Dr. Shamina Sahin Haque vs Syed Safiur Rahman

S.K. Kar, J.—This revision petition is presented by Dr. Shamina Sahin Haque being dissatisfied with the order dated 3.9.2002 passed in T.S. No. 12 of 1996, refusing her impleadment as a party to the suit on the ground that she was a bona fide purchase of the portion of the suit property for value in good faith without notice.

The petition is objected by the learned counsel appearing for the respondent-plaintiff, Smti. Syed Safiur Rahman on the ground that the impleadment is a delayed matter, as the suit is pending from 1996 and it is already at a matured stage awaiting final decision. (This is not correct because closing part of the impugned order goes as follows :-

"Fix 9/10/02 for framing of issue".)

Without going into the details of the fact, the main point/the ground on which, the prayer for impleadment was rejected, is that the provision of section 52 of the Transfer of Property Act, is a bar for such impleadment because any transfer with respect to property which is already a subject matter of dispute in a litigation will not carry any title to the purchaser. The learned Civil Judge (Sr. Divn.) relied upon certain decisions of the Orissa High Court as well as Calcutta High Court to base his verdict.

On confronting this, the learned counsel for the petitioner has put his full reliance on a decision given by the Hon''ble Apex Court and reported as Savitri Devi Vs. District Judge, Gorakhpur and Others, The relevant portion goes as follows :-

"The plea raised by Respondents 3 to 5 that they were bona fide transferees for value in good faith may have to be decided before it can be held that the sales in their favour created no interest in the property, The aforesaid questions have to be decided by the Court either in the suit or in the application filed by Respondents 3 to 5 for impleadment in the suit. If the application for impleadment is thrown out without a decision on the aforesaid questions, Respondents 3 to 5 will certainly come up with a separate suit to enforce their alleged rights which means a multiplicity of proceedings. In such circumstances, it cannot be said that Respondents 3 to 5 are neither necessary nor proper parties to the suit".

The un-fattered power given by Order 1 Rule 10, of the CPC has definitely having an intend and purpose. It says that the Court may at any stage of the proceeding (I emphasise ''any stage of the proceeding'') either upon or without application of either party and on such terms (I emphasise ''term'') as it may appear to the Court to be just and order that the name of any party improperly joined being struck off or that the name of any person ought, to have joined 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 be added (emphasis is mine). I agree with the submission of the learned counsel for the petitioner that there are materials to presume that the petitioner is a bonafide purchaser of value in good faith without notice and her right requires to be protected by allowing her to join the suit. While opining so I accepted the guidelines given by the Hon''ble Apex Court in a decision (supra) and re-produced as above.

In the result, petition is allowed. The impugned order is set aside. The petitioner will be impleaded as a party-defendant in the suit in question and she will present her written statement, if any, within 7(seven) days from the date of receipt of a certified copy of this order of the Court.