Case Note & Summary
The petitioners filed Regular Civil Suit No.742 of 1996 seeking declaration and permanent mandatory injunction against the respondents regarding suit property bearing plot no. 51, Khasra No.25/1, 26/2, 27/1 and 27/4, Mauza Gadga, Gokulpeth, Nagpur. During the pendency of the suit, respondent nos. 1 to 3 sold the property to respondent no.4 without court permission. The petitioners impleaded respondent no.4 as a necessary party, alleging that the sale deed dated 28.03.1939 was forged and illegal. The petitioners then filed an application to amend the plaint to include relief against respondent no.4. The trial court rejected the amendment application by order dated 13.10.2011, holding that it introduced a new cause of action. The High Court, relying on the principle of lis pendens under Section 52 of the Transfer of Property Act, 1882, and the power to implead necessary parties under Order 1 Rule 10 CPC, held that the amendment was necessary to avoid multiplicity of suits and to effectively adjudicate the dispute. The court set aside the trial court's order and allowed the amendment, directing the trial court to permit the petitioners to carry out the amendment and proceed with the suit.
Headnote
A) Civil Procedure - Amendment of Plaint - Transferee Pendente Lite - Order 6 Rule 17, Order 1 Rule 10 CPC, Section 52 Transfer of Property Act, 1882 - The petitioners sought to amend the plaint to include relief against a transferee pendente lite who was already impleaded as a necessary party. The trial court rejected the amendment on the ground that it introduced a new cause of action. The High Court held that the amendment was necessary to avoid multiplicity of suits and to effectively adjudicate the dispute, as the transferee pendente lite is bound by the decree under Section 52 of the Transfer of Property Act. The court allowed the amendment, setting aside the trial court's order. (Paras 1-5)
Issue of Consideration
Whether the trial court erred in rejecting the application for amendment of plaint to include relief against a transferee pendente lite who was already impleaded as a party.
Final Decision
The High Court allowed the writ petition, set aside the trial court's order dated 13.10.2011, and directed the trial court to permit the petitioners to carry out the amendment in the plaint and proceed with the suit in accordance with law.
Law Points
- Amendment of plaint
- Transferee pendente lite
- Necessary party
- Order 1 Rule 10 CPC
- Section 52 Transfer of Property Act
Case Details
2013 LawText (BOM) (07) 158
WRIT PETITION NO.291 OF 2012
Mr. N.G. Dhoble for petitioners, Mr. H.N. Prabhu for respondents
Kamlesh s/o. Jagannath Suryavanshi and Ku. Anita d/o. Jagannath Suryavanshi
Kalyan s/o. Shirshir Kumar Dutta and Atul Vishnu Dharmadhikari
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Nature of Litigation
Civil suit for declaration and permanent mandatory injunction regarding property, with application for amendment of plaint.
Remedy Sought
Petitioners sought to amend the plaint to include relief against a transferee pendente lite who was already impleaded as a party.
Filing Reason
The trial court rejected the amendment application, leading to the writ petition.
Previous Decisions
Trial court rejected amendment application on 13.10.2011.
Issues
Whether the trial court erred in rejecting the amendment application on the ground that it introduced a new cause of action.
Whether the amendment was necessary to avoid multiplicity of suits and to effectively adjudicate the dispute.
Submissions/Arguments
Petitioners argued that the amendment was necessary as the transferee pendente lite was already impleaded and the amendment would not introduce a new cause of action.
Respondents argued that the amendment would introduce a new cause of action and relied on Shiv Gopal Sah v. State of Bihar for the proposition that amendment cannot be allowed without satisfactory explanation.
Ratio Decidendi
A transferee pendente lite is bound by the decree under Section 52 of the Transfer of Property Act, and impleading such a transferee as a necessary party and amending the plaint to include relief against them does not introduce a new cause of action but is necessary to avoid multiplicity of suits and to effectively adjudicate the dispute.
Judgment Excerpts
The petitioners had instituted Regular Civil Suit No.742 of 1996 in the Court of Civil Judge (Jr.Dn.), Nagpur for the relief of declaration and permanent mandatory injunction against the respondents in respect of the suit property.
During pendency of the suit, respondent nos. 1 to 3 sold the property to respondent no.4 without permission from the trial Court.
The trial Court erred to believe that the petitioners are claiming any new relief against the added defendant.
Procedural History
Petitioners filed Regular Civil Suit No.742 of 1996. During pendency, respondent nos. 1 to 3 sold property to respondent no.4. Petitioners impleaded respondent no.4 and sought amendment of plaint. Trial court rejected amendment on 13.10.2011. Petitioners filed Writ Petition No.291 of 2012 challenging that order.
Acts & Sections
- Code of Civil Procedure, 1908: Order 1 Rule 10, Order 6 Rule 17
- Transfer of Property Act, 1882: Section 52
