Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18915 of 2012 ====================================================== 1. Shanti Swarup Sharma 2. Shakti Swarup Sharma Both are Son Of Late Shiva Swarup Sharma Resident Of Chatarbhuj Thakur Marg, P.S.- Kazimohammadpur District- Muzaffarpur Versus .... .... Petitioner/s 1. The State Of Bihar through the Chief Secretary Bihar, Patna 2. Dr. Birendra Kumar Upadhyay 3. Sunil Kumar Upadhyay Both are Sons Of Late Ganesh Upadhyay 4. Chanda Kumari W/O Sri P.C. Mishra 5. Veena Devi W/O Sri T.N. Upadhyay 6. Kiran Upadhayay W/O Sant Kumar Tiwary 7. Kusha Devi W/O Ashok Kumar Dubey The respondent no. 2 Dr. Birendra Kumar Upadhyay executed Vakalatnama on behalf of respondent no. 3 to 7 as he is claiming to the Attorney Holder 8. Ram Kumar Pandey Son Of Late Salik Pandey 9. Sangita Pandey Widow Of Anil Kumar Pandey, Daughter In Law Of .......Respondents……..Opp. Parties Ram Kumar Pandey 10. Nutan Diwedi Daughter Of Ram Kumar Pandey, Wife Of Amrendra Kumar Diwedi All of Resident Of Mohalla & P.O.- Kazimohamadpur, P.S.- Muzaffarpur, District- Muzaffarpur 11. Savita Devi Wife Of Umesh Chandra Pandey, D/O Badari Narayan Upadhyay Resident Of Manikpur Pakri, P.S.- Lalganj, District- Vaishali
Facts
.... Defendants .... Respondents ====================================================== Appearance : For the Petitioner/s : For the Respondent/s : ======================================================
Legal Reasoning
as well as a decision of this Court in the case of Gauri Shankar Pathak vs. Dr. Shankaranand Upadhyay reported in 2011 (2) PLJR 547. Learned counsel for the State submits that the Court below has rightly rejected the application of the petitioners being impleaded as a party since they had purchased the suit property during the pendency of the suit and also while the order for maintaining status quo with regard to the suit land was in operation and thus the order impugned needs no interference. Considering the rival contentions, this Court does not find any error in the order impugned. The petitioners having Patna High Court CWJC No.18915 of 2012 (2) dt.13-11-2013 4/5 purchased the suit property during the pendency of the suit in which there was an order for maintaining status quo with regard to the suit land, cannot be said to be necessary parties. If at all, they have any claim, the same can be against their vendors, which is a separate cause of action unconnected with the lis involved in the suit in question. As far as the judgment relied upon by the learned counsel for the petitioners in the case of Thomson Press (India) Ltd. (supra), the facts were different inasmuch as it was a case relating to specific performance of contract in which Section 19 of the Specific Relief Act itself stipulates as under:- “19. Relief against parties and persons claiming under them by subsequent title - Except as otherwise provided by this Chapter, specific performance of a contract my be enforced against- (a) either party thereto; (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract; (c)xxxxxxxx Patna High Court CWJC No.18915 of 2012 (2) dt.13-11-2013 5/5 (d) xxxxxxxx (e) xxxxxxxx” Thus, it was held that an application by the subsequent purchaser for impleadment in a suit for specific performance by a prior transferee does not alter the nature and character of the suit and such a transferee has a right and interest to be protected and deserves to be impleaded in the suit. However, in the present case the suit was for declaration of title and confirmation of possession and the two cannot be equated. As far as the judgment of this Court in the case of Gauri Shankar Pathak (supra) is concerned, in the same, the Court has only held that the Court has discretion to add as party a lis pendens transferee. In the present case, the petitioners are not lis pendens transferee but rather they are the persons to whom the lands have been transferred despite a specific bar on the same by an order of the Court. This Court cannot permit any party to violate an order and then seek a right to be heard in a proceeding claiming it on the basis of a right which itself has been created pursuant to violation of a specific order of the Court. In view of the aforesaid, this Court does not find any merit in the application and the same stands dismissed. Anjani/- (Ahsanuddin Amanullah, J.)
Arguments
CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL ORDER Patna High Court CWJC No.18915 of 2012 (2) dt.13-11-2013 2/5 2 13-11-2013 Heard learned counsel for the petitioners and learned AC to GA 3 for the State. The present application under Article 227 of the Constitution of India seeks quashing of order dated 02.08.2012 passed by the Sub-Judge V, Muzaffarpur in Title Suit No. 10 of 1990 by which the application filed by the petitioners under Order I Rule 10 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘Code’) for being added as a party in the suit has been rejected. Title Suit No. 10 of 1990 had been filed by the respondents no. 2 to 7 against the respondents no. 8 to 11 for recovery of possession and declaration of title. It appears that there was an order for maintaining status quo with regard to the suit land dated 18.11.1991. Thereafter, the petitioners had bought the land in the year 2009 from respondents no. 8 to 11. Learned counsel submits that the suit was initially decreed ex parte and in a Miscellaneous Appeal, the said ex parte decree was set aside and the suit was restored on 06.01.207. Learned counsel submits that since then the original defendants, who were their vendors, had stopped taking interest in the suit and thus in the interest of justice, it is necessary that the petitioners be made party in the suit so that they can contest the same as is required to be done. Learned Patna High Court CWJC No.18915 of 2012 (2) dt.13-11-2013 3/5 counsel submits that the Courts have held that a lis pendens transferee can also be made a party at the discretion of the Court and in the present case, when the interest of the petitioners is vitally involved in the outcome of the suit inasmuch as they have bought the land in question after paying a heavy price and also invested huge amount in the same, they ought to have been allowed to be impleaded as defendants in the suit. For such proposition, learned counsel has relied upon a decision of the Hon’ble Supreme Court in the case of Thomson Press (India) Ltd. vs. Nanak Builders and Investors P. Ltd. reported in 2013 (3) SCALE 26, the relevant being at paragraphs 20 (4) and 22 (6)