Shri Basant Ram vs Smt. Hans Devi etc.

D.B. Lal, J.—This is a revision petition submitted to this Court u/s 115 of the CPC and is directed against the order dated 29th December, 1973 of the Sub-Judge First Class Hamirpur, whereby he has refused the prayer of the Plaintiff Basant Ram to implead in the suit as Defendants certain subsequent transferees of the property in dispute. The petition arises in the following circumstances.

Basant Ram filed a suit for injunction and in the alternative for possession in respect of 54 kanal and 14 marla of land earmarked in several khasra numbers and situate in Tika Badehar, Mauza Mewa of Tehsil Hamirpur. The Defendants were Hans Devi and four others. On 10-9-1973 the plaintff Basant Ram filed an application under Order 6, Rule 17 and Order 22, Rule 10 of the CPC for impleading subsequent alienees from Defendants 1 and 3. of a portion of property in dispute. It was stated that the suit was filed on 2-8-1969 but soon thereafter three sale deeds were executed by Defendants 1 and 3 in the name of several persons and that such subsequent transferees should be made Defendants. The application for impleading subsequent transferees was made at a much late stage in the suit. The issues were framed on 26-10-1971 and the first date fixed for recording evidence of the Plaintiff was 23-3-1972. The Plaintiff got adjournment and thereafter 10-9-1973 was fixed for recording his evidence. The Plaintiff neither summoned any witnesses nor was ready otherwise with his evidence on 10-9-1973. Rather, he moved this application for impleading subsequent transferees as Defendants in the suit. The learned Sub-Judge held that the rights of subsequent transferees were subject to the decree to be awarded in the suit, the transfers being lis pendens. As such according to the learned Sub-Judge the subsequent transferees were not necessary parties and should not be impleaded. He further observed that the Plaintiff did not produce evidence and was aware of the position long before. He wanted to prolong the proceedings and the application was made mala fide so that the case is not decided earlier. With these observations the application of the Plaintiff was dismissed and he has come up in revision to this Court.

Much less to say, the Petitioner-Plaintiff can only succeed if he can point out an error in the exercise of jurisdiction vested in the Court or any illegality or material irregularity which the Court might have committed. The reference made in the application is of Rule 17 of Order 6 which deals with amendment of pleadings. For this, the Petitioner-Plaintiff has to establish that the amendment sought for is necessary for the purpose of determining the real questions in controversy between the parties. This provisions has to be read in collaboration of Rule 10 of Order 1 which specifically deals with the addition of parties in a suit. Again, the test is, of the determination of the real matter in dispute or effectual and complete adjudication and settlement of all questions involved in the suit. Law as to necessary parties to a suit is fairly well settled. There is a distinction between "necessary" and "proper" parties to a suit. Necessary parties are parties whose presence is essential and in whose absence no effective decree can at all be passed. They are parties "who ought to have been joined" within Order 1, Rule 10(2). "Proper parties" are parties whose presence is a matter of convenience to enable the court to adjudicate more effectually and completely. At any rate, the presence of such a party should be held to be necessary in order to enable the court effectually and completely to adjudicate upon the dispute before such a party can be held to be a necessary party to the suit. Under Rule 10 of Order 22, the discretion is given to the Court to add a party which is necessary as a result to assignment or devolution of interest during the pendency of the suit. One has to apply to the Court, and leave of the Court is solicited for adding such a party. In the instant case, the leave was asked for by the Plaintiff Basant Ram and it was refused by the learned Sub-Judge presumably under Rule 10 of Order 22. The central question should therefore be, whether the subsequent transferees were necessary parties to the suit. It is manifest, the suit is for injunction and in the alternative for possession. Admittedly the transfers were made during the pendency of the suit. The essential controversy is, therefore, between the Plaintiff and the present Defendants. The subsequent transferees, on the doctrine of lis pendens, are only entitled to a right which would devolve upon the Defendants as a result to a decision in this suit. Even if a person On whom the interest of the Plaintiff or the Defendant devolves while the suit is pending, does not obtain leave of the Court under Order 22, Rule 10 for the continuation of the suit by or against him, he would still be bound by the result of the litigation and by the decree made in the suit see: Gwalior and Northern India Transport Co. Ltd. v. Dinkar Durga Shankar Joshi AIR 1955 Madhya Bharat 214. Therefore, neither the matter in dispute exists between the subsequent transferees and the Plaintiff, nor the presence of subsequent transferees is necessary in order to decide such a dispute effectually and completely. Nor can it be stated that the presence of subsequent transferees is required to settle all questions involved in the suit. The test to determine as to whether a party is necessary to a suit is to find out if there is a right to some relief against such party in respect of the matter involved in proceedings in question and secondly to ascertain whether it would not be possible to pass effective decree in the absence of such a party. Both the tests are not satisfied in the present case. Therefore, when the learned Sub-Judge did not consider that these subsequent transferees were necessary parties and rejected the application of the Plaintiff for impleading them, it cannot be stated that he committed an error in exercise of jurisdiction or committed an act with illegality or with material irregularity.

The learned Counsel submitted that he would avoid multiplicity of suits if subsequent transferees are made Defendants. This argument is also without any merit. As I have stated before, the subsequent transferees are bound by the decree which may ultimately be passed in the suit. As such they would not be in a position to resist the result of the suit. The Plaintiff need not file another suit against the subsequent transferees. This plea is not even taken in the grounds of revision. In ground 5 (e) of the revision, the Plaintiff has pleaded that the present Defendants would "become lethargic and may not exercise due and proper care in defending the suit" and that would prejudice the subsequent transferees. This plea is no doubt laudable because the Plaintiff wants somebody to be arrayed against him who should not be "lethargic" and who can pursue the pleas hotly against him, but the plea itself sounds somewhat abnormal because we have yet to find a Plaintiff who does not take advantage of the weakness of defence and rather invites a stronger defence against him. The learned Counsel for the Respondent argued upon this that the real purpose of the Plaintiff is to delay the proceeding and not to get an effectual or complete decision which can very well be obtained even in the absence of the subsequent transferees.

The learned Counsel for the Respondent also stated that the Plaintiff was in a position to move such an application long before, the issues were framed or he was called to lead evidence. That is so evident because at least two dates were given to the Plaintiff to adduce evidence and he did not produce any such evidence. Rule 13 of Order 1 was pressed on my attention which enjoins that all objections on the ground of non-joinder or mis-joinder of parties should be taken at the earliest possible opportunity and in all cases where issues are settled at or before such settlement. At any rate, two of the sales were executed in August, 1969 and the subsequent transferees in respect of such sales could very well be impleaded before the framing of the issues or soon thereafter. The matter was purposely delayed by the Plaintiff who did not think them as necessary parties at earlier stages. It is only later on when he was compelled to adduce evidence that he came with this plea of impleading them as parties.

The final submission of the learned Counsel is more far-reaching. It is submitted that the court had refused leave under Rule 10 of Order 22 and for such a refusal to give leave an appeal is provided under Rule 1(1) of Order 43. The appeal having been provided, ho revision is entertainable u/s 115 which seems to be correct. On this short ground also, the petition is liable to be rejected.

As I propose to reject the application, CMP. 708 of 1973 which is for stay of proceeding is also dismissed.

The revision petition is, therefore, without any force and is dismissed with costs to the Respondents.