Ajab Rao and Others vs Devi Lal Sharma and Others

Dipak Misra, J.

Invoking the revisional jurisdiction of this Court u/s 115 of the CPC (hereinafter referred to as ''the Code'') the legal heirs of defendant No. 1 and the defendant No. 2 have called in question the sustainability of the order dated 20.08.99 passed in Civil suit No. 276-A/97 by the learned IVth Civil Judge Class -II, Chhindwara.

The facts as have been exposited in the Civil revision are that M/s. Seth Sheolal Trimbakrao was a partnership firm comrising of three partners, namely. Seth Sheolal Sharma, Trimbakrao Dani and Govind Rao Kale. The said partnership firm had certain houses known as "Seth Sheolal Ka Bada". In civil suit no. 8-A/37 the said firm was dissolved and assets were distributed in the final decree dated 10.2.55. It is stated that Clause 4 of Item No. 1 of the final decree reads as under-

The well and the area round about it marked No. 8 on the plan will be kept joint for the use of all the partners. The area round about the well shall be kept open.

The aforesaid plot No. 8 alongwith the well became the subject-matter of Civil Suit No. 276-A/97 (the suit was re-numbered from time to time and the last number is 276-A/97). The suit was instituted by the non-applicants No. 1 and 2, namely, Devilal and Surendra Kumar Sharma, respectively who are successors in interest of the partnership firm M/s. Seth Sheolal Trimbakrao. In the said suit the plaintiffs prayed for a decree in their favour directing demolition of superstructure and the removal of the materials on "Ba, Sa, Da, Ka, Kha, Ga" as shown in the plaint map; for possession of the entire plot "A, Ba, Sa, Da, Ka, Kha, Ga, Gha, A" inclusive of the well "W" and two sub-plots "Ba, Sa, Da, Ka, Kha, Ga" and "A, Ba, Ga, Gha, inclusive of the well; for damages of Rs. 1000/-for use and occupation of the plaintiffs'' open plot by the defendants and the cost of the suit. The plaintiffs claimed exclusive title over the suit plot on the basis of registered sale-deed dated 12.1.59.

The defendants filed their written statement claiming exclusive right, title and interest over the suit plot. It was further pleaded that by registered sale-deed dated 13.7.58 Trimbakrao Dani had sold the house marked nos. 2 & 3 in the plaint map alongwith his interest over plot No. 8 in favour of Ajab Rao, the defendant No. 1. It was further put forth that subsequent sale-deed executed by Trimbakrao in favour of the plaintiffs did not confer any right, title or interest upon them.

The learned trial Judge keeping the controversy in view framed number of issues. After issues were framed the case was eventually fixed for recording of evidence of the plaintiffs on 21.08.87 but till early Ninety''s (1990''s) the plaintiffs evidence could not be recorded. While the suit was pending Ajab Rao the original defendant No. 1 expired on 29.5.98. The plaintiffs filed an application seeking substitution of legal representatives under order XXII Rule 4 of the Code, and eventually, the legal representatives were brought on record but they were set ex-parte. The case was fixed for further proceeding on 9.4.99.

On 9.4.99 the plaintiffs filed an application u/s 151 read with Order XXIII Rule 1 of the Code praying therein that their counsel be discharged and they be permitted to abandon their claims.

While the aforesaid application was pending for consideration the non-applicant No. 3, Ramesh Kumar, filed an application under Order 1 Rule 10 of the Code on 4.5.99 seeking himself to be impleaded as a party on the ground that he had purchased the suit plot by a registered sale-deed dated 20.02.98 purporting to have been executed by Girish Kumar Soni, plaintiffs'' Mukhtyar. While this application was pending said Ramesh Kumar filed yet another application under Order XXII Rule 10 of the Code stating, inter alia, that the plaintiffs and other defendants had compromised the dispute outside the Court and intended to cause injury/prejudice to his right which has been accrued to him by the sale-deed dated 20.02.98.

The defendants contested the aforesaid application contending, inter alia, that the sale-deed executed in favour of said Ramesh Kumar was in excess of authority and the plaintiffs had no alienable title. It was further put forth that no leave of the Court was obtained as envisaged u/s 52 of the Transfer of Property Act. It was further stated that when the plaintiffs have filed an application expressing their desire for dismissal of their claim no application for joinder of parties or substitution under Order XXII Rule 10 of the Code was tenable.

Upon hearing the parties the learned trial Judge by order dated 20.08.99 dealt with all the applications and came to hold that Ramesh Kumar being purchaser pendente lite has right to continue the suit, and accordingly, allowed the application under Order XXII Rule 10 of the Code permitting to continue the suit and further permitted the original plaintiff to abandon the suit on payment of cost of Rs. 3000/- to the defendants. The said order is the cause of grievance of the present revisionists.

Assailing the aforesaid order it is contended by Mr. Ravish Agarwal, learned senior counsel for the applicants, that the non-applicant No. 3 could not have joined as plaintiff and in any case he could have only stepping into the shoes of the original plaintiffs who have abandoned their right to proceed with the suit. He has also submitted that as the plaintiffs have not taken leave u/s 52 of the Transfer of Property Act the respondent No. 3 would be governed by the doctrine of lis pendens. The learned counsel in support of his submission placed reliance on the decision rendered in the case of Dhanna Singh and Others Vs. Baljinder Kaur and Others, .

Resisting the aforesaid submissions it is contended by Mr. Chakravatry, learned counsel for non-applicant No. 3, that the law laid down in the case of Dhanna Singh (supra) is not applicable to the facts of the present case inasmuch as the factual scenario is absolutely different. It is also put forth by him that the non-applicant no. 3 having purchased the right, title and interest of the plaintiffs has the right to be impleaded as plaintiff and continue the suit. It is also canvassed by him that the principle of lis pendens would not affect the rights of non-applicant No. 3. Lastly, it is, submitted by him that the original plaintiffs have exclusive right over suit property, and therefore, non-applicant No. 3 who purchased the property has a right to continue the suit and such right of continuance would not be hit by Section 52 of the Transfer of Property Act. In support of his submission he has placed reliance on the decisions rendered in the case of Ashok Kumar Prakash Chand Vs. Sunnu Khan Allkhan, 1982 MPLJ 537 and Savitri Devi Vs. District Judge, Gorakhpur and Others, .

Before I advert to the obtaining factual matrix I think it is apposite to refer to some of the decisions in the field. In the case of Khemchand Shankar Choudhari and Another Vs. Vishnu Hari Patil and Others, the Apex Court held that a transferee pendente lite of an interest in an immovable property which is the subject matter of suit is a representative in 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 Apex Court taking note of the provisions of Section 52 of the Transfer of Property Act as well as the provisions of Rule 10 of Order XXII of the Code held as under-

...........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.....

In the case of Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Others, the Apex Court while discussing the concept of ''dominus litis'' and scanning the concept of judicial discretion held as under-

The case really turns on the true construction of the rule in particular the meaning of the word "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 a 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.

Recently, in the case of Savitri Devi (supra) the Apex Court after referring to the earlier decisions as well as decision rendered in the case of Razia Begum Vs. Anwar Begum, AIR 1958 SC 836 held that a bonafide transferee should be impleaded as a party as he has a direct interest in the action.

In view of the aforesaid pronouncements of law there remains no iota of doubt that a person who purchases a property can seek impleadment in the suit. Submission of Mr. Ravish Agarwal, learned senior counsel, is that as the plaintiffs have abandoned the suit the third party would have no further right as the suit at the instance of original plaintiff is bound to be dismissed being abandoned. It is his further submission that third party transferee steps into the shoes of the original plaintiff and as the original plaintiff has abandoned the suit, the third party purchaser cannot continue the suit. In support of his submission he has placed heavy reliance on the decision rendered in the case of Dhanna Singh and others (supra) wherein the Apex Court held that the subsequent purchaser does not get any right to lead any evidence if he steps into the shoes of a defendant who had given up the right to lead evidence. In the aforesaid case several opportunities were given to the defendant to adduce evidence, and eventually, the court fore-closed the evidence of the defendant on the statement of counsel that the first defendant was not willing to lead any evidence. The third party purchaser after impleadment filed an application for adducing evidence which was rejected. In that context the Apex Court held as under -

The undisputed fact is that in the plaint the plaintiff respondent had already sought for a relief of injunction of alienation, yet the alienation came to be made. Apart from the doctrine of lis pendens u/s 52 of the T.P. Act, the subsequent purchaser does not get any right to lead to any evidence as he stepped into the shoes of the first defendant, who had given up the right to lead any evidence. In view of these circumstances, he does not get any-right to lead any evidence.

Mr. Chakravaty, learned counsel for non-applicant No. 3, has submitted that the aforesaid decision is distinguishable and does not apply to the facts of the present case. I am inclined to accept the submission of Mr. Chakravaty. The aforesaid decision is distinguishable inasmuch as an order had already been passed fore-closing the evidence of the defendant, and hence, third party purchaser had no right to aduce evidence. In the present case the plaintiffs had already sold their right, title and interest to the third party, and therefore, they have no stakes, and therefore, they wanted to abandon the suit. The purchaser wanted to be impleaded himself as a party and look after his interest so that no adverse order is passed against him. His prayer to continue the suit cannot be brushed aside as he has a right to be impleaded as a party. In my humble opinion there are distinct features and it would not be justified to deny the privilege to the third party purchaser to be impleaded as plaintiff and to prosecute the suit. As the trial Court has done that I do not find any jurisdictional error or material irregularity in exercise of jurisdiction.

Consequently, the civil revision, being sans merit, stands dismissed. However, there shall be no order as to costs.