The first Respondent in I.A.No.425 of 2008 in O.S.No.51 of 2008 on the file of the District Munsif Cum Judicial Magistrate, Kodumudi, is the Petitioner in this Civil Revision Petition.
2. The suit in O.S.No.51 of 2008 was instituted by the Revision Petitioner against Respondents 2 to 7, praying for a judgment and decree of declaration and consequential injunction in respect of the suit property.
3. In the plaint in O.S.No.51 of 2008, it was the contention of the Revision Petitioner that there was an attempt to trespass into the property, at the instance of the Respondents 2 to 5, which made him to file the suit for declaration and consequential injunction.
4. While the matters stood thus, the first Respondent herein filed an application in I.A.No.425 of 2008 to implead him as a defendant in the said suit. In the affidavit filed in support of the application in I.A.No.425 of 2008 it was the contention of the first Respondent that the suit property does not belong to the Revision Petitioner in its entirety. There was an earlier suit in O.S.No.6 of 2006 filed by the Revision Petitioner against him and the said suit was subsequently dismissed for default. The said suit was also in respect of the very same suit property. As per the order in I.A.No.252 of 2007 in O.S.No.6 of 2006 an Advocate Commissioner was appointed by the Court and after inspection of the suit property, a report and plan was submitted. It was only when the said report was considered by the Trial Court the Revision Petitioner realised that there would be no chance for him to succeed in the suit which made him to allow the said suit to be dismissed for default as per the judgment and decree dated 02.04.2008. According to the first Respondent the description of the of the property includes the road leading to the Village and also to the lands belonging to him. Therefore, the first Respondent claimed that he was a proper and necessary party to be impleaded in the suit.
5. The said application was contested by the Revision Petitioner by filing counter. According to him, neither the first Respondent, nor the Villagers of Minnapalayam Village have any right in respect of the suit property and as such the first Respondent is neither a necessary nor a proper party to be impleaded in the suit. According to the petitioner the suit in O.S.No.6 of 2006 was allowed to be dismissed for default as he obtained an order in W.P.No.2642 of 2008, whereby the trespassers were restrained from interfering with his possession and enjoyment of the suit property. It was his further contention that the present suit was filed on the basis of the judgment and decree dated 19.4.1989 in O.S.96 of 1986 on the file of the First Additional Subordinate Judge of Erode, and the first Respondent has nothing to do with the suit property. There was no cause of action for him to file the application to implead him as a party to the suit.
6. The learned trial Judge found that in the earlier round of litigation in O.S.No.6 of 2006 the first Respondent was made as a party and in the written statement filed by the Respondents 6 and 7 they have contended that the suit property includes the road which leads to the land belonging to the petitioner as well as the other Villagers. They have also stated that the Revision Petitioner is entitled to only fraction of the property in S.F.No.558/2 and the remaining property in S.No.558/6 is used by the Villagers as pathway and as cart track.
7. The learned trial Judge found that the first Respondent was a party to the earlier litigation in O.S.No.6 of 2006 and as such he is having substantial claim with respect to the suit property. Accordingly the application was allowed. It is the said order which is impugned in this Civil Revision.
8. Heard the learned counsel appearing for the Revision Petitioner and perused the materials available on record.
9. Admittedly, the first Respondent was a party to the earlier suit in O.S.No.6 of 2006 filed by the very same petitioner with respect to the very same subject matter. It was also the contention of the first Respondent that the Advocate Commissioner appointed in the earlier suit has inspected the property and submitted a report and plan which would go to show that the possession claimed by the petitioner was not correct and he was not entitled to be in possession of the entire property. It was only at that point of time the suit was allowed to be dismissed for default. In any case it is the contention of the first Respondent that the part of the suit property has been used by him as well as the other Villagers as pathway and as cart track and as such, he is a necessary and proper party for an effective adjudication of the suit.
10. In Amit Kumar Shaw v. Farida Khatoon,(2005) 11 SCC 403 the Honourable Supreme Court considered the aspects to be taken note of in a matter relating to impleading the subsequent purchasers thus:-
"9. The object of Order 1 Rule 10 is to discourage contests on technical pleas, and to save honest and bona fide claimants from being non-suited. The power to strike out or add parties can be exercised by the court at any stage of the proceedings. Under this rule, a person may be added as a party to a suit in the following two cases:
(1) when he ought to have been joined as plaintiff or defendant, and is not joined so, or (2) when, without his presence, the questions in the suit cannot be completely decided.
10. The power of a court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The question is whether the right of a person may be affected if he is not added as a party. Such right, however, will necessarily include an enforceable legal right.
12. Under Order 22 Rule 10, no detailed inquiry at the stage of granting leave is contemplated. The court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit by or against the person on whom the interest has devolved by assignment or devolution. The question about the existence and validity of the assignment or devolution can be considered at the final hearing of the proceedings. The court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit.
13. In this connection, the provisions of
Section 52 of the Transfer of Property Act, 1882 which has been extracted above may be noted.
14. An alienee pendente lite is bound by the final decree that may be passed in the suit. Such an alienee can be brought on record both under this rule as also under Order 1 Rule 10. Since under the doctrine of lis pendens a decree passed in the suit during the pendency of which a transfer is made binds the transferee, his application to be brought on record should ordinarily be allowed.
15.
Section 52 of the Transfer of Property Act is an expression of the principle pending a litigation nothing new should be introduced. It provides that pendente lite, neither party to the litigation, in which any right to immovable property is in question, can alienate or otherwise deal with such property so as to affect his appointment. This section is based on equity and good conscience and is intended to protect the parties to litigation against alienations by their opponent during the pendency of the suit. In order to constitute a lis pendens, the following elements must be present:
1. There must be a suit or proceeding pending in a court of competent jurisdiction.
2. The suit or proceeding must not be collusive.
3. The litigation must be one in which right to immovable property is directly and specifically in question.
4. There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation.
5. Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order.
16. The doctrine of lis pendens applies only where the lis is pending before a court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, where the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party, under Order 22 Rule 10 an alienee pendente lite may be joined as party. As already noticed, the court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The court has held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where his predecessor-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case."
11. The Honourable Supreme Court in Savitri Devi v. District Judge, Gorakhpur, (1999) 2 SCC 577, considered the scope and ambit of Order 1 Rule 10 of the Code of Civil Procedure and observed thus:-
"9. Order I Rule 10 CPC enables the court to add any person as a party at any stage of the proceedings if the person whose presence before the court is necessary in order to enable the court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of a multiplicity of proceedings is also one of the objects of the said provision in the Code.
10. In Khemchand Shankar Choudhari v. Vishnu Hari Patil2 this Court held that a transferee pendente lite of an interest in an immovable property which is the subject-matter of a suit is a representative in the interest of the party from whom he has acquired that interest and has a right to be impleaded as a party to the proceedings. The Court has taken note of the provisions of
Section 52 of the Transfer of Property Act, 1882 as well as the provisions of Rule 10 of Order XXII CPC. The Court said:
(SCC p 21, para 6) It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard, he has got to be so impleaded and heard.
11. In Ramesh Hirachand Kundanmal v. Municipal Corpn. of Greater Bombay3 this Court discussed the matter at length and held that though the plaintiff is a dominus litis and not bound to sue every possible adverse claimant in the same suit, the Court may at any stage of the suit direct addition of parties and generally it is a matter of judicial discretion which is to be exercised in view of the facts and circumstances of a particular case. The Court said: (SCC p.529, para 8) 8. The case really turns on the true construction of the rule in particular the meaning of the words whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit.
The court is empowered to join a person whose presence is necessary for the prescribed purpose and cannot under the rule direct the addition of a person whose presence is not necessary for that purpose. If the intervener has a cause of action against the plaintiff relating to the subject-matter of the existing action, the court has power to join the intervener so as to give effect to the primary object of the order which is to avoid multiplicity of actions. The Court also observed that though prevention of actions cannot be said to be the main object of the Rule, it is a desirable consequence of the Rule. The test for impleading parties prescribed in Razia Begum v. Sahebzadi Anwar Begum4 that the person concerned must be having a direct interest in the action was reiterated by the Bench."
12. The learned trial Judge has considered the factual matrix in extenso and arrived at a finding about that necessity of impleading the first Respondent as a party to the suit. There is no error or illegality in the said order warranting interference in a revision under
Article 227 of the Constitution of India.
13. In the result, the Civil Revision Petition is dismissed. The order of the learned trial Judge is confirmed. No costs. Consequently, M.P.No.1 of 2009 is closed.
gr.
To The District Munsif Cum Judicial Magistrate, Kodumudi of Erode District