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Judgment
The short question raised in this petition is whether an order dated May 06, 2011 that had attained finality could have been undone by the order impugned dated September 08, 2016.
The suit was filed by the predecessor-ininterest of the present opposite parties. It was the case of the original plaintiff that the transfer of an immovable property made in favour of one Ashoka Dutta was no transfer at all but a loan transaction and the plaintiff was entitled to reclaim the property upon repaying the loan.
Since transferee Ashoka Dutta had transferred the property to the present petitioner, the present petitioner applied in 2011 to be substituted in place and stead of defendant Ashoka Dutta. Such application was allowed by the order of May 06, 2011 and the plaintiff did not challenge the same.
By the order impugned herein, the opposite parties have succeeded in undoing the order of May 06, 2011 by adding Ashoka Dutta as a party to the suit. The opposite parties justify the order on the ground that unless Ashoka Dutta comes as a witness, their action may not succeed.
Every witness necessary to be cited for the success of a suit does not become either a necessary or a proper party. The manager of a body incorporate may be the only person to throw light on a transaction, but such manager need not be a party to the action to be cited or called as a witness.
Similarly, Ashoka Dutta could not have been impleaded in the suit once it was settled by a judicial order in 2011 that the Ashoka Dutta''s right in the property had been transferred to the present petitioner. If Ashoka Dutta is to be cited as a witness, it will be open to the opposite parties to take appropriate steps in accordance with law to ensure her presence in Court. The order impugned cannot be sustained on such ground.
C.O. 4644 of 2016 is allowed by setting aside the order dated September 08, 2016 and by leaving the opposite parties free to take appropriate steps in accordance with law for securing the presence of Ashoka Dutta as a witness at the trial of the suit.
Since the suit is of the year 2008, the trial court is requested to ensure that the same is disposed of by the month of September, 2018. There will be no order as to costs.