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PETITIONER:

SAVITA DEVI

Vs.

RESPONDENT:

DISTRICT JUDGE, GORAKHPUR AND OTHERS

DATE OF JUDGMENT: 18/02/1999

BENCH:

C.J.I., M. Srinivasan, S.N. Phukan.

JUDGMENT:

J U D G M I N T

SRINIVASAN, J,

Leave granted.

2. The appellant has filed a civil suit bearing No.

1586/92 in the Court of Munsif, Gorakhpur against her four

sons for a decree for maintenance and for creation of a

charge over the ancestral property of the family. The suit

was filed on 14.8.92 and was fixed for hearing on 31.8.92.

She applied for an interim order of injunction restraining

her sons from alienating the suit property during the

pendency of the suit. But on 16.0.32, a Vakalat was filed

on behalf of the defendants and 4th defendant also filed an

affidavit in the Court purporting to be on behalf of the

defendants. The counsel appearing for the parties expressed

their consent before the Court that during the pendency of

the case the parties could be directed not to sell the suit

property to any third person. In the light of the consent

of the counsel, the Court passed an order on that date

directing the parties not to transfer the disputed property

described in the plaint in favour of any other person till

the final disposal of the suit.

3. On 19.8.1992 the first defendant sold his l/4th

share in one of the lands to the third respondent and 1/4th

share in another land to the 4th respondent. On 27.8.92 he

sold 1/4th share in yet another land to the 5th respondent.

All the three sales were by registered sale deeds. On

1.1.93 respondents 3 to 5 filed an application before the

trial Court under Order 1, Rule 10 and Section 151 C.P.C.

for impleading them as parties to the suit. In the

application they had stated that the first defendant, had

received sale consideration before executing the sale deeds

and handed over possession of the subject-matter of the sale

deeds to them. It was also alleged that the plaintiff and

the defendants had colluded together in order to cause loss

to them. That application was opposed by the appellant. In

the statement of objections, it was stated that the sales

were In breach, contempt and disregard of the order of

injunction passed by the Court and the transferees under

such sales got no title to the property in order to get

impleaded as parties to the suit.

4. The trial Court passed a detailed order on 14.7.97

granting the application of respondents 3 to 5 and directed

the plaintiff to implead them as defendants in the suit. In

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the order of the trial court reference has been made to an

application filed by the first defendant to the effect that

he was not earlier aware of the case and the 4th defendant

had forged his signature and filed a bogus vakalatnama. He

had also alleged that the order of injunction was obtained

fraudulently on 18.8.92. The trial court has also referred

to an application under Section 340 Cr. P.C. filed by the

first, defendant and observed that the same had been

dismissed by order dated 20.12.92. There is also a

reference in the order of the trial court to a proceeding in

the High Court filed by the plaintiff for quashing orders

dated 10.11.95 and 19.4.96 passed in the suit and a

miscellaneous civil appeal arising from the suit wherein

respondents 3 to 5 had been impleaded as parties. It is

seen from the order of the trial court that certain

proceedings under Order XXXIX Rule 2A C.P.C. concerning the

question of attachment of the properties sold were also

pending. It is only after taking note of all those facts,

the trial court allowed the application of respondents 3 to

5 to implead them as parties to the suit.

5. A revision by the plaintiff In the Court of District

Judge, Gorakhpur suffered a dismissal though the District

Judge passed certain strictures against the conduct of the

first defendant on the assumption that he had knowledge of

the order of injunction dated 18.8.92. However, the

District Judge proceeded on the Footing that respondents 3

to 5 who were third parties had no knowledge of the

proceedings in the Court.

6. The said order of the District Judge was challenged

in writ petition by the appellant in the High Court. By

order dated 29.9.97, the High Court dismissed the same

refusing to accept the contention of the appellant that

respondents 3 to 5 were not proper and necessary parties.

The High Court also observed that the Court below had power

even suo moto to implead a person whom it considered as

proper and necessary party.

7. The order of the High Court is under challenge in

this appeal. It is vehemently argued by learned cousel for

the appellant that the sales in favour of respondents 3 to 5

are non est in the eye of law and could not convey any

interest to the purchasers as they were executed in

violation of the court order restraining the defendants from

alienating the suit property till the disposal of the suit.

Strong reliance has been placed upon the ruling in Surjit

Singh and others versus Harbans Singh and others ( 1995) 6

S.C.C. 50, It is submitted that if a person who purchases

the property during the pendency of the suit is allowed to

get impleaded Tin the suit, there will be no end to such

impleadment as the parties will indulge in further transfers

of the suit property and the plaintiff as 'dominus litis'

cannot be made to fight against such persons indefinitely

and endlessly.

8. The facts set out by us in the earlier paragraphs are

sufficient to show that, there is a dispute as to whether

the first defendant in the suit was party to the order of

injunction made by the Court on 18.0.92. The proceedings

for punishing him for contempt are admittedly pending. The

plea raised by him that the first respondent had played a

fraud not only against him hut also on the Court would have

to be decided before it can be said that the sales effected

by the first defendant were in violation of the order of the

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Court. The plea raised by respondents 3 to 5 that they were

bona tide transferees for value in good faith may have to be

decided before it can be held that the sales in their favour

created no interest in the property. The aforesaid

questions have to be decided by the Court either in the suit

or in the application filed by respondents 3 to 5 for

impleadment in the suit. If the application for impleadment

is thrown out without a decision on the aforesaid questions

respondents 3 to 5 will certainly come up with a separate

suit to enforce their alleged rights which means

multiplicity of proceedings. In such circumstances, it

cannot be said that respondents 3 to 5 are neither necessary

nor proper parties to the suit.

9. Order I, Rule 10 C.P.C. enables the Court to add

any person as party at any stage of the proceedings if the

person whose presence before the Court is necessary in order

to enable the Court to effectively and completely adjudicate

upon and settle all the questions involved in the suit.

Avoidance of multiplicity of proceedings is also one of the

objects of the said provision in the Code.

10. In Khernchand Shankar Choudhari and Another versus

Vishnu Hari Patil others(1983) 1 S.C.C. 18 this Court held

that a transferee pendente lite of an interest in an

immovable property which is the subject matter of suit is a

representative in interest of the party from whom he has

acquired that interest and has a right to be impleaded as a

party to the proceedings. The Court has taken note of the

provisions of Section 52 of the Transfer of Property Act as

well as the provisions of Rule 10 of Order XXII C.P.C. The

Court said:

"...It may be that if he does not apply to

be impleaded, he may suffer by default on

account of any order passed in the

proceedings. But if he applies to be

impleaded as a party and to be heard he

has got to be so inpleaded and heard..."

11. In Ramesh Hirachand Kundanmal versus Municipal

Corporation of Greater Bombay and others (1992)2 S.C.C. 524

this Court discussed the matter at length and held that

though the plaintiff is a 'dominus litis' and not bound to

sue every possible adverse claimant in the same suit, the

Court may at any stage of the suit direct addition of

parties and generally it is a matter of judicial discretion

which is to be exercised in view of the facts and

circumstances of a particular case. The Court said:

" The case really turns on the true

construction of the rule in particular the

meaning of the words "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".

"The Court is empowered to Join a person

whose presence is necessary for the

prescribed purpose and cannot under the

rule direct, the addition of a person

whose presence is not necessary for that

purpose. If the intervener has a cause of

action against the plaintiff relating to

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the subject-mat matter of the existing

action, the Court has power to join the

intervener so as to give effect to the

primary object of the order which is to

avoid multiplicity of actions."

The Court also obseryed that though prevention of actions

cannot be said to be main object of the rule, it. is a

desirable consequence of the rule. The test for impleading

parties prescribed in Razia Begum versus Anwar Begum 1959

S.C.R. 1111 that the person concerned must be having a

direct interest in the action was reiterated by the Bench.

12. In Surjit Singh and others versus Harbans Singh and

others (1995) 6 S.C.C. 50 which is relied on by the

appellant, a preliminary decree was passed relating to

immovable property in favour of the appellants. While

proceedings for passing a final decree was pending, the

parties moved for accounting and preservation of mesne

profits. The trial court passed an order restraining all

parties from alienating or otherwise transferring in any

manner any part of the property involved, in the suit.

Nearly two years thereafter, one of the sharers assigned his

rights under the preliminary decree by a registered deed

partly in favour of the wife of his lawyer and partly in

favour of others in the teeth of the restraint order passed

by the Court. On the basis of the assignment deed, the

assignees made an application under Order XXII, Rule 10

C.P.C. for impleadment as parties to the final decree

proceedings. It was contended on their behalf that

assignment of decree was different from alienation of

property and the same was not prohibited by the order of

injunction. The application for impleadment was allowed by

the trial court and the appel filed by the plaintiffs was

dismissed by the Additional District Judge. The High Court

dismissed their revision and the matter came to this Court.

There was no dispute in that case that the assignors and the

assignees had knowledge of the order of the injunction

passed by the Court. On those facts, this Court held that

the deed of assignment was not capable of conveying any

right to the assignees and the order of impleadment of the

assignees as parties was unsustainable. Consequently, the

appeal was allowed. The relevant passage in the judgment

reads thus:

"As said before, the assignment is by

means of a registered deed. The

assignment had taken place after the

passing of the preliminary decree in which

Pritam Singh has been allotted 1/3rd

share. His right to property to that

extent stood established. A decree

relating to immovable property worth more

than hundred rupees, if being assigned,

was required to be registered. That has

instantly been done. It is per se

property, for it relates to the immovable

property involved in the suit It clearly

and squarely fell within the ambit of the

restraint order. In sum, it did not make

any appreciable difference whether

property per se had been alienated or a

decree pertaining to that property. In

defiance of the restraint order, the

alienation/assignment was made. If we

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were to let it go as such, it would defeat

the ends of justice and the prevalent

public policy. When the Court intends a

particular state of affairs to exist while

it is in seisin of a lis, that state of

affairs is not only required to be

maintained, but it is presumed to exist

till the Court orders otherwise. The

Court in these circumstances has the duty

as also the right to treat the

alienation/assignment as having not taken

place at all for its purposes. Once that

is so, Pritam Singh and his assignees,

respondents herein, cannot claim to be

impleaded as parties on the basis of

assignment. Therefore, the

assignees-respondents could not have been

impleaded by the trial court as parties to

the suit, in disobedience of its orders.

The principles of lis pendens are

altogether on a different footing. We do

not propose to examine their involvement

presently. All that is emphasised is that

the assignees in the present facts and

circumstances had no cause to be impleaded

as parties to the suit."

13. The said ruling has no application whatever in the

present case. As stated earlier, on the facts of this case,

the impleadment of respondents 3 to 5 as parties to the suit

was warranted. We do not find any justification to

interfere with the orders of the Courts below. The appeal

fails and is hereby dismissed. There will be no order as to

costs.

14. Before parting with this case it is necessary for us

to point out one aspect of the matter which is rather

disturbing. In the writ petition filed in the High Court as

well as the Special Leave Petition filed in this Court, the

District Judge, Gorakhpur and the 4th Additional Civil Judge

(Junior Division) Gorakhpur arc shown as respondents and in

the Special Leave Petition they are shown as contesting

respondents. There was no necessity for impleading the

judicial officers who disposed of the matter in a civil

proceeding when the writ petition was filed in the High

Court; nor is there any justification for Impleading them as

parties in the Special Leave Petition and describing them as

contesting respondents. We do not approve of the course

adopted by the petitioner which would cause unnecessary

disturbance to the functions of the concerned judicial

officers. They cannot be in any way equated to the

officials of the Government. It is high time that the

practice of impleading judicial officers disposing of civil

proceedings as parties to writ petitions under Article 226

of the Constitution of India or Special Leave Petitions

under Article 138 of the Constitution of India was stopped.

We are strongly depricating such a practice.