Jammu & Kashmir High Court
Lata Wadhera vs Jagmeet Singh And Anr. on 10 November, 2017
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
OW 104 No 83/2017, MP No. 01/2017.
Date of Order:- 10.11.2017
Lata Wadhera Vs. Jagmeet Singh and anr.
Coram:
Hon'ble Mr Justice Sanjeev Kumar, Judge.
Appearance:
For the petitioner(s): Mr. R.K Bhatia, Advocate.
For the respondent(s): Mr. G.S Thakur, Advocate
Mr. Manohar Singh, Advocate i/ Whether to be reported in Yes/No Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
1. The petitioner in this petition is aggrieved of an order dated 30.01.2017 passed by the 1st Additional District Judge, Jammu (herein referred to as Trial Judge) in Civil Original Suit No. 61/2006 titled Kewal Krishan Kohli Vs. Deepak Kohli and has thus, approached this court invoking the powers of superintendence vested in this Court by virtue of provisions of Section 104 of the Constitution of J&K.
2. Briefly stated, the facts of the case are that plaintiffs Kewal Krishan Kohli, his mother Shanti Devi Kohli and minor daughter Vaishali Kohli filed a civil suit against the petitioner seeking partition of the suit property by meets and bounds in consonance with last will executed by their ancestor Late Jagdish Raj Kohli on 21.08.1995 and probated after his demise before the court of District Judge, Jammu vide order dated 13.02.1999. It was inter-alia claimed by the plaintiffs aforementioned ___________________________________________________________________________ OW 104 No. 83/2017 Page 1 of 12 that Late Sh. Jagdish Raj Kohli had bequeathed his all immovable properties in favour of his legal heirs in the manner given in the Will Deed dated 21.08.1995. Since the properties were not in possession of legatees in the manner it was provided in the Will and therefore, with a view to demarcate the properties and to take possession thereof, a partition of the property by meets and bounds was called for. During the pendency of Suit, learned Trial Court vide its order dated 19.03.2010 restrained the plaintiffs from alienating or mortgaging the suit property till final disposal of the main case. It is stated by the petitioner that the suit property situated at Rehari, Jammu was under the tenancy of Central Council for Research in Ayurveda and Sidha and Late Sh. Jagdish Raj Kohli had filed a suit for ejectment of the tenant which was continued by his legal heirs after his death. A decree for ejectment of the tenant was passed by the Principal District Judge, Jammu on 31.12.2003. It is claimed by the petitioner that since there was dispute inter-se between the Landlords and therefore, the tenant i.e Central Council for Research in Ayurveda and Sidha after vacating the building in compliance to the decree deposited the keys with the Nazir of Principal District Judge, Jammu. Sh. Kewal Krishan Kohli, plaintiff No. 1 in the suit moved an application for handing over the keys of the aforesaid main triple storey building situated at Rehari, Jammu for effecting repairs. The application was allowed by the concerned executing Court and the keys of the house in question were handed over to Kewal Krishan Kohli and others vide order dated 25.03.2013. It is submitted that in grave violation of the order passed by the Trial Court dated 19.03.2010, the plaintiff Kewal Krishan Kohli after obtaining the keys from the executing Court for effecting repairs surreptitiously, without obtaining any permission from the Court where the suit for partition was pending and without the knowledge of the petitioner herein, sold the aforesaid main triple storey building to the ___________________________________________________________________________ OW 104 No. 83/2017 Page 2 of 12 respondent No. 1 and lawn to respondent No. 2. Respondent No. 1 and respondent No. 2 after acquiring ownership rights in the part of suit property, filed two separate applications purportedly under Order 1 Rule 10 CPC for being impleaded as party defendants in the suit. The applications were filed by respondent Nos. 1 and 2 on the ground that some portion of the suit property subject matter of partition had been transferred to them during the proceedings by way of two separate deeds executed on 29.07.2013 and 30.03.2013 respectively. They, therefore, claimed that they are the necessary parties and would be adversely affected by the outcome of the suit, if they are not made parties to contest the suit. The contesting plaintiff i.e petitioner herein filed her objections to both these applications and submitted that the transfer of the part of suit property during the pendency of the suit was hit by the doctrine of lis pendens as envisaged under Section 52 of the J&K Transfer of Property Act. Learned Trial court after hearing the learned counsel appearing for the parties and considering the rival contentions allowed both the applications and permitted the respondent Nos. 1 and 2 to be added as party defendants in the suit. They were also permitted to take all such defences which were available to vendor Kewal Krishan Kohli. The learned Trial court after discussing the relevant case law cited before him came to the conclusion that respondent Nos. 1 and 2 being transferees of the suit property pendente lite may not be entitled to be a party as a matter of right but the court has discretion to add them as proper party if his/her interest in the subject matter of the suit is substantial and not just peripheral.
3. The petitioner has assailed this order of learned Trial Court by invoking the power of superintendence of this Court vested by virtue of provisions of Section 104 of the Constitution of India.
4. Heard learned counsel for the parties and perused the record. ___________________________________________________________________________ OW 104 No. 83/2017 Page 3 of 12
5. Learned counsel for the petitioner would submit that the order impugned suffers from grave illegality and has resulted in serious miscarriage of justice. He would submit that the learned Trial Court failed to appreciate that the Sale Deeds executed by Kewal Krishan Kohli in favour of respondent Nos. 1 and 2 were in violation of the restraint order issued by the Trial Court on 19.03.2010, as such, the Sale Deeds were null and void and therefore, no right to be impleaded as party in the suit could have been claimed by respondent Nos. 1 and 2 on the basis of such Sale Deeds. Learned counsel would also submit that the Sale Deeds executed by Kewal Krishan Kohli in favour of respondent Nos. 1 and 2, during the pendency of the suit for partition, were clearly hit by the doctrine of lis pendense as envisaged under Section 52 of the Jammu and Kashmir Transfer of Property Act. He would, therefore, submit that since the sale deeds of the suit property were executed without the permission of the Trial Court, as such, the same were the transactions nonest in the eye of law and therefore, no right in the suit property could be said to have been transferred in favour of respondent Nos. 1 and 2. Lastly, learned counsel for the petitioner urged that respondent Nos. 1 and 2 in their applications had claimed to be impleaded as party defendants, whereas, person i.e Kewal Krishan Kohli from whom they claimed to have derived their title was plaintiff in the suit. He, therefore, submits that the learned Trial Court failed to appreciate all these aspects and passed an erroneous order directing respondent Nos. 1 and 2 to be impleaded as party defendants in the suit. In support of his submissions, learned counsel heavily relied upon the judgment of Supreme Court passed in Surjit Singh and ors Vs. Harbans Singh and ors., 1995 (6) SCC 50. Relying upon the aforesaid judgment, learned counsel would submit that as has been authoritatively held by the Supreme Court in the aforesaid judgment, the sale transactions between Kewal Krishan Kohli and the respondents, which, ___________________________________________________________________________ OW 104 No. 83/2017 Page 4 of 12 were admittedly in violation of the restraint order passed by the Trial Court should be treated as nonest in the eye of law and therefore, the Trial court in these circumstances was duty bound to treat such assignments as having not taken place at all for any purpose. On the analogy of the law laid down in the case of Surjit Singh (supra) learned counsel for the petitioner would submit that the respondents have no right, title or interest to be impleaded as parties in the suit.
6. Per contra, learned counsel for respondents would submit that it may be true as urged by learned counsel for the petitioner that the Sale Deeds were executed by Kewal Krishan Kohli in violation of the restraint order passed by the Trial Court but the same cannot impact the rights of the respondents, who got these properties by way of valid Sale Deeds as bonafide purchasers. Learned counsel for the respondents would, therefore, submit that respondent Nos. 1 and 2 being bonafide purchasers and being unaware of the pendency of any suit or the restraint order passed therein cannot be said to have acted in violation of the directions of the Trial Court. They being bonafide purchasers for consideration have, thus, every right to protect their property. Learned counsel would further submit that Sh. Kewal Krishan Kohli, the vendor, after selling his properties to the respondents has lost interest in contesting the suit and therefore, if the suit is allowed to proceed in the absence of the respondents, the outcome of the suit would definitely affect the rights of the respondents. Lastly, learned counsel would urge that since respondents have acquired title over the part of suit property by virtue of valid Sale Deeds executed by Kewal Krishan Kohli, therefore, their interest in the subject matter of suit is substantial and nor peripheral. Learned counsel in support of his submissions relied upon the following case law:-
___________________________________________________________________________ OW 104 No. 83/2017 Page 5 of 12
i) Savitri Devi Vs. District Judge, Gorakhpur and ors.1999 (2) SCC 577.
ii) Thomson Press (India) Ltd. Vs. Nanak Builders and Investors P. Ltd and ors. 2013 (5) SCC 397
7. Before proceeding ahead and appreciating the rival contention, it would be apposite to take note of the legal position obtaining on the subject. As held by the Supreme Court in Thomson Press (India) Ltd. Vs. Nanak Builders and Investors P. Ltd and ors (supra), the transfer pendente lite is neither illegal nor void-abnitio but remains subservient to the rights to be eventually decided by the Court. Section 52 of the Transfer of Property Act speaks about the doctrine of lis pendense which is based on the ground that it is necessary for the administration of justice that the decision of a Court in a suit should be binding not only on the litigating parties but on those who derive title during the pendency of such litigation. In the aforesaid judgment, it is further observed that Order 1 Rule 10 of Code of Civil Procedure gives discretion to the Court to add any person as party at any stage of the proceeding if the person whose presence before the Court is necessary or proper for effective adjudication of the issues involved in the suit. In this regard, it would be apt to notice what was said by the Supreme Court in Para 26 of the judgment in the case of Thomson Press (India) Ltd. (supra) which reads thus:-
"26. It would also be worthwhile to take note of the relevant provision of Transfer of Property Act. Section 52 whereof reads as under:-
"52. Transfer of property pending suit relating thereto- During the pendency in any court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly ___________________________________________________________________________ OW 104 No. 83/2017 Page 6 of 12 and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.
Explanation- For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force."
It is well settled that the doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a court in a suit should be binding not only on the litigating parties but on those who derive title pendente lite. The provision of this section does not indeed annul the conveyance or the transfer otherwise, but no render it subservient to the rights of the parties to a litigation".
8. The issue as to whether transfer pendent lite in violation of order of the Court is non-est and void abnitio was first considered by the Supreme Court in the case of Surjit Singh (supra) and on the basis of peculiar facts and circumstances of the case what was held in paragraph 4 reads thus:-
"As said before, the assignment is by means of a registered deed. The assignment had taken place after the passing of the preliminary decree in which Pritam Singh has been allotted 1/3rd share. His right to property to that extent stood established. A decree relating to immovable property worth more than hundred rupees, if being assigned, was required to be registered. That has instantly been done. It is per se property, for it relates to the immovable property involved in the suit. It clearly and squarely fell within the ambit of the restraint order. In sum, it did not make any appreciable difference whether ___________________________________________________________________________ OW 104 No. 83/2017 Page 7 of 12 property per se had been alienated or a decree pertaining to that property. In defiance of the restraint order, the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and he prevalent public policy. When the Court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The court, in these circumstances has the duty, as also the right, purposes. Once that is so, Pritam Singh and his assignees, respondents herein, cannot claim to be impleaded as parties on the basis of assignment. Therefore, the assignees-respondents could not have been impleaded by the trial court as parties to the suit, in disobedience of its orders. The principles of lis pendens are altogether on a different footing. We do not propose to examine their involvement presently. All what is emphasised is that the assignees in the present facts and circumstances had no cause to be impleaded as parties to the suit. On that basis, there was no cause for going into the question of interpretation of paragraphs 13 and 14 of the settlement deed. The path treaded by the courts below was, in our view, out of their bounds. Unhesitatingly, we upset all the three orders of the courts below and reject the application of the assignees for impleadment under Order 22 Rule 10 CPC".
9. However, in the later judgment passed by the Supreme Court in the case of Savitri Devi Vs. District Judge, Gorakhpur (supra), the decision given in Surjit Singh's case was considered and distinguished. What was said by the Supreme Court in paragraph Nos. 8 and 9 deserves to be noticed. Paragraph 8 and 9 reads thus:-
"8. The facts set out by us in the earlier paragraphs are sufficient to show that there is a dispute as to whether the first defendant in the suit was a party to the order of injunction made by the Court on 18.08.1992. The proceedings for punishing him for contempt are admittedly pending. The plea raised by him that the first respondent had played a fraud not only against him but also on the Court would have to be decided before it can be said that the sales effected by the ___________________________________________________________________________ OW 104 No. 83/2017 Page 8 of 12 first defendant were in violation of the order of the Court. The plea raised by Respondents 3 to 5 that they were bona fide transferee for value in good faith may have to be decided before it can be held that the sales in their favour created no interest in the property. The aforesaid questions have to be decided before it can be held that the sales in their favour created no interest in the property. The aforesaid questions have to be decided by the Court either in the suit or in the application filed by Respondents 3 to 5 for impleadment in the suit. If the application for impleadment is thrown out without a decision on the aforesaid questions, Respondents 3 to 5 will certainly come up with a separate suit to enforce their alleged rights which means a multiplicity of proceedings. In such circumstances, it cannot be said that Respondents 3 to 5 are neither necessary nor proper parties to the suit.
9. Order 1 Rule 10 CPC enables the court to add any person as a party at any stage of the proceedings if the person whose presence before the court is necessary in order to enable the court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of a multiplicity of proceedings is also one of the objects of the said provision in the Code".
10. In the judgment aforesaid, Supreme Court also took note of the decision rendered in the case of Surjit Singh (supra) and held that a transferee pendante lite of an interest in the immovable property subject matter of suit has a right to be impleaded. Surjit Singh (supra) was distinguished because in that case, there was an assignment of rights under preliminary decree and which was held not capable of conveying any rights to the assignee and secondly in that case, there was no dispute that the assigners and the assignees had the knowledge of order of injunction. In those peculiar facts and circumstances, Apex Court held that impleadment of transferee who had acquired interest pendente lite in violation of interim order was not warranted.
___________________________________________________________________________ OW 104 No. 83/2017 Page 9 of 12
11. In the light of legal position as adumbrated herein above by the judgments of the Supreme Court, it, therefore follows that a Sale Deed of immovable property executed in violation of interim order of injunction is not nonest or void nor can it be said that no right in the immovable property subject matter of a suit has passed to the transferee applicants under such Sale Deed. It may be pointed out that where a Sale Deed is executed in violation of interim order, the Court has ample powers to order the restitution of the Status by passing the order of status quo ante and even by ordering re-conveyance to be executed by the arrayed parties or asking the arraying parties to join in the execution of conveyance in favour of the party ultimately found entitled to the same. As is held by the Supreme Court in the case of Gurunath Manohar Pavaskar Vs. Nagesh Siddappa AIR 2008 SC 901, the Courts are empowered to even pass the interlocutory order in the nature of mandatory injunction in exercise of jurisdiction under Section 151 CPC on the premise that a party against whom an order of injunction was passed had acted in breach thereof and relegate the parties to the same position as if the order of injunction had not been violated. In short, it may be stated that the transfer of the suit property in violation of interlocutory order in favour of third person who may be bonafide purchaser is not void and therefore, cannot be avoided. Order 39 Rule 2 (a) of Code of Civil Procedure also provides for initiating proceedings against the person, who wilfully disobeys the interlocutory orders passed in the suit. Apart from the provision of Order 1 Rule 10 of Code of Civil Procedure, which provide for impleadment of a necessary and proper party, whose presence is necessary for effective adjudication of the issues in the suit, there is another provision i.e Order 22 Rule 10 ___________________________________________________________________________ OW 104 No. 83/2017 Page 10 of 12 of CPC, which provides that in cases of assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the court, be continued by or against the person to or upon whom such interest has come or devolved. It may be true that transferee pendente lite may not be a necessary party for the continuation of the suit but if such party approaches the trial court for seeking his impleadment, the same cannot be denied on the ground that the transaction whereby he had acquired rights in the immovable property subject matter of suit was hit by the doctrine of lis pendense even if the transaction has been made by the party to the suit in favour of such person in violation of the order of injunction passed in the suit, more so, when the transferee is a bonafide purchaser for consideration.
12. Needless to state that in a suit for partition, the parties whether plaintiff or defendant have similar interest and it would not make any difference if the transferee of one of the plaintiffs is arrayed as a defendant and not the plaintiff.
13. In view of the aforesaid analysis of legal position and the observation made herein above, I do not find it a case for interference that too in the exercise of powers of superintendence vested in this Court by virtue of provisions of Section 104 of the Constitution of State of J&K. The order impugned is not the one that suffers for want of jurisdiction or is otherwise perverse having occasioned failure of justice. Learned trial court has taken note of the judicial principles laid down by the Supreme Court and has come to the conclusion that the respondents being transferee in interest of plaintiff, Kewal Krishan Kohli, were entitled to be impleaded as defendants.
___________________________________________________________________________ OW 104 No. 83/2017 Page 11 of 12
14. This petition is thus found to be devoid of any merit, and therefore, dismissed along with all connected MPs.
(Sanjeev Kumar) Judge Jammu 10.11.2017 Tarun ___________________________________________________________________________ OW 104 No. 83/2017 Page 12 of 12