Devi Vs. District Judge, Gorakhpur & Ors  INSC 43 (18 February 1999)
M. Srinivasan, S.N. Phukan. J U D G M I N T SRINIVASAN, J,
appellant has filed a civil suit bearing No.
in the Court of Munsif, Gorakhpur against her four sons for a decree
for maintenance and for creation of a charge over the ancestral property of the
family. The suit was filed on 14.8.92 and was fixed for hearing on 31.8.92.
applied for an interim order of injunction restraining her sons from alienating
the suit property during the pendency of the suit. But on 16.0.32, a Vakalat
was filed on behalf of the defendants and 4th defendant also filed an affidavit
in the Court purporting to be on behalf of the defendants. The counsel appearing
for the parties expressed their consent before the Court that during the pendency
of the case the parties could be directed not to sell the suit property to any
third person. In the light of the consent of the counsel, the Court passed an
order on that date directing the parties not to transfer the disputed property
described in the plaint in favour of any other person till the final disposal
of the suit.
19.8.1992 the first defendant sold his l/4th share in one of the lands to the
third respondent and 1/4th share in another land to the 4th respondent. On
27.8.92 he sold 1/4th share in yet another land to the 5th respondent.
the three sales were by registered sale deeds. On 1.1.93 respondents 3 to 5
filed an application before the trial Court under Order 1, Rule 10 and Section
them as parties to the suit. In the application they had stated that the first defendant,
had received sale consideration before executing the sale deeds and handed over
possession of the subject-matter of the sale deeds to them. It was also alleged
that the plaintiff and the defendants had colluded together in order to cause
loss to them. That application was opposed by the appellant. In the statement
of objections, it was stated that the sales were In breach, contempt and
disregard of the order of injunction passed by the Court and the transferees
under such sales got no title to the property in order to get impleaded as
parties to the suit.
trial Court passed a detailed order on 14.7.97 granting the application of
respondents 3 to 5 and directed the plaintiff to implead them as defendants in
the suit. In the order of the trial court reference has been made to an
application filed by the first defendant to the effect that he was not earlier
aware of the case and the 4th defendant had forged his signature and filed a
bogus vakalatnama. He had also alleged that the order of injunction was
obtained fraudulently on 18.8.92. The trial court has also referred to an
application under Section 340 Cr. P.C. filed by the first, defendant and
observed that the same had been dismissed by order dated 20.12.92. There is
also a reference in the order of the trial court to a proceeding in the High
Court filed by the plaintiff for quashing orders dated 10.11.95 and 19.4.96
passed in the suit and a miscellaneous civil appeal arising from the suit
wherein respondents 3 to 5 had been impleaded as parties. It is seen from the
order of the trial court that certain proceedings under Order XXXIX Rule 2A
C.P.C. concerning the question of attachment of the properties sold were also
pending. It is only after taking note of all those facts, the trial court
allowed the application of respondents 3 to 5 to implead them as parties to the
revision by the plaintiff In the Court of District Judge, Gorakhpur suffered a dismissal though the
District Judge passed certain strictures against the conduct of the first
defendant on the assumption that he had knowledge of the order of injunction
dated 18.8.92. However, the District Judge proceeded on the Footing that
respondents 3 to 5 who were third parties had no knowledge of the proceedings
in the Court.
said order of the District Judge was challenged in writ petition by the
appellant in the High Court. By order dated 29.9.97, the High Court dismissed
the same refusing to accept the contention of the appellant that respondents 3
to 5 were not proper and necessary parties.
High Court also observed that the Court below had power even suo moto to implead
a person whom it considered as proper and necessary party.
order of the High Court is under challenge in this appeal. It is vehemently
argued by learned cousel for the appellant that the sales in favour of
respondents 3 to 5 are non est in the eye of law and could not convey any
interest to the purchasers as they were executed in violation of the court
order restraining the defendants from alienating the suit property till the
disposal of the suit.
reliance has been placed upon the ruling in Surjit Singh and others versus Harbans
Singh and others ( 1995) 6 S.C.C. 50, It is submitted that if a person who
purchases the property during the pendency of the suit is allowed to get impleaded
Tin the suit, there will be no end to such impleadment as the parties will
indulge in further transfers of the suit property and the plaintiff as 'dominus
litis' cannot be made to fight against such persons indefinitely and endlessly.
facts set out by us in the earlier paragraphs are sufficient to show that,
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 18.0.92. 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 hut 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 tide 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.
Order I, Rule 10 C.P.C. 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.
of multiplicity of proceedings is also one of the objects of the said provision
in the Code.
Khernchand Shankar Choudhari and Another versus Vishnu Hari Patil others(1983)
1 S.C.C. 18 this Court held that a transferee pendente lite of an interest in
an immovable property which is the subject matter of suit is a representative
in interest of the party from whom he has acquired that interest and has a
right to be impleaded as a party to the proceedings. The Court has taken note
of the provisions of Section 52 of the Transfer of Property Act as well as the
provisions of Rule 10 of Order XXII C.P.C. The Court said:
may be that if he does not apply to be impleaded, he may suffer by default on
account of any order passed in the proceedings. But if he applies to be impleaded
as a party and to be heard he has got to be so inpleaded and heard..."
Ramesh Hirachand Kundanmal versus Municipal Corporation of Greater Bombay and
others (1992)2 S.C.C. 524 this Court discussed the matter at length and held
that though the plaintiff is a 'dominus litis' and not bound to sue every possible
adverse claimant in the same suit, the Court may at any stage of the suit
direct addition of parties and generally it is a matter of judicial discretion
which is to be exercised in view of the facts and circumstances of a particular
case. The Court said:
The case really turns on the true construction of the rule in particular the
meaning of the words "whose presence before the Court may be necessary in
order to enable the Court effectually and completely to adjudicate upon and
settle all the questions involved in the suit".
Court is empowered to Join a person whose presence is necessary for the
prescribed purpose and cannot under the rule direct, the addition of a person
whose presence is not necessary for that purpose. If the intervener has a cause
of action against the plaintiff relating to the subject-mat matter of the
existing action, the Court has power to join the intervener so as to give
effect to the primary object of the order which is to avoid multiplicity of
actions." The Court also obseryed that though prevention of actions cannot
be said to be main object of the rule, it. is a desirable consequence of the
rule. The test for impleading parties prescribed in Razia Begum versus Anwar
Begum 1959 S.C.R. 1111 that the person concerned must be having a direct
interest in the action was reiterated by the Bench.
Surjit Singh and others versus Harbans Singh and others (1995) 6 S.C.C. 50
which is relied on by the appellant, a preliminary decree was passed relating
to immovable property in favour of the appellants. While proceedings for
passing a final decree was pending, the parties moved for accounting and
preservation of mesne profits. The trial court passed an order restraining all
parties from alienating or otherwise transferring in any manner any part of the
property involved, in the suit.
two years thereafter, one of the sharers assigned his rights under the
preliminary decree by a registered deed partly in favour of the wife of his
lawyer and partly in favour of others in the teeth of the restraint order
passed by the Court. On the basis of the assignment deed, the assignees made an
application under Order XXII, Rule 10 C.P.C. for impleadment as parties to the
final decree proceedings. It was contended on their behalf that assignment of
decree was different from alienation of property and the same was not
prohibited by the order of injunction. The application for impleadment was
allowed by the trial court and the appel filed by the plaintiffs was dismissed
by the Additional District Judge. The High Court dismissed their revision and
the matter came to this Court.
was no dispute in that case that the assignors and the assignees had knowledge
of the order of the injunction passed by the Court. On those facts, this Court
held that the deed of assignment was not capable of conveying any right to the
assignees and the order of impleadment of the assignees as parties was
unsustainable. Consequently, the appeal was allowed. The relevant passage in
the judgment reads thus:
said before, the assignment is by means of a registered deed. The assignment
had taken place after the passing of the preliminary decree in which Pritam
Singh has been allotted 1/3rd share. His right to property to that extent stood
established. A decree relating to immovable property worth more than hundred
rupees, if being assigned, was required to be registered. That has instantly
been done. It is per se property, for it relates to the immovable property
involved in the suit It clearly and squarely fell within the ambit of the
restraint order. In sum, it did not make any appreciable difference whether
property per se had been alienated or a decree pertaining to that property. In
defiance of the restraint order, the alienation/assignment was made. If we were
to let it go as such, it would defeat the ends of justice and the prevalent
public policy. When the Court intends a particular state of affairs to exist
while it is in seisin of a lis, that state of affairs is not only required to
be maintained, but it is presumed to exist till the Court orders otherwise. The
Court in these circumstances has the duty as also the right to treat the
alienation/assignment as having not taken place at all for its purposes. Once
that is so, Pritam Singh and his assignees, respondents herein, cannot claim to
be impleaded as parties on the basis of assignment. Therefore, the
assignees-respondents could not have been impleaded by the trial court as
parties to the suit, in disobedience of its orders.
principles of lis pendens are altogether on a different footing. We do not
propose to examine their involvement presently. All that is emphasised is that
the assignees in the present facts and circumstances had no cause to be impleaded
as parties to the suit."
The said ruling has no application whatever in the present case. As stated
earlier, on the facts of this case, the impleadment of respondents 3 to 5 as
parties to the suit was warranted. We do not find any justification to
interfere with the orders of the Courts below. The appeal fails and is hereby
dismissed. There will be no order as to costs.
Before parting with this case it is necessary for us to point out one aspect of
the matter which is rather disturbing. In the writ petition filed in the High
Court as well as the Special Leave Petition filed in this Court, the District
Judge, Gorakhpur and the 4th Additional Civil Judge (Junior Division) Gorakhpur
arc shown as respondents and in the Special Leave Petition they are shown as
contesting respondents. There was no necessity for impleading the judicial
officers who disposed of the matter in a civil proceeding when the writ
petition was filed in the High Court; nor is there any justification for Impleading
them as parties in the Special Leave Petition and describing them as contesting
respondents. We do not approve of the course adopted by the petitioner which
would cause unnecessary disturbance to the functions of the concerned judicial
officers. They cannot be in any way equated to the officials of the Government.
It is high time that the practice of impleading judicial officers disposing of
civil proceedings as parties to writ petitions under Article 226 of the
Constitution of India or Special Leave Petitions under Article 138 of the
Constitution of India was stopped.
strongly depricating such a practice.