ORDER
1. The Civil Revision Petition is directed against the order o the learned Additional District Munsif, Cuddalore, dated 1.2.2000, in an unnumbered application in O.S.No.160 of 1996.
2. The petitioner herein initially filed a suit for partition at Sub-Court, Cuddalore on 17.2.1994. Thereafter, the same was transferred to District Munsif Court, Cuddalore and numbered as O.S.No.160 of 1996 and a preliminary decree was passed on 6.8.1998. It is is the case of the petitioner that in the meanwhile the respondents have sold certain suit properties to various third parties. He has also filed an application for passing a final decree. Accordingly, he has filed the present application under Order 1, Rule 10 of C.P.C for impleading respondents 4 to 6 to bring as Defendants 4 to 6 in the suit. The learned Additional District Munsif, Cuddalore, after holding that after passing of the preliminary decree on 6.8.1998 and at the stage of passing of final decree the petitioner has filed the present application for impleadment of certain parties who are said to have purchased certain items of suit properties, they are neither necessary nor proper parties, dismissed the said application, hence, the present revision.
3. Heard the learned counsel for the petitioner as well as the respondents.
4. Though it is stated that the proposed parties have purchased the properties after the preliminary decree, learned counsel for the alieness, respondents 4 to 6 herein, has. filed a typed set stating that the suit properties have been sold, mortgaged and encumbered even prior to the passing of the preliminary decree. He also contended that the petitioner herein himself has sold certain items of the suit properties. In such circumstance, according to him, the allinees are willing to take their risk and they are neither necessary nor proper parties for the adjudication of the claim made by the petitioner, accordingly, prayed for dismissal of the revision petition.
5. In order to appreciate the rival contentions, it is useful to refer the relevant provision, namely, Order 1, Rule 10(2) of Civil Procedure Code, which reads thus :
“(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.”
I have already stated that the Court below has passed a preliminary decree for partition even as early as on 6.8.1998 and an application for final decree in I.A. No.287 of 1999 is pending before it. It is the case of the petitioner that respondents 4 to 6 have purchased certain items of suit properties. It is also brought to my notice that the petitioner himself has sold certain properties even prior to the preliminary decree. In such circumstance, the question to be considered is whether all those persons are to be impleaded in the suit as well as in the present application for passing of final decree.
6. With regard to the scope of Order 1, Rule 10( 2) of C.P.C., it is relevant to refer the decision of the Apex Court reported in Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay, 1992 (II) MLJ 55. In the case before the Supreme Court, there was a dispute between the allottee of Hindustan Petroleum Corporation and the Municipal Corporation of Greater Bombay and others. In the said dispute, one lessee under allottee has filed an application to implead him as one of the defendants under Order 1, Rule 10 of C.P.C. After considering the claim of. all the parties as well as relevant provision, namely, Order 1, Rule 10(2) of C.P.C., Their Lordships have held,,
“The court below, therefore, failed to note that respondent 2 has no direct interest in the subject-matter of the litigation and the addition of the respondent would result in causing serious prejudice to the appellant and the substitution or the addition of a new cause of action would only widen the issue which is required to be adjudicated and settled. The joining of the party would embarrass the plaintiff and issues not germane to the suit would, be required, to be raised. The mere fact that a fresh litigation can be avoided is no ground to invoke the power under the rule in such cases.”
7. Similar question was considered by the Hon’ble Supreme Court in Sarvinder Singh v. Dalip Singh, 1996 (5) SCC 559. In that case, the appellant therein filed a suit before the Sub-Court, Ferozepur for declaration that he is the owner of the property on the basis of a registered Will, dated 26.5.1952, executed by his mother and that a declaration to that effect was already given by the civil court in another decree, dated 29.3.1974. In the application that, he filed under Order 39, Rule 1, CPC, an ad-interim injunction was granted on 14.6.1991, which subsequently came to be vacated on 2.12.1991. Thereafter,
the defendants alienated the self same lands by registered sale deeds, dated 2.12.1991 and 12.12.1991 in favour of the respondents before the Supreme Court. On that basis, they sought to come on record as defendants under Order 1, Rule 10, CPC. The trial Court dismissed the application holding that they were neither necessary nor proper parties to the suit. On revision, the High Court in the order impugned therein passed in C.R.No.323 of 1993, dated 13.5.1993, directed impleadment of the respondents as party defendants to the suit. Hence, the appeal before the Supreme Court by special leave. After considering the above factual position as well as Section 52 of the transfer of Property Act, Their Lordships have held
“It would therefore be clear that the defendants in the suit were prohibited by operation of Section 52 to deal with the property and could not transfer or otherwise deal with it in any way affecting the rights of the appellant even with the order or authority of the court. Admittedly, the authority or order of the court had not been obtained for alienation of those properties. Therefore, the alienation obviously would be hit by the doctrine of lis pendens by operation of Section 52. Under these circumstance, the respondents cannot be considered to be either necessary or proper parties to the suit.”
8. In R.R. Square etc. v. Mrs. Shobalatha Debi, 1997 (2) L.W. 691 , K.Sampath, J. had an occasion to consider similar claim with reference to Order 1, Rule 10 of C.P.C. After referring various decisions, the learned judge has held in paragraph 12 as follows:
“The principle for impleading a third party to a proceeding is avoidance of multiplicity of proceedings and hence the Court has no jurisdiction to add a party, unless it is a necessary or proper party. A necessary party is one without whom no order can be made effectively and a proper party is one whose presence is necessary for a complete and final decision on the questions involved in the proceedings. If the question at issue can be worked, out without any one being brought in, a stranger, should not be added to the litigation. The eventual interest of the party in the fruits of the litigation cannot be held to be a true test of impleading the parties according to the Code of Civil Procedure.”
Further, the learned Judge observed in paragraph 19 thus:
“This is a case where the subsequent agreement holder does not want to be made a party. He is willing to take the risk and as observed by the Bench in O.S.A.Nos.57 and 58 of 1995 any alienation subsequent to the filing of the suit is hit by the doctrine of lis pendens. The so-called subsequent purchaser is aware of the proceedings and he is definitely bound by the decision in the suit. And again, if parties come to court seeking for impleading one after another during the course of the proceedings, it will be next to impossible to keep on adding the parties and in such event the suit can never cone to an end.”
9. In our case, I have already stated that alienations had taken place even prior and after passing of the preliminary decree at the instance of both the parties. It is also relevant to refer the decision of Ramaprasada Rao (as he then was) in Firm of Mahadeva Rice and others v. Chennimalai Goundar, 1967
(80) L.W. 479, where the learned Judge referred to the following passage from In re Ibrahim Haji, .
“The discretion to be exercised by the Court under Order 1, Rule 10(2), C.P.C. is subject to two limitations, viz, (1) that the Court has no power to join a person as a party if he could not have even originally impleaded under Order 1, Rule 1 or Rule 3, C.P.C. and (2) that the presence of the person added must be necessary to effectually and completely adjudicate upon and settle all points involved in the suit. If persons who are sought to be impleaded have no subsisting rights over the properties and they are sought to be impleaded only for the purpose of getting their evidence, it would not be proper to make them parties to the suit and the petitioners’ apprehension that they would be driven to the necessity of filing a separate suit against these persons was not a sufficient justification to compel the plaintiff to implead them as parties to the suit.”
10. It is clear that a person is not to be added as a defendant merely because he or she would be incidentally affected by the judgment. The main consideration is whether or not the presence of such a person is necessary to enable the Court to effectually and completely adjudicate upon and settle and questions involved in the suit. If the question at issue between the parties can be worked out without any one else being brought in, the stranger should not be added as a party. In the light of the language used in Order 1, Rule 10(2) of C.P.C. as well as various decisions and in the light of factual position in our case that preliminary decree has already been passed and application for passing of final decree is pending before the Court below, I am of the view that purchasers of properties during the pendency of the suit are neither necessary nor proper parties inasmuch as they would be bound by the decree in the suit in view of the principle enunciated in Section 52 of the Transfer of Property Act. I hold that the parties sought to be impleaded as defendants in the suit and respondents in the final decree application are neither necessary nor proper parties. I have already stated that the alienees respondents 4 to 6 herein are not want to be made a party and they are willing to take the risk. It is settled law that any alienation subsequent to the filing of the suit is hit by the doctrine of lis pendens. The subsequent purchasers are aware of the proceedings and they are definitely bound by the decision in the suit and the proceedings.
11. In the light of what is stated above, though the Court below has not assigned adequate reason in support of its order, in the light of the established legal position set out above, the application for impleading respondents 4 to 6 as defendants in the suit as well as respondents in the final decree application has to be rejected. Accordingly, the civil revision petition is dismissed. No costs.