Nachammal vs Lavangammal

M. Karpagavinayagam, J.—The order rejecting the Application filed under Order 1 Rule 10(2), CPC to implead the petitioner/third party as

a party in the preliminary decree proceedings is challenged in this revision petition.

The suit has been filed by the plaintiff/respondent for partition on 23.3.1973. One of the items, viz., Item No. 19 has been sold to the

petitioner/third party on 30.6.1973 by the second defendant. However, the second defendant did not make any mention about the same in the

written statement filed by him before the trial Court. In the suit filed by the plaintiff/respondent, the petitioner/third party is not made a party, even

though the property in question was purchased by her from the second defendant on 30.6.1973. Ultimately, the suit was decreed and preliminary

decree came to be passed on 26.7.1982. Now the final decree proceedings are pending. At this stage, an Application has been filed by the

petitioner/third party in I.A.No.881 of 2005 seeking for a direction to implead herself as a party in the preliminary decree proceedings, as her

interest in respect of Item No. 19 is affected. The trial Court, after hearing the parties, dismissed the Application. Hence, this revision.

The learned Counsel appearing for the petitioner/third party, while assailing the order passed in the said Application, would refer to Section 146,

Order 21 Rule 16 and Order 22 Rule 10 of CPC, and submit that the proceedings can be continued as against the petitioner/third party, who is a

necessary party, as her interest is affected by virtue of the preliminary decree in respect of the property in Item No. 19, which is in her possession.

He also relied on the decisions of the Supreme Court reported in Amit Kumar Shaw and Another Vs. Farida Khatoon and Another, and 2004 (1)

CTC 549 (Raj Kumar v. Sardari Lal) to substantiate the case of the petitioner/third party.

I have carefully considered the submission made by the learned Counsel for the petitioner and also gone through the records. Though notice has

been served to the respondent, nobody has entered appearance.

As indicated above, the suit has been filed on 23.3.1973 itself. It is reported that the property mentioned in Item No. 19 was sold by the second

defendant being the father of the plaintiff to the petitioner/third party on 30.6.1973. As such, the application has been filed under Order 1, Rule

10(2) of CPC, by the petitioner/third party seeking to implead herself as a party, nearly 21 years after the filing of the suit. Further, the suit has

been decreed and preliminary decree has been passed on 26.7.1982. Under Order 1 Rule 10 CPC, a party can be impleaded, only if the said

party is a necessary and proper party to decide the issue. It is settled law that any alienation of the property in question subsequent to the filing of

the suit is hit by the doctrine of lis pendens and any decree passed in respect of the property would be binding on the party, in view of the

provision contemplated u/s 52 of the Transfer of Property Act. The subsequent purchaser is certainly bound by the decision in the preliminary

decree proceedings. As laid down by the Supreme Court in Amit Kumar Shaw and Another Vs. Farida Khatoon and Another, , the object of

Order 1 Rule 10, CPC 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 the above Rule, a person may be added as a

party to a suit only 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.

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 include necessarily an enforceable

legal right.

In the light of the abovesaid principles laid down by the Apex Court, if we look at the facts of the present case, admittedly, the property in Item

No. 19 has been purchased by the petitioner/third party only during the pendency of the civil suit. The preliminary decree has been passed on

26.7.1982. After a lapse of 21 years, the petitioner/third party has now come forward to file the Application under Order 1 Rule 10, CPC to

implead herself as a party in the preliminary decree proceeding, which has already been concluded and, that too, when the final decree proceeding

is at a final stage. As correctly laid down by the Supreme Court, when without the presence of the party, the question in the suit cannot be

completely decided, then alone the party can be impleaded. The reason for the delay, according to the petitioner, is that she was not informed

about the pendency of the proceedings. As correctly pointed out by the trial Court, the power of the Court to add a party to a proceeding cannot

depend solely on the question whether he has any interest in the property, but the suit has to be decreed on the basis of the materials placed by

either parties, under whose presence the questions in the suit can be finally decided. The observation made by the Supreme Court in the decision

referred to above, taking into consideration Order 22 Rule 10, CPC, would not apply to the present facts of the case.

M. Karpagavinayagam, J.

Therefore, I do not find any merit in the civil revision petition. The revision petition is accordingly dismissed. Consequently, the connected

miscellaneous petition is also dismissed. No costs.