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PETITIONER: SAVITA DEVI

       Vs.

RESPONDENT: DISTRICT JUDGE, GORAKHPUR AND OTHERS

DATE OF JUDGMENT:       18/02/1999

BENCH: C.J.I.,  M. Srinivasan, S.N.  Phukan.

JUDGMENT:

J U D G M I N T SRINIVASAN, J,

       Leave granted.

2.      The  appellant  has  filed  a civil suit bearing No. 1586/92 in the Court of Munsif, Gorakhpur against  her  four sons  for  a  decree  for  maintenance and for creation of a charge over the ancestral property of the family.  The  suit was  filed  on 14.8.92 and was fixed for hearing on 31.8.92. She applied for an interim order of  injunction  restraining her  sons  from  alienating  the  suit  property  during the pendency of the suit.  But on 16.0.32, a Vakalat  was  filed on  behalf of the defendants and 4th defendant also filed an affidavit in the Court purporting to be  on  behalf  of  the defendants.  The counsel appearing for the parties expressed their  consent  before the Court that during the pendency of the case the parties could be directed not to sell the  suit property to  any  third person.  In the light of the consent of the counsel, the Court  passed  an  order  on  that  date directing  the parties not to transfer the disputed property described in the plaint in favour of any other  person  till the final disposal of the suit.

3.      On  19.8.1992  the  first  defendant  sold his l/4th share in one of the lands to the third respondent and  1/4th share in  another land to the 4th respondent.  On 27.8.92 he sold 1/4th share in yet another land to the 5th  respondent. All the  three  sales  were  by  registered  sale deeds.  On 1.1.93 respondents 3 to 5 filed an  application  before  the trial  Court  under  Order 1, Rule 10 and Section 151 C.P.C. for impleading  them  as  parties  to  the  suit.    In  the application  they  had  stated that the first defendant, had received sale consideration before executing the sale  deeds and handed over possession of the subject-matter of the sale deeds to  them.   It was also alleged that the plaintiff and the defendants had colluded together in order to cause  loss to them.  That application was opposed by the appellant.  In the  statement  of  objections, it was stated that the sales were In breach, contempt  and  disregard  of  the  order  of injunction  passed  by  the  Court and the transferees under such sales got no title to the  property  in  order  to  get impleaded as parties to the suit.

4.      The trial Court passed a detailed order  on  14.7.97 granting  the application of respondents 3 to 5 and directed the plaintiff to implead them as defendants in the suit.  In

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the order of the trial court reference has been made  to  an application  filed by the first defendant to the effect that he was not earlier aware of the case and the  4th  defendant had forged  his signature and filed a bogus vakalatnama.  He had also alleged that the order of injunction was  obtained fraudulently on  18.8.92.  The trial court has also referred to an application under Section 340 Cr.  P.C.  filed by  the first,  defendant  and  observed  that  the  same  had  been dismissed by  order  dated  20.12.92.    There  is  also   a reference in the order of the trial court to a proceeding in the  High  Court  filed by the plaintiff for quashing orders dated  10.11.95  and  19.4.96  passed  in  the  suit  and  a miscellaneous  civil  appeal  arising  from the suit wherein respondents 3 to 5 had been impleaded as  parties.    It  is seen  from  the  order  of  the  trial  court  that  certain proceedings under Order XXXIX Rule 2A C.P.C.  concerning the question of attachment of  the  properties  sold  were  also pending.   It  is only after taking note of all those facts, the trial court allowed the application of respondents 3  to 5 to implead them as parties to the suit.

5.      A revision by the plaintiff In the Court of District Judge, Gorakhpur suffered a dismissal  though  the  District Judge  passed  certain strictures against the conduct of the first defendant on the assumption that he had  knowledge  of the order   of  injunction  dated  18.8.92.    However,  the District Judge proceeded on the Footing that  respondents  3 to  5  who  were  third  parties  had  no  knowledge  of the proceedings in the Court.

6.      The said order of the District Judge was  challenged in writ  petition  by  the  appellant in the High Court.  By order dated 29.9.97,  the  High  Court  dismissed  the  same refusing  to  accept  the  contention  of the appellant that respondents 3 to 5 were not proper  and  necessary  parties. The  High Court also observed that the Court below had power even suo moto to implead a  person  whom  it  considered  as proper and necessary party.

7.      The order of the High Court is  under  challenge  in this appeal.   It is vehemently argued by learned cousel for the appellant that the sales in favour of respondents 3 to 5 are non est in the eye of  law  and  could  not  convey  any interest   to  the  purchasers  as  they  were  executed  in violation of the court order restraining the defendants from alienating the suit property till the disposal of the  suit. Strong  reliance  has  been placed upon the ruling in Surjit Singh and others versus Harbans Singh and others (  1995)  6 S.C.C.   50,  It is submitted that if a person who purchases the property during the pendency of the suit is  allowed  to get  impleaded  Tin  the  suit, there will be no end to such impleadment as the parties will indulge in further transfers of the suit property and the plaintiff  as  ’dominus  litis’ cannot  be  made  to fight against such persons indefinitely and endlessly.

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 party to  the  order  of injunction made  by  the  Court on 18.0.92.  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 hut 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

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Court.  The plea raised by respondents 3 to 5 that they were bona tide 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 multiplicity of  proceedings.    In  such  circumstances, it cannot be said that respondents 3 to 5 are neither necessary nor proper parties to the suit.

9.      Order I,  Rule  10  C.P.C.  enables the Court to add any person as 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  and  settle  all  the  questions involved in the suit. Avoidance of multiplicity of proceedings is also one of  the objects of the said provision in the Code.

10.     In Khernchand Shankar Choudhari and  Another  versus Vishnu Hari  Patil others(1983) 1 S.C.C.  18 this Court held that a  transferee  pendente  lite  of  an  interest  in  an immovable  property which is the subject matter of suit is a representative in 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 Court has taken note  of  the provisions  of Section 52 of the Transfer of Property Act as well as the provisions of Rule 10 of Order XXII C.P.C.   The Court said:

       "...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 inpleaded and heard..."

11.     In   Ramesh  Hirachand  Kundanmal  versus  Municipal Corporation of Greater Bombay and others (1992)2 S.C.C.  524 this Court 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.  The Court said:

       "  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

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       the  subject-mat  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."

The  Court  also  obseryed that though prevention of actions cannot be said to be main object of the  rule,  it.    is  a desirable consequence  of the rule.  The test for impleading parties prescribed in Razia Begum versus  Anwar  Begum  1959 S.C.R.   1111  that  the  person  concerned must be having a direct interest in the action was reiterated by  the  Bench.

12.     In  Surjit Singh and others versus Harbans Singh and others (1995) 6 S.C.C.    50  which  is  relied  on  by  the appellant,  a  preliminary  decree  was  passed  relating to immovable property in  favour  of  the  appellants.    While proceedings  for  passing  a  final  decree was pending, the parties moved  for  accounting  and  preservation  of  mesne profits.   The  trial  court passed an order restraining all parties from alienating or  otherwise  transferring  in  any manner  any  part  of  the  property  involved, in the suit. Nearly two years thereafter, one of the sharers assigned his rights under the preliminary decree  by  a  registered  deed partly  in  favour  of  the wife of his lawyer and partly in favour of others in the teeth of the restraint order  passed by the  Court.    On  the  basis of the assignment deed, the assignees made an application  under  Order  XXII,  Rule  10 C.P.C.   for  impleadment  as  parties  to  the final decree proceedings.   It  was  contended  on  their   behalf   that assignment  of  decree  was  different  from  alienation  of property and the same was not prohibited  by  the  order  of injunction.   The application for impleadment was allowed by the trial court and the appel filed by  the  plaintiffs  was dismissed by  the Additional District Judge.  The High Court dismissed their revision and the matter came to this  Court. There was no dispute in that case that the assignors and the assignees  had  knowledge  of  the  order  of the injunction passed by the Court.  On those facts, this Court  held  that the  deed  of  assignment  was  not capable of conveying any right to the assignees and the order of impleadment  of  the assignees as  parties  was unsustainable.  Consequently, the appeal was allowed.  The relevant passage  in  the  judgment reads thus:

       "As said  before,  the  assignment  is  by         means of   a   registered   deed.      The         assignment  had  taken  place  after   the         passing of the preliminary decree in which         Pritam   Singh  has  been  allotted  1/3rd         share.  His  right  to  property  to  that         extent stood   established.      A  decree         relating to immovable property worth  more         than  hundred  rupees,  if being assigned,         was required to be registered.   That  has         instantly been   done.     It  is  per  se         property, for it relates to the  immovable         property  involved  in the suit It clearly         and squarely fell within the ambit of  the         restraint order.   In sum, it did not make         any   appreciable    difference    whether         property  per  se  had been alienated or a         decree pertaining to that  property.    In         defiance   of  the  restraint  order,  the         alienation/assignment was  made.    If  we

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       were to let it go as such, it would defeat         the  ends  of  justice  and  the prevalent         public policy.  When the Court  intends  a         particular state of affairs to exist while         it  is  in  seisin of a lis, that state of         affairs  is  not  only  required   to   be         maintained,  but  it  is presumed to exist         till the  Court  orders  otherwise.    The         Court  in these circumstances has the duty         as   also   the   right   to   treat   the         alienation/assignment  as having not taken         place at all for its purposes.  Once  that         is  so,  Pritam  Singh  and his assignees,         respondents herein,  cannot  claim  to  be         impleaded  as  parties  on  the  basis  of         assignment.         Therefore,         the         assignees-respondents  could not have been         impleaded by the trial court as parties to         the suit, in disobedience of  its  orders.         The   principles   of   lis   pendens  are         altogether on a different footing.  We  do         not  propose  to examine their involvement         presently.  All that is emphasised is that         the assignees in  the  present  facts  and         circumstances had no cause to be impleaded         as parties to the suit."

13.     The  said  ruling has no application whatever in the present case.  As stated earlier, on the facts of this case, the impleadment of respondents 3 to 5 as parties to the suit was warranted.    We  do  not  find  any  justification   to interfere with  the  orders of the Courts below.  The appeal fails and is hereby dismissed.  There will be no order as to costs.

14.     Before parting with this case it is necessary for us to point out one  aspect  of  the  matter  which  is  rather disturbing.  In the writ petition filed in the High Court as well  as the Special Leave Petition filed in this Court, the District Judge, Gorakhpur and the 4th Additional Civil Judge (Junior Division) Gorakhpur arc shown as respondents and  in the  Special  Leave  Petition  they  are shown as contesting respondents.  There was  no  necessity  for  impleading  the judicial  officers  who  disposed  of  the matter in a civil proceeding when the writ petition  was  filed  in  the  High Court; nor is there any justification for Impleading them as parties in the Special Leave Petition and describing them as contesting respondents.    We  do  not approve of the course adopted by the  petitioner  which  would  cause  unnecessary disturbance  to  the  functions  of  the  concerned judicial officers.   They  cannot  be  in  any  way  equated  to  the officials of  the  Government.    It  is  high time that the practice of impleading judicial officers disposing of  civil proceedings  as  parties to writ petitions under Article 226 of the Constitution of  India  or  Special  Leave  Petitions under  Article 138 of the Constitution of India was stopped. We are strongly depricating such a practice.