SNEHALATA PARIJA Vs. GOUR RAJ GOURI

JUDGEMENT

(1.) THE plaintiff is the petitioner in this writ application. She challenges the legality of the order dated 2.7;2004 passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack in T.S.No. 230 of 2000 allowing an application filed by the opposite party No. 2 under Order 22, Rule 10(1) of the Code of Civil Procedure for being impleaded as defendant in the suit.

(2.) THE suit has been filed by the petitioner against the opposite party No. 1 for specific performance of contract and for permanent injunction in respect of the suit property. Case of the opposite party No. 2 is that during pendency of the suit he purchased A -Schedule property from the opposite party No. 1 who is the sole defendant in the suit under a registered sale -deed dated 20.8.2002 on consideration of rupees three lakhs. The suit property having devolved on him under a registered sale -deed, he is a necessary party to the suit. Though the petitioner did not file any objection to the said petition before the trial Court, learned Counsel appearing for the petitioner in the trial Court received a copy of the petition.

(3.) THERE is no dispute that the suit is one for specific performance of the contract based on an agreement executed between the petitioner and the opposite party No. 1 on 10.2.2000. During pendency of the said suit, there is also no dispute that, the opposite party No. 2 filed an application for being impleaded as a defendant under Order 1, Rule 10 C.P.C. on the ground that there was also an agreement between him and the sole defendant -opposite party No. 1 for sale of the property on 16.12.1999. Said petition was rejected by the trial Court on 7.2.2002 on the ground that on the strength of the agreement executed between the opposite parties 1 and 2, no right, title or interest has been created in favour of the opposite party No. 2 and accordingly he is not a necessary party to the suit. However, the present situation is that during pendency of the suit, A -schedule property has been sold by the sole defendant -opposite party No. 1 in favour of the opposite party No. 2 under a registered sale -deed. In view of such sale, the opposite party No. 2 now can claim title over the property. Under such circumstances, whether an application filed under Order 22, Rule 10(1) C.P.C. filed by the Opposite party No. 2 could be allowed. In the case of Kasturi v. lyyamperumal and Ors. (supra) the suit was for specific performance of contract. A third party/stranger claiming independent title and possession over the suit property filed an application under Order 1, Rule 10 CP.C. for being impleaded as party to the suit. The Court held that the suit for specific performance of contract for sale the Us between the vender and the vendee shall only be gone into and it is also not open to the Court to decide whether the third party has acquired any title and possession of the contracted property as that would not be germane for decision in the suit for specific performance of contract for sale. Two tests by which a person who is seeking addition in a pending suit for specific performance of the contract for sale must be satisfied. Two test are - (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings, (2) no effective decree can be passed in absence of such party. Applying the said two tests in the said reported case the Apex Court held that third party or stranger to contract is not necessary parties since in his absence an effective decree can be passed in a suit for specific performance of contract. Learned Counsel appearing for the opposite parties relied upon a decision of the Supreme Court in the case of Sm. Saila Bala Dassi v. Sm. Nirmala Sundari Dassi and Anr. reported in : [1958]1SCR1287 . Interpreting Section 52 of the Transfer of Property Act, the Apex Court in that case held that as a purchaser pendente lite, a person will be bound by the proceedings taken by the party in whose favour the decree is passed in execution of her decree and justice requires that she should be given an opportunity to protect her rights. Learned Counsel also relied upon another decision of the Apex Court in the case of Raj Kumar v. Sardari Lal and Ors. reported in 2004 (I) CLR (SC) 305 and the Apex Court held as follows: The doctrine expressed in the maxim 'ut lite pendente nihil innovetur (during a litigation nothing new should be introduced) has been statutorily incorporated in Section 52 of the Transfer of Property Act, 1882. A defendant cannot, by alienating property during the pendency of litigation, venture into depriving the successful plaintiff of the fruits of the decree. The transferee pendente lite is treated as in the eye of law as a representative -in -interest of the judgment -debtor though neither the defendant has chosen to bring the transferee on record by apprising lis opponent and the Court of the transfer made by him nor the transferee has chosen to come on record by taking recourse to Order 22 Rule 10 of the C.PC. In case of an assignment creation or devolution of any interest during the pendency of any suit, Order 22 Rule 10 of the C.P.C. confers a discretion on the Court hearing the suit to grant leave for the person in or upon whom such interest has come to vest or devolve to be brought on record. Bringing of a transferee on record is not as of right but in discretion of the Court. Though not. brought on record the transferee remains bound by the decree. Another decision of this Court relied upon by the learned Counsel for the petitioner is the case of Smt. Shantilala Masanta and Ors. v. Smt. Rajanimani Nayak and Ors. reported in 2007 (I) OLR 287. This Court observed that power of Court to add a party to the proceeding may not depend solely on the question whether the said party has any interest in the suit property. The Court has also considered whether right of the said person may be affected if he is not added as a party to the suit. Such right, however, will include necessary and unenforceable legal right. An alienee pendente lite in consonance with Section 52 of the Transfer of Property Act being bound by the final decree that may be passed in the suit, in all fitness can be brought on record so as to enable him to protect his right, more so when the transferor has lost interest and has decided not to contest the suit. While deciding this issue this Court took note of the decision in the case of Amit Kumar Shaw v. Harida Khatoon reported in AIR 2005 SC 2209. The Supreme Court in the case of Dhanalakshmi and Ors. v. P. Mohan and Ors. reported in 2007 (I) OLR (SC) 494 interpreting Section 52 of the Transfer of Property Act as well as the Order 1, Rule 10 C.P.C. held that purchaser or the co -sharer is a necessary and proper party to the suit.