PREETHAN LALCHAND MAHTANI Vs. SUDHIR V JOSHI

JUDGEMENT

(1.) THIS petition has been filed under Order I Rule 10 (2) of the Code of Civil Procedure by the peti-tioners praying to implead them as respondents in the above Appeal Suit.

(2.) IN the affidavit filed in support of the petition, the petitioners would submit that the appellant/second defendant purchased the suit properties in court auction under the mortgage decree in O.S. No. 104 of 1972 on the file of the court of Subordinate Judge, Chingleput on 30.10.1985 and he took delivery through court on 10.1.1986 in E.P. No. 2 of 1984; that the third defendant to the suit, who is the 5th respondent in the above appeal was claiming title to the suit properties under another sale in court auction held on 6.2.1980 in E.P. No. 92 of 1976 that arose from out of money decree in O.S. No. 5377 of 1970; that the third defendant to the suit alienated the property in favour of the plaintiffs and the defendants 5 to 56 and the plaintiffs filed the suit in O.S. No. 9300 of 1987 for declaration of their title in respect of the portions purchased by them and for Permanent INjunction or in the alternative to set aside the sale deed in favour of the appellant/second defendant.

(3.) THE learned counsel for the petitioners besides contending that whether under Order I Rule 10(2) or under Order XXII Rule 10 of the Code of Civil Procedure the courts are expected to implead the petitioners as parties to the appeal would also cite two judgments. THE first judgment cited by the learned counsel for the petitioners is one delivered in C.K.RC.'N.K.R. Adhappa Chettiar & others v. R.M. Meenakshi Achi and others reported in 96-L.W. 652 wherein it is held that "In the present case, defendants 1 and 2 have sold their right, title and interest they had over the suit property in entirety, to the first respondent (purchaser) herein. THEre is a change of status due to the sale of the totality of the interest which defendants 1 and 2 had over the property. Defendants 1 and 2 have no more interest due to sale effected by them to the first respondent herein. Under the circumstances, and in view of the fact that the first respondent becomes the sole and absolute owner of the property which is the subject matter of the suit, she is a necessary and proper party to the appeal. It is true that the first respondent ought to have mentioned the correct provision of law, i.e. O. 22, R. 10, C.RC. in her petition to implead. Simply because a wrong provision of law was mentioned by the first respondent in the petition to implead herself as a party to the appeal, it cannot be a ground to reject the application." THE second judgment cited by the learned counsel for the petitioners is one delivered in Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and Others reported in (1992) 2 S.C.C. 524 = 1992-2-L.W. 720 wherein it is held that. "Though the plaintiff - appellant is dominus litis and is not bound to sue every possible adverse claimant in the same suit and he may choose to implead only those persons as defendants against whom he wishes to proceed, but the court may at any stage of the suit direct addition of parties. A party can be joined as defendant even though the plaintiff does not think that he has any cause of action against him. THE question of impleadment of a party has to be decided on the touchstone of Order 1 Rule 10 which provides that only a necessary or a proper party may be added. In the light of the clear language of the rule, it is not open to the appellant to contend that a person cannot be added as defendant even in a case where his presence is necessary to enable the court to decide the matter effectively."