Madras High Court
B.Thangamani vs N. Duraisamy on 5 August, 2022
C.R.P.No.2476 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.08.2022
CORAM
THE HONOURABLE Ms. JUSTICE R.N.MANJULA
C.R.P.No.2476 of 2022
and
CMP.No.12782 of 2022
1.B.Thangamani
2.K.Prema ... Petitioners
Vs.
1.N. Duraisamy
Ragammal (Died)
Rangasamy (Died)
Krishnamoorthy (Died)
2. Saraswathi
3. Dhanabagiyam
4. Kariammal
5.A.Ramsamy
6.A.Natarajan
A. Palanisamy (Died)
7.Rajamani
Girammal (Died)
8.Jothimani
9.P.Narayanasamy
P.Arumugham (Died)
10.P.Ramamoorthy
11.P.Govindaraj
12.Rajathi
13.N.Kandasamy
14.Saraswathy
15.A.Naresh Babu
16.Lathamaheswari
17.Chinnamani
1/9
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C.R.P.No.2476 of 2022
18.Poongodi
19.Malar
20.Mallika
21.Yuvaraj
22.Deepa
23.Lakshmi
24.R.Mylsamy
25.Shanthi
26.Priyanka
27.Sivakumar
28.S.Baby
29.S.Kala @ Kalamani ... Respondents
PRAYER: Civil Revision Petition filed under Article 227 of
Constitution of India, to set aside the order dated 07.06.2022 made
in I.A.No.1 of 2021 in OS.No.76 of 2007 on the file of the Additional
Subordinate Judge III, Coimbatore.
For Petitioners : Mr.Shivakumar
ORDER
The Civil Revision Petition has been filed challenging the order
dated 07.06.2022 made in I.A.No.1 of 2021 in OS.No.76 of 2007 on
the file of the Additional Subordinate Judge III, Coimbatore.
2. The civil revision petitioners are the proposed parties, who
have filed an application under Order I Rule 10 of the Civil Procedure
Code to implead themselves as defendants 35 and 36 in the suit filed
in OS.No.76 of 2007 by the 1st respondent/plaintiff for partition. The
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C.R.P.No.2476 of 2022
said application was dismissed by the trial Court by the impugned
order. Aggrieved over that, the civil revision petition has been
preferred.
2.Heard the learned counsel for the petitioners and perused the
materials available on record.
3.Learned counsel for the petitioners submitted that the
petitioners being the subsequent purchasers of an undivided interest
in the suit property from the co-sharers, they need to be impleaded as
parties to the proceedings even before the preliminary decree is
passed; the learned trial Judge is not correct in holding that the
proposed parties can be added as parties in the final decree at the
time when the shares are divided by metes and bounds and they are
not necessary parties during the preliminary decree where the
entitlement of shares is the matter to be decided.
4.Learned counsel for the petitioners has attracted the attention
of this Court to the decision of the Hon'ble Supreme Court in the case
of Amit Kumar Shaw Vs. Farida Khatoon [reported in (2005) 11
SCC 403].
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C.R.P.No.2476 of 2022
5.In the said judgment, the Hon'ble Supreme Court has held as
hereunder:
“The doctrine of lis pendens applies only where the lis is
pending before a Court. Further pending the suit, the
transferee is not entitled as of right to be made a party
to the suit, though the Court has a discretion to make
him a party. But the transferee pendente lite can be
added as a proper party if his interest in the subject
matter of the suit is substantial and not just peripheral.
A transferee pendente lite to the extent he has acquired
interest from the defendant is vitally interested in the
litigation, whether the transfer is of the entire interest
of the defendant; the latter having no more interest in
the property may not properly defend the suit. He may
collude with the plaintiff. Hence, though the plaintiff is
under no obligation to make a lis pendens transferee a
party; under Order XXII Rule 10 an alienee pendente
lite may be joined as party. As already noticed, the
Court has discretion in the matter which must be
judicially exercised and an alienee would ordinarily be
joined as a party to enable him to protect his interests.
The Court has 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. He is entitled to be impleaded in the suit or
other proceedings where the transferee pendente lite is
made a party to the litigation; he is entitled to be heard
in the matter on the merits of the case. ”
6. By relying upon the above judgment, the learned counsel for
the petitioners submitted that the learned trial Judge ought to have
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C.R.P.No.2476 of 2022
impleaded the revision petitioners as parties to the proceedings.
7. On perusal of the records, it is seen that the proposed parties
are purchasers from a purchaser, who had purchased the alleged
share from the co-sharers. The suit has been filed against several
defendants which includes the co-sharers, from whom, the present
proposed parties were said to have derived their title.
8. The trial Judge had observed that the vendors of the
purchasers have already been added as parties to the proceedings and
whatever right the subsequent purchasers get would only depend
upon the rights of the vendors, who are already parties to the
proceedings. Though there is no hard and fast rule to consider the
applications filed by the proposed parties to be added as parties, it is
at the discretion of the trial Judge to consider those applications and
grant leave or not.
9. Even in the decision of the Hon'ble Supreme Court, which is
cited by the learned counsel for the petitioners, it has been made out
clearly that it is at the discretion of the Court, which has to be
judicially exercised when the parties are not sufficient enough to
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C.R.P.No.2476 of 2022
adjudicate the matter effectively. Since the proposed parties are
subsequent purchasers of a subsequent purchaser of an undivided
interest, the learned Trial Judge had chosen to dismiss the application
by making an observation that their apportionment can be decided at
the final decree and they can choose to be parties for final decree
proceedings and since the entitlement is settled in the preliminary
decree, their presence is not requested.
10. There is no quarrel on the point that the subsequent
purchaser or the proposed parties, who have purchased the property
from the subsequent purchaser can only derive title in accordance
with the entitlement of the share of the original co-sharers of the suit
property. If the subsequent purchasers go on alienating the property
and create third party interest, there cannot be any finality in adding
the parties proceedings and the Court cannot choose to add all the
subsequent purchasers as parties. Even without the presence of the
proposed parties, the matter in issue can be decided effectively and
hence it cannot be claimed that they are necessary parties to the
proceedings. Since the learned trial Judge had exercised the discretion
and the discretion has to be exercised judiciously on a case to case
basis, no generalized application can be made in line of the judgment
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C.R.P.No.2476 of 2022
cited in this case. Hence, I find no grounds for interference.
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C.R.P.No.2476 of 2022
In the result, the civil revision petition is dismissed and the
order dated 07.06.2022 made in I.A.No.1 of 2021 in OS.No.76 of
2007 on the file of the Additional Subordinate Judge III, Coimbatore
is confirmed. Consequently the connected CMP is also dismissed.
05.08.2022
Index : Yes/No
Speaking Order : Yes / No
RS/jrs
To
1. The Additional Subordinate Judge III, Coimbatore
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C.R.P.No.2476 of 2022
R.N.MANJULA, J.,
RS/jrs
C.R.P.No.2476 of 2022
and
CMP.No.12782 of 2022
05.08.2022
https://www.mhc.tn.gov.in/judis
