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2014 Supreme(Ori) 79
HIGH COURT OF ORISSA
Dr. B.R.SARANGI, J.
Bhagirathi Mahalik - Petitioner
Versus
Markanda Barik and others - Opp. Party
W.P. (C) No. 5254 of 2004
Decided on : 19th March, 2014
For Petitioner: M/s. Dayananda Mohapatra, D.K. Sahoo, M. Mohapatra & S.K. Swain
For Opp. Parties : M/s. P.K. Rath, R.C. Jena, P.K. Satapathy, R.N. Parija, & A.K. Rout
Headnote:1. CIVIL PROCEDURE CODE, 1908 - Order 1, Rule 10 - Adding third parties - Whether lis pendens purchasers can be impleaded as a party in a suit for permanent injunction or not ? - 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 a suit for permanent injunction, ancillary and corollary the right, title and interest of the parties is to be taken into consideration - Any transfer of the property during pendency of the proceeding, lis pendens purchases have a right to be heard in the matter. (Paras - 6 to 22)
2. CIVIL PROCEDURE CODE, 1908 - Order 1, Rule 10 - Power to strike out or add parties can be exercised by the Court at any stage of the proceedings - A person may be added as a party to a suit 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. (Para - 9)
3. TRANSFER OF PROPERTY ACT, 1882 - Sec. 52 - Doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of the Court in a suit should be binding not only on the litigating parties but on those who derive title pendente lite - Provisions of this section does not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parties to a litigation. (Para - 21)
JUDGMENT :
Dr. B.R.SARANGI, J. – The defendant-petitioner has filed this writ petition assailing the order dated 24.10.2000 passed by the learned Civil Judge (Junior Division). Bhadrak in O.S.No. 310 of 1992 allowing the application filed by the plaintiffs-opposite parties under Order 1, Rule 10 of the Code of Civil Procedure (in short 'CPC') to add the third parties lis pendens purchases as plaintiff nos. 2 and 3.
2. The short fact of the case is that opposite party No.1 being plaintiff No.1 filed a suit bearing O.S.No. 310 of 1992 in the Court of learned Civil Judge (Junior Division), Bhadrak seeking for permanent injunction simplicitor in respect of suit schedule plot, i.e. M.S.Plot No. 502 measuring an area Ac. 0.53 dec. under M.S.Khata No. 93 situated in mouja Baro under Tihidi Police Station in the district of Balasore. According to the plaintiff-opposite party No.1, he is the rightful owner in respect of the suit land. One Rupa Mahalik was the Choukidar and he was allotted with the case land and on abolition of Choukidary, the land was leased out by the Tahasildar permanently. Subsequently, after the death of Rupa, his son Bhairaba was the rightful owner in respect of the suit property.
3. The defendant-petitioner's case is, that his father was also a Choukidar and he was in possession of the suit schedule property and the suit land was given to him and he is in possession of the land all through. Therefore, the plaintiff No.1 filed the suit for permanent injunction against the defendant.
4. During pendency of the suit, the plaintiff-opposite party No. 1 sold the property to opposite party Nos 2 and 3 in the year 1997. After execution of the sale deed, an application for amendment under Order 6, Rule 17 CPC was filed by the plaintiff-Opp. party No.1 to implead the purchasers of the property as opposite parties 2 and 3 as co-plaintiff but the defendant-petitioner raised objection to such petition. However, the learned trial Court on consideration of the said petition, dismissed the same.
5. Subsequently, opposite party Nos. 2 and 3 being the lis pendens purchasers filed an application under Order 1, Rule 10 CPC to implead them as parties. Learned trial Court allowed the same on the basis of principle of impletion of lis pendens purchasers, which is under challenge in the present writ petition.
6. In these factual background of the case in hand, it is to be considered whether lis pendens purchasers can be impleaded as a party in a suit for permanent injunction or riot.
7. For just and proper adjudication of the case in hand, it is beneficial to reproduce Order 1, Rule 10, Order XXII Rule 10 of the Code of Civil Procedure, 1908 and Section 52 of the Transfer of Property Act, 1882 which read as under :
"Order 1 Rule 10 - (1) Suit in name of wrong plaintiff - Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted thought a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
(2) Court may strike our or add parties - The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name, of any person who ought to have been joined, whether as plaintiff or defendant, or 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, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability
