E. Somasekaran and E. Kalyanakumar vs Kanchana, Mani and D. Settu

S. Ashok Kumar, J.—The petitioners are the plaintiffs in the suit O.S. No. 798 of 1989 on the file of the Additional District Munsif''s Court,

Vellore. The petitioners/plaintiffs filed the suit for permanent injunction against the defendants therein for restraining them from interfering with the

plaintiffs'' possession and enjoyment of the suit property, which consists of a house and vacant site. The suit was filed against two defendants.

Subsequently, one Kanchana purchased the property lis pendens in 1992 and an application was filed to implead her as defendant in the suit. The

trial Court impleaded her as third defendant. Of course, the plaintiffs did not challenge such impleadment.

Now at the stage, when the plaintiffs'' evidence was closed and when the Advocate Commissioner has already been examined, the third

defendant failed to appear in Court to give evidence, and therefore, her side was closed. She filed I.A. No. 740 of 1999 to reopen the case.

The third defendant, subsequent purchaser, also filed I.A. No. 799 of 2000 to re-issue the warrant on the Advocate Commissioner to once

again visit the suit property and file a report on the ground that when the Commissioner visited the suit property on earlier occasion, she was not a

party to the suit.

One Settu, who purchased the suit property from the third defendant on 09.02.1998 during pendency of the suit, filed I.A. No. 800 of 2000 to

implead himself as a party in the suit on the ground that he has purchased the property.

The learned Additional District Munsif allowed the applications on payment of cost of Rs. 100/- each. Aggrieved over the orders of the learned

Additional District Munsif, Vellore, the plaintiffs have filed all these revision petitions.

As regards I.A. 740 of 2000 is concerned, it could be seen that though it is an old suit of more than 14 years, the learned Additional District

Munsif has taken a lenient view against the third defendant for her failure to appear in Court to give evidence and allowed the application on

payment of cost of Rs. 100/-. However, for the reason of giving an opportunity to the third defendant to agitate her right on merits, if any subsists

on her, I do not find any reason to interfere with the order, excepting that only one chance on a particular day to be fixed within two weeks of the

receipt of this order, has to be given to the third defendant to give evidence and her evidence should be closed on that day. Therefore, C.R.P.

1594 of 2002 has to be dismissed of with the above observation.

As regards I.A. No. 799 of 2000 is concerned, the third defendant has filed the application to re-issue the warrant to the Advocate

Commissioner to inspect the suit property and file a fresh report on the ground that when the Commissioner visited the suit property earlier, she

was not a party to the suit. The third defendant had purchased the property during pendency of the suit. The physical features of the property

noted down by the Commissioner at the time of inspection, alone is sufficient for just decision of the case and subsequent modification will not have

a bearing on the suit. Further, as it is now shown that the third defendant herself sold the suit property in favour of one Settu, who filed application

in I.A. No. 800 of 2000, the third defendant has no subsisting interest in the suit property, and therefore, the application in I.A. No. 799 of 2000

ought to have been dismissed in limini. Hence, the order of the learned Additional District Munsif passed in I.A. No. 799 of 2000 has to be set

aside and C.R.P. No. 1595 of 2002 has to be allowed.

As regards I.A. No. 800 of 2000 is concerned, it is an application of a third party, a subsequent purchaser from the third defendant, who herself

was a subsequent purchaser during lis pendens. This is a classical case of how parties drag on the proceedings by transferring the suit property

from one hand to another to see that the litigation does not come to an end. The learned Counsel appearing for the first respondent in C.R.P. No.

1596 of 2002 relied upon a decision reported in Savitri Devi v. District Judge, Gorakhpur & ORS. 1999(2) Supreme 72, wherein the Hon''ble

Supreme Court has held as follows:-

Order I, Rule 10 CPC enables the Court to add any person as 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 multiplicity of proceedings is also one of the objects of the said provision in the Code.

It has also been held as under:

There is a dispute as to whether the first defendant in the suit was party to the order of injunction made by the court on 18.8.92. The proceedings

for punishing him for contempt are admittedly pending. The plea raised by him that the first respondent had played a fraud not only against him but

also on the Court would have to be decided before it can be said that the sales effected by the first defendant were in violation of the order of the

Court. 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 multiplicity of

proceedings. In such circumstances, it cannot be said that respondents 3 to 5 are neither necessary nor proper parties to the suit.

As far as the above decision relied upon by the learned Counsel for the first respondent in C.R.P. No. 1596 of 2002 is concerned, it is a suit for

injunction against the defendants from alienating the property and also the defendant contended that he is a bona fide purchaser having no

knowledge of the pendency of the suit. As far as the case on hand is concerned, the modus operandi would also show that they were transferring

the title of the property from one hand to another only to frustrate the plaintiffs in succeeding the suit. The suit is already 14 years old. If such an

application of a third party, subsequent purchaser, is allowed, there will be no end to the proceedings. In Bakthavatsalam v. Anjapuli 2001 (1)

CTC 19, this Court held as under:-

It is clear that a person is not to be added as a defendant merely because he or she would be incidentally affected by the judgment. The main

consideration is whether or not the presence of such a person is necessary to enable the Court to effectually and completely adjudicate upon and

settle and questions involved in the suit. If the question at issue between the parties can be worked out without any one else being brought in, the

stranger should not be added as a party. In the light of the language used in Order 1, Rule 10(2) of C.P.C. as well as various decisions and in the

light of factual position in our case that preliminary decree has already been passed and application for passing of final decree is pending before the

Court below, I am of the view that purchasers of properties during the pendency of the suit are neither necessary nor proper parties inasmuch as

they would be bound by the decree in the suit in view of the principle enunciated in Section 52 of the Transfer of Property Act. I hold that the

parties sought to be impleaded as defendants in the suit and respondents in the final decree application are neither necessary nor proper parties. I

have already stated that the alienees respondents 4 to 6 herein are not wanted to be made a party and they are willing to take the risk. It is settled

law that any alienation subsequent to the filing of the suit is hit by the doctrine of lis pendens. The subsequent purchasers are aware of the

proceedings and they are definitely bound by the decision in the suit and the proceedings.

Hence, the order of the learned Additional District Munsif, Vellore, passed in I.A. No. 800 of 2000 allowing the first respondent in C.R.P. No.

1596 of 2002, by name, D. Settu, to be impleaded as a party, has to be set aside. C.R.P. No. 1596 of 2002 has to be allowed.

In result, C.R.P. 1594 of 2002 is dismissed with the observation stated above. C.R.P. No. 1595 of 2002 is allowed setting aside the order

passed in I.A. No. 799 of 2000. C.R.P. No. 1596 of 2002 is allowed setting aside the order passed by the Additional learned District Munsif,

Vellore in I.A. No. 800 of 2000. Consequently, C.M.P. No. 13685 of 2002 is dismissed and C.M.P. Nos. 13686 and 13687 of 2002 are

closed. No costs.

Since the suit is 14 years old, the learned Additional District Munsif, Vellore, is directed to dispose of the suit within six weeks from the date of

the receipt of a copy of this order and report the same to this Court.