Plaintiffs Knew Of Sale Deed Execution, Didn't Move Trial Court To Add Transferee: MP High Court Upholds Order Declining Impleadment In Appeal

The Indore bench of the Madhya Pradesh High Court denied adding certain persons as a necessary parties to a suit pertaining to a property dispute, observing that despite having full knowledge of the execution of the sale deed during the trial before the lower court the petitioners-original plaintiffs, did not file the application for adding proposed transferees at that juncture.

In doing so the court noted that the petitioners-original plaintiffs did not move the application for impleadment until after the suit was dismissed on merit by the trial court and the decree was passed. It further noted that the suit was not dismissed on account of non joinder of necessary parties and there was no challenge to the sale deed back then. 

The single-judge bench of Justice Vijay Kumar Shukla observed, “In the present case, the suit was filed for declaration and injunction against the respondents. The petitioners were having knowledge of the execution of the sale deed by respondent No.1 during the pendency of the suit. But they were not impleaded party. The witnesses of the defendants were put to cross examination in this regard. The suit has been dismissed not on the ground of non-joinder of the necessary party. There was no challenge to the sale deed executed in favour of the transferee pendente lite.”

For context, an individual can be called a transferee pendente lite when they acquire an interest in a property that is the subject of a lawsuit.

Background

The plea was by the petitioners/original plaintiffs challenging the order dated 3/2/2024 whereby their application for impleadment of "transferee pendete lite" before the first Appellate Court had been rejected.

The petitioners had filed a suit for declaration and injunction against the respondents on August 28, 2021. On June 28, 2023 the respondents No.1 (defendant) executed the sale deeds of part of the suit land, in favour of the proposed transferee. On August 25, 2023 the suit filed by the petitioners-original plaintiff was dismissed on merit. The petitioners then filed an appeal under Section 96 of CPC before the appellate court. In the appeal, the petitioners filed an application under Order I Rule 10 CPC for impleadment of transferee pendente lite; this was rejected against which the petitioners-original plaintiffs moved the high court. 

The counsel for the petitioners submitted that the Appellate Court erred in dismissing the application without considering the fact that the proposed transferee pendente lite may not be necessary party but in order to avoid multiplicity of litigation they ought to have been allowed to be impleaded party.

The counsel for the respondent contended that the order passed by the appellate Court rejecting the application is legally valid and there is no perversity and, therefore, no interference is called for under Article 227 of the Constitution of India.

He submitted that the petitioners have failed to make out a case that in the absence of the transferee pendente lite the decree in the suit was not effective. Further the petitioners were well aware of the said transfer and they had also cross examined the witness and thereafter the suit was dismissed. 

Upon perusal of the pleadings and the appellate court's order, the high court said that the suit for declaration and injunction was filed against the respondents on August 28, 2021 and the alleged sale deed was executed by respondent No.1 on June 28, 2003. It noted that the "witnesses of the defendants were put to cross examination" by the petitioners-original plaintiffs in respect of the sale deed as well.

Thus, the high court said that it was evident that the petitioners-original plaintiffs had knowledge of the execution of the sale deed before passing of the decree itself. They did not file any application for impleading themselves as party before the Trial Court and it was only after the suit was decreed that they filed appeal, it added. 

The high court thus, concluded that the suit had not been dismissed on the ground of non-joinder of the necessary party. There was no challenge to the sale deed executed in favour of the transferee pendente lite, it noted. 

The single-judge bench observed, “The impugned order entails civil consequences and, therefore, the same could not have been passed without giving any show-cause notice or opportunity of hearing and without following principles of natural justice.”

Thus, the court did not find any illegality or perversity in the appellate court's order and the petition was dismissed.

Case Title: Aakash Thakur & Others Versus Kishorsingh Thakur And Others, MISC. PETITION No. 1275 of 2024

Citation: 2024 LiveLaw (MP) 292

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