ORDER
Thanikkachalam, J.
1. This Civil Revision Petition is directed against the order passed in I.A.No. 620 of 1995 in O.S. 508 of 1988 on the file of the Sub Court, Vellore. The petitioner herein is a third party to the suit. The plaintiff filed the suit for partition of their 1/3 rd share in Schedule property and for declaration of their title to the plaint B Schedule property and also for possession. Defendant 1 to 7 filed an application seeking an order of interim injunction restraining defendants and 9 from alienating the properties. It appears that interim injunction was granted. But without disclosing the same, defendants 8 to 14 sold the suit properties item Nos. 1,4 and 5 in the A Schedule to the petitioner herein during the pendency of the suit. The properties were purchased under the sale deed dated 20.3.1991. In I.A.No. 567 of 1992, notice was served upon the petitioner herein since he committed that breach of the order of injunction granted by the trial Court. Thereafter, the petitioner herein filed I.A.No. 620 of 1995 for permission to implead himself as a party-defendant to the suit. But this I.A. was dismissed by the trial Court. It is against the order the present revision has been filed by the petitioner herein.
2. The learned Counsel appearing for the petitioner submitted that inasmuch as a portion of the property was sold by some of the defendants they are not interested in prosecuting the suit. In order to safeguard his interest in a portion of the suit property, he must be impleaded as a party in the suit. According to the petitioner he has no notice with regard to the suit and the interim order passed therein. He is a bonafide purchaser for value. It was submitted that even if he is considered to have purchased the suit property pendent elite his interest over the suit property, which he has purchased cannot be ignored. Therefore, he should be impleaded as a party defendant in the suit.
3. On the other hand, learned counsel appearing for the respondents submitted that inasmuch as the petitioner purchased the suit property while the order of interim injunction was in operation against some of the defendants, restraining them from alienating the suit properties, the sale in favour of the petitioner herein would affect his rights as well as the rights of the plaintiffs in the suit. Therefore, according to the respondents herein the petitioner herein should not be impleaded as a party to the suit.
4. In G.M.V. Krishnamachari v. M.B. Dhanalakshmi Animal and Ors., : AIR1968Mad142 this Court held that a stranger to a suit who has direct interest, legal or equitable, in subject-matter of dispute can be impleaded as a party.
5. In Sanyamprakasant v. Vijayarangam, : (1970)1MLJ243 this Court held that, Order 1, Rule 10(2) of the Code of Civil Procedure gives jurisdiction to the Court to order that the name of any person who ought to have been joined or whose presence before the Court may be necessary in order to enable to Court effectually and completely to adjudicate upon and settle all the questions involved in the suit be added at any stage of the proceedings. The proceedings in a suit for partition cannot come to an end till the final decree is passed and hence an order directing a party to be added under Order 1, Rule 10 C.P.C. may be made in a suit for partition before it is actually terminated by the passing of the final decree.
6. In Sri Visalam Chit Funds Ltd., v. Semar Samil Hameed and Ors., 1972 TLNJ 169 this Court held whatever may be the merits in the case, the petitioner (In the High Court) being the purchaser of the property pending litigation there could be no harm in adding him as a party especially when the petitioner apprehends that his vendor may not diligently conduct the suit.
7. In Mohamed Farock v. District Judge, : AIR1993All8 the Allahabad High Court held that the 'Law is settled on the point that the plaintiff is the sole architect of the plaint. It is the plaintiff who has right to choose his own adversary against whom he seeks the relief. Where there was no allegations or any cause of action against the applicant, who sought to be impleaded as defendant in the suit, the mere apprehension that the plaintiff and the defendant of the suit might collusively get their suit decided which would adversarily affect the rights of the applicant was not enough for impleadment of the applicant as defendant in the suit. It is well-settled that any decree or order passed by a court would not affect a person who is not a party in the suit or the proceedings. It is not always necessary to implead a person in a suit. It is settled that impleadment is necessary to avoid multiplicity of the suit. There must be such facts and circumstances to show that unless the person is impleaded in the suit or in the proceedings there is likelihood of further litigation in the same matter.'
8. In Lakshmi Narain v. District Judge, : AIR1992All119 wherein the Allahabad High Court held that, 'the Court may upon an application or suo motu in a fit and proper case implead a new party as defendant even against the plaintiffs consent under certain circumstances. The discretion vested with the court though wide is, however circumscribed by limitation which are built in the provisions contained in Order 1, Rule 10(2) of C.P.C, itself where a person is neither necessary not proper party the court has no jurisdiction to add him as a Party. The court cannot implead additional defendants on the mere asking of one of the defendants or because a party feels that it will be in a position to defend itself better in the event the prayer is granted. If the question at issue between the parties can be worked out without anyone else being brought in a stranger should not be added as a party.'
9. In Razia Begum v. Sahebzadi Anwar Begum, : [1959]1SCR1111 the Supreme Court laid down the following test for impleading a third party under Order 1, Rule 10 of C.P.C.
(1) That the question of addition of parties under Rule 10 of Order 1 of the Code of Civil Procedure, in generally not one of initial jurisdiction of the Court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case, but in some case, it may raise controversies as to the power of the Court in contradistinction to its inherent jurisdiction, or in other words, of jurisdiction in the limited sense in which it is used in Section 115 of the Code.
(2) That is a suit relating to property in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest in the subject-matter of the litigation.
(3) Where the subject-matter of a litigation is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the Court is of the opinion that by adding that party, it would be in a better position effectually and completely adjudicate upon the controversy:
(4) The cases contemplated in the last proposition, have to be deter-mined in accordance with the statutory provisions of Sections 42 and 43 of the Specific Relief Act.
(5) In cases covered by these statutory provisions, the Court is not bound to grant the discretion prayed for on a mere admission of the claim by the defendant, if the Court has reason to insist upon a clear proof apart from the admission.
(6) The result of declaratory decree on the question of status such as in controversy in the instant case, affects not only the parties actually before the Court by generation to come and in view of that consideration the rule of 'present interest' as evolved by the case law relating to dispute about property does not apply with full force: and
(7) The rule laid down is Section 43 of the Specific Relief Act, is not exactly a rule of res judicata it is narrower in one sense and wide in another.
10. In Ramakrishna and Ors. v. Umakantha and Ors., : AIR1989Ori148 the Orissa High Court held that, 'there is a apparent distinction between an alienation made in violation of the order of injunction and without any such order. The person obtained an order of injunction had got some additional advantage of prosecuting the vendor and also getting his properties attached and sold as laid down under Order 39, Rule 2A of the Code. This would work out a deterrent for his indulging in the act of violation of the order of injunction. The order of injunction does not in any way militate against the right, title and interest of the vendor in the property in question like and order of attachment of the property which makes the property in custodie logis. The order of restraint does not in the way deprive or suspend any right of a person who only aims at a prohibition to act in a particular manner. In a case of attachment also private allegations are invalidated for all purposes, but it is only against the claims enforceable under the attachment. The allienation of property made by the defendant during the pendency of the suit for declaration of title and violation of the order of injunction was only voidable and not void.'
11. In T. Pancapakesan v. Periathambi and Ors., : (1972)2MLJ590 this Court held that 'In a suit for partition all the persons interested in the property should be impleaded as parties. No doubt, Order 1, Rule 9 of the Code provides for no suit shall be defeated by reason of the enjoinder or non-joinder of parties and the Court may in every suit deal with the matter in controversy so far as it regards the rights and interests of the parties actually before it. Notwith standing this provision the Court will be justified in dismissing the suit if the necessary parties are not impleaded'
12. In firm Mamadeva Rice & Oil Mills v. Chennimalai, 1968 (1) MLJ 15 this Court laid down the following tests for impleading a third party to a suit or proceedings.
'Under Order 1, Rule 10 Civil Procedure Code, (1) if, for the adjudication of the 'real controversy' between the parties on record, the presence of a third party is necessary, then he can be impleaded: (2) it is imperative to note that by such impleading of the proposed party, all controversies arising in the suit and all issues arising thereunder may be finally determined and set at rest thereby avoiding multiplicity of suits over a subject-matter which could still have been decided in the pending suit itself: (3) The proposed party has a defined subsisting direct and substantive interest in the litigation which interest is either legal or equitable and which right is cognisable in Law: (4) Meticulous care should be taken to avoid the adding of a party if it is intended merely as a ruse to ventilate certain other grievances or one or the other of the parties on record which is neither necessary nor expedient to be considered by the Court in the pending litigation and (5) It should always be remembered that considerable prejudice would be caused to the opposite party when irrelevant matters are allowed to be considered by Courts by adding a new party whose interest has no nexus to the subject-matter of the suit.
13. In Sivaraamakrishna Iyer v. Sankaranarayam Iyer, AIR 1980 Mad. 913 this Court held that in cases relating to partition of Hindu joint family properties alinees of joint family properties may be made parties at the instance of the parties other than the plaintiff.
14. According to the facts arising in the present case, the petitioner herein who is a third party to the suit purchased certain items of suit properties from some of the defendant when there was an injunction operating against the defendant restraining them from alienating the suit properties. The petitioner herein was served with a notice in a contempt matter for the violation of the order of injunction. The suit is one for partition. The petitioner herein being the alienee must be given an opportunity to defend the case since some of the defendant lost their right by selling the properties in favour of the petitioner herein. Further, opportunity must also be given to the petitioner as against the contempt proceedings initisted against him. If the petitioner is not impleaded as a party, in the suit that would lead to multiplicity of proceedings.
15. Considering the facts arising in the present case in the light of the judicial pronouncements cited supra. I hold that the trial Court was not correct in dismissing the LA. No. 620 of 1995 in O.S.No. 508 of 1988. Accordingly, the order passed by the trial Court is set aside and the trial court is directed to implead the petitioner herein as party defendant in the suit. Accordingly this Civil Revision Petition is allowed. No Costs.