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2019 DIGILAW 708 (MP)

Leela (Smt. ) v. Sheetal Prasad Batham

2019-10-01

G.S.AHLUWALIA

body2019
ORDER 1. This petition under Article 227 of the Constitution of India has been filed against the order dated 12.1.2018 passed by First Civil Judge, Class-II, Dabra, District Gwalior in RCS-A/900092/2016, by which the application filed by the petitioner under Order I rule 10 CPC has been dismissed. 2. It is not out of place to mention here that earlier this petition was dismissed by this Court by order dated 31.5.2018, however, the said order was reviewed by order dated 17.7.2018 passed in R.P. No. 1030/2018. 3. The necessary facts for disposal of the present petition in short are that the petitioners have filed a suit for declaration of title and permanent injunction. It appears that the defendants during pendency of the suit have sold some part of the disputed property and accordingly, an application under Order I rule 10 read with Order XXII rule 10 CPC was filed for impleading the subsequent purchasers in the suit. By the impugned order, the said application has been rejected by the trial Court. 4. It is submitted by the counsel for the petitioners that although under section 52 of the Transfer of Property Act the subsequent purchaser is bound by the principle of lis pendens, but the Supreme Court in the case of Amit Kumar Shaw and another v. Farida Khatoon and another, reported in (2005) 11 SCC 403 has held that in order to avoid multiplicity of the litigation, the subsequent purchasers can be impleaded as defendants. The counsel for the petitioners has also relied upon the judgment passed by a coordinate Bench of this Court in the case of Nirmala Devi (Smt.) v. Dayal Singh Gaur and others, reported in 2008 (I) MPWN 93 and Urmila Patel (Smt.) and another v. Smt. Laxmibai and others, reported in 2001 (1) JLJ 202 . 5. Per contra, it is submitted by the counsel for the respondents that the solitary attempt of the petitioners is to delay the proceedings and the subsequent purchaser to whom the respondents have sold a part of the property would be governed by the principle of lis pendens and, therefore, they are not the necessary party. 6. Heard learned counsel for the parties. 7. In the present case, the plaintiffs themselves have come forward to implead the subsequent purchasers in order to avoid any controversy. 6. Heard learned counsel for the parties. 7. In the present case, the plaintiffs themselves have come forward to implead the subsequent purchasers in order to avoid any controversy. The trial Court has rejected the application on the ground that if the defendants are impleaded, then it would result in delay and further it is held that even if the plaintiffs succeed in establishing their claim of 3/7th share in the land in dispute, but still it is clear that they would not get adversely affected because the respondents/defendants have sold only a small piece of land. 8. While rejecting the application, the trial court lost sight of the fact that not only the extent of share is important but the location of the land is also important. If the suit filed by the plaintiffs is decreed and ultimately if the land is partitioned, then the petitioners/plaintiffs shall certainly have a right to claim a particular piece of land. Merely because the defendants have sold a small piece of land, would not mean that the interest of the plaintiffs would not be adversely affected. Furthermore, if any objection is raised by the petitioners/plaintiffs to the partition, then the subsequent purchasers would be affected by the said objection. Under these circumstances, this Court is of the considered opinion that where the plaintiffs themselves have filed an application under Order I rule 10 CPC for impleading the subsequent purchasers, then there was no technical glitch before the trial Court in allowing the application because the impleadment of the subsequent purchasers would certainly avoid multiplicity of litigations. 9. At this stage, it is submitted by the counsel for the respondents that in case if any further alienation is done by the respondents, then every time the subsequent purchaser would be required to be impleaded in the suit and thus, it would cause further delay. However, the counsel for the respondents further submitted that the defendants are not inclined to alienate any other part of the suit land. 10. In view of the submissions made by the counsel for the respondents that there shall not be any further alienation, it is not necessary for this Court to consider any eventuality which has not taken place so far. Accordingly, order dated 12.1.2018 passed by First Civil Judge, Class-II, Dabra, District Gwalior in RCSA/900092/2016 is hereby set aside. 10. In view of the submissions made by the counsel for the respondents that there shall not be any further alienation, it is not necessary for this Court to consider any eventuality which has not taken place so far. Accordingly, order dated 12.1.2018 passed by First Civil Judge, Class-II, Dabra, District Gwalior in RCSA/900092/2016 is hereby set aside. The application filed by the petitioners under Order I rule 10 read with Order XXII rule 10 CPC is hereby allowed. The subsequent purchasers are permitted to be impleaded as defendants. Let necessary amendment be carried out within the period so fixed by the trial Court. After the defendants are impleaded, the trial Court shall proceed in accordance with law by issuing notices to the newly added defendants. 11. With aforesaid observations and directions, the petition is allowed.