IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.19270 of 2011 Shyama Prasad Das Versus The State Of Bihar & Ors ---------------------------------- 4. 29.11.2011 1. The State of Bihar, respondent No.1 is not necessary party. Therefore, the name of respondent No.1 is deleted. 2. Heard the learned counsel for the petitioner. 3. This application under Article 227 of the Constitution of India has been filed by the plaintiffs against the order dated 2.7.2011 passed by Sub Judge- I, Patna City, Patna in Title Suit No. 13 of 2009 whereby the application filed by the respondent No.8 for being added as party in the suit has been allowed. 4. The learned counsel for the petitioner submitted that during the pendency of the suit the respondent No.8 has purchased entire suit property from defendant No.3 without the leave of the Court and, therefore, the purchaser is not a necessary party. The sale deed executed in his favour by the defendant No.3 will be hit under Section 52 of Transfer of Property Act. 5. The learned counsel relied upon AIR 2007 SC 1332 Sanjay Verma vs. Manik Roy, AIR 2010 SC 3109 Mumbai International Airport Private Ltd. vs. Regency Convention Centre and AIR 2005 SC 2813 Kasturi vs. Uyyamperumal and others. 2 6. From perusal of AIR 2007 SC 1332 Sanjay Verma (Supra) it appears that the plaintiff filed suit for specific performance of contract and then on his application injunction was granted and the defendant was restrained from transferring the property but then the defendant transferred the property without leave of the Court and in such circumstances the Hon’ble Apex Court held that the transfer is hit by Section 52 of Transfer of Property Act. The purchase by the purchaser was not bona fide and not without knowledge of contract. 7. So far the case of Kasturi vs. Uyyamperumal and others (Supra) is concerned it appears that 3rd party claiming independent title tot he suit property filed application for being impleaded as party in a suit for specific performance of contract. The Hon’ble Apex Court held that the stranger to contract cannot be added as party to the suit for specific performance of contract. 8. In (2010) 7 SCC 417 Mumbai International (Supra) the Apex Court has held that the general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the person against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek relief. But this general rule is subject to the provisions of Order 1 rule 10(2) C.P.C. This rule 3 is not about a right of a non-party to be impleaded as party but about judicial discretion of the court. In this case also the Apex Court was dealing with suit for specific performance of contract. From these decisions of the Apex Court it is now clear that the impleadment of party depends on the facts of each case. The Court has the discretion to add or delete the name of a party and the said discretion has to be applied judiciously considering the fact as to whether the person is necessary party or property party. 9. In AIR 2005 SC 2209 Amit Kumar Shaw and another vs. Farida Khatoon and another the Hon’ble Supreme Court has held that a transferee pendente lite can be added as a proper party if his interest in the subject matter of suit is substantial and not just peripheral. In that case the Hon’ble Supreme Court has held that the plaintiff has no obligation to make a lis pendens transferee a party. Under Order 22 Rule 10 an alienee pendente lite may be joined as party. The Court has a discretion in the matter which must be judiciously exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. 10. In view of the above settled principles of law there is no absolute bar that in no case the pendente lite transferee should be added as party on the ground that the transfer is hit under Section 52 of the Transfer 4 of Property Act. As has been held by the Apex Court it is the discretion of the Court which should be decided judiciously. In the present case, the learned court below has exercised a jurisdiction vested in it by law finding that the transferee, respondent No.8 has stepped in the shoe of the transferor, defendant No.3. I, therefore, find no jurisdictional error in the impugned order. Thus, the impugned order cannot be interfered with in the supervisory jurisdiction under Article 227 of the Constitution of India. 11. Accordingly, this writ application is dismissed. S.S. (Mungeshwar Sahoo,J.)