1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :::: O R D E R ::::: Smt. Shashi Surana & Anr. vs Anant Mishra & Ors. S.B. Civil Writ Petition No.1194/2009 Under Article 226 of the Constitution of India Date of Order : 3.5.2010 PRESENT HON'BLE MR. PRAKASH TATIA, J. REPORTABLE Mr. RK Thanvi, for the petitioner. Mr. HR Soni, for the respondent. <><><> BY THECOURT: Heard learned counsel for the parties. The petitioner is aggrieved against the order dated 17.12.208 whereby the trial court has rejected the petitioner's-applicant's application filed under Order 22 Rule 10 CPC at the stage of defendant's evidence,hence, this writ petition. According to learned counsel for the petitioner it is true that petitioner purchased the property in dispute during the pendency of the suit on 31.8.2004 and moved the application for being impleaded as party in the trial court on 22nd Sept., 2008 and though there is a delay, but during 2 this period no additional right accrued in favour of the plaintiff or any other party. It is submitted by learned counsel for the petitioner that the trial court proceeded on assumption while passing the impugned order. The trial court assumed that the applicant will submit new written statement and court will have to frame new issues and also applicant will cross-examine the plaintiff and the plaintiff's witnesses who have already been cross-examined by appellant's predecessor in title who is already party defendant in the suit and the court will have to summon the witnesses for cross-examination and that will cause the delay unnecessarily. It is submitted by learned counsel for the petitioner that the petitioners shall not be filing any new written statement and they will be relying upon the written statement already filed by their predecessor in title and, therefore, there is no question of framing any new issue nor the applicant is seeking summoning of the witnesses already cross-examined by other defendants for the purpose of cross-examination by the applicant-petitioners. Therefore, there arises no question of delay. It is also submitted that the trial court has committed illegality by not impleading applicant as party in the suit on the ground that the defendant did not appear for three times in witness box and, thereafter, this application has been submitted, obviously not bonafidely whereas non-appearance of the 3 defendant in the trial court for evidence may be ground to implead the applicant as party in the suit. Learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Amit Kumar Shaw & Anr. Vs. Farida Khantoon & Anr reported in AIR 2005 SC 2209 and Division Bench judgment of this Court delivered in the case of Chandra Bai Vs. Khandal Vipra Vidhyalay Samiti & ors reported in AIR 2008 Rajasthan 1 and lastly the judgment of the Single Bench of this Court delivered in the case of Bhagwati Lal Vs. Jhamak Lal reported in RLW 1982 463. Learned counsel for the respondent tried to convince this court that it is a case of fraud as fraud has been played in obtaining the sale deed from the original purchaser and purchaser sold the property to the petitioner-applicant during the pendency of the suit. Further more, the plaintiff has filed the suit for partition as according to him, if sale is not void then also his share could not have been sold in any manner by any person. It is also submitted that plaintiff though impleaded his mother as defendant who alleged to had sold the property but the mother of the plaintiff respondent Chandra Kanta has already appeared as witness of the plaintiff and explained all facts and circumstances in which she was not joined as plaintiff in the suit and she was impleaded as defendant also. Learned counsel for the respondent pointed out that the trial court already 4 permitted the applicant to give their evidence by coming as witnesses of the defendant's, their vendors and, therefore, the petitioner cannot have any grievance in view of the already observation made by the trial court in the impugned order dated 17.12.2008. Learned counsel for the respondent relied upon the judgment of the Andra Pradesh High Court delivered in the case of Pannalal Renuka & Anr. Vs. Kavali (Rejumouni) Venkataiah & Ors reported in AIR 2007 Andhra Pradesh 46, judgments of Hon'ble Supreme Court delivered in the case of Jaskirat Datwani Vs. Vidhyavati & Ors reported in AIR 2002 SC 2180 and Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb & Anr reported AIR 2004 SC 173. Learned counsel for the respondent also submitted that the applicant purchased the property during the pendency of the suit without leave of the court and if they would have purchased the property with the leave of the court then they would have right to become the party,but when they haven not purchased the property after obtaining the leave of the court and violated the statutory provisions of Section 52 of the Transfer of Property Act and in view of the judgment delivered in BibiZubaida Khatoon (supra) they have no right to be claimed any right by virtue of such purchase and to become party in the suit. I considered the submissions of learned counsel for the parties and perused the impugned order. It appears that the reasons given by the trial court like 5 written statement will be filed by the applicant and the trial court will have to frame issues afresh and witnesses will be required to be summoned who have already been examined by the plaintiff's side do not survive in view of the statement of learned counsel for the petitioner that the applicant is not seeking any leave of the court for filing the written statement nor is praying for framing any new issues and is not proposing for re-summoning of witnesses for cross-examination by the applicant. At this juncture, it will be appropriate to observe that the trial court also proceeded on some wrong assumptions which should not have been done by the trial court at the stage when the application under Order 22 Rule 10 CPC was under consideration. The trial court in fact, pre-judged matter and pre-assessed the evidence also by observing that there will be no loss to the applicant because the other defendant protected the rights of the applicant then certainly this is observation with respect to some satisfaction about cross-examination made by the defendants seller of the property in question during the pendency of the suit. The defendant admittedly did not appear in witness box for 3 occasions yet the trial court observed that the defendants seller have not left the suit uncontested nor they have lost their interest in the suit. Such observation was also not appropriate and particularly, looking to the fact that on 3 occasions the defendant did not 6 appear to give evidence. The trial court further observed that if there is defect in title of the sellers then the applicants can get which seller had with them only and since they purchased the property during the pendency of the suit therefore, they should have first look into their own interest at the time of purchase of property. Such observations are irrelevant. Therefore, if this observation of the trial court is accepted to apply to all the cases then no effect can be given to the order 22 Rule 10 CPC in any manner in a case where the property is purchased by the party during the pendency of the suit. The trial court then further observed that the dispute is between the plaintiff and the defendants and there is no dispute with the applicants and further observed that defendants will have to appear in the witness box. The trial court could not have presumed this fact that defendant will appear in witness box. The trial court then further observed that applicant can come as witness with the defendants but ignoring the fact that that is the mercy of the defendants whether to summon or produce the applicant in witness box or not. The applicants themselves have no right to give their evidence at their own instance when they are not party in the suit. The trial court then further observed that since the applicant purchased the property and submitted application after delay therefore, there is doubt that transaction is collusive and paper transaction. There was 7 hardly any occasion for the trial court to make these observations while deciding the application under Order 22 Rule 10 CPC because these observations certainly observations on merits of the claims of the parties, which can be decided only at the time of judgment. As observed above, all the reasons given by the trial court are based on only assumptions, conjectures and surmises and, therefore, there is complete jurisdictional error committed by the trial court. So far as the contention of the learned counsel for the respondent that this is a discretion which empowers the court to implead the applicant –purchaser during the pendency of the suit as party and in view of the observation of the Hon'ble Supreme Court in that case when the applicants purchaser did not sought leave of the court to purchase the property and, therefore, they have no right to become party. The law is very clear on the point. The Order 22 Rle 10 CPC itself is very clear and makes it clear that no person who purchased the property during the pendency of the suit shall have right to become party and he can become party only with the leave of the court. How and when such leave is to be granted is to be decided according to the facts of each case. The judgment which has been relied upon by learned counsel for the respondent referred above also clearly lays down that this is not a right of the applicant but the court can permit the purchaser to become 8 party in the suit. The observation clearly suggests that ordinarily the courts is to allow the purchaser to become party to the suit. In the present case if we look into the plaint allegation that plaintiff's case is that he is co-sharer in the property having 1/2 share in the entire property and plaintiff is seeking partition decree as well as possession. In a suit for partition plaintiff and defendants both are plaintiffs in view of the relief which can be ultimately granted. In that situation, the shares are allotted. In some case, after purchase of a property the defendant is not entitled to actual possession on the basis of sale deed yet he has right to claim partition and possession, therefore, in peculiar nature of suit of partition the shares are distributed and possession are given to the respective parties according to the extent of their share obviously by meets and bounds. If the applicants will be able to prove their case then they will be stepping in the shoes of their seller and the sellers of the applicant will be stepping in the shoes of co-sharers. All these matters can be decided finally in the suit filed by the plaintiff after these applicants are impleaded as party. So far as delay is concerned, it is true that there is a delay, but looking to the nature of the suit of the plaintiff it will be expedient in the interest of justice to implead the applicants as party but certainly on payment of cost of Rs.5000/-. Learned counsel for the respondent shown his total concern about the delay which may be caused because of 9 impleading the applicants as party and for that purpose, the trial court can certainly take effective steps if there is delay caused by the applicants. In view of the above reasons, this writ petition of the petitioner is allowed. The order of the trial court dated 17.12.2008 is set aside. The applicants are impleaded as party and it is made clear that the applicants who themselves have given undertaking that they are not willing to file written statement and they will be relying upon the written statement filed by their seller and will not pray for any new issue to be framed and they will not cross-examine any of the witnesses already examined,therefore, they shall not be entitled to do so as referred above. The respondents shall proceed in the suit from the stage at which it is pending. The applicants shall cooperate with the trial of the suit and will not linger on the suit. [PRAKASH TATIA],J. cpgoyal/-