Madras High Court
R.Suryanarayanan vs Tmt.Kodai Nayagi on 3 February, 2011
Author: S.Tamilvanan
Bench: S.Tamilvanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.02.2011 CORAM : THE HONOURABLE MR. JUSTICE S.TAMILVANAN C.R.P.(NPD) Nos.2823 to 2826 of 2010 & M.P.Nos.1, 1 and 1 of 2010 R.Suryanarayanan ..... Revision Petitioner in CRP(NPD)No.2823/10 Vs. 1.Tmt.Kodai Nayagi 2.Tmt.S.Jayalakshmi ..... Respondents in CRP(NPD) No.2823 of 2010 Revision petition filed seeking an order to set aside the order dated 15.07.2010, made in CMP.No.614 of 2010 in A.S.No.336 of 2009 on the file of the VII Additional Judge, City Civil Court, Chennai. For Revision Petitioner : Mr.K.V.Venkatapathy, SC for S.Ramesh For Respondent-1 : Mr.Govi G. Janakiraman For Respondent-2 : Mr.S.Suresh Kumar ORDER
All these Civil revision Petitions have been preferred by the petitioners, separately by challenging the order dated 15.07.2010 made in C.M.P.No.614 of 2010, C.M.P.No.615 of 2010, 612 of 2010 and 613 of 2010 in A.S.No.336 of 2009, 334 of 2009, 335 of 2009, 337 of 2009 respectively on the file of the VII Additional Judge, City Civil Court, Chennai. However, the point for determination in these revisions are one and the same.
2.Mr.K.V.Venkatapathy, learned senior counsel appearing for the petitioners submitted that the suit in O.S.No.869 of 2002 was filed by the second respondent herein against the first respondent and two others seeking declaration of title, permanent injunction and other consequential relief. The suit in O.S.No.2237 of 2004 was filed by the second respondent herein against the first respondent seeking mandatory injunction directing the defendant therein to demolish the abandoned water tank constructed on the roof of the plaint 'B' schedule property. The Suit in O.S.No.5122 of 2005 was filed by the first respondent against the second respondent, seeking mandatory injunction directing the defendant therein to demolish and remove two water tanks, two sheds put up by the defendant in the terrace and also to remove a grill gate filed in the staircase available approaching for the terrace and the sheds put up on the terrace and to remove the sump in the ground floor and other consequential relief. The suit in O.S.No.7343 of 2005 was filed by the second respondent against the first respondent herein seeking mandatory injunction directing the defendants in the suit to remove a sump and cement platform put up around the sump measuring 200 square feet described in Schedule 'C' property in the common passage of 'A' schedule property leading from the main gate to the entrance as stated in the schedule of property.
3.It is seen that the suits filed by the second respondent were decreed and the suit filed by the first respondent was dismissed. Aggrieved by which, the first respondent herein preferred four appeals and while the appeals were pending before the court below, respective interlocutory applications were filed by the petitioners herein as proposed party seeking to implead him second appellant in the appeals. However, the court below dismissed the same, aggrieved by the same, these civil revision petitions have been filed.
4.Mr.K.Govi G.Janakiraman, learned counsel appearing for the first respondent has no objection in allowing the revision petitions. Mr.S.SureshKumar, learned counsel appearing for the second respondent vehemently opposed the revision petitions filed by the petitioner herein on the ground that the revision petitioner is only a subsequent purchaser and therefore, the judgment and decree passed against the Vendor of the petitioner herein is binding on him. Learned counsel also drew the attention of this Court to Section 53 of the Transfer of Property Act and contended that the principle doctrine of lispendens is applicable and therefore, the petitioner herein cannot claim any right more than that was available to his vendor. According to the learned counsel, impleading the revision petitioner would cause delay in the disposal of all the four appeals pending before the court below.
5. Learned counsel appearing for the second respondent also drew the attention of this Court to the decision rendered by this Court in Nachammal vs. Lavangammal reported in 2006(3)CTC 543 wherein this Court has held that any alienation of property subsequent to filing of suit is hit by doctrine of lispendes and any decree passed in respect of any property is certainly binding on subsequent purchaser. While confirming the order passed by the court below under Order 1, Rule 10 CPC, this Court, dismissed the civil revision petition filed by the subsequent purchaser. However, in the decision referred to above, it has been categorically held that only necessary and proper parties alone could be impleaded in the suit. Learned counsel further contended that the contesting second respondent is a senior citizen hence, if the revision petition is allowed, it would cause further delay and the second respondent would be prejudiced.
6.Per contra, learned Senior Counsel appearing for the revision petitioner/proposed party submits that Section 52 of Transfer of Property Act is not applicable to the case on hand and further contended that the dispute relates to certain common rights which are available to the owners of the property. As per the sale deeds, the revision petitioner purchased the property by way of separate sale deed and being the subsequent purchaser, the petitioner is entitled to establish his right and after selling the property in favour of the petitioner his vendor has no subsisting right in the property. The first respondent/vendor has no substantiate right to defend the case and in such circumstances, the petitioner has to be impleaded as necessary party to safe guard his right which would not prejudice the second respondent herein. Learned senior counsel also contended that the revision petitioner is a necessary party as per Order 1, Rule 10 of CPC as an interested party to the suit claim. In support of his contention, learned senior counsel relied on the following decisions:
In the decision in Savitri Devi vs. District Judge, Gorakhpur and Others reported in 1999(2)SCC 577 in paragraph 9 it has been held as follows:
"Order 1 Rule 10 CPC enables the court to add any person as a party at any stage of the proceedings if the person whose presence before the court is necessary in order to enable the court to effectively and completely adjudicate upon the settle all the questions involved in the suit. Avoidance of a multiplicity of proceedings is also one of the objects of the said provision in the Code."
7.In Khemchand Shankar Choudhari vs. Vishnu Hari Partil reported in 1983(1)SCC 18 the Honourable Supreme Court has held that a transferee pendente lite of an interest in an immovable property which is the subject matter of a suit is a representative in the interest of the party from whom he has acquired that interest and has a right to be impleaded as a party to the proceedings. The Hon'ble Apex Court has taken note of the provisions of Section 52 of the Transfer of Property Act, 1882 as well as the provisions of Rule 10 of Order XXII CPC. The Supreme Court has further held as follows:
"It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard, he has got to be so impleaded and heard."
8.In Ramesh Hirachand Kundanmal vs. Municipal Corporation of Greater Bombay reported in AIR 1958 SC 886 the Honourable Supreme Court has discussed the matter at length and held that though the plaintiff is a dominus litis and not bound to sue every possible adverse claimant in the same suit, the Court may at any stage of the suit direct addition of parties and generally it is a matter of judicial discretion which is to be exercised in view of the facts and circumstances of a particular case wherein the Hon'ble Apex Court held thus:-
"The case really turns on the true construction of the rule in particular the meaning of the words '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.
The court is empowered to join a person whose presence is necessary for the prescribed purpose and cannot under the rule direct the addition of a person whose presence is not necessary for that purpose. If the intervener has a cause of action against the plaintiff relating to the subject-matter of the existing action, the court has power to join the intervener so as to give effect to the primary object of the order which is to avoid multiplicity of actions."
It was also held that though prevention of actions cannot be said to be the main object of the Rule, it is a desirable consequence of the Rule. The test for impleading parties prescribed in Razia Begum v. Sahebzadi Anwar Begum that the person concerned must have a direct interest in the action and that was reiterated by the Bench.
9.This Court in Kandasamy and Others vs. M.Palanisamy and Others reported in 2005(3) MLJ 306 has held thus:
"In an application for impleading parties, the necessary consideration before the Court is whether the proposed party is a necessary or proper party to the proceeding."
Similarly, this Court in the decision in K.P.Rajendran and another vs. N.R.Nachimuthu and Others reported in 2010(5) L.W.905 has held that when the parties sought to be impleaded is not claiming any independent title and they claim title through one of the parties, they are necessary and proper parties and they shall be impleaded as parties to the suit for proper adjudication.
10.In the decision in S.R.M.Ramamurthi Poosari and Others vs. S.Sethulingam Poosari and Others reported in 2010(7)MLJ 275 this court has held that if the relief or the order which the plaintiff is asking, directly or indirectly affects the impleading party in the enjoyment of his legal rights, then he is a necessary, proper and interested party. In Ramesh Hirachand Kundanmal vs. Municipal Corporation of Greater Bombay it is further held that;
"The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party..."
The Honourable Supreme Court has categorically held that a necessary party is the person without impleading him no legally executable decree or order would be passed. It is stated that parties are necessary for proper adjudication of any dispute. In the instant case, admittedly, the revision petitioner is the subsequent purchaser of the property from the first respondent herein. In the aforesaid suit the respondents 2 and 3 are parties, aggrieved by the judgment and decree made by the trial court, the first respondent herein preferred an appeal against the second respondent/decree-holder. It is not in dispute that the first respondent has sold the property in favour of the proposed party as contended by the learned senior counsel. The petitioner need not necessarily depend on his vendor in defending the case of the petitioner, as the first respondent has transferred his right to the petitioner herein by way of executing a sale deed.
11.As held by the Honourable Apex Court as well as this Court, it is seen that the proposed party has subsisting right and he is legally entitled to defend his case in view of the sale deed obtained by him. As per Section 52 of Transfer of Property Act, any alienation of property during the pendency of the suit is hit by doctrine of 'lis pendence' and any decree passed in respect of the property is certainly binding on the subsequent purchaser. As per P.Ramanatha Aiyer Law Lixiken the term lisi pendence is defined as follows:
"Lis means a suit, action controversy, or dispute, and lis pendens means a pending suit. The doctrine denotes those principles and rules of law which define and limit the operation of the common-law maxim pendente lite nihil innovetur, that is, pending the suit nothing should be changed.
A pending suit.
As soon as proceedings are commenced to recover or charge some specific property (ex parte Thornton (1867)2 Ch.p 178) there is 'lis pendens' a pending suit, the consequence of which is that until the litigation is at an end neither litigant can deal with the property to the prejudice of the other.
A lis pendens is defined in Wharton's Law Dictionary as a pending suit. ;Lis; means a suit, action, controversy, or dispute, and dispute is a conflict or contest, while controversy is a disputed question, a suit at law; and the pendens of the lis is not disturbed on in any manner affected by the fact of an appeal taken from one Court to another. The litigation or contest still goes on.
The rule of 'lis pendens' is statutory and imposes two conditions(i) the existence of a contentious suit, and (ii) that the transfer should be during its active prosecution in a Court of the kind described in S.52, Transfer of Property Act."
The doctrine of 'lis pendence is applicable to the revision petitioner, hence, the petitioner herein cannot claim any right that was not available to his vendor. However, every one is entitled to defend his case and safeguard his right in a court of law. Hence, the revision petitioner need not depend on his vendor, the first respondent herein in safeguarding his right in the appeal, though it is a settled preposition of law that the revision petitioner a subsequent purchaser cannot claim any right more than the right that was available to his vendor, the first respondent herein. Further as contended by the learned senior counsel appearing for the revision petitioner, the first respondent has no subsisting right in the property, after executing the sale deed infavour of the petitioner herein and there is no need for the first respondent to defend the case of the petitioner herein. Hence, the claim of the petitioner, being a subsequent purchaser to implead him as a party in the appeal cannot be rejected by the Court.
12. On the aforesaid facts and circumstances, in the light of various decisions rendered by both the honourable apex court as well as this court, I am of the view that the court below could have allowed this impleading petitions to meet the ends of justice. Accordingly, the impleading petitions are to be allowed.
13.Considering the representations made by the learned counsel appearing for the first respondent, a senior citizen, I find it just and reasonable to direct the court below to dispose all the appeals within a time frame. Accordingly, the court below is directed to dispose the appeal, after impleading the revision petitioner herein as one of the appellants in the appeal and after providing reasonable opportunities to both the parties, dispose the same according to law, uninfluenced by the findings if any by this Court in the revision before the end of October 2011. No costs.
03.02.2011 Index : Yes/No Internet : Yes/No smi To 1.The VIII Assistant City Civil Court, Chennai. S.TAMILVANAN, J. Smi C.R.P.(NPD) Nos.2823 to 2826 of 2010 03.02.2011