Letters Patent Appeal No.558 of 2010,Writ Petition No.4494 of 2010

1st February, 2011

Petitioner Counsel: Mr. A.G. GHAROTE
Respondent Counsel: Mr. RAJNISH VYAS, Mr. D.M. MULCHANDANI

Cases Cited:
Shah Babulal Khimji Vs. Jayaben D. Kania and anr., AIR 1981 SC 1786 [Para 5,6]
Amit Kumar Shaw Vs. Farida Khatoon, 2005(5) ALL MR 458 (S.C.) =(2005) 11 SCC 403 [Para 9]

JUDGMENT

JUDGMENT :- Heard. Admit. Heard finally by consent of the parties.

2. The present Letters Patent Appeal is against judgment of the learned Single Judge upholding the order of the trial Court refusing leave to appeal for having joined as defendant to the suit.

3. The appellants purchased the suit property by two sale deeds dated 19.06.2008 and 17.11.2008 from the original defendants. In the suit, which was instituted on 19.10.2007, having purchased the suit property, the appellants applied for being joined as defendants since they were apprehensive that the original defendants having lost interest in the property may not defend the suit property and valuable rights acquired by the appellants may be defeated in the suit. Accordingly, they made an application under Order I Rule 10 of the Code of Civil Procedure on 08.01.2010 for being impleaded as defendants. The trial Court dismissed this application mainly on the ground that the plaintiff is a dominus litus and that he alone is entitled to decide whether the subsequent purchaser should be joined as a party or not. This order was challenged by the appellants before the learned Single Judge by way of writ petition. That writ petition has been rejected summarily without going into merits of the controversy. Against that, the present appeal is preferred.

4. Mr. Vyas, the learned counsel for the respondent nos. 1 and 2, objected the tenability of the appeal on the ground that the order of the learned Single Judge upholding refusal of the trial Court to permit the appellant to be joined as defendant is not a judgment within the meaning of Clause 15 of the Letters Patent.

5. Mr. Gharote, the learned counsel for the appellant, however, relied upon judgment of the Supreme Court in Shah Babulal Khimji ..vs.. Jayaben D. Kania and anr. AIR 1981 SC 1786 where in paragraph 120, the Supreme Court has given illustrations of interlocutory orders, which may be treated as judgments. One of the illustration is an order refusing leave to join as necessary party in the suit under section 92 of the Code of Civil Procedure. According to Mr. Gharote, the Supreme Court has itself observed in paragraph 122 that it is not possible to give such an exhaustive list to cover all possible cases. The Court further observed that the few cases, which may have been left out, can undoubtedly be decided by Court concerned in the light of the tests, observations and principles enunciated by us.

6. Having considered the matter, we find that the effect of the judgment of the learned Single Judge that the appellants' right to defend the property purchased by them during the pendency of the suit would stand defeated particularly since it is settled law that under Section 52 of the Transfer of Property Act, rights of the subsequent purchasers would be affected by the judgment in such a dispute. In the circumstances, it would be reasonable to assume that the original defendants, who have sold the property to the present purchaser having lost interest in the matter and would have no reason to defend the suit having pocketed the price of the property. It, therefore, stands to reason that the subsequent purchaser, in such a case, would have to bear the burden of defending the property against the plaintiff's case, which in this case is for a declaration that it is the plaintiff who has title to the property. The appellant's rights in the property are vitally affected by the order in appeal. Thus, in view of the principle underlying the illustration given by the Supreme Court in Shah Babulal Khimji's case (supra), we are of the view that the order is indeed a "judgment".

7. Mr. Rajnish Vyas, the learned counsel for the respondent nos. 1 and 2, submits that the case of the subsequent purchaser being refused leave to be joined as party to the suits is the same as that of the subsequent purchaser having been allowed to join the suit as party. According to the learned counsel, since it is held that the order allowing joinder of the party is not judgment, the same analogy would apply to an order refusing permission to be joined as party. We are not in a position to accept this submission since there is a wide difference between an order permitting the party to be joined as party to the suit and an order refusing a defendant from being joined as party to the suit. In the latter case, there is a clear invasion of the rights to defend the property against a hostile claim.

8. We are of the view that the judgment of the learned Single Judge refusing leave to the subsequent purchaser from being joined as party to the suit or upholding the order of the trial Court, is a "judgment" within the meaning of clause 15 of the Letters Patent of this Court and is, therefore, appellable.

9. Having regard to the circumstances of the case referred to above and the judgment of the Supreme Court in Amit Kumar Shaw..vs.. Farida Khatoon, (2005) 11 SCC 403 : [2005(5) ALL MR 458 (S.C.)], we are of the view that it would be appropriate to permit the appellant-purchaser to be joined as party to the suit. Needless to say that the merits of the claim, including any issue as to the conduct of the appellant, will be decided in the suit itself.

10. In the result, the appeal is allowed. Order of the trial Court rejecting the Application Exh. 67 is set aside. The trial Court is directed to decide the suit as expeditiously as possible and in accordance with law.

The L. P. A. Stands disposed of accordingly. No order as to costs.

Ordered accordingly.