Patna High Court
Ramawati Kuwar vs Sanjay Kumar Gupta on 3 April, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.665 of 2019
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1. Ramawati Kuwar, Wife of Late Surenedra Ojha, Resident of Village- Nagai,
Police Station- Siswan, District- Siwan.
2. Rama Shankar Ojha, Son of Late Surendra Ojha, Resident of Village- Nagai,
Police Station- Siswan, District- Siwan.
3. Guddu Ojha @ Narendra Ojha, Son of Late Surendra Ojha, Resident of
Village- Nagai, Police Station- Siswan, District- Siwan.
4. Santu Ojha @ Bijay Shanker Dubey, Son of Nand Kishroe Dubey, Resident
of Village- Nagai, Police Station- Siswan, District- Siwan.
5. Mostt. Ahilya Devi @ Ahilya Kuwar, Wife of Late Vakil Ojha, Resident of
Village- Nagai, Police Station- Siswan, District- Siwan.
6. Aman Ojha @ Abhishek Ojha, minor under the guardianship of his mother
Ahilya Devi Resident of Village- Nagai, Police Station- Siswan, District-
Siwan.
7. Muni Kumari, Daughter of Late Wakil Ojha, Minor under the guardianship
of her mother Ahilya Devi, Resident of Village- Nagai, Police Station-
Siswan, District- Siwan.
8. Chhoti Kumari @ Amrita Kumari, Minor under the guardianship of her
mother Ahilya Devi, Resident of Village- Nagai, Police Station- Siswan,
District- Siwan.
... ... Petitioner/s
Versus
1. Sanjay Kumar Gupta, Son of Late Shojee Prasad Gupta, Resident of Village-
Ramgarh, P.O.- Ramgarh, P.S.- Siswan, District- Siwan.
2. Rajeev Kumar Gupta, Son of Late Shojee Prasad Gupta, Resident of Village-
Ramgarh, P.O.- Ramgarh, P.S.- Siswan, District- Siwan.
3. Sanjeev Kumar Gupta, Son of Late Shojee Prasad Gupta, Resident of
Village- Ramgarh, P.O.- Ramgarh, P.S.- Siswan, District- Siwan.
4. Jayanti Devi, Daughter of Late Shojee Prasad Gupta, Resident of Village-
Ramgarh, P.O.- Ramgarh, P.S.- Siswan, District- Siwan.
5. Ranjita Devi, Daughter of Late Shojee Prasad Gupta, Resident of Village-
Ramgarh, P.O.- Ramgarh, P.S.- Siswan, District- Siwan.
6. Rangnath Tiwary, Son of Mukhlal Tiwari, Resident of Village- Ramgarh,
P.O. Ramgarh, Police Station- Siswan, District- Siwan.
7. Bijay Kumar Sah, Son of Late Ganga Bishun Sah, Resident of Village-
Ramgarh, P.O. Ramgarh, Police Station- Siswan, District- Siwan.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Raghav Prasad, Advocate
For Respondent no.6 : Mr. Vijay Kumar Mishra, Advocate
Patna High Court C.Misc. No.665 of 2019 dt.03-04-2025
2/12
For the Respondent no.7: Mr. Rajendra Narain, Sr. Adv.
Ms. Anju Kumari @ Anju Narain, Adv.
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 03-04-2025
The petitioners have filed the instant civil
miscellaneous petition for quashing the order dated 05.03.2019
passed by learned Munsif-II, Siwan in Misc. Case No. 08 of
2017 whereby and whereunder the petition dated 04.12.2018
filed by respondent nos. 6 and 7 under Order 1 Rule 10 of the
Code of Civil Procedure (hereinafter 'the Code') has been
allowed.
2. Facts of the case, shorn of unnecessary details, are
that the original defendant no.1 Ramchandra Sah executed a
mahadnama on 27.10.1992 in favour of Devendra Ojha, the
ancestor of the present petitioners, in respect of land of Khata
No. 268, Kheshra No. 1011 for consideration amount of Rs.
30,000/- and he received Rs. 20,000/- at the time of execution of
said mahadnama with stipulation that the balance amount of Rs.
10,000/- would be paid at the time of registration of the land
within one year. However, despite request by Devendra Ojha,
Ramchandra Sah declined to execute the sale deed and
thereafter Devendra Ojha filed a suit bearing Title Suit No. 331
of 1994 in the court of learned Munsif-II, Siwan for specific
Patna High Court C.Misc. No.665 of 2019 dt.03-04-2025
3/12
performance. The defendant Ramchandra Sah appeared and
contested the suit but ultimately a compromise took place on
15.04.1996
and the suit was decreed in terms of the compromise
on 18.01.2000 and decree was sealed and signed on 03.02.2000.
The decree attained finality as it was not challenged. It further
transpires that defendant Ramchandra Sah did not obey the
decree and refused to execute the sale deed in favour of
Devendra Ojha and hence, Devendra Ojha filed Execution Case
No. 1 of 2002 in the court of learned Munsif-II, Siwan against
Ramchandra Sah. It further transpires that Ramchandra Sah
filed Title Suit No. 48 of 2002 for setting aside the compromise
decree of Title Suit No. 331 of 1994 and for staying the
Execution Case No. 1 of 2002. Devendra Ojha entered
appearance in the said suit, filed his written statement on
05.03.2003 and also filed a separate petition under Order 23
Rule 3A of the Code on 03.07.2003 praying to dismiss the Title
Suit No. 48 of 2002 as it was not maintainable. Further, Misc.
Case No. 28 of 2004 under Order 23 Rule 3 of the Code was
filed for cancellation of compromise decree of Title Suit No.
331 of 1994. The said Misc. Case No. 28 of 2004 was dismissed
due to non-prosecution vide order dated 02.02.2017 by the
learned Munsif-II, Siwan. Thereafter, Misc. Case No. 8 of 2017
Patna High Court C.Misc. No.665 of 2019 dt.03-04-2025
was filed by respondent 1st set under Section 151 of the Code for
restoration of Misc. Case No. 28 of 2004 which is pending for
disposal. During pendency of this miscellaneous case,
respondents 2nd set filed a petition under Order 1 Rule 10 of the
Code for their addition as party on 04.12.2018. The petitioners
filed rejoinder to the said petition on 11.02.2019 submitting that
the intervenors were not necessary party to the proceeding. The
learned trial court, after hearing the parties, allowed the petition
filed by the respondents 2nd set vide order dated 05.03.2019.
This order is under challenge before this Court.
3. Learned counsel appearing on behalf of the
petitioners submitted that the impugned order is illegal and the
learned trial court has committed error of jurisdiction in
allowing the petition for addition of parties. Learned counsel
submitted that in a proceeding for restoration of restoration case,
the outsiders to the proceeding cannot be allowed to contest the
same, that too, when five applicants are already on record. The
learned trial court failed to consider that the intervenors are
purchasers during pendency and they have purchased the
litigation and cannot insist upon being made parties as the heirs
of Ramchandra Sah are already on record and for this reason the
intervenors/respondents 2nd set are not necessary parties. The
Patna High Court C.Misc. No.665 of 2019 dt.03-04-2025
learned trial court has also not considered the fact that the
original defendant Ramchandra Sah had entered into the
agreement with the ancestor of the petitioners and after decree
in the suit for specific performance, based on compromise,
handed over the possession to the petitioners. For this reason
there was no occasion for transfer of the suit property in favour
of the intervenors by the heirs/legal representatives of
Ramchandra Sah. Learned counsel further submitted that the
learned trial court did not even consider that no date for the sale
deed executed in favour of the intervenors have been given and
no details of the land transferred in their favour was provided
and this shows the application for impleadment has been filed
by the respondents 2nd set with ulterior motive playing hide and
seek. Further, in a miscellaneous case filed for restoration of a
miscellaneous case, there was no occasion for the intervenors to
get themselves impleaded when the applicants of the
miscellaneous case are already on record and contesting the
same. Thus, the learned counsel submitted that the impugned
order could not be sustained and the same be set aside.
4. Learned senior counsel appearing on behalf of
respondent no.7 vehemently contended that there is no infirmity
in the impugned order and the same does not need any
Patna High Court C.Misc. No.665 of 2019 dt.03-04-2025
interference by this Court. Learned senior counsel submitted
that the ancestor of the petitioners obtained a fraudulent decree
and the original defendant Ramchandra Sah filed Misc. Case
No. 28 of 2004 for setting aside the said fraudulent decree and
execution proceeding based on it. During pendency of Misc.
Case No. 28 of 2004, Ramchandra Sah died leaving behind his
wife Panmati Kuwar who was substituted in his place. In the
year 2010 the answering respondent purchased some land from
Most. Panmati Kuwar vide registered sale deed dated
01.11.2010. Similarly, one Laxmi Devi, wife of Sanwaliya Sah,
had earlier purchased a piece of land from Ramchandra Sah and
sold that land to one Sumitra Devi, wife of the answering
respondent. Earlier in the year 1996, Ramchandra Sah sold 3
bigha 6 katha land to one Rangnath Tiwari. All the vendees
have been continuing in their possession. Panmati Kuwar had
grown old and has not been keeping good health, the pairvi in
Misc. Case No. 28 of 2004 was being done by respondent Bijay
Kumar Sah. However, this respondent became busy in
connection with marriage ceremony of his niece and as a result
no proper steps could be taken in the case and vide order dated
02.02.2017, Misc. Case No. 28 of 2004 was dismissed in
default. For its restoration, Panmati Kuwar filed a petition under
Patna High Court C.Misc. No.665 of 2019 dt.03-04-2025
Section 151 of the Code on 18.02.2017 which was numbered as
Misc. Case No. 8 of 2017. Learned senior counsel further
submitted that the interest of respondents Bijay Kumar Sah and
Rangnath Tiwari in the suit property is crystal clear as they
came into possession of the suit property after purchase either
from the original defendant or from his heirs/legal
representatives. Panmati Kuwar died on 01.12.2018 and after
her death, some of her maternal grandchildren as legal heirs
have been made applicants in the miscellaneous case but they
were only for the sake of name as they have no direct interest in
the proceeding as nothing was left of the property, it is the
purchasers who are directly involved in the matter. Learned
senior counsel further submitted that these facts go on to show
that the respondents 2nd set have direct interest in the matter and
further development has also taken place in Misc. Case No. 8 of
2017 wherein the affidavits of the respondents 2 nd set have been
filed in evidence and respondents 2nd set have also filed a
petition for intervention as purchasers in Execution Case No. 1
of 2002. Moreover, after purchase of the land of Ramchandra
Sah by the respondents 2nd set, heirs/legal representatives, i.e.,
maternal grandchildren of Ramchandra Sah had no interest in
pursuing the matter and as the purchasers are the real and actual
Patna High Court C.Misc. No.665 of 2019 dt.03-04-2025
owners, they have become the masters of the proceedings and
their presence is essentially required. Therefore, the impugned
order has been rightly passed by the learned trial court. Learned
senior counsel referred to the decision of the Hon'ble Supreme
Court in the case of Amit Kumar Shaw & Anr. vs. Farida
Khatoon & Anr., reported in AIR 2005 SC 2209 wherein the
Hon'ble Supreme Court held that even transferee pendente lite
can be added as a proper party if his interest in the subject
matter of suit is substantial and not just peripheral. Learned
senior counsel further submitted that an alienee would ordinarily
be joined as a party to enable him to protect his interest as the
Hon'ble Supreme Court in the case of Amit Kumar Shaw
(supra) 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, is entitled to be
heard in the matter on the merits of the case. Further, the learned
senior counsel referred to the decision of the Hon'ble Supreme
Court in the case of Savitri Devi vs. District Judge, Gorakhpur
& Ors., reported in AIR 1999 SC 976 wherein the Hon'ble
Supreme Court allowed impleadment of the purchasers of the
Patna High Court C.Misc. No.665 of 2019 dt.03-04-2025
property despite interim injunction granted by the court
restraining the respondents from alienating the property. The
Hon'ble Supreme Court further held that the impleadment of the
purchasers are necessary for deciding questions whether sales
were committed in contempt and disregard of injunction and
whether purchasers were bona fide transferees and in order to
avoid the multiplicity of suits.
5. I have given my thoughtful consideration to the
rival submission of the parties and perused the record. From the
contention of the parties, it is apparent that the respondents 2 nd
set are purchasers from heirs of Ramchandra Sah who was the
original defendant and decree for specific performance was
passed against him. It is also apparent that the respondents 2 nd
set are lis pendens purchasers. In normal circumstances if the
vendors of the purchasers are on record to protect their interest,
there would have arisen no need to induct the respondents 2 nd set
as parties. But in the present facts and circumstances, it is clear
that the original defendant as well as his wife, who sold the suit
land to the respondents 2nd set, are no more, the miscellaneous
case filed for restoration of another miscellaneous case is being
prosecuted by the maternal grandchildren of Ramchandra Sah
and Panmati Kuwar and grave apprehension has been shown by
Patna High Court C.Misc. No.665 of 2019 dt.03-04-2025
respondents 2nd set that they might not be interested in pursuing
the proceeding of Misc. Case No. 8 of 2017. So it is in order
that the respondents 2nd set who are purchasers, be allowed to
get themselves impleaded in miscellaneous proceeding so as to
protect their interest.
6. Moreover, Order 1 Rule 10(2) of the Code provides
for impleadment of parties at any stage of the proceedings if
presence of such person would enable the court to effectually
and completely adjudicate upon and settle all the questions
involved in the suit. Another facet is that this would also help in
stopping the multiplicity of litigation. The lis pendens
purchasers can be impleaded as parties as held by the Hon'ble
Supreme Court in the case of Amit Kumar Shaw (supra),
paragraph no. 16 of which held as under:-
"16. 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
Patna High Court C.Misc. No.665 of 2019 dt.03-04-2025
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."
Similarly, paragraph no. 8 of the decision of the
Hon'ble Supreme Court in the case of Savitri Devi (supra) held
as under:-
"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 a party to the order of injunction made
by the Court on 18-8-1992. 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 but 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 Court. The plea raised by
Patna High Court C.Misc. No.665 of 2019 dt.03-04-2025
respondents 3 to 5 that they were bona fide
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 a multiplicity of proceedings. In such
circumstances, it cannot be said that respondents
3 to 5 are neither necessary nor proper parties to
the suit"
7. Therefore, in the light of aforesaid decisions and
proposition of law enunciated therein, I am of the considered
opinion that the learned trial court did not commit any error of
jurisdiction and has passed a valid order which is affirmed.
8. Accordingly, finding no merit in the present
petition, the same is dismissed.
(Arun Kumar Jha, J)
balmukund/-
AFR/NAFR NAFR
CAV DATE 28.01.2025
Uploading Date 04.04.2025
Transmission Date NA
