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2025 DIGILAW 112 (MP)

Vijay Singh Devakar, (Dead), Through Lrs v. Jairaj Singh

2025-02-13

DWARKA DHISH BANSAL

body2025
ORDER : DWARKA DHISH BANSAL, J. 1. This civil revision is preferred by the original plaintiff-Vijay Singh Devakar (now dead, through LRs-Shamkuwar and others) challenging the order dtd.17.11.2011 passed by Civil Judge Class-I, Betul in Civil Suit No.31-A/2010 whereby trial Court has, by deciding the defendant 9-Smt. Ritu Tated’s application under Order 7 Rule 11 CPC, invoked the provisions of Order 1 Rule 3A CPC and directed the plaintiff to file separate civil suits in respect of different causes of action accrued to the plaintiff during pendency of civil suit by virtue of alienations of the suit property made by defendant 1-Shashikala Bai in favour of defendant 3-Toshi Khandelwal and defendants 4 & 5 Arun Gothi and John Philips as well as by defendant 3-Toshi Khandelwal in favour of defendant 9-Ritu Tated. 2. Learned counsel for the petitioners/plaintiffs submits that the suit property originally belonged to three brothers-Vijay Singh, Basant Rao and Shivraj Singh. Basant Rao in his life time executed a Will in favour of Vijay Singh and similarly Shivraj Singh also executed a Will in favour of Vijay Singh. Basant Rao had died in the year 1996 and Shivraj Singh had died in the year 1995. He submits that as per plaint allegations although defendant 1-Shashikala Bai (now dead) was wife of Shivraj Singh, but there being strain relationship in between husband and wife, said Will was executed by Shivraj Singh in favour of plaintiff-Vijay Singh without giving any share to Shashikala Bai. He submits that in presence of Will executed in favour of the plaintiff, as Shashikala Bai had no right and wanted to alienate the property, therefore, instant suit was filed on 24.10.1997, but immediately thereafter she executed sale deed on 24.10.1997 itself in favour of defendant 3-Smt. Toshi Khandelwal. Thereafter, she further alienated part of the suit property on 19.03.1999 in favour of defendants 4 & 5-Arun Gothi and John Philips. Later on 18.11.2000 the defendant 3-Smt. Toshi Khandelwal also executed sale deed in favour of defendant 9-Ritu Tated. He submits that because all the alienations were made during pendency of suit by Shashikala Bai, therefore, Smt. Toshi Khandelwal, Arun Gothi, John Philips and Ritu Tated were made parties to the suit and the necessary relief for cancellation of sale deed was also claimed against the subsequent purchasers. He submits that because all the alienations were made during pendency of suit by Shashikala Bai, therefore, Smt. Toshi Khandelwal, Arun Gothi, John Philips and Ritu Tated were made parties to the suit and the necessary relief for cancellation of sale deed was also claimed against the subsequent purchasers. He submits that although previously filed application under Order 7 Rule 11 CPC by Ritu Tated was dismissed on 09.08.2011, but on the basis of amendment allowed in the written statement on 07.10.2011, the defendant 9-Ritu Tated again filed an application under Order 7 Rule 11 CPC for rejection of plaint with the submissions that due to misjoinder of causes of action, instant suit is not maintainable and plaintiff is not entitled for any relief. Although by the impugned order itself, the grounds raised by way of application under Order 7 Rule 11 CPC were not found to be sustainable for rejection of plaint, but taking into consideration the provision of Order 1 Rule 3A of CPC, trial Court observed that the plaintiff is required to file separate civil suits in respect of separate causes of action accrued to the plaintiff, even during pendency of the suit. Learned counsel submits that trial Court has without taking into consideration the provision of Order 1 Rule 3A of CPC in real perspective, passed the impugned order, which is not sustainable and as the sale deeds were executed during pendency of suit, therefore, all the transferee purchasers being governed by the provision of Section 52 of the Transfer of Property Act, 1882 the plaintiff was not required to file separate civil suits against all the transferee purchasers. With these submissions, he prays for setting aside the impugned order. 3. Learned counsels appearing for the respondents support the impugned order and pray for dismissal of civil revision with the further submissions that although alienations took place during pendency of the suit, but as the plaintiff had no right over the property of Shivraj Singh, therefore, he should have filed separate civil suits even against the transferee purchasers on the basis of causes of action accrued to the plaintiff on the basis of sale deeds executed during pendency of the suit. 4. Heard learned counsel for the parties and perused the record. 5. 4. Heard learned counsel for the parties and perused the record. 5. Undisputedly, the suit for declaration of title and permanent injunction in respect of the suit property, was filed on 24.10.1997 and as the defendant 1-Shashikala Bai executed sale deed in favour of Smt. Toshi Khandelwal on 24.10.1997 i.e. on the date of suit, therefore, the transferee purchaser-Smt. Toshi Khandelwal was made party as defendant 3 and similarly on the basis of alienations made by Shashikala Bai on 19.03.1999 in favour of Arun Gothi & John Philips and by defendant 3- Toshi Khandelwal on 18.11.2000 in favour of Ritu Tated, they were made parties to the suit as defendants 4, 5 & 9 and amendment was also made in the plaint seeking relief of cancellation of sale deeds. As such and as has been admitted by learned counsel for the parties, it is clear that all the alienations were made after filing of the suit. 6. It is well settled that transferee purchasers are governed by the provision of Section 52 of the Transfer of Property Act, which is quoted as under:- “52. Transfer of property pending suit relating thereto.— During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. Explanation.—For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.” 7. For convenience, Order 1 Rule 3A of CPC is also quoted as under:- “O1R3A. Power to order separate trials where joinder of defendants may embarrass or delay.— “Where it appears to the Court that any joinder of defendants may embarrass or delay the trial of the suit, the Court may order separate trials or make such other order as may be expedient in the interests of justice.” 8. Order 1 Rule 3A of the CPC applies when a Court believes that joining multiple defendants in a single suit could lead to unnecessary complications or delays in the trial, allowing the Court to order separate trials for different defendants to ensure a fair and efficient proceeding, essentially, it gives the Court the power to separate trials where joinder of defendants might ‘embarrass or delay’ the trial process. 9. A question in relation to scope of Order 1 Rule 3A of CPC came into consideration before a coordinate Bench of Himachal Pradesh High Court in the case of State Bank of Patiala vs. Hypine Carbons Ltd. (in Liquidation) and others, AIR 1990 HP 10 . Relevant paragraph 26 of this judgment, is quoted as under:- “26. The basic principles which emerge from the discussion made in these decisions are these : The plaintiff may join, in the same suit, several defendants and causes of action where there is community of interest between the defendants or if the evidence, which was sufficient to enable the plaintiff to get a decree against all the defendants, is the same. There should be some nexus which should enable the plaintiff to join various defendants in one suit. The nexus may take the form of the right to relief which the plaintiff is claiming as flowing from the same transaction or series of transactions involving the various defendants. It may also take the form of the same question of law being involved for decision in the suit upon which may depend the right of the plaintiff to seek relief against fall the defendants. The nexus may also be that on a common set of facts the plaintiff may claim relief against the defendants. It is not necessary that all the questions of fact arising in the suit are common to each and every defendant. It would be sufficient if one common question of fact arose. The nexus may also be that on a common set of facts the plaintiff may claim relief against the defendants. It is not necessary that all the questions of fact arising in the suit are common to each and every defendant. It would be sufficient if one common question of fact arose. Merely because some additional fact was required to be established in regard to some defendant or the other, which was not common to all of them, it would not mean that the causes of action against the defendants cannot be combined in one suit.” 10. It is well settled that transferee purchaser during the suit, steps into the shoes of his vendor. Undisputedly, in the instant case transfers were made during the suit. In these circumstances the plaintiff on a common set of facts, may claim relief against the newly added defendants also, as there is clear nexus of the relief which is being claimed by the plaintiff against all the defendants. 11. In view of the aforesaid, it can very well be said that the provision of Order 1 Rule 3A of CPC cannot be made applicable to those defendants who were sold the suit property by the defendant(s) during pendency of suit and similarly on the basis of such transfer, it cannot be said that the plaintiff is required to file fresh suit(s) against such defendants, who have acquired rights in the suit property during pendency of suit. 12. In view of the aforesaid discussion, the impugned order being unsustainable, deserves to be and is hereby set aside and matter is remanded to trial Court for decision of civil suit afresh on merits from its relevant/appropriate stage, after restoring it to its original number. 13. Accordingly, this civil revision is allowed and disposed off. 14. Miscellaneous application(s), pending if any, shall stand closed.