Bhola Ram Sah and Another vs Fudo Sah and Others

P.K. Deb, J.—This revision petition has been preferred against the order dated 17.4.1993 passed by Subordinate Judge III, Begusarai, in Title Suit No. 14/90(15/92) whereby and whereunder the petition filed by Petitioner No. 1 Bhola Ram Sah for impleading him as co-Plaintiff in the suit has been rejected allowing the petition filed by the Defendant-opposite party for dismissal of the suit as the original Plaintiff Bhola Sah had sold away the subject matter of the suit. The above mentioned suit was filed originally by Petitioner No. 2 for declaration of title confirmation of possession and for permanent injunction. Admittedly during the pendency of the suit the Petitioner No. 2 sold away the subject matter of the suit to Petitioner No. 1 Bhola Ram Sah in the year 1993 by dint of three sale deeds. When such sale was made by Petitioner No. 2 to Petitioner No. 1 then the Defendant came up with objection before the court below urging for dismissal of the suit as the suit property had already been sold away by the original Plaintiff. Against that the original Plaintiff came up with the objection that the property had been sold as alleged from the side of the Defendants to Bhola Ram Sah by three sale deeds and on the same date Bhola Ram Sah also came up with the petition for adding him as co-Plaintiff in the suit. But rejoinder was filed from the side of the Defendants against the prayer for intervention by Petitioner No. 1. After hearing the counsel for both the parties the learned court below passed the impugned order rejecting the intervention petition and recording dismissal of the suit. The grounds of rejection of the intervention petition as has been taken in the impugned order are (i) that the petition filed by Petitioner No. 1 had no proper nomenclature as to under what procedure of CPC such petition was filed for intervention, and (ii) that the original Plaintiff had stated that the suit property was valued at Rs. 38,000/ - and odd while the consideration of the three sale deeds of Petitioner No. 1 Bhola Ram Sah only show to be of Rs. 28,000/ - and odd.

Peculiarly it could be found that although the learned court below had considered the provision of Order 1 Rule 10(2), Code of Civil Procedure, and opined to that effect that at any stage a petition of intervention by third party can be entertained if the same is required for proper adjudication of the matter of dispute. But that opinion had not been applied or implemented while considering the petition of intervention by Petitioner No. 1. He has not stated that the sale of Petitioner No. 1 is barred under the principle of lis pendens and as such intervention petition should not be allowed. Even if it is construed that Petitioner No. 1 is a subsequent purchaser and his purchase is hit by lis pendens but the factual aspect remains that there was dispute regarding title and possession over the suit land between the original Plaintiff and the Defendants and during the pendency of the suit Petitioner No. 1 had stepped into the shoes of the original Plaintiff then also the original Plaintiff is not shirking away from the suit, rather he wanted that his purchaser should also be added as co-Plaintiffs. Only because no nomenclature was there in the petition filed by Petitioner No. 1 the same should not be rejected as the contents of the petition fits in the provisions of Order 1 Rule 10(2), Code of Civil Procedure. Moreover, even if purchase was made by Petitioner No. 1 on smaller amount than the actual value of the suit property, that is a matter in between the purchaser and seller, and that cannot take away the right of the intervenor to be impleaded in the suit for proper adjudication of the dispute between the parties. It appears that the learned court below approached the matter in a wrong and negative angle and as such recorded the dismissal of the suit after rejecting the petition of intervention. It is not there that the dispute for which the suit has been filed has already disappeared, rather the dispute was existing but only the Plaintiff''s share had been transferred to the intervenor. If the intervenor is not allowed to be impleaded then there would be only an invitation of further litigation when the same can be disposed of in the present suit itself.

In the above view of the matter the revision petition is hereby allowed. The impugned order dated 17.4.1993 is set aside directing the trial court to allow Petitioner No. 1 to be added as co-Plaintiff and then proceed with the suit accordingly.

In the facts and circumstances of the case there will be no order as to cost.