The main legal point established in the judgment is the application of Section 52 of the Transfer of Property Act, 1882 and the principles of lis pendens and the rights of alienee pendente lite.

JUDGMENT :

A.K. Rath, J.

By this application under Article 227 of the Constitution of India, challenge is made to the order dated 28.03.2017 passed by the learned District Judge, Khurda at Bhubaneswar in R.F.A. No. 20 of 2007, whereby and whereunder learned appellate court allowed the application for amendment of plaint.

2. One Nisamani Jena, predecessor-in-interest of opposite party nos.1 to 5 instituted T.S. No.313 of 1994 in the court of the learned Civil Judge (Sr. Divn.), Bhubaneswar for declaration of title, confirmation of possession, recovery of possession, if found to have been dispossessed in the meantime, declaration of the registered sale deed dated 15.3.94 executed in favour of the defendant no. 2 to be void or in the alternative for a direction to refund the consideration amount of Rs.1,00,000/- along with interest and damages impleading the predecessor-in-interest of opposite party nos.6 to 8 and petitioner as defendants. The suit was dismissed. Assailing the judgment and decree of the learned trial court, the plaintiff filed R.F.A. No. 20 of 2007 in the court of the learned District Judge, Khurda at Bhubaneswar. During pendency of the appeal, she died. Her legal representatives had been substituted. While the matter stood thus, the appellants filed an application under Order 6 Rule 17 C.P.C. for amendment of plaint. It is stated that during pendency of the suit, the defendant no.2 alienated a portion of the suit land in favour of two persons. In the proposed amendment, they sought to implead the lis pendens purchasers as defendant-respondents and to incorporate the said fact. The defendant no.2 filed objection to the same stating therein that the defendant no.1 in his cross-examination has clearly disclosed the factum of alienation. After lapse of 18 years, the proposed amendment was filed. In the event the same is allowed, the defendant no.2 will be seriously prejudiced. Further the lis pendens purchasers are bound by the result of the suit. Learned appellate court came to hold that the proposed amendment will not change the nature and character of the suit. Held so, it allowed the same.

3. Heard Mr. D.P. Mohanty, learned counsel for the petitioner and Mr. Ayushman Mahanta, learned counsel for the opposite parties.

4. Mr. Mohanty, learned counsel for the petitioner submitted that in cross-examination, defendant no.1 stated the factum of alienation. After lapse of 18 years, the application for amendment has been filed. In the event the same is allowed, the defendant no.2 will be seriously prejudiced. He further contended that the lis pendens purchasers are bound by the result of the suit and as such they are neither necessary nor property parties to the suit.

5. Per contra, Mr. Mahanta, learned counsel for the opposite parties submitted that during pendency of the suit, the defendant no.2 alienated a portion of the suit land by means of sale deeds. The original plaintiff died. The appellants, who are the legal representatives of the plaintiff, were not aware of the sale transactions. They came to know that defendant no.2 had alienated the property in favour of two persons. Thereafter they filed an application for amendment of plaint with a prayer to implead the lis pendens purchasers as defendant-respondents and to incorporate the said fact. The proposed amendment will not change the nature and character of the suit. The same is necessary for determining the real dispute between the parties. He relied on the decision of the apex Court in the case of Amit Kumar Shaw and another vs. Farida Khatoon and another, (2005) 11 SCC 403.

6. In Amit Kumar Shaw and another (supra), the apex Court held thus:

“12. Under Order 22 Rule 10, no detailed inquiry at the stage of granting leave is contemplated. The Court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit by or against the person on whom the interest has devolved by assignment or devolution. The question about the exi