Allahabad High Court
Dushyant Kumar And 5 Others vs Aswani Kumar Singh And 25 Others on 10 January, 2019
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 36 Case :- MATTERS UNDER ARTICLE 227 No. - 9246 of 2018 Petitioner :- Dushyant Kumar And 5 Others Respondent :- Aswani Kumar Singh And 25 Others Counsel for Petitioner :- Gopal Misra Hon'ble Mrs. Sunita Agarwal,J.
The present petition is directed against the order dated 25.09.2018 passed by the Additional District Judge, IIIrd, Agra in Civil Appeal No.158 of 2008 (Shri Giriraj Singh & others Vs. Ashwani Kumar Singh & others), whereby the application 87-Ga moved by the respondent no.12 namely the transferee of the plaintiff/respondent no.1 for substitution/impleadment under Order 22 Rule 10 read with Order 1 Rule 10 of the Code of Civil Procedure, has been allowed. This is the defendant's petition. The Civil Appeal No.158 of 2008 arose out of the Original Suit No.127 of 1971 which was filed for the relief of declaration of the sale deeds mentioned in schedule 'A' of the plaint as null and void document and being not binding on the plaintiff. Further relief was sought for declaration of the share of the plaintiff in the suit property, described in schedule 'A' and 'B'. The relief of permanent injunction was also sought against the defendant nos.1 and 2 restraining them from dealing with the suit property in schedule-'B' in any manner and further to direct them to give details of income and expenditure of the joint Hindu property, which the defendant nos.1 and 2 had received being Karta of joint Hindu family.
The plaintiff Ashwani Kumar Singh is one of the heirs of the original owner of the suit property namely Gopal Das. It was claimed that defendant no.1 and 2 namely Harish Narain Singh and Awdhesh Narain Singh had alienated the suit property as Karta of joint hindu family for their own benefit and not for the benefit of other co sharers who were minors at the relevant point of time. The transfer made by defendant nos.1 and 2 was, therefore, illegal and the sale deeds are to be declared as void and ineffective so far as the plaintiff's share is concerned. The said suit had been decreed partly vide judgement and order dated 15.10.2008 and the sale deeds executed by defendant nos.1 and 2 in favour of other defendants, as described in schedule-'A' of the plaint had been declared null and void.
Simultaneously, the prayer of declaration of share of the plaintiff to the extent of 1/4th in the properties described in schedule 'A' & 'B' of the plaint had been allowed. The defendants were directed to hand over the possession of the suit property to the plaintiff as also to the defendant nos.2/1 to 2/6 and defendant nos.3, heirs of Awdhesh Narain Singh and Harish Narain Singh, as co-parceners of the suit.
The judgement and decree dated 15.10.2008 has been challenged in Civil Appeal No.158 of 2008. It appears that the execution of the decree has been stayed by the first appellate court on admission of the appeal.
However, the appellants/defendant nos.7 & 8 claiming to be bonafide purchaser of the suit property vide sale deed dated 08.01.1965 sought temporary injunction against the plaintiffs/respondents vide application 34-Ga moved in the appeal. The said application was contested by plaintiff-respondent no.1 by filing his objection paper no.37-Ga. The first appellate court has proceeded to pass an order of status quo dated 22.09.2012, relevant extract of which read as under:-
vihy Hkh ewy okn dh dk;Zokgh dh rkjrE;rk esa gSA i{kdkjksa ds e/; mDr lEifRr ds LokfeRo o vkf/kiR; ds lEcU/k esa ln~HkkoukRed fookn fo|eku gSA ,slh fLFkfr esa U;k;ky; dh bl lEcU/k es ekeys ds rF;ksa ,oa ifjfLFkfr;ksa ds lUnHkZ esa leqfpr vkns'k ikfjr djus dh vf/kdkfjrk izkIr gSA bl izdkj mi;qZDr foospuk ds vk/kkj ij ;g dgk tk ldrk gS fd vihy ds yEcu ds nkSjku mHk;i{kksa dks ;g vkns'k fn;k tkuk mfpr izrhr gksrk gSA fd i{kdkj fookfnr lEifr ij fLFkr fuekZ.kksa dks uk rks {kfrxzLr djsa ,oa u gh mUgsa fxjkus rFkk u gh fookfnr lEifRr ij dksbZ uohu fuekZ.k djsa vkSj mlds orZeku Lo:i dks ;Fkkor cuk;s j[ksaA rnuqlkj 34 x izFkkZuki= Lohdkj fd;k tkrk gS rFkk mHk;i{k dks vkns'k fn;k tkrk gS fd os vihy ds yfEcr jgus ds nkSjku fookfnr lEifr ij fLFkr fuekZ.kksa dks u rks fxjkos] u gh mUgsa {kfrxzLr djsa vkSj u gh fookfnr lEifRr ij dksbZ uohu fuekZ.k djsa rFkk fookfnr lEifRr ds lEcU/k esa ;FkkfLFkfr cuk;s j[ksaA rnuqlkj vkifRr dkxt la0 37 x fuLrkfjr dh tkrh gSA While passing the order of status quo dated 22.09.2012, the first appellate court has recorded that neither the plaintiff nor the defendants were in actual physical possession of the suit properties as they were in physical possession of the tenant thereof. In case of any demolition or new construction being made by the plaintiffs/opposite party no.1, there was likelihood of change in the nature of the suit property which would cause such irreparable loss and injury to the appellants, which could not be compensated in terms of money. It was further observed that the order of status quo with regard to the suit property could be passed even on the prayer of the defendants under Order 39 Rule 1 and 2 CPC so as to preserve the suit property. It was thus directed that both the parties shall be restrained from damaging the suit property, demolishing it or making new construction thereon and would maintain status quo with regard to the nature of the suit property.
It appears that during the pendency of the appeal, the suit property had exchanged hands and the plaintiff had transferred his share in the suit property in favour of one Bhupendra Singh Bhadauria vide sale deed dated 23.05.2012, who had further executed the sale deed dated 16.02.2018 in favour of respondent no.12, who has filed application for substitution in place of respondent no.1 in the appeal, which has been allowed by the order impugned.
To assail the order of impleadment/substitution, the contention of learned counsel for the petitioner is that the assignment of share by the plaintiff/respondent no.1 during the pendency of the appeal vide sale deed dated 23.05.2012 and further assignment by the transferee vide sale deed dated 16.02.2018, were in contravention of the status quo order dated 22.09.2012 passed by the first appellate court. The sale deed dated 16.02.2018 was clearly hit by Section 52 of the Transfer of Properties Act' 1882 (hereinafter referred as Act' 1882). Any transfer of interest by any of the parties to the suit to the detriment of the other party, without leave of the court before whom the proceedings are pending, is hit by Section 52 of the Act' 1882.
By reading and re-reading of the status quo order dated 22.09.2012, it was vehemently urged by learned counsel for the petitioner that the status quo order was operating against the plaintiff/respondent no.1 and he was restrained from alienating the suit property in any manner. During the subsistence of the status quo order, no transfer could have been made and further the transferee of the sale deed, which had been executed in contravention of the status quo order, would not get a right to seek impleadment/substitution under Order 22 Rule 10 read with Order 1 Rule 10 CPC.
Reliance is placed upon the judgments of the Bombay High Court in Keshrimal Jivji Shah & another Vs. Bank of Maharashtra & others and of the Supreme Court of India in Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb & another reported in 2004 (1) SCC 191 and High Court of Karnataka in N Ramaiah Vs. Nagaraj S reported in 2001 AIR (Kar) 395 to vehemently submit that the status quo would mean to maintain the existing state of the things at any given point of time. An interlocutory injunction is issued with a view to preserve and protect status quo during the pendency of the suit or litigation. Any alteration in contravention of the status quo order as prevailing and directed to be maintained by the court of law is not permissible except with leave or sanction of the Court.
It is vehemently submitted that any effort of the litigating party to circumvent the order of the court cannot be encouraged as it would encourage the litigating party to subserve the process of the Court. The submission is that the opposite party no.1/plaintiff having due knowledge of the status quo order dated 22.09.2012 had committed contempt in alienation of the suit property in favour of the third party. The third party claiming impleadment on the basis of a sale deed executed during the course of proceeding of appeal, cannot claim to be substituted as respondent in appeal. The first appellate court has committed a grave error of law and jurisdiction in allowing the substitution application under Order 22 Rule 10 CPC read with Order 1 Rule 10 filed by the third party. It is vehemently contended that there is no absolute rule that the transferee pendente lite without leave of the court should in all cases be allowed to join to contest the pending suit.
With the aid of Section 52 of the Act' 1882 it is contended that the respondent in appeal were prohibited by operation of Section 52 to dealt with the suit property and could not have transferred or dealt with the same in any manner affecting the rights of the appellants except with the order or authority of the court. Before alienation of the suit property during the pendency of the appeal, no leave or permission of the first appellate court was taken by the plaintiff/respondent no.1. The transfer is thus hit by Section 52 of the Act' 1882. The transferee cannot be said to be necessary or proper party of the suit.
Strong reliance has been placed on the judgement of the Apex Court in B.B. Zubaida Khatoon (supra) to assert that the transfer was hit by Section 52 of the Act' 1882 and in N Ramaiah (supra) to assert that in a suit for partition of joint family property, the order of status quo shall mean that the defendants are restrained from alienating the suit property.
Heard learned counsel for the petitioner and perused the records.
So far as the first submission of learned counsel for the petitioner that the transfer of the suit property during pendency of the appeal by the appellant no.1 is in violation of the status quo order dated 22.09.2012, it would be appropriate to go through the said order itself.
From the careful reading of the order dated 22.09.2012, it is evident that the status quo order was passed so as to maintain the nature of the suit property as on the date of institution of the suit. However, the said status quo order cannot be read to mean that the parties were restrained from alienating the suit property during the pendency of the appeal.
Moreover, the respondent nos.3/1 to 3/4 had executed sale deed on 23.05.2012 in favour of Bhupendra Singh Bhadoria, prior to the said temporary injunction order passed by the first appellate court. Though the transferee of sale deed dated 23.05.2012 did not seek impleadment or substitution and the subsequent transferee of the sale deed dated 16.02.2018 had come out with the clear assertion that the respondent no.3/1 to 3/4 have parted away with their right, title or interest in the portion of the suit property, which was subject matter of sale deed and that the said respondents have lost interest in the suit property subject matter of appeal, the applicant is found to be necessary and proper party in the suit for declaration and partition of the properties in suit.
The second aspect of the matter which arises for consideration is the effect of sale pendente lite. The legal position in this regard is fairly well settled. A transfer pendente lite is not illegal or void ab initio rather the purchaser pendente lite under the doctrine of lis pendens is bound by the result of the litigation on the principle that since the result must bind the party to it so must it bind the person deriving his right, title and interest from or through him. A transferee pendente lite thus remains subservient to the pending litigation. Principles in this regard have been succinctly dealt with by the Apex Court in the recent judgement in Thomson Press (India) Limited Vs. Nanak Builders and Investors Private Limited & others reported in 2013 (5) SCC 397. After considering a series of judgements of the Apex Court, in Nagubai Ammal Vs. B.Shama Rao reported in AIR 1956 SC 593, Jayaram Mudaliar v. Ayyaswami 1972 (2) SCC 200; A. Nawab John and others vs. V.N. Subramaniyam 2012 (7) SCC 738; and Vidur Impex and Traders Private Limited and others Vs. Tosh Apartments Private Limited and others reported in 2012 (8) SCC 384; it was held in paragraph no.53 of the said report as under:-
"53.There is, therefore, little room for any doubt that the transfer of the suit property pendete lite is not void ab initio and that the purchaser of any such property takes the bargain subject to the rights of the plaintiff in the pending suit. Although the above decisions do not deal with a fact situation where the sale deed is executed in breach of an injunction issued by a competent Court, we do not see any reason why the breach of any such injunction should render the transfer whether by way of an absolute sale or otherwise ineffective. The party committing the breach may doubtless incur the liability to be punished for the breach committed by it but the sale by itself may remain valid as between the parties to the transaction subject only to any directions which the competent Court may issue in the suit against the vendor."
It was, thus, held by the Apex Court that a transferee pendente lite is a necessary and proper party to a suit and can be added as a party to the suit lest the transferee would suffer prejudice on account of the transferor losing interest in the litigation post transfer.
In Khemchand Shankar Choudhary & another Vs. Vishu Hari Patil & others reported in 1983 (1) SCC 18, the Apex Court has said that the status of transferree pendente lite is of a representative in interest of the party from whom he has acquired that interest. Order 22 Rule 10 CPC clearly recognizes the right of the transferee to be impleaded as a party to the proceeding and to be heard before any order is made. In case, he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceeding. But if he applies to be impleaded and heard he can also prefer an appeal against an order made in the said proceedings, but with the leave of the appellate court, where he is not already brought on record. The position of a person on whom any interest has been devolved on account of a transfer during the pendency of any suit or proceeding is some what similar to the position of an heir or a legatee of a party who dies during the pendency of the suit or the proceeding. It has further been held that even a transferee can participate in the execution proceeding though his name may not have been shown in the decree, preliminary or final. If a transferree apply to the court to be impleaded as party he cannot be turned out.
Similarly in Amit Kumar Shaw and another vs. Farida Khatoon and another reported in 2005 (11) SCC 403, it was held that the transferee pendente lite can be added as a party to the case provided his interest is substantial and not just peripheral or else, of transferor pendente lite may not even defend the title properly as he has no interest in the same or may collude with the plaintiff in which case, the interest of the purchaser pendente lite will suffer. The plaintiff though is under no obligation to make a lis pendens transferee a party but under Order 22 Rule 10, a transferee pendente lite may be joined as a party as the court has discretion in such matter. Ordinarily a transferee shall be allowed to join as a party to enable him to protect his interest.
In the light of the said legal position on the doctrine of lis pendens, the Court has to examine the provision of Order 1 Rule 10 CPC. Order 1 Rule 10 empowers the Court to add any person as a party at any stage of the proceeding, if the presence of such person before the Court is necessary or proper for effective adjudication of the issue involved in the proceeding. Order 1 Rule 10 CPC reads as under:-
"10. Suit in name of wrong plaintiff.--(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
(2) Court may strike out or add parties.--The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been jointed, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
(4) Where defendant added, plaint to be amended.--Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.
(5) Subject to the provisions of the2 Indian Limitation Act, 1877 (XV of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons."
From the bare reading of the aforesaid provision, it is manifest that sub rule (2) of Rule 10 gives a wider discretion to the court to meet every defect of a party and to add a person who is either a necessary party or a proper party. A necessary party is the person who is ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the court. A proper party is, however, a person whose presence would enable the court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made. If a person is not found to be a proper or necessary party, the Court does not have jurisdiction to order his impleadment against the wishes of the plaintiff.
In the light of the above, it is clear that there is no prohibition against the transferee pendente lite to join the proceeding. He may allowed to be joined as a proper party under Order 1 Rule 10 CPC or may be substituted as asignee of the transferor, a party to the suit. Upon joining, he may contest the suit not to assert his own right but to defend the right of the transferor from whom he acquired interest in the immovable property, which is subject matter of the suit, being representative in interest of the said party. The doctrine of lis pendens under Section 52 of the Act is intended to strike any attempt of the parties to the litigation to circumvent the jurisdiction of the court, in which a dispute or right or interest for immovable property is pending, by private dealing which may remove the subject matter of litigation from the ambit of the court's power to decide the pending dispute or frustrate the decree. The whole object of doctrine of lis pendens is to subject the parties to the litigation as well as others, who seeks to acquire rights in immovable property, which are subject matter of litigation, to the powers and jurisdiction of the court and to prevent the object of a pending action from being defeated.
In view of the above legal position and in the light of the facts and circumstances of the present case, there remains no doubt about the fact that the transferee of the sale deed dated 16.02.2018 who in turn got right, title and interest in the suit property from the transferee of the sale deed dated 23.05.2012, is a proper party to the suit being representative in interest of respondent no.3/1 to 3/4 in Civil Appeal No.158 of 2008 and, thus, is entitled to be added as a respondent to the appeal.
The order of impleadment/substitution passed by the first appellate court dated 25.09.2018. therefore, does not suffer from any infirmity.
It is however, clarified that the substituted respondent is entitled to pursue only such defences as were available and taken by the original party namely respondent nos.3/1 to 3/4 and he would not be entitled to take any fresh defence or pleadings.
Before parting with the judgment, noticing the fact that the Civil Appeal No.158 of 2008 (Giriraj Singh & another Vs. Ashwani Singh & others) is pending for more than a period of 10 years and the suit property has exchanged many hands, it is directed that the first appellate court shall make an endeavor to decide the appeal on merits, expeditiously, preferably within a period of six months from the date of submission of certified copy of this order, without granting any unnecessary adjournment to any of the parties.
Subject to the above observations and directions, the present petition is dismissed.
Order Date :- 10.01.2019 Himanshu