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2021 DIGILAW 17 (MP)

Rajendra Singh v. Shankar Singh

2021-01-08

VISHAL MISHRA

body2021
JUDGMENT : Vishal Mishra, J. 1. With the consent of the parties, the matter is finally heard through Videoconferencing. 2. This misc. petition under Article 227 of the Constitution of India has been filed challenging the order dated 7.5.2019 passed by the Third Civil Judge, Class-II, Morena, whereby the application filed by the petitioner under Order 1 Rule 10 read with Section 151 of CPC for impleading the party as defendant/respondent in the suit has been rejected. 3. It is argued that the plaintiff/petitioner has preferred a civil suit for declaration and permanent injunction with respect to title over the disputed agriculture land 1/2 part of survey No. 2979 area being 0.408 hectare situated in village Tichhola, Tehsil and District Morena. The respondent No. 1 denied the averments and filed the written statement. During the pendency of the civil suit the respondent no. 1/defendant has sold out the land to his son. The aforesaid fact came to the knowledge of the plaintiff when the respondent No. 1 and his son Pramod Singh came to the field and tried to take forcible possession of the crops being sown by the plaintiff saying that they have sold out the land to some other person. The son of the defendant No. 1 is not a party to the civil suit. On asking for the sale deed, neither it was shown to him nor it has been handed over to him. Therefore, two applications were filed by the plaintiff one under Order 6 Rule 17 of CPC for amendment in the civil suit/plaint another application under Order 1 Rule 10 read with Section 151 of CPC for impleading the son of the defendant No. 1 as a party to the proceedings. The learned trial Court has allowed the application under Order 6 Rule 17 CPC but has rejected the application under Order 1 Rule 10 read with Section 151 of CPC on the ground that there is no document on record filed by the plaintiff to demonstrate that the property has been sold out. No copy of registry is being filed. The learned trial Court has allowed the application under Order 6 Rule 17 CPC but has rejected the application under Order 1 Rule 10 read with Section 151 of CPC on the ground that there is no document on record filed by the plaintiff to demonstrate that the property has been sold out. No copy of registry is being filed. It is submitted that once the trial Court has allowed the application under Order 6 Rule 17 and has permitted amendment in the plaint with respect to the sale of property by sale deed in favour of son of the defendant No. 1, then rejecting the application under Order 1 Rule 10 CPC will create complications in the civil suit. Admittedly, the son of the defendant No. 1 has purchased the property, therefore, he being the necessary party to the proceedings, the application should have been allowed. 4. Per contra, Shri G.S. Sharma, counsel appearing for the respondent No. 1 denied the contentions and has supported the impugned order passed by the learned trial Court. It is argued that if there is any sale deed is in existence the plaintiff could have obtained the copy of the sale deed under the RTI or from the Registrar Office. But no steps were taken by him to obtain the copy. The learned trial Court has rightly considered the application and has rejected the same for want of any document in support of the averments made in the application. It is submitted that the civil suit will be governed by the theory of lis pendens. He has relied upon the judgment passed by the Hon'ble Supreme Court in the case of Jaideep Shah v. Rashmi Shah @ Miss. Rashmi Vyas reported in 2011 (2) MPLJ 680 . It is further contended that under Article 227 of the Constitution of India the Courts are exercising the supervisory jurisdiction and has to only see whether any procedural error has been committed by the learned trial Court while considering the applications. He has prayed for dismissal of the petition. 5. Heard the learned counsel for the parties and perused the record. 6. From the perusal of the record it is seen that the averments is being made that during the pendency of the civil suit the property is being sold by defendant no. 1 to his son by sale deed. He has prayed for dismissal of the petition. 5. Heard the learned counsel for the parties and perused the record. 6. From the perusal of the record it is seen that the averments is being made that during the pendency of the civil suit the property is being sold by defendant no. 1 to his son by sale deed. But there is nothing on record to show that there is any sale deed executed in his favour only oral submissions are being made without there being any documentary evidence. If the property is being sold by the registered sale deed definitely the plaintiff could have obtained the copy of the sale deed from the registrar office or should even have applied for the same. But he has neither shown his bonafides by applying to the Registrar office for the sale deed only the averments are being made in the application. The defendant No. 1 is said to be father of the subsequent purchaser and he was well aware of the pendency of the civil suit, in such circumstances the theory of lis pendens will govern the case. As far as arguments regarding sale of property to a subsequent purchaser is concerned, already an application under Order 6 Rule 17 has been allowed by the trial Court and the same will be a matter of evidence and will be considered by the trial Court during evidence. 7. The Hon'ble Supreme Court in the case of Shalini Shyam Shetty Vs. Rajendra Shankar Patil (2010) 8 SCC 329 has held that the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated: "(a) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. (b) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. (b) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (c). In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised." 8. Taking into consideration the overall facts and circumstances of the case and the judgment passed by the Hon'ble Supreme Court in the case of Shalini Shyam Shetty (supra), this Court is of the considered opinion that the order passed by the learned trial Court appears to be just and proper and does not call for any interference under the supervisory jurisdiction of this Court. Accordingly, the petition is dismissed.