Madras High Court
V.Ilangumaran vs Mehaboob Beevi (Died)
Author: C.Saravanan
Bench: C.Saravanan
C.R.P.(MD)No.539 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserving the Judgment Date of Pronouncing the Judgment
03.04.2023 28.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.SARAVANAN
C.R.P.(MD)No.539 of 2021
and
C.M.P.(MD)No.2880 of 2021
1.V.Ilangumaran
2.Visalakshi ... Petitioners
vs.
Mehaboob Beevi (Died)
Sulthan Bivi (Died)
Rahumath Bivi (Died)
Noorjahan (Died)
Mumtaj (Died)
Syed Nurdin (Died)
John Batcha (Died)
1.Mohammed Ali Jinnah
2.Jahangir Batcha
3.Suraiya Begum
4.Pyari Jhan
Thasthagir (Died)
5.M.Nowsath Begum
6.A.Mohammed Basheer
7.A.Abitha Begum
8.H.Sulthan Khan
Kadar Khan (Died)
Abdul Hamid Khan (Died)
https://www.mhc.tn.gov.in/judis
1/14
C.R.P.(MD)No.539 of 2021
M.Abdul Majeed Sahib (Died)
Mahaboob Khan Sahib (Died)
Mumtaj (Died)
Rasool Bivi (Died)
Bibi John (Died)
Amanulla Khan (Died)
Mohideen Basha (Died)
Heera Khan (Died)
Razia Begum (Died)
Shajahija (Died)
Sardaj Begam (Died)
9.Piyari
10.Ghori
Baktha Jamal Khan (Died)
Vanitha (Died)
11.Gulab
12.Abdul Azeez Khan
Abdul Azeez Khan (Died)
Abdul Azam Khan (Died)
13.Asmath Banu
14.Hasmad Banu
15.Abdul Salam Khan
16.Suraiya
17.Budadheen
Ibrahim (Died)
18.Fathima
19.John Bibi
20.Rahamathullah Khan
21.Hidayathullah Khan
22.Nazarullakhan
23.Kurshid Begum
24.Akbarali
25.Ibrahim
26.Kushkamar Begum
27.Zeenath Begum
https://www.mhc.tn.gov.in/judis
2/14
C.R.P.(MD)No.539 of 2021
28.Abdul Ajmal Khan
29.Masoodha Banu
30.Arshiya Fathima
31.Nawaziya Fathima
32.Mohammed Zohara
33.A.Babu
34.S.A.Noor Basha
S.Saithani (Died)
35.S.S.Shakila
36.M.A.Tajan Bibi
37.M.Ayub Khan
38.M.Nasar Khan
39.M.Yusuf Khan
40.M.Yasmin Nihar
41.Ameernisha Begum
42.Sharfunisha Begum
43.Salma Begum
44.Minor Jasmine
45.Minor Mohammed Suhali ... Respondents
Prayer :- Civil Revision Petition is filed under Article 227 of the Constitution
of India, against the fair and decreetal order dated 03.03.2021, made in I.A.No.17 of
2021 in I.A.No.996 of 2006 (Old I.A.No.157 of 1977) in O.S.No.1120 of 2006 (Old
O.S.No.213 of 1973), on the file of the Additional District Munsif Court, Madurai
Town.
For Petitioners : Mr.S.Suresh Manickam
For R1 and R5 to R8 : Mr.S.Mohamed Kadher
For R26 and R29 : Mr.A.Shahul Hameed
For R33 and R34 : Mr.A.B.Prabhakar
For R36 and R37 : Mr.R.Ponkarthikeyan
For R43 to R45 : Mr.S.Sukumar
https://www.mhc.tn.gov.in/judis
3/14
C.R.P.(MD)No.539 of 2021
ORDER
The petitioners are the third party purchasers of a portion of the suit schedule property in O.S.No.1120 of 2006 (Old O.S.No.213 of 1973) before the learned Additional District Munsif, Madurai Town.
2.The petitioners have filed this Civil Revision Petition against the fair and decreetal order dated 03.03.2021, passed by the learned Additional District Munsif, Madurai Town, in I.A.No.17 of 2021 in I.A.No.996 of 2006 (Old I.A.No.157 of 1977) in O.S.No.1120 of 2006 (Old O.S.No.213 of 1973).
3.By the impugned order, the learned Additional District Munsif, Madurai Town, has dismissed I.A.No.17 of 2021 filed by the petitioners herein under Order XXII Rule 10 of C.P.C to implead the petitioners as respondent Nos.57 and 58 in the final decree application in I.A.No.996 of 2006 in O.S.No.1120 of 2006. The operative portion of the impugned order dated 03.03.2021 in I.A.No.17 of 2021 in I.A.No.996 of 2006 in O.S.No.1120 of 2006 passed by the learned Additional District Munsif, Madurai Town, reads as under :-
''8.10. In this instant case, the proposed parties contended that they have purchased the portion of suit properties through several sale deeds from the year of 2006 and was in possession of the same from the date of purchase. But they have produced only the sale deeds pertaining to the year of 2013 as Ex.Pl to Ex.P3. The final decree proceedings was pending for more than 15 years before this court and about 29 years before the Hon'ble Sub Court, Madurai. While so, the proposed parties contention that they had https://www.mhc.tn.gov.in/judis 4/14 C.R.P.(MD)No.539 of 2021 knowledge of the proceedings only when the advocate commissioner visited the suit properties for measurement is not having a considerable force. The vendors of the proposed parties who were contesting the final decree application has endorsed no counter in this impleading application. The proposed party also contending that the preliminary decree was not binding on him, though the same was attained finality. As per the observation relied by the learned counsel for the respondent and on considering the facts and circumstance of this case discussed supra, there arises no necessity in order to implead the proposed parties in the above final decree proceedings.
In the result this petition was dismissed. Considering the facts and circumstance of the case, there is no order as to cost.''
4.The petitioners are the third party purchasers of the suit schedule property during the pendency of the partition suit in O.S.No.213 of 1973 filed by the plaintiffs therein before the III Additional Subordinate Court, Madurai. Preliminary decree was passed on 30.09.1976 in O.S.No.213 of 1973. The said suit was transferred and re- numbered as O.S.No.1120 of 2006 before the Additional District Munsif Court, Madurai Town.
5.In the said suit, the plaintiffs have filed I.A.No.157 of 1977 before the III Additional Subordinate Court, Madurai, for passing a final decree, which was transferred and re-numbered as I.A.No.996 of 2006 before the learned Additional District Munsif, Madurai Town. At that stage, the petitioners herein, who claimed to have purchased the property from some of the defendants in the suit, wanted to implead themselves as third parties and filed I.A.No.17 of 2021 under Order XXII Rule 10 of C.P.C to implead the petitioners as respondent Nos.57 and 58 in the final decree application in I.A.No.996 of 2006 in O.S.No.1120 of 2006, which was https://www.mhc.tn.gov.in/judis 5/14 C.R.P.(MD)No.539 of 2021 dismissed by learned Additional District Munsif, Madurai Town. Aggrieved by the same, this Civil Revision Petition has been filed.
6.The petitioners have also filed O.S.No.10 of 2021 on the file Additional District Munsif Court, Madurai Town, challenging the preliminary decree passed in O.S.No.1120 of 2006 (Old O.S.No. 213 of 1973), on the file of Additional District Munsif Court, Madurai Town.
7.The petitioners have also undertaken before this Court to withdraw the suit in O.S.No.10 of 2021, on the file Additional District Munsif Court, Madurai Town, once they are impleaded as parties in final decree proceedings pending in I.A.No.996 of 2006 (Old I.A.No. 157 of 1977) in O.S.No. 1120 of 2006 (Old O.S.No. 213 of 1973) and also had filed an undertaking Memo on 07.11.2021. The same stands recorded.
8.The learned counsel for the petitioners submits that the petitioners have settled the dispute with some of the plaintiffs and their descendants/legal heirs and have paid approximately Rs.77,00,000/- (Rupees Seventy Seven Lakhs). It is submitted that though the petitioners have purchased the property pending disposal of the partition suit, they are entitled to implead themselves as third parties, as they step into the shoes of the original parties to the suit.
https://www.mhc.tn.gov.in/judis 6/14 C.R.P.(MD)No.539 of 2021
9.In support of his submission, the learned counsel for the petitioners has placed reliance on the following decisions:-
(i) Amit Kumar Shaw and another v. Farida Khatoon and anothers,2005 11 SCC 403
(ii) Kaiappan v. Kondappan alias kondathu gounder and others,2013 (3) MNW (Civil) 86
(iii) K.Ponnusamy v. Sampath and others, 2019 SCC Online Mad 15738
(i) Thomaon Press(India) Limited v. Nanak Builders and others, 2013 (5) SCC 397
10.Opposing the prayer, the learned counsel for the respondents 1, 5 and 8 submits that the order of the Trial Court is well reasoned and requires no interference and prayed for dismissal of the Civil Revision Petition.
11.In support of his submission, the learned counsel for the respondents 1 and 5 to 8 has placed reliance on the following decisions :-
(i) Cannou Parimala Rani @ Mary Rosay Parimala Rani vs. Ilamathy and others [S.A.No.234 of 2014, decided on 30.03.2022]
(ii) Bakthavatsalam vs. Anjapuli and five others,2001 (1) MLJ 101
(iii) Neelakantha Pillai Ramachandran vs. Ayyappan Pillai Kumara Pillai, AIR 1978 Ker 152.
https://www.mhc.tn.gov.in/judis 7/14 C.R.P.(MD)No.539 of 2021
12. Order I Rule 10(2) of C.P.C. reads as under:-
''(2) Court may strike out or add parties.- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendant, be struck out, and that the name, of any person who ought to have been joined, whether as Plaintiff or Defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.''
13.The decision of the Honb'le Supreme Court in Thomson Press (India) Limited v. Nanak Builders and others [2013 (5) SCC 397] by Hon'ble Mr.Justice M.Y.Eqbal, reads as under :-
''26. It would also be worth to discuss some of the relevant laws in order to appreciate the case on hand. Section 52 of the Transfer of Property Act speaks about the doctrine of lis pendens. Section 52 reads as under:
''52. Transfer of property pending suit relating thereto. – During the [pendency] in any Court having authority [within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by [the Central Government] [***] of [any] suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
[Explanation – For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason https://www.mhc.tn.gov.in/judis of the expiration of any period of limitation prescribed for 8/14 C.R.P.(MD)No.539 of 2021 the execution thereof by any law for the time being in force.'' It is well settled that the doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a court in a suit should be binding not only on the litigating parties but on those who derive title pendente lite. The provision of this Section does not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parties to a litigation.
…
30. In the light of the settled principles of law on the doctrine of lis pendens, we have to examine the provisions of Order 1 Rule 10 of the Code of Civil Procedure. Order 1 Rule 10 which empowers the Court to add any person as party at any stage of the proceedings if the person whose presence before the court is necessary or proper for effective adjudication of the issue involved in the suit.
31. Order 1 Rule 10 reads as under:
''10. Suit in name of wrong plaintiff.- (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms a the Court thinks just.
(2) Court may strike out or add parties.-The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
(4) Where defendant added, plaint to be amended.-
https://www.mhc.tn.gov.in/judis 9/14 C.R.P.(MD)No.539 of 2021 Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.
(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.'' From the bare reading of the aforesaid provision, it is manifest that sub-rule (2) of Rule 10 gives a wider discretion to the Court to meet every case or defect of a party and to proceed with a person who is a either necessary party or a proper party whose presence in the Court is essential for effective determination of the issues involved in the suit.
….
44. Having regard to the law discussed hereinabove and in the facts and circumstances of the case and also for the ends of justice the appellant is to be added as party-defendant in the suit. The appeal is, accordingly, allowed and the impugned orders passed by the High Court are set aside.
45. Before parting with the order, it is clarified that the appellant after impledment as party-defendant shall be permitted to take all such defences which are available to the vendor Sawhneys’ as the appellant derived title, if any, from the vendor on the basis of purchase of the suit property subsequent to the agreement with the plaintiff and during the pendency of the suit.
…
54.The third dimension which arises for consideration is about the right of a transferee pendete lite to seek addition as a party defendant to the suit under Order I, Rule 10 CPC. I have no hesitation in concurring with the view that no one other than parties to an agreement to sell is a necessary and proper party to a suit. The decisions of this Court have elaborated that aspect sufficiently making any further elucidation unnecessary. The High Court has understood and applied the legal propositions correctly while dismissing the application of the appellant under Order I, Rule 10 CPC. What must all the same be addressed is whether the prayer made by the appellant could be allowed under Order XXII Rule 10 of the CPC, which is as under:
https://www.mhc.tn.gov.in/judis 10/14 C.R.P.(MD)No.539 of 2021 ''10.Procedure in case of assignment before final order in suit. – (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the court, be continued by or against the person to or upon whom such interest has come or devolved.
(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-
rule (1).'' A simple reading of the above provision would show that in cases of assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. What has troubled us is whether independent of Order I Rule 10 CPC the prayer for addition made by the appellant could be considered in the light of the above provisions and, if so, whether the appellant could be added as a party- defendant to the suit. Our answer is in the affirmative. It is true that the application which the appellant made was only under Order I Rule 10 CPC but the enabling provision of Order XXII Rule 10 CPC could always be invoked if the fact situation so demanded. It was in any case not urged by counsel for the respondents that Order XXII Rule 10 could not be called in aid with a view to justifying addition of the appellant as a party-defendant. Such being the position all that is required to be examined is whether a transferee pendete lite could in a suit for specific performance be added as a party defendant and, if so, on what terms.''
14.In para 57 of the above judgment of the Supreme Court, it was summarized by his Lordship Hon'ble Mr.Justice.T.S.Thakur, which concurs with the views of Hon'ble Mr.Justice M.Y.Eqbal, as follows:-
''57. To sum up:
57.1. The appellant is not a bona fide purchaser and is, therefore, not protected against specific performance of the contract between the plaintiffs and the owner defendants in the suit.
57.2. The transfer in favour of the appellant pendente lite is effective in transferring title to the appellant but such title shall remain subservient to https://www.mhc.tn.gov.in/judis 11/14 C.R.P.(MD)No.539 of 2021 the rights of the plaintiff in the suit and subject to any direction which the Court may eventually pass therein.
57.3. Since the appellant has purchased the entire estate that forms the subject matter of the suit, the appellant is entitled to be added as a party defendant to the suit.
57.4. The appellant shall as a result of his addition raise and pursue only such defenses as were available and taken by the original defendants and none other.''
15.I have considered the arguments advanced by learned counsel appearing for the respective parties.
16.Although the petitioners have purchased the property during the pendency of the partition suit filed in O.S.No.213 of 1973, which has been renumbered O.S No. 1120 of 2006, they step into the shoes of the parties to the suit from whom they have purchased the property.
17.In fact, they may be independently entitled to file a suit for partition of the property, if the property remains in the common pool and is undivided. The powers of the Court to implead a party at any stage of the proceedings under Order I Rule 10 (2) C.P.C is in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. The course of litigation since 1973 has to come to an end so that there is a wholistic resolution of the dispute between the parties to the suit, and those who have a chance to purchase the property during the pendency of the suit.
https://www.mhc.tn.gov.in/judis 12/14 C.R.P.(MD)No.539 of 2021
18.Therefore, I am inclined to interfere with the impugned order by setting aside the same. Consequently, I.A.No.17 of 2021 in I.A.No.996 of 2006 in O.S.No. 1120 of 2006 is allowed. After all, procedures are handmaids of justice and not mistress of law. Consequently, the petitioners shall be impleaded as respondents in the final decree petition in I.A.No.996 of 2006 in O.S.No.1120 of 2006. However, their rights will be limited to the rights of the persons from whom they have purchased the property. The Trial Court is directed to dispose of the suit in O.S.No. 1120 of 2006 within a period of 12 months from the date of receipt of copy of the order.
19.This Civil Revision Petition is allowed accordingly. No costs. Consequently, connected Miscellaneous Petition is closed.
NCC : Yes / No
Index : Yes / No 28.04.2023
Internet : Yes / No
smn2
To
The Additional District Munsif,
Madurai.
https://www.mhc.tn.gov.in/judis
13/14
C.R.P.(MD)No.539 of 2021
C.SARAVANAN, J.
smn2
PRE-DELIVERY ORDER MADE IN
C.R.P.(MD)No.539 of 2021
DATED : 28.04.2023
https://www.mhc.tn.gov.in/judis
14/14