Calcutta High Court (Appellete Side)
Krishna Abasan Pvt. Ltd vs Tapan Bhattacharya & Ors on 19 September, 2024
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
THE HON'BLE AJOY KUMAR MUKHERJEE
C.O.3435 of 2019
Krishna Abasan Pvt. Ltd
Versus
Tapan Bhattacharya & Ors
For the petitioner : Ms. Susmita Saha Dutta
Mr. Niladri Saha
Ms. Madhurima Basu
Heard on : 13.09.2024
Judgment on : 19.09.2024
Ajoy Kumar Mukherjee , J.:
1. This application has been preferred against order dated 12.01.2018
passed by learned Civil Judge (Junior. Division) Utter Dinajpur in Title Suit
no. 112 of 2010. By the order impugned learned court below rejected
petitioner's prayer for adding him as defendant in the said suit.
2. The petitioner's contention is that the petitioner purchased the
property in question from the opposite party no. 2 herein/defendant no. 1
by a registered deed in the year 2016. After purchase the petitioner came to
learn that his purchased property is the subject matter of aforesaid Title
Suit no 112 of 2010. It further appears that by an order dated 8th January
2010, the learned court below passed an ad-interim order of injunction
directing both the plaintiff and the defendant no. 1 and 2 /opposite party
no. 1 and 2 herein to maintain status-que in respect of the suit property
with a further direction not to change the nature or character of the suit
property or transfer any portion of the property to any third party. Such
interim order was thereafter extended till disposal of the suit.
3. However during pendency of the suit the defendant no. 1 sold the
said property to the petitioner herein and the petitioner on good faith paid
the consideration amount to his vendor/opposite party no. 2. As soon as
the aforesaid factum of pendency of the suit came to the knowledge of the
petitioner, he filed application under Order I Rule 10(2) of the Code of Civil
Procedure (in short of the CPC) for adding him as a party/defendant
contending that his purchased plot is under adjudication and also on the
ground that any order that would be passed in the said suit, may affect the
right title interest of the petitioner.
4. However learned court below after hearing the parties rejected the
said prayer of the petitioner by the order impugned.
5. Being aggrieved by that order Mr. Dutta learned counsel appearing
on behalf of the petitioner submits that the learned court below failed to
appreciate that any declaration with regard to the schedule properties
under the plaint in the said suit will also affect the interest of the petitioner
and as such refusal by the court below to add petitioner as a party in the
suit tantamount to gross injustice to the petitioner. The court below ought
to have appreciated that the petitioner has right of semblance as to the said
vender/defendant no. 1 and therefore in the right of semblance the
petitioner ought to have been impleaded in the suit. Moreover the court
below failed to appreciate that the petitioner being in possession of the
schedule property under the said deed, any order passed in the suit may
also affect the petitioner in the event he is not given a chance to represent
his case before the learned court below. Accordingly the petitioner has
prayed for setting aside the order impugned and to add him as a party in
the said suit.
6. Opposite party is not represented during the course of hearing.
7. I have considered submissions made by the petitioner.
8. On perusal of the subject matter of plaint filed in aforesaid Title Suit
no. 112 of 2010, it appears that the said suit was filed by one Tapan
Bhattacharya against petitioner's vendor Smt. Santana
Bhattacharya/defendant no. 1 and others contending that the schedule
mentioned suit property originally belonged to one Surendra Nath Paul who
transferred the same in the year 1960 in favour of Kanan Bala Biswas and
said Kanan Bala sold the said property in the year 1970 in favour of Sati
Bhattacharya and handed over possession. Sati thereafter died leaving
behind nine sons and one daughter as legal heirs in respect of "Ka"
schedule property. Plaintiff accordingly claimed that he is owner of ????ℎ
share of the said "Ka" schedule property. Plaintiff's main allegation in plaint
is that taking advantage of their mother's helplessness and also on the
pretext of executing power of attorney, defendant no. 1 and 2 procured
deed of gift which they never disclosed to the other brothers.
9. Since it is the specific allegation of the plaintiff that defendant no. 1
and 2 in collusion with each other had procured that deed, so plaintiff has
prayed for cancellation of the said deeds dated 09.01.2002 being deed no.
320 and 321. In the petitioner's purchase deed it has also been specifically
recited that petitioner's vendor Santana got the said property by way of
registered deed of gift being no. 321 for the year 2002 and got possession.
In such view of the matter it is palpably clear that since the plaintiff's
vendor's deed of gift being no. 321 is under challenge in the said suit, the
petitioner herein has direct interest in the outcome of the said suit.
10. Needless to reiterate that a necessary party is the person who ought
to be joined as party to the suit and in who's absence an effective decree
cannot be passed by the court, whereas a proper party is a person whose
presence would enable the court to completely and properly adjudicate
upon all matters and issues, though he may not be a person in favour of or
against whom a decree is to be made. In the present context the petitioner
certainly has a direct and substantial interest in the property purchased by
him and the outcome of the suit has a direct impact upon his right title
interest in the property. If the suit decided against his vendor, it would
undoubtedly materially affect the right title and interest in the property
purchased by petitioner. Not only that the plaintiff in the suit has also
prayed for permanent injunction where the petitioner herein claimed to
have in possession of the same. Therefore before granting any injunction
with respect to the properties in respect of which the petitioner herein is
claiming right, title, interest and possession on the basis of aforesaid sale
deed, he ought to have given an opportunity of being heard and perhaps no
injunction could haven granted against him without impleading him as
party and without giving him an opportunity of being heard. Even in an
execution proceeding arising from a decree, if any, passed in the instant
suit, the petitioner may be required to be heard who claimed himself as
possessor of the said property.
11. The Supreme Court in the decision of Amit Kumar Shaw and
another Vs. Farida Khatoon and another reported in (2005) 11 SCC
403 held that sometime a transferor pendente lite may not even defend the
title properly as he has no interest in the same or may collude with the
plaintiff, in which case the interest of the purchaser pendente lite will be
ignored. To avoid such a situation the transferee pendente lite can be
added as a party-defendant to the case provided his interest is substantial
and not just peripheral. This is particularly so where the transferee
pendent lite acquires the interest in the entire estate that forms the subject
matter of the dispute.
12. In Thomson Press (India) Ltd Vs. Nanak Builders and Investors
Pvt. Ltd. And others reported in (2013) 5 SCC 397 referring Amit Kumar
Shaw (supra) has endorsed the same view and the Apex Court held that
though the plaintiff is under no obligation to make a lis pendente
transferee a party, under Order XXII Rule 10, an alienee pendente lite may
be joined as party and the court certainly has discretion in the matter
which must be judicially exercised and alienee would ordinarily be joined
as a party to enable him to protect his interest. It was further held that a
transferee pendente lite of an interest in immovable property is a
representative-in-interest of the party from whom he has acquired that
interest and as such he is entitled to be heard in the matter on the merits
of the case.
13. It is also to be mentioned in the present context that the plaintiff is
not represented before this Court nor prayer for adding petitioner as party,
has been opposed by the plaintiff before this Court. It is also well settled
that if a party can show a fair semblance of title or interest, he can
certainly made a prayer for his impleadment. Learned court below while
passing the order impugned swayed away by the impression that plaintiff
has not made the prayer for adding the petitioner as party and that the
dispute in the suit can very well be settled without adding petitioner as a
party in the said suit.
14. In this context it needs to be mentioned that Order I Rule 10 (2)
starts with the words " the court may at any stage of the proceeding, either
upon or without the application of either party" which signifies that a court
may at any stage of the proceeding either upon or even without any
application, direct a person to be added as a party, who's presence before
the court may be necessary in order to enable the court to effectively and
completely adjudicate upon and settle the question involved in the suit. In
short the court is given discretion to add as a party any person who is
found to be a necessary party or proper party. Moreover the expression
used in order 1 rule 10(2) "settle all the questions involved in the suit" is
susceptive to a liberal interpretation so as to adjudicate all the issues
pertaining to declaration and injunction.
15. In view of aforesaid discussion I am constrained to interfere with the
order impugned. Thus the order no. 39 dated 12th January 2018 passed by
Learned Civil Judge, (Junior Division) Utter Dinajpur in T.S 112 of 2010 is
hereby set side.
16. C.O 3435 of 2019 is allowed. The petitioner herein is impleaded as
defendant no. 16 in the said suit. The court below after giving the said
petitioner/added defendant an opportunity of filling additional written
statement, if any and after framing additional issues if any, will adjudicate
the suit finally at the earliest without being influenced by any observation
made herein.
Urgent Xerox certified photocopies of this Judgment, if applied for, be given
to the parties upon compliance of the requisite formalities.
(AJOY KUMAR MUKHERJEE, J.)
