Jharkhand High Court

Anita Devi vs Neelam Jaiswal on 5 February, 2025

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    C.M.P. No. 629 of 2023

      Anita Devi, aged about 41 years, wife of Pramod Kumar Jaiswal, resident of
      village-Mirza Chowki, P.O. and P.S. Mirza Chowki, District-Sahebganj
      (Jharkhand)
                                                  .......Petitioner


                         ... Versus....

          1. Neelam Jaiswal, wife of Pankaj Kumar Jaiswal, resident of village-
              Mirza Chowki, P.O. and P.S. Mirza Chowki, District-Sahebganj
              (Jharkhand)
          2. Suresh Prasad Jaiswal, son of late Prasad Bhagat, resident of village
              Mirza Chowki, P.O. and P.S. Mirza Chowki, District-Sahebganj, at
              present residing near Samauayik Bhawan, Mirchaibiari, P.O. and P.S.
              Katihar, District- Katihar (Bihar).
                                                          ...... Opposite Parties

       CORAM:        HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

For the Petitioner                : Mr. Sandeep Verma, Advocate

For the O.P. No.1                :Mr. Pankaj Srivastava, Advocate
 For the O.P. No.2                : Mr. Bhaiya Biswajeet Kumar, Advocate
                 ..........

10/Dated: 05/02/2025 Heard Mr. Sandeep Verma, learned counsel for the petitioner, Mr.

Pankaj Srivastava, learned counsel for the O.P. No.1 and Mr. Bhaiya Biswajeet

Kumar, learned counsel for the O.P. No.2.

2. This petition has been filed under Article 227 of Constitution of

India for quashing of order dated 21.03.2023 passed by the learned Civil

Judge (Senior Division)-II, Sahebganj in Original Suit No. 23 of 2018 whereby

the petition filed by the petitioner under Order I Rule 10(2) C.P.C. for

impleadment as party defendant in the said suit, has been rejected.

3. Mr. Sandeep Verma, learned counsel for the petitioner submits that

the plaintiff/O.P. No.1 filed Original Suit No. 23 of 2018 against the defendant

praying there a decree directing the defendant to perform the agreement and

execute and register the sale deed in favour of the plaintiff. He further submits

that in the plaint it is stated that the defendant along with other legal heirs

have property in Mouza Mirza Chowki Bazar being J.B. No. 27/2, plot no. 52

having area of 2 katha out of which the defendant got 8 dhoor and 6 dhurki

share over which there is pucca constructed room which is the suit property.

He then submits that further case of the plaintiff is that on 17.04.2014 the

defendant executed a sale agreement for the said property in favour of the

plaintiff after accepting the entire sale consideration of Rs. 2,00,000/- and it

was agreed that defendant will also take permission to execute and register

sale deed in favour of the plaintiff and as such the petition for permission is

pending before the Sub-Divisional Officer, Sahebganj being Mutation Case No.

17 of 2014-15. He submits that plaintiff requested the defendant to take proper

steps in the said mutation case but the defendant avoided to take proper steps

and as such suit being Original Suit No. 23 of 2018 has been instituted in the

court of learned Civil Judge, Senior Division-I, Sahebganj. He submits that the

defendant appeared and file written statement mainly on the ground that the

defendant has already sold his share to one Anita Devi. He further submits that

the petitioner in the present petition is Anita Devi. He further submits that

pleading was also made by the defendant that Anita Devi has filed Title Suit 25

of 2013 for execution and registration of the lands measuring 6 dhoor and 5

dhurki of J.B. Plot No. 52 part which was compromised before the National Lok

Adalat and pursuant thereto sale deed has been executed and registered in

favour of Anita Devi who is petitioner. He then submits that the petitioner has

instituted two suits being Title Suit no. 24 of 2013 and Title Suit No. 25 of

2013 for specific performance of contract against the co-sharer of the

defendant/respondent no.2 i.e Suresh Prasad Jaiswal. He submits that both

the suits have been finally compromised before the National Lok Adalat and

mutation was made in favour of the petitioner namely, Anita Devi. He further

submits that in view of the written statement itself the right of the petitioner

is accrued and in view of that petition for impleadment was filed and the

learned court has been pleased to reject the same. He relied in the case of "

Moreshwar Yadaorao Majahan Vs. Vyankatesh Sitaram Bhedi (D)

through LRS. And others reported in (2022) 0 SCC (SC) 986. He refers to

para 18 and 19 of the said judgment which is quoted hereinbelow:-

"18. It could thus be seen that a "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court, It has been held that if a "necessary party" is not impleaded, the suit itself is liable to be dismissed.

19. As already discussed hereinabove, the plaintiff himself has admitted in the plaint that the suit property is jointly owned by the defendant, his wife and three sons, A specific objection was also taken by the defendant in his written statement with regard to non-joinder of necessary parties, Since the suit property was jointly owned by the defendant along with his wife and three sons, an effective decree could not have been passed affecting the rights of the defendant's wife and three sons without impleading them. Even in spite of the defendant taking an objection in that regard, the plaintiff has chosen not to implead the defendant's wife and three sons as party defendants.

Insofar as the reliance placed by Shri Chitnis on the judgment of this Court in the case of Kasturi (supra) is concerned, the question therein was as to whether a person who claims independent title and possession adversely to the title of a vendor could be a necessary party or not. In this context, this Court held thus:

"7......... From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests 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 the absence of such party."

4. Relying on the above judgment, he submits that the learned court

has erred in dismissing the petition filed under Order 1 Rule 10 C.P.C. in view of

that the said order may kindly be set aside and the petition filed by the

petitioner may kindly be allowed.

5. On the other hand, Mr. Pankaj Kumar Srivastava, learned counsel

for the O.P. No.1 who is the plaintiff oppose the prayer on the ground that the

petitioner is a stranger as there is no contact between the opposite parties and

the petitioner and in view of that the learned court has rightly passed the said

order. He further relied in the case of " Gurmit Singh Bhatia Vs. Kiran Kant

Robinson and others" reported in 2019 0 Supreme ((SC), 929 and

referring to para 5 he submits that in the light of order 1 Rule 10 the suit for

specific performance cannot be forced to add a stranger as a party against whom

he does not want to fight. He further relied in the case of "Anil Kumar Singh

Vs. Shivnath Mishra @ Gadasa Guru" reported in 1994 0 Supreme (SC)

1067 and referring to paras 4 and 5 submits that in the light of Order 1 Rule 3

C.P.C is not applicable to the suit for specific performance because admittedly

the petitioner was not a party to the contract. On these grounds, he submits

that learned court has rightly passed the said order.

6. Mr. Bhaiya Bishwajeet Kumar, learned counsel for the O.P. No.2

supported the argument of Mr. Pankaj Srivastava and further adds that the fight

is between O.P. Nos. 1 and 2 and the contract was entered by O.P. No.2 in

favour of O.P. No.1 as such the petitioner is a stranger in view of that the learned

court has rightly passed the order.

7. In view of above submission of the learned counsel for the parties,

the Court has gone through the materials on record including the impugned

order of the learned court. It is an admitted position that two suits being Title

Suit No. 24 of 2013 and Title Suit No. 25 of 2013 have been instituted by the

petitioner which was compromised and pursuant to that registered sale deed

has been executed in favour of the petitioner contained in Annexure-4. The

written statement of the defendant-Suresh Prasad Jaiswal is annexure-2 wherein

para 11 it has been stated as under:-

" 11. That para 5, 6,7 is deny and it should be proved by plaintiff, It is submitted that no any contract binding if it obtained with fraud. It is submitted that a Title Suit 25/2013 earlier has been filed by Anita Devi wife of Pramod Kumar Jaiswal against Jagdish Jaiswal and defendant Suresh Jailswal on 19.07.2013 before learned Civil Judge 1, Sahibganj for the land of suit property also mouza MIrzachouki Bazar, J.B. No. 27/2/68, plot no. 52(part) of an area six dhurs five dhurki constructed two room standing on the same and after compromised between the parties before the National Lok Adalat on

8.4.2017 and Anita Devi has withdrew the suit and the defendants had agreed to execute a registered sale deed in favour of Anita Devi."

8. Thus, the petitioner is also one of party of the suit property in

view of the sale deed was executed pursuant to the decree passed in two

title suits.

9. The order 1 Rule 10 CPC enables the court Order 1 Rule 10 of the

Code enables the court to add any person as a party at any stage of the

proceedings, if the person whose presence in 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. Order 1 Rule 10 of the Code

empowers the court to substitute a party in the suit who is a wrong person

with a right person. If the court is satisfied that the suit has been instituted

through a bona fide mistake and also that it is necessary for the

determination of the real matter in controversy to substitute a party in the

suit, it may direct it to be done. Order 1 Rule 10(2) of the Code gives wide

discretion to the court to deal with such a situation which may result in

prejudicing the interests of the affected party if not impleaded. Reference

may be made to the case of "Pankajbhai Rameshbhai Zalavadiya Vs.

Jethabhai Kalabhai Zalavadiya" reported in (2017) 9 SCC 700 wherein

para 10 it has been held as under:-

" 10. Order 1 Rule 10 of the Code enables the court to add any person as a party at any stage of the proceedings, if the person whose presence in 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. Order 1 Rule 10 of the Code empowers the court to substitute a party in the suit who is a wrong person with a right person. If the court is satisfied that the suit has been instituted through a bona fide mistake, and also that it is necessary for the determination of the real matter in controversy to substitute a party in the suit, it may direct it to be done. When the court finds that in the absence of the persons sought to be impleaded as a party to the suit, the controversy raised in the suit cannot be effectively and completely settled, the court would f do justice by impleading such persons. Order 1 Rule 10(2) of the Code gives wide discretion to the court to deal with such a situation which may result in prejudicing the interests of the affected party if not impleaded in the suit, and where the impleadment of the said party is necessary and vital for the decision of the suit."

10. The expression to settle all questions involved" used in Order 1

Rule 10(2) is susceptive to a liberal and wide interpretation, so as to adjudicate

all the questions pertaining to the subject matter thereof. In para 17 of the

Pankajbhai Rameshbhai Zalavadiya (supra) it has been held as under:-

"17. The expression "to settle all questions involved" used in Order 1 Rule 10(2) of the Code is susceptive to a liberal and wide interpretation, so as to adjudicate all the questions pertaining to the subject- matter thereof. Parliament in its wisdom while framing this rule must be held to have thought that all material questions common to the parties to the suit and to the third parties should be tried once for all. The Court is clothed with the power to secure the aforesaid result with judicious discretion to add parties, including third parties. There cannot be any dispute that the party impleaded must have a direct interest in the subject-matter of litigation. In a suit seeking cancellation of sale deed, as mentioned supra, a person who has purchased the property and whose rights are likely to be affected pursuant to the judgment in the suit is a necessary party. and he has to be added. If such purchaser has expired, his legal representatives are necessary parties."

11. The petitioner is having registered sale deed executed in her

favour and thus seemingly acquired an interest in subject land, therefore it

would be in interest of justice that the petitioner is impleaded in underlying suit

to protect her interest. The reference may be made to the case of " Yogesh

Goyanka Vs. Govind and Others" reported in (2024) 7 SCC 524 wherein

paras 17, 18 and 19 of the said judgment it has been held as under:-

" 17. Therefore, the mere fact that RSD was executed during the pendency of the underlying suit does not automatically render it null and void. On this ground alone, we find the impugned order to be wholly erroneous as it employs Section 52 of the Act to nullify RSD and on that basis, concludes that the impleadment application is untenable. Contrary to this approach of the High Court, the law on impleadment of subsequent transferees, as established by this Court has evolved in a manner that liberally enables subsequent transferees to protect their interests in recognition of the possibility that the transferor pendente lite may not defend the title or may collude with the plaintiff therein (see the decision of this Court in Amit Kumar Shaw v. Farida Khatoon & A. Nawab John v. V.N. Subramaniyam).

18. Similarly, we also find fault with the order of the ADJ and its misplaced reliance on Bibi Zubaida². The only principle emerging from the judgment of this Court in Bibi Zubaida² is that transferees pendente lite cannot seek impleadment as a matter of right and to that extent, we agree with the ADJ. However, Bibi Zubaida does not place a bar on impleadment of transferees who purchase property without seeking leave of the Court. The decision of the Court in Bibi Zubaida turns on its own facts; the Court rejected the application for joinder therein noting that the underlying suit was pending since 1983 and upheld the finding of the trial court that the subsequent purchaser was not bona fide and attempted to complicate and delay the underlying suit. Therefore, the judgment in Bibi Zubaida², being distinguishable on facts, does not assist the respondents herein.

19. The respondents herein assail the impleadment of the appellant on the ground that he is not a bona fide purchaser as he had full knowledge of the pending litigation. While that is the admitted position, there exists no bar to the impleadment of transferees pendente lite with notice. Permitting the impleadment of a transferee pendente lite is, in each case, a discretionary exercise undertaken to enable a purchaser with a legally enforceable right to protect their interests especially when the transferor fails to defend the suit or where there is a possibility

of collusion."

12. Admittedly, the petitioner is having a registered sale deed with

regard to suit property and therefore seemingly acquired interest in the said

land.

13. So far the judgments relied by the learned counsel for the O.P.

No.1 in the case of Gurmit Singh Bhatia (supra) and "Anil Kumar Singh

(supra) are concerned, that is not in dispute. It was found by the Court that

any stranger is trying to be impleaded in the suit property even taking the

liberal view he cannot be allowed to be impleaded in the suit. In the

background of that facts, the Hon'ble Supreme Court has held that there are

strangers and in view of that said order was passed.

14. What has been discussed hereinabove and in the light of admission

of the defendant written statement itself the prima facie interest of the