Madras High Court
K.Raju vs Kuthalingam on 30 September, 2021
C.R.P(MD)No. 1891 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.09.2021
CORAM
THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA
C.R.P (PD)(MD) No. 1891 of 2014
and MP(MD) No.1 of 2014
K.Raju ... Petitioner
Vs.
1. Kuthalingam
2. Sivalingam
3. Samuthirakani ..Respondents
PRAYER : Civil Revision Petition filed under Article 227 of
Constitution of India, to set aside the order and decree made in I.A.No.47
of 2014 in O.S.No.428 of 2010 dated 10.07.2014 on the file of the
Additional District Munsif Court, Sankarankovil.
For Petitioner : Mr.M.Thirunavukkarasu
For Respondents : Mr.D.Nallathambi
1/10
https://www.mhc.tn.gov.in/judis/
C.R.P(MD)No. 1891 of 2014
ORDER
This Civil Revision Petition has been filed by the petitioner/ 3rd
party against the order of the trial Court in dismissing the petition filed
by him under Order 1 Rule 10(2) of the Code of Civil Procedure to
implead himself as one of the defendants in O.S. No.428 of 2010.
2. The suit in O.S.No.428 of 2010 has been filed by the
respondents/plaintiffs against R1 and R2 who are respectively his brother
and sister-in-law seeking for partition in the suit scheduled properties
and to give half share. The suit for partition was filed on 20.12.2010.
During the pendency of the suit, property was sold on 23.10.2013. The
second respondent/first defendant and the legal heirs have sold the suit
scheduled first property to the revision petitioner by registered sale deed
dated 21.10.2013. The revision petitioner who is the purchaser pendente
lite had filed the petition under Order 1 Rule 10(2) of the Code of Civil
Procedure seeking to implead him as necessary party in the suit. The
application had been filed on 06.01.2014, when the case was listed for
trial, the respondents/plaintiff had filed the objection in IA No. 47 of
2014 . The Trial Court holding that the petitioner being a purchaser
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C.R.P(MD)No. 1891 of 2014
pendente lite is not necessary party had dismissed the petition by order
dated 10.07.2014 against which the revision has been filed.
3. The learned counsel for the petitioner would submit that the
petitioner without aware of the pendency of the case had purchased the
property after paying due consideration to the first defendant and his
legal heirs. The petitioner herein being a subsequent purchaser of the
property has right over the suit property and no effective decree can be
passed in his absence and he is a necessary party to the litigation under
Order 1 Rule 10(2) of the Code of Civil Procedure., whereas the Trial
Court without taking into consideration the right of the petitioner had
dismissed the application. In support of his contention the learned
counsel for the petitioner relied on the judgment of the Hon'ble Apex
Court in Thomson Press India Ltd.vs. Nanak Builders and Investors
Private Ltd and others reported in 2013 5 SCC 397. He would further
submit that the petitioner was not aware of the pending litigation before
he purchased the property and the transfer of the suit property pendente
lite is not void abinito and the petitioner having purchased the property
from the first defendant takes the bargain subject to the right of the first
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C.R.P(MD)No. 1891 of 2014
defendant in the suit. The Trial Court had rendered an erroneous finding
that transfer pendente lite is void as per the Section 52 of the Transfer of
the Property Act. He would also rely on the decision of the decision of
this Court in the case of Devaki Thiyagarajan .vs. Ahamed and others
reported in 2015 (4)CTC 293 and seek to set aside the finding.
4. The learned counsel for the respondent would submit that the
first respondent has filed the suit seeking partition of the family
properties. The suit was filed on 20.12.2010 and the petitioner in
collusion with the second defendant inorder to defeat the right of the
respondent/plaintiff has purchased a property by a sale deed dated
21.10.2013 after three years of filing of the suit. Though he was well
aware of the pendency of the suit, he had not choosen to implead
immediately and that impleading application has been filed only on
06.01.2014 when the case was ripe for trial taken up in the special list.
He would further submit that the Trial Court finding that the suit is for
partition and the right of the petitioner accrues only from the right of
the first defendants who had sold the property to the petitioner has
rightly dismissed the petition. Further the Trial Court has also found that
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C.R.P(MD)No. 1891 of 2014
the petition has been filed only for the purpose of the delaying the trial.
He would further submit that the petitioner being a transferee pendente
lite can work out equity in final decree proceedings and at the stage of
preliminary decree he is not a necessary party. In support of his
contention he would rely on the decision of Shakeela
Begum.vs.Mohammeed Yakkub (deceased) and others in A.S.No.827
of 1992. He would further submit that it is prerogative of the plaintiffs
as dominus litis to implead the necessary parties. In support of the above
contention the learned counsel for the respondent would rely on the
decision of the Hon'ble Apex Court in Gurmit Singh Bhattia .vs. Kiran
Kant Robionson and others reported in (2020)13 Supreme Court
Cases 773. He would further submit that suit is also seriously and
effectively contested by the first defendant who has sold the property to
the petitioner. He would further submit that the plaintiffs being the
Dominus litis cannot be forced to add parties against whom they do not
want to fight unless there is a compulsion of rule of law. If the plaintiff
do not want to join parties in a pending suit it is always done at the risk
of the plaintiff's because they cannot be forced to join the third parties as
defendants in the suit. Further the petitioner/defendants being purchasers
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C.R.P(MD)No. 1891 of 2014
pendente lite gets only the right what is available to the first defendants
and he cannot claim anything more than that of the first defendant.
5.Heard the learned counsel appearing for the parties and persued
the materials available on record.
6.The revision is directed against the dismissal of the petition filed
under order 1 Rule 10 of the Code of Civil Procedure seeking to implead
the petitioner as necessary party. The question which has to be decided is
whether the petitioner is a necessary party to be impleaded in the suit or
not and not the legality of the sale. Inorder the analyse the merits of the
case, this Court feels it appropriate to refer to the decision of the of the
Hon'ble Apex Court in Gurmit Singh Bhattia .vs. Kiran Kant
Robionson and others reported in (2020)13 Supreme Court Cases 773,
wherein the Hon'ble Apex Court has held that in a pending suit if the
plaintiff does not wants to implead any subsequent purchaser as a
necessary party it would had been done at the risk of the plaintiff because
he cannot be forced to implead the third parties as party/defendants in the
suit. The above decision has been rendered considering the principle that
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C.R.P(MD)No. 1891 of 2014
the plaintiff is the dominus litis and he cannot to be forced to act as
against whom he does not want to fight unless there is a compulsion of
rule of law. However in this case the trial Court has gone beyond the
scope of necessity of impleadment of parties had rendered a finding that
transfer of suit properties during pendency of suit is void. In this regard
in T.Ravi and another .vs. B.Chinna Narasimha and others reported in
(2017) 7 SCC 342, the Hon'ble Apex Court has held that the transfer of
property during the pendency of the suit relating thereto in contravention
of Section 52 of the Transfer of property act does not render such
transfer void but renders a subservient to the right of the parties in
litigation until the proceedings attains finality and thereby the findings of
the Trial Court with regard to that aspect alone has to be set aside.
7. In Shakeela Begum.vs.Mohammeed Yakkub (deceased) and
others in A.S.No.827 of 1992, this Court has held that the transferee
pendente lite /subsequent purchaser has secured right to work out equity
in final decree proceedings and therefore he is not a necessary party at
the stage of passing preliminary decree.
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C.R.P(MD)No. 1891 of 2014
8. As stated above, the petitioner being a third party and purchaser
of property pending suit his right accrues from the first defendant from
whom he had purchased the property as right subservient to the right of
the parties in litigation until the proceedings attains finality. The
plaintiff being dominus litis cannot be forced to implead the petitioner.
The Trial Court had rightly dismissed the petition seeking to implead the
petitioner , however the findings of the Trial Court that the sale of
property pending suit is void cannot be sustained.
9.In view of the above, the Civil Revision Petition stands closed.
granting liberty to the petitioner to implead at the stage of final decree
proceedings. No costs. Consequently connected miscellaneous petition
is also closed.
30.09.2021
Index : Yes/No
Internet: Yes/No
aav
Note : In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
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C.R.P(MD)No. 1891 of 2014
To
The Additional District Munsif Court, Sankarankovil
https://www.mhc.tn.gov.in/judis/
C.R.P(MD)No. 1891 of 2014
A.D.JAGADISH CHANDIRA, J.,
aav
C.R.P (PD)(MD) No. 1891 of 2014
and MP(MD) No.1 of 2014
30.09.2021
https://www.mhc.tn.gov.in/judis/
