Pirthi vs Santu and Others

S.P. Bangarh, J.—Petitioner, herein, filed civil suit No. 22P-C of 2012 in the trial Court against the-respondents for partition of the suit property more fully described in the cause title of the plaint. The latter, in para 2 in their written statement averred that respondent No. 1 has sold the suit property to Sita Ram resident of Jamawari, Tehsil Hansi, District Hisar. On the basis of this averment, the petitioner filed application under Order 1 rule 10 CPC and under Order 6 rule 17 CPC read with Section 151 of CPC for production of documents. In reply, respondent No. 1 replied that sale has been done without sale agreement.

Confronted with this situation, the; petitioner, herein, filed application under Order 1 rule 10 CPC and under Order 6 rule 17 CPC read with Section 151 CPC, for impleadment of Sita Ram (supra) as defendant No. 3, as also for carrying out following amendments, as para 7(A), which reads as under:--

7(A) That the defendants Nos. 1 and 2 have sold the disputed property to defendant Sita Ram which is totally wrong and against the law and the defendants Nos. 1 and 2 are not entitled to sell the share of plaintiff to Sita Ram defendant and the plaintiff is entitled-to receive the possession of the disputed property of this 1/3 share after partition from Sita Ram and is also entitled for Rs. 5000/- per month alongwith interest from the respondent No. 3 Sita Ram till the receiving of the possession for use and occupation.

So, it was averred that the proposed amendment, as also the impleadment of the said Sita Ram are essential in the changed scenario. Consequently, prayer for acceptance of application was, thus made.

This application was opposed by the respondents by filing written reply, thereto (Annexure P-2).

After hearing both the sides, the trial Court dismissed the application of the petitioner vide impugned order dated 16.10.2013 (Annexure P-3).

Aggrieved, against the same, the petitioner who is plaintiff before the trial Court has come up in this revision petition with prayer for acceptance, thereof and for allowing impleadment of Sita Ram, as defendant No. 3 and resultant amendments in the plaint, as a result of his impleadment as defendant No. 3 in the plaint.

Learned counsel for the petitioner contends that no prejudice is going to be caused to the opposite party. It is, they who disclosed that the suit property had been sold, to Sita Ram. There is force in this contention.

The issuance of notice to the respondents shall cause further delay in the disposal of the suit, so the service of notice upon the respondents is dispensed with. However, they can approach this Court for setting aside this order, if aggrieved, thereby, by moving appropriate petition.

It is felt that the proposed amendment in the plaint, as also the impleadment of Sita Ram as defendant No. 3 shall not cause any prejudice to the respondents.

The Hon''ble Supreme Court of India in Amit Kumar Shaw and Another Vs. Farida Khatoon and Another, ; held that the transferees pendente lite can be added, as a proper party, if his interest in the subject matter of the suit is substantial.

The alleged transfer of suit property in favour of Sita Ram shall affect the rights of the petitioner. Even, there shall be multiplicity in the proceedings. Sita Ram may claim that he is a bona fide purchaser of the suit property, wherein, the petitioner claims 1/3 share.

From the written statement, it is made out that the entire suit property has been sold to Sita Ram, who may due to his non impleadment claim himself to be a bona fide purchaser of the suit property. So, Sita Ram the alleged vendee of the suit property is a necessary defendant. As per written statement, he is occupying the entire suit property.

The trial Court, thus, erred in rejecting the application of the petitioner vide impugned order, which must be set aside.

Resultantly, the civil revision petition succeeds and is, hereby, allowed; impugned order is set aside and the application filed by the petitioner under Order 6 Rule 17 CPC and order 1 Rule 10 CPC, is allowed and the amended plaint after impleadment of Sita Ram, as defendant No. 3 be filed by the petitioner in the trial Court on 31.10.2013.

The amendment shall be strictly according to the application of the petitioner in this regard and anything over and above, the amendment sought in the plaint through his application can be ordered to be deleted by the trial Court. It is reiterated that if the respondents, herein, are aggrieved by this order, they can approach this Court for setting aside of this order by moving appropriate petition.