Madras High Court
Kapil Hissaria vs Veerappan on 30 July, 2019
Author: C.Saravanan
Bench: C.Saravanan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 23.07.2019
Pronounced On 30.07.2019
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
C.R.P.(PD).No.3524 of 2015
and
M.P.No.1 of 2015
Kapil Hissaria .. Petitioner
vs
1.Veerappan
2.Ganajuramma
3.Gurramma
4.Rajamma
5.Amsa
6.Karpagam
7.Kamala
8.Muniyamma
9.Muniyappa
10.Yellappa
11.Ganjurappa
12.Thimmaiah
13.Thimmarayappa .. Respondents
Prayer: Civil Revision Petition filed under Article 227 of the
Constitution of India, to set aside the order in unnumbered I.A of
2015 in O.S.No.13 of 2011 on the file of the Subordinate Court,
http://www.judis.nic.inHosur, dated 01.08.2015.
2
For Petitioner : Mr.V.Raghavachari
For R13 : Mr.Bharath Kumar
For R 2 & R3 : No appearance
ORDER
The petitioner is aggrieved by the impugned order dated 01.08.2015 passed by the Sub Court, Hosur in IA.nil of 2015 in O.S.No.13 of 2011.
2.By the impugned order which is docket order, the said court has rejected the application filed by the petitioner under section 151 of CPC seeking leave of the said court to question both the preliminary decree and the final decree passed by the court on 15.02.2012 and on 19.09.2014 respectively in the above suit decree exparte and to set aside the exparte order dated 19.09.2014 passed in I.A.No.39 of 2013 in O.S.No.13 of 2011.
3.The petitioner is a 3rd party purchaser of the suit schedule property and claims to be an innocent purchaser from respondent Nos. 4 to 12 (Defendant Nos. 1 to 9) by a registered sale deed http://www.judis.nic.in dated 23.01.2012 after obtaining legal opinion dated 03.01.2012 3 unaware of pendency of O.S.No.13 of 2011 instituted on 03.02.2011 by respondent Nos.1 to 3 (the plaintiffs) to partition the suit schedule property.
4.The petitioner claims to be in possession of the suit schedule property pursuant to the sale deed dated 23.01.2012 registered vide document No.152/2012, SRO, Rayakottai.
5.Respondent Nos.1 to 12 (the plaintiffs and defendants No 1 to 9) are the descendant of late Thimarayappa. The late Thimarayappa had 5 children. Respondent Nos.1 to 3 herein (plaintiffs in the suit) are the sons and daughter of the late Thimarayappa. The petitioner’s vendors namely respondent Nos. 4 to 12 (Defendant Nos. 1 to 9) are the legal representatives of the other two children of the late Thimarayappa namely Muniyappan and Ganjurappa.
6.The above suit was filed on 03.02.2011 and was decreed exparte on 15.02.2012. In the said suit respondent Nos. 8, 9 & 11 (defendant Nos. 5, 6 & 8) entered appearance but remained absent along with other defendants. Therefore, the said suit was decreed http://www.judis.nic.inon 15.02.2012. As mentioned above, the petitioner purchased the 4 property on 23.01.2012 prior to the suit being decreed exparte unaware of the pendency of the said partition suit.
7.As per the plaint, respondent Nos.5, 6 & 7 (defendants Nos. 2, 3 & 4) had attempted to execute a nominal sale deed in favour of the 13th respondent herein (10th defendant) and therefore to protect their rights, the Respondent Nos. 1 to 3 (plaintiffs in the above suit) filed the above suit to partition the property by dividing it into 5 equal shares by allotting 3/5th share to the plaintiffs and the balance to be divided equally among the petitioner’s vendors who traced rights through the father late Muniyappan and late Ganjurappan.
8.By the impugned order, the court has declined to entertain the application filed by the petitioner stating that the suit had been already decreed and that the application filed by the petitioner was liable to be rejected under Order 7 Rule 11 of CPC.
9.It has been further stated that, the petitioner has purchased the property during the pendency of the suit and therefore the purchase was hit by lis pendens under section 52 of the Transfer of Property Act, 1882 and therefore the petitioner should file a http://www.judis.nic.inseparate suit. 5
10.Though notice has been served on the respondents, only the 13th respondent (the 10th defendant) has appeared. As per the averments in the plaint, it is stated that a nominal sale deed of the suit schedule property was executed by the respondent Nos.5, 6 & 7 (defendants Nos.2, 3 & 4) in favour of the 13th respondent (the 10th defendant).
11.In the said suit an Advocate Commissioner was appointed who submitted a report on 31.07.2014 pursuant to the order of the lower court on 15.02.2012. It was submitted that the time of giving report, the Advocate Commissioner ought to have claimed encumbrance certificate to verify whether there has been any subsequent transfer pendente lite by any parties to the suit. However, the Advocate Commissioner proceeded to allot the 3/5th share in the property in favour of the respondent Nos.1 to & 3 (plaintiffs) and the balance share to respondent Nos.4 to 12 (defendants Nos.1 to 9).
12.The extent of property which was allotted to the respondent Nos.1 to 3 (plaintiffs) appears to overlap with property which was sold to the petitioner by respondent Nos.4 to 12 http://www.judis.nic.in 6 (defendants Nos.1 to 9) and which ought to have been resolved and considered before passing a final decree in a partition suit.
13.The petitioner has merely stepped into the shoes of his vendors in the partition suit and the sale made by his vendors ought not have been noted while allotting the shares to the respondents Nos.1 to 3 (plaintiffs). In any event, this aspect ought to have been examined by the Court before passing a final decree in the above suit.
14.The plight of the pendente lite the purchaser was recently considered by this Court in Rajendran and Another vs Mohanambal 2018 SCC OnLine Mad 9064. The Court observed that if on a passing of a preliminary decree, a pendente lite has acquired a right through his vendors, then necessarily his right has to be similar to that of the other parties to the preliminary decree. Necessarily, a right to file an application for passing a final decree should be available to him, since no law bars him from filing one.
15.The Court has also considered the difficulties of a pendente lite purchaser as to whether a right of hearing in the final decree http://www.judis.nic.inproceedings can be denied. 7
16.Paragraph Nos.39 & 42 read as under:-
39. The helplessness to which fraud drives a pendente lite transferee without an effective remedy can be best illustrated with an example from common experience. One situation is that, during the pendency of a suit for partition between siblings, one of the parties will sell a specific property without the pendente lite purchaser ever knowing about the suit. The seller will now, not only not participate in the suit to defend the title of his purchaser, but will participate in the final decree proceedings, watch the property he sold allotted to another party, and he himself will walk with yet another property towards his share. It is a naked fraud that a pendente lite seller is unmindful of practising. Now, in an Execution proceeding for delivery property, a pendente lite purchaser cannot obstruct under Rule 102, and hence he may have to file a separate suit as his case does not qualify for a decision under Rule 101 on the point of title (as the same has already been decided in the suit). And if a suit were to be filed by the purchaser, it is unlikely he would secure the property he purchased as lis pendens in the former suit might stare on him. In the end result, fraud, which the Courts generally frown upon, now gets a shelter within law.
And, the prevailing understanding of law on lis pendens vis a vis the right of hearing of a pendente litealienee, will now find it difficult to avoid a criticism that it prefers protecting the consequences of this fraud to saving the victims of fraud. Is this what the law intends to achieve? (See in the context Annammal v. Chellakutti [76 (1963) LW 215], where the First Bench of this Court has kept the termination of suit without a bonafide contest and its abandonment by http://www.judis.nic.in the plaintiff outside the purview of lis 8 pendens, but it requires judicial intervention in each particular case of similar variety, and does not provide a procedural safety to a pendente lite alienee)
42. It is hence necessary that the procedural law is shown its place as a hand maid of justice in order it subserves the cause of justice as dictated by the substantive law, and not to subvert it. To let the procedure and its understanding pegged to a pole of antiquated past, far distanced from the contemporary challenges will make the legal system irrelevant to our society. It breeds a category of litigations resisting the divestiture of right which the procedure law cannot restrict. It is therefore, time, that the Law Commission, or the Parliament, or/and High Court (empowered to make appropriate Rules under Sec.122 CPC), appreciated and addressed the issue within the sphere of their respective powers.
17.In my view, the denial of right to be heard has resulted in miscarriage in justice, particularly in the light of the fact that the rights of the petitioner has been compromised without notice to him. The respondent Nos.4 to 12 (defendants Nos.1 to 9) having executed sale deed in favour of the petitioner have been remained exparte in the suit. Therefore, the preliminary decree was passed without notice of the petitioner.
18.In view of the same, I am inclined to allow the present Civil Revision Petition by setting aside the impugned order. http://www.judis.nic.in 9
19.The Sub Court, Hosur is directed to number the I.A and dispose the same on merits after hearing all parties within a period of six months from the date of receipt of a copy of this order.
20.The present Civil Revision Petition stands allowed with the above observation. No cost. Consequently, connected Miscellaneous Petition is closed.
30.07.2019 Index:Yes/No Internet :Yes/No jen To
1.The Subordinate Court, Hosur.
2.The Section Officer, V.R.Section, High Court, Madras.
http://www.judis.nic.in 10 C.SARAVANAN, J.
jen Pre-Delivery Order in C.R.P.(PD).No.3524 of 2015 and M.P.No.1 of 2015 30.07.2019 http://www.judis.nic.in