant no. 2, a petition was filed for impleading subsequent purchaser, at a belated stage. 14. 2, a petition was filed for impleading subsequent purchaser, at a belated stage. 14. This Court finds that the learned court below has rejected the petition filed by the plaintiff/petitioner by recording that the petition has been filed at a belated stage and that too after the completion of the arguments of the defendants and filing a written argument by defendant no. 2, after came to know the defence of the defendants. 15. This Court does not find any illegality and perversity in the aforesaid reasoning of the learned court below while rejecting the petition filed by the plaintiff/petitioner. 16. So far as judgment which has been relied upon by the petitioner reported in (2013) 5 SCC 397 is concerned, this Court finds that in the said judgment, a petition for impleadment was filed by the purchaser himself and it was found that the transfer during the pendency of the case was for valuable consideration, but it was neither in good faith nor was it without notice of the original contract. In the said judgment the Hon’ble Supreme Court has observed that it is the discretion of the Court in the matter of adding subsequent purchaser as a party to the proceeding. The Hon’ble Supreme court in the said judgment, while dealing with the addition of transferee pendente lite as a party to the suit has held that transferee pendente lite can be added as a party to the suit lest the transferee suffered prejudice on account of the transferor losing interest in the litigation post transfer. Sometimes, a transferor pendente lite may not even defend the title properly as he has no interest in the same or may collude with the plaintiff in which case the interest of the purchaser pendente lite will be ignored. To avoid such situations the transferee pendente lite can be added as a party-defendant to the case provided his interest is substantial and not just peripheral. This is particularly so where the transferee pendente lite acquires the interest in the entire estate that forms the subject-matter of the dispute. 17. In the instant case, the discretion has been exercised by the learned court below judiciously by citing reasons for rejection of the petition filed by the plaintiff. This is particularly so where the transferee pendente lite acquires the interest in the entire estate that forms the subject-matter of the dispute. 17. In the instant case, the discretion has been exercised by the learned court below judiciously by citing reasons for rejection of the petition filed by the plaintiff. In the instant case, the facts are totally different and the aforesaid judgment of the Hon’ble Supreme Court, which has been relied upon by the petitioner, has no applicability to the facts and circumstances of this case. 18. In view of the aforesaid findings, this writ petition is hereby dismissed.