Madras High Court
G.Santhana Krishnan vs Mr.Basheera Kathu on 20 April, 2018
Author: N. Seshasayee
Bench: N. Seshasayee
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 20.04.2018 Coram: The Honourable Mr. Justice N. SESHASAYEE C.R.P(PD)No.513 & 15 of 2012 and M.P.No.1 of 2012 in W.P.No.513 of 2012 G.Santhana Krishnan ...Petitioner in C.R.P(PD)No.513 of 2012 Abdul Shamadhu ...Petitioner in C.R.P(PD)No.15 of 2012 Versus 1. Mr.Basheera Kathu 2. G.Venkatesan ...Respondents in C.R.P(PD)No.513 of 2012 3. Santhanakrishnan 4. Vajiravel 5. Pazhani 6. Sivasankar 7. Ashok Kumar 8. Sambandhan 9. Rhadabai 10. Jayarama Chettiar 11. Rhadhakrishnan 12. Dhanalakshmi 13. Kali@Santhanalakshmi 14.Basheera Kathu 15.Ismail ...Respondents in C.R.P(PD)No.15 of 2012 Prayer in C.R.P(PD)No.513 of 2012: This Civil Revision Petition is filed under Article 227 of the Constitution of India against the order and decree made in I.A.No.404 of 2011 in O.S.No.68 of 2007 on the file of the District Munsif-cum-Judicial Magistrate, Uthiramerur dated 22.12.2011. Prayer in C.R.P(PD)No.15 of 2012: This Civil Revision Petition is filed under Article 227 of the Constitution of India against the order and decreetal order dated 10.11.2011 passed in I.A.No.210 of 2011 in O.S.No.31 of 2007 by the Hon'ble District Munsif-cum-Judicial Magistrate Court, Uthiramerur. For Petitioner in C.R.P(PD)No.513 of 2012 : S.Vijayakumar Petitioner in C.R.P(PD)No.15 of 2012 : Dr.C.Ravichandran In C.R.P(PD)No.513 of 2012: For Respondent 1 : Mr.Ansar, Government Advocate Respondent 2 : No Appearance In C.R.P(PD)No.15 of 2012: For Respondent 1 : Mr.S.Vijayakumar Respondents 2 to 13 : No Appearance COMMON ORDER
1. The case can be stated briefly as below:
The property comprised in New S.F.No.1721 of Uthiramerur Town and Taluk, Kanchipuram District is the subject matter of a suit for declaration of title in O.S.No.31 of 2007. Opposing the plaintiff's title, the defendants stakes title to the same property but rest their title to an independent source. During the pendency of this suit, the first and second defendants sold part of the property to defendants 11 and 12. The plaintiff brought necessary application to implead these purchasers as party-defendants and this enabled them to be in the array of defendants as defendants 11 & 12. Subsequently, defendants 11 & 12 have sold the property to certain Abdul Samadu.
2.1 In the meantime, defendants 11 & 12 in O.S.31 of 2007 instituted a separate suit in O.S.No.68 of 2007 against the plaintiff in O.S.No.31 of 2007 for bare injunction that the latter shall not disturb their possession. Thereafter, the 11th defendant (Basheera Kathu) in O.S.No.31 of 2007 (who is also the plaintiff in O.S.No.68 of 2007) moved I.A.No.404 of 2011 for consolidation of both the suits to facilitate joint trial. Vide order dated 22.11.2007, this was allowed.
2.2 Abdul Shamadhu, the purchaser from Basheera Kathu, (the 11th defendant in O.S.31/2007) filed I.A.No.210 of 2011 to implead himself in O.S.No.31 of 2007. This came to be dismissed on 10.11.2011.
2.3 While Abdul Shamadhu had preferred C.R.P(PD)No.15 of 2012 challenging the order dismissing his application to implead himself in O.S.No.31 of 2007, the plaintiffs in O.S.31 of 2007 have challenged the order allowing the prayer for consolidation of both the suits passed in I.A.No.210 of 2011 in O.S.No.31 of 2007.
3. Heard the learned counsel on either sides.
4.1 On going through the typed set of papers, and the nature of pleadings made available, it is evident that there is a dispute over title to portion of the suit-property in O.S.No.31 of 2007, and when the suit commenced it was essentially directed against the first defendant. When the first defendant sold the property to defendants 11 and 12, it is their right that ultimately came under the threat. However, the plaintiff himself thought it fit to implead them in the party-array. This would mean that they have secured their right to defend their right over the property, independent of the first defendant's obligation to defend it for them. However, when defendants 11 & 12 have sold the property to Abdul Shamadhu, yet another pendente lite transfer, his right over the property now stands exposed to the vagaries of the pending litigations and its outcome.
4.2 Now the trial Court has dismissed Abdul Shamadhu's I.A.No.210 of 2011 filed in O.S.No.31 of 2007 on the solitary ground that he is only a pendente lite transferee.
5.1 This Court is not able to appreciate the line of reasoning which the Trial Court has adopted. Transfer of Property Act does not forbid a pendente lite transfer, but only make it subject to the outcome of the pending litigation. In Thomson Press (India) Limited Vs. Nanak Builders and Investors Private Limited and Others [ (2013) 5 SCC 397], the Hon'ble Supreme Court besides explaining the space in which Sec.52 of the Transfer of Property Act operates, also has exposited the powers of the Court to implead by a combined reading of Order I Rule 10 and Order XXII Rule 10 CPC. In aid of its reasoning it has placed reliance on a candid statement of Delvin J in Amon Vs Raphael Tuck & Sons Ltd., [(1956)1 All ER 273] which reads:
'...the test is: May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights 5.2. When law does not forbid a pendente lite transfer, it is may not be appropriate to deny admittance to someone whose rights are likely to be affected by the outcome of the litigation from participating in the proceedings, and require him to sit on the fence with bated breath and watch the proceedings as a spectator. What if the first defendant or defendants 11 and 12 failed to defend the right of Abdul Shamadhu in O.S.No.31 of 2007? And by the same token, what if they did not prosecute O.S.No.68 of 2007?
5.3 It is required to be stated, which this Court has been doing tirelessly over several decades, that a procedure law must be understood and handled only as an aid to justice, and not as one restricting or defining justice in a cause. Judicial discretion, wherever its exercise is not limited by the Statute or interpreted by the Constitutional Courts as circumscribed by situations must be pragmatically exercised. Secondly, it must be stated, and stated with a degree of emphasis, that the soul the Civil Procedure Code is to establish fairness in civil proceedings. It commences from summoning the defendant to Court for offering his response to plaintiff's action, and it sails along as an under current till the judgement is pronounced. In between, there are several stages where Courts are required to balance the fairness between both sides. It may include a prayer for an adjournment or a permission to present additional pleadings or preserving a certain status quo. The situations how discretionary powers under a procedural statute must be exercised are fundamentally case-specific. It should not be forgotten tha a litigation is not a laboratory material for testing the application of a set of legal principles logically. If fairness is neglected, the road to justice may never find its destination.
6. If the present case is now approached, on facts it must be stated that the suits are still pending commencement of trial. And there are no material before the Court to consider that the successive sales that have taken place, though pendente lite, are intended to delay the commencement of trial, or aimed to embarrass the fairness to which the plaintiff too is entitled to in equal measure. This Court therefore considers that Abdul Shamadhu must be impleaded in O.S.No.31 of 2007. Accordingly, CRP(PD)No.15 of 2012 is allowed.
7. So far as C.R.P(PD)No.513 of 2012 is concerned, it is filed only for consolidation of litigations. When common issues are to be decided pertaing to the title of the same property, and between same set of parties, it is essential that suits are consolidated. That precisely what the trial Court has done. Therefore, challenging the same as is attempted in C.R.P(PD)No.513 of 2012 is devoid of merits and the same is dismissed.
8. In conclusion, CRP 15/2012 is allowed, Since the suit are pending for close to eleven years, Abdul Shamadhu, the petitioner in C.R.P.No.15 of 2012 is directed to file his written statement within 30 days from the date of receipt of copy of this order, whereupon the Trial Court shall frame appropriate issues and conclude the trial of the suit within four months thereafter. CRP (PD) 513 of 2012 is dismissed. No costs.
20.04.2018 mrr Index : Yes / No N. SESHASAYEE, J., mrr To District Munsif-cum-Judicial Magistrate, Uthiramerur C.R.P(PD)Nos.513 & 15 of 2012 20.04.2018