Rameshwar Bhagat and Another vs Thakur Jeban Narayan Singh and Others

Rowland, J.—The petitioners are persons claiming to be added as parties-defendants in a rent suit alleging that they had purchased the greater part of the holding in suit in November 1929 in execution of a mortgage decree. The petitioners on a previous occasion had filed a claim case which was allowed in 1933. The present plaintiff as decree-holder had sought to attach and put to sale the crops on the holding now in suit. The claim of the present petitioners was allowed.

The petitioners in January 1936 made, an application in accordance with Section 26(O), Bihar Tenancy Act, to deposit with the Collector Rs. 120 as transfer fee payable to the landlord, and as stated in the Munsif''s judgment a receipt, dated 6th February 1936, was granted to them. They applied on 12th March 1936 to be added as a party in the suit and the application was refused on 27th April 1936, the Munsif being of opinion that he could not implead the interveners when the plaintiff objected.

A preliminary objection is taken that this application is infructuous as the suit has already been decreed ex parte against the raiyat defendants. I do not find any substance in this objection. The circumstances were similar in Nilambar Jha v. Chandradhari Singh (1929) 10 PLT 442 in which the order was that if the Munsif found that the petitioners were entitled to be added as parties he should give them an opportunity to set aside the ex parte order, that is to say, if these petitioners ought to have been added as parties, the fact that since the disposal of their application the suit has been decreed ex parte will not stand in their way. The Munsif thought that the petitioners were not entitled to be joined as parties because their deposit of the transfer fee was made after the commencement of this suit and so the recognition of them as transferees by the landlord would also be deemed to have taken place after the commencement of the suit.

For the petitioners reference is made to the Privy Council decision in AIR 1936 49 (Privy Council) as authority for the proposition that the recognition will be considered to take effect retrospectively. Their Lordships in that case were dealing with Section 26(N) which refers to transfers made before the first day of January 1923. The decision is clear authority that both Section 26(N) and Section 26(O) are to be applied in accordance with their terms, but Section 26(O), Clause (3)(b) is perfectly clear as to the date on which the landlords consent is to be deemed to have been given to the transfer. That date, as stated in the section, is the date on which the receipt for the sum is granted by the Collector in this case 6th February 1936. It has been argued for the opposite party that this supposed consent has not yet matured into finality, because the landlord has objected both to the alleged sale price which, he says, has been understated and also to the proposed distribution of the rent between the portion of the holding transferred and the portion remaining in the hands of the original tenant. The effect of such applications by the landlord is provided for in Section 26(J). The landlord''s remedy in the case of understatement of the market value is to get a sum of money by way of penalty and if the distribution of rent is inequitable his remedy is to get an order distributing the rent equitably. There is nothing here to take away the effect of Section 26(O)(3)(b) providing that the consent shall be deemed to have been given on the date on which the receipt for the deposit is granted by the Collector.

The question then arises whether in such a case as the present it was proper to join the interveners as parties. The petitioners rely on Order 1, Rule 10, Civil P. C, and contend that they are persons who ought to have been joined. The opposite party contends that the petitioners were not necessary parties at the time of the institution of the suit and that the question of who are proper parties should be determined with reference to the state of things at the institution of the suit and not at a later date. However Order 1, Rule 10, Clause (2) authorizes adding the name as a party of any one

whose presence before the Court may be necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit.

This power is given to the Court "at any stage of the proceeding"; and therefore in my opinion the power may be exercised in order to bring on the record persons who are found to be proper parties at any stage, not necessarily, only those who were proper parties on the date of the institution of the suit. This view seems to me to be consistent with Order 22, Rule 10 which makes similar provision for assignment etc. of interest during the pendency of a suit; but in the present instance the interest of the interveners had come into existence some years before although the recognition only came during the pendency of the suit. It has been held in more than one decision of this Court that where an intervening third party alleges his purchase of the holding and alleges recognition of that transfer by the landlord the trial Court must add the intervener as a party (Sham Sunder Kuer v. Kailas Singh AIR 1930 Pat 323 and Kasi Das v. Krishna Gopal Singh AIR 1930 Pat 592). These are cases in which recognition before the institution of the suit was alleged by the transferees. But I think the principle must be held applicable also to the case where there is a statutory recognition taking effect after the institution of the suit.

In the result the application will be allowed, the order of the Munsif set aside, the petitioners must be added as parties to the suit and it will be open to them to apply to the Munsif to set aside the ex parte decree and to re-hear the suit in their presence. The petitioners will get their costs of this application: hearing fee two gold mohurs.