SHRI BASANT RAM Vs. SMT. HANS DEVI ETC.

JUDGEMENT

(1.) This is a revision petition submitted to this Court under Sec. 115 of the Code of Civil Procedure and is directed against the order dated 29th December, 1973 of the Sub -Judge First Class Hamirpur, whereby he has refused the prayer of the Plaintiff Basant Ram to implead in the suit as Defendants certain subsequent transferees of the property in dispute. The petition arises in the following circumstances.

(2.) Basant Ram filed a suit for injunction and in the alternative for possession in respect of 54 kanal and 14 marla of land earmarked in several khasra numbers and situate in Tika Badehar, Mauza Mewa of Tehsil Hamirpur. The Defendants were Hans Devi and four others. On 10 -9 -1973 the plaintiff Basant Ram filed an application under Order 6, Rule 17 and Order 22, Rule 10 of the Code of Civil Procedure for impleading subsequent alienees from Defendants 1 and 3. of a portion of property in dispute. It was stated that the suit was filed on 2 -8 -1969 but soon thereafter three sale deeds were executed by Defendants 1 and 3 in the name of several persons and that such subsequent transferees should be made Defendants. The application for impleading subsequent transferees was made at a much late stage in the suit. The issues were framed on 26 -10 -1971 and the first date fixed for recording evidence of the Plaintiff was 23 -3 -1972. The Plaintiff got adjournment and thereafter 10 -9 -1973 was fixed for recording his evidence. The Plaintiff neither summoned any witnesses nor was ready otherwise with his evidence on 10 -9 -1973. Rather, he moved this application for impleading subsequent transferees as Defendants in the suit. The learned Sub -Judge held that the rights of subsequent transferees were subject to the decree to be awarded in the suit, the transfers being lis pendens. As such according to the learned Sub -Judge the subsequent transferees were not necessary parties and should not be impleaded. He further observed that the Plaintiff did not produce evidence and was aware of the position long before. He wanted to prolong the proceedings and the application was made mala fide so that the case is not decided earlier. With these observations the application of the Plaintiff was dismissed and he has come up in revision to this Court.

(3.) Much less to say, the Petitioner -Plaintiff can only succeed if he can point out an error in the exercise of jurisdiction vested in the Court or any illegality or material irregularity which the Court might have committed. The reference made in the application is of Rule 17 of Order 6 which deals with amendment of pleadings. For this, the Petitioner -Plaintiff has to establish that the amendment sought for is necessary for the purpose of determining the real questions in controversy between the parties. This provisions has to be read in collaboration of Rule 10 of Order 1 which specifically deals with the addition of parties in a suit. Again, the test is, of the determination of the real matter in dispute or effectual and complete adjudication and settlement of all questions involved in the suit. Law as to necessary parties to a suit is fairly well settled. There is a distinction between "necessary" and "proper" parties to a suit. Necessary parties are parties whose presence is essential and in whose absence no effective decree can at all be passed. They are parties "who ought to have been joined" within Order 1, Rule 10(2). "Proper parties" are parties whose presence is a matter of convenience to enable the court to adjudicate more effectually and completely. At any rate, the presence of such a party should be held to be necessary in order to enable the court effectually and completely to adjudicate upon the dispute before such a party can be held to be a necessary party to the suit. Under Rule 10 of Order 22, the discretion is given to the Court to add a party which is necessary as a result to assignment or devolution of interest during the pendency of the suit. One has to apply to the Court, and leave of the Court is solicited for adding such a party. In the instant case, the leave was asked for by the Plaintiff Basant Ram and it was refused by the learned Sub -Judge presumably under Rule 10 of Order 22. The central question should therefore be, whether the subsequent transferees were necessary parties to the suit. It is manifest, the suit is for injunction and in the alternative for possession. Admittedly the transfers were made during the pendency of the suit. The essential controversy is, therefore, between the Plaintiff and the present Defendants. The subsequent transferees, on the doctrine of lis pendens, are only entitled to a right which would devolve upon the Defendants as a result to a decision in this suit. Even if a person On whom the interest of the Plaintiff or the Defendant devolves while the suit is pending, does not obtain leave of the Court under Order 22, Rule 10 for the continuation of the suit by or against him, he would still be bound by the result of the litigation and by the decree made in the suit see: Gwalior and Northern India Transport Co. Ltd. v/s. Dinkar Durga Shankar Joshi A.I.R. 1955 Madhya Bharat 214. Therefore, neither the matter in dispute exists between the subsequent transferees and the Plaintiff, nor the presence of subsequent transferees is necessary in order to decide such a dispute effectually and completely. Nor can it be stated that the presence of subsequent transferees is required to settle all questions involved in the suit. The test to determine as to whether a party is necessary to a suit is to find out if there is a right to some relief against such party in respect of the matter involved in proceedings in question and secondly to ascertain whether it would not be possible to pass effective decree in the absence of such a party. Both the tests are not satisfied in the present case. Therefore, when the learned Sub -Judge did not consider that these subsequent transferees were necessary parties and rejected the application of the Plaintiff for impleading them, it cannot be stated that he committed an error in exercise of jurisdiction or committed an act with illegality or with material irregularity.