Allahabad High Court
M/S. Bhavya Dwellings Pvt. Ltd. Lucknow vs Gopal Narain Chaubey And Others on 12 February, 2014
Equivalent citations: AIR 2015 (NOC) 324 (ALL.) (LUCKNOW BENCH), 2014 AIR CC 3080 (ALL) 2014 (4) ALJ 596, 2014 (4) ALJ 596
Author: Anil Kumar
Bench: Anil Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Court No. - 18 Case :- CIVIL REVISION No. - 79 of 2007 Revisionist :- M/S. Bhavya Dwellings Pvt. Ltd. Lucknow Opposite Party :- Gopal Narain Chaubey And Others Counsel for Revisionist :- Brijesh Kumar Saxena,A P Singh Counsel for Opposite Party :- Sharad Kumar,A P Singh Garu,Mohd. Adil Khan,Prashant Singh Atal,Prashant Singh Gaur,Subhash Vidyarthi,Tarun Prakash Srivastava Hon'ble Anil Kumar,J.
Head Sri Birjesh Kumar Saxena, learned counsel for revisionist, Sri Prashant Singh Atal, learned counsel appearing on behalf of O.P. No. 1 as well as Sri Subhash Vidyarthi, learned counsel appearing on behalf of O.P. No. 2 and perused the record.
By means of the present revision under Section 151 CPC, the revisionist has challenged the order dated 16.01.2007 passed in Regular Suit No. 94 of 1998 (Gopal Narain Chaube and others Vs. Krishna Narain Chaube and others) by Civil Judge (Sr. Div.), Malihabad, Lucknow rejecting the application of the revisionist under Order 1 Rule 10 read with Order 22 Rule 10 CPC.
Undisputed facts of the present case are that one Babu Laxmi Narain Chaube S/o Pt. Parmand Chaube was the original owner and landlord of plot No. 403/3 and building constructed thereon bearing Municipal No. 510/215 situated at New Hyderabad (Trans-Gomti), New Civil Lines, P.s. Hasanganj, (now P.S. Mahanagar), Lucknow (hereinafter referred to as the property in dispute) which is bounded as under:-
East - House of Mr. B.N. Singh West - Road North- Balda South- House of Dr. A.C. Chatterji Sri Laxmi Narain Chaube died on 14.10.1952 leaving behind two sons, namely, Sri Brij Narain Chaube and Sri Pratap Narain Chaube who succeeded the entire estate of Sri Laxmi Narain Chaube jointly with equal share therein. Sri Brij Narain Chaube and Sri Pratap Narain Chaube mutually settled a scheme of partition with terms and conditions stated in the Partition Deed, dated 20.07.1970 executed between the parties i.e. Sri Brij Narain Chaube and Sri Pratap Narain Chaube.
Sri Brij Narain Chaube, died in the year 1971 leaving behind three sons, namely, Jagdish Narain Chaube,, Sri Bhagwant Narain Chaube and Mahesh Narain Chaube and one daughter Smt. Nand Rani Chaturvedi.
Sri Bhagwant Narain Chaube died in the year 1983, leaving behind Smt. Anamika Chaube, Sri Baldeo Narain Chaube and Sri Deo Narain Chaube as his legal heirs and successors.
Lastly, in respect to the property in dispute, Sri Gopal Narain Chaube, one of the co-sharer, on 31.03.1998 filed as suit , registered as Regular Suit No. 94 of 1998, pending in the court of Civil Judge (Sr. Div.), Malihabad, Lucknow for partition of his share in the property in dispute.
Further, during the pendency of the said suit some of the co-sharer of the property in dispute by means of the registered sale deed dated 03.01.2006, 04.02.2006, 29.12.2005, 23.12.2005 sold their shares in favour of M/S. Bhavya Dwellings Pvt. Ltd. Lucknow/revisionist. So, on 30.05.2006 an application under Order 1 Rule 10 CPC read with Order 22 Rule 10 CPC has been moved by revisionist to be impleaded as a defendant in the suit (Suit No. 94 of 1998) registered as paper No. A-3, after hearing learned counsel for parties by impugned order dated 16.01.2007, the court below has rejected the same.
Aggrieved by the said order, the present revision has been filed before this Court.
Sri B.K. Saxena, learned counsel for revisionist while challenging the impugned order submits that as the revisionist has purchased the share of some of the co-owners of the property in question dispute for partition in Regular Suit No. 94 of 1998, so as per provisions of Order 1 Rule 10 CPC read with Order 22 Rule 10 CPC as well as Section 44 of the Transfer of Properties Act which reads: "Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house." the revisionist is a necessary and proper party for disposal of the controversy involved in the present case. In view the law as laid down by Hon'ble Apex Court in the Case of Dhanlakshmi & Ors. Vs. P. Mohan & Ors, 2007 SAR(Civil) 155, relevant paragraph quoted as under:-
"Section 52 deals with a transfer of property pending suit. In the instant case, the appellants have admittedly purchased the undivided shares of the respondents Nos. 2, 3, 4 & 6. It is not in dispute that the first respondent P. Mohan has got an undivided share in the said suit property. Because of the purchase by the appellants of the undivided share in the suit property, the rights of the first respondent herein in the suit or proceeding will not affect his right in the suit property by enforcing a partition. Admittedly, the appellants, having purchased the property from the other co-sharers, in our opinion, are entitled to come on record in order to work out the equity in their favour in the final decree proceedings. In our opinion, the appellants are necessary and proper parties to the suit, which is now pending before the Trial Court. We also make it clear that we are not concerned with the other suit filed by the mortgagee in these proceedings."
Sri B.K. Saxena, learned counsel for revisionist also placed reliance on the law as laid down by Hon'ble the Apex Court in the case of Thomson Press (India) Ltd. vs Nanak Builders & Investors. Pvt. Ltd. & Others, 2013 (5) SCC 397, accordingly, he submits that revisionist is the necessary parties for adjudication of the controversy involved in the suit No. 94 of 1998, so the impugned order passed by court below is contrary to law, liable to be set aside.
Sri Subhash Vidyarthi, learned counsel for plaintiff/O.P. No. 2/Sri Krishna Narain Chaube submits that as per the registered partition deed dated 20.07.1970 executed between Sri Brij Narain Chaube and Sri Pratap Narain Chaube the portions of the house in question which has been soled out by some of the co-owners in favour of the revisionist cannot be done in view of the provisions of Section 22 of the Hindu Succession Act, 1956.
He further submits that in case if some of the co-sharers who have sold out their share in the property in question in favour of the revisionist then in that circumstances before doing so, they have to asked Sri Krishna Narain Chaube/plaintiff of the suit for purchasing the same as he has got the preferential right to buy the same, as the said offer has been given and advance consideration has been taken, so the action on the part of co-sharer transferring their share by way of registered sale deeds is hit by the provisions of Section 52 of Transfer of Property Act, 1882 (hereinafter referred to as the Act).
Sri Subhash Vidyarthi, learned counsel for O.P.No. 2 in this regard also submits that keeping in view the provisions of Section 22 of the Hindu Succession Act, 1956 as well as provisions of Section 52 of the Transfer of Properties Act, 1882 specially the word as provided therein "except under the authority of court and on such terms as it may impose" the revisionist has got no right to be impleaded as respondent in the suit for partition (in suit No. 94 of 1998. In support of his argument, placed reliance on the judgment of Hon'ble the Apex Court in the case of Savinder Singh Vs. Dalip Singh, (1996) 5 SCC 539 and in the case of Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb, 2003 AIR SCW 5858, relevant portion quoted hereinbelow:-
"It would, therefore, be clear that the defendants in the suit were prohibited by operation of Section 52 to deal with the property and could not transfer or otherwise deal with it in any way affecting the rights of the appellant except with the order or authority of the Court. Admittedly, the authority or order of the Court had not been obtained for alienation of those properties. Therefore, the alienation obviously would be hit by the doctrine of lie pendens by operation of Section 52. Under these circumstances, the respondents cannot be considered to be either necessary or proper parties to the suit."
And in the case of Sanjay Verma Vs. Manik Roy (2006) 13 SCC 608.
He further submits that so far as the judgment cited on behalf of the revisionist in support of his case for impleadment in the suit for partition keeping in view the maxim (per inqureium) as well as the law laid down in the cae of Union of India & Ors. vs. S. K. Kapoor 2011 (4) SCC 589, Rattiram Vs. State of M.P. 2012, AIR SCW 1772, State of Assam Vs. Ripa Sarma, (2013) 3 SCC 61, the revisionist has got no right to be impleaded as party/defendant in the Suit No. 94 of 1998, hence there is no illegality or infirmity in the impugned order under challenge in the present revision.
Next submission as advanced by Subhash Vidyarthi, learned counsel appearing on behalf of O.P. No. 2 is that in respect to the sale deeds executed in favour of revisionist/ M/S. Bhavya Dwellings Pvt. Ltd. Lucknow, a suit for declaration (Suit No. 313 of 2006) has been filed, before the competent court, in which revisionist is a party and he has got amble opportunity to defend and put forward his version, so keeping in view the said facts there is no ambiguity in the order dated 16.01.2007 passed by court below, hence the present revision filed by the revisionist lacks merit, liable to be dismissed.
Sri B.K. Saxena, learned counsel for revisionist, in rebuttal, submits that so far as the submission as made by learned counsel appearing on behalf of O.P.No. 2 on the basis of partition deed dated 20.07.1970 executed between Brij Narain Chaube and Sri Pratap Narain Chaube is concerned, the same is not being acted upon, in this regard he has placed reliance on the paragraph Nos. 3 to 5 of the Act and on the basis of the same he submits that the plaintiff cannot get any benefit, said argument that as per partition deed dated 20.07.1970, the co-sharer of the property in question has got no right to sell out their share.
Sri B.K. Saxena, learned counsel for revisionist, in rebuttal, also submits that Section 52 of the Act does not create any legal bar or embargo on the part of the co-sharer to transfer his share in the property to a third party. Thus, the argument advanced by Sri Subhash Vidyarthi, learned counsel appearing on behalf of O.P.No. 2 on the basis of provisions of Section 52 of the Act specially placing reliance on the word that ""except under the authority of court and on such terms as it may impose" does not create any impediment in the way of the co-sharer to execute the sale deeds in favour of the revisionist in respect to their interest.
Sri Prashant Singh Atal, learned counsel assisting Sri Mohd. Arif Khan, learned Senior Counsel appearing on behalf of O.P. No. 1 submits that as per the instructions received to him, he adopts the argument as advanced on behalf of O.P.No. 2 in the matter.
I have heard learned counsel for parties and gone through the record.
Taking into consideration the facts of the case, the argument advanced by learned counsel for the parties and the findings given by the court below while passing the impugned order dated 16.01.2007 by which the revisionist's application for impleadment under Order 1 Rule 10 CPC read with Order 22 Rule 10 CPC has been rejected, in nut shell which is to the effect that in addition to the suit for partition (Suit No. 94 of 1998) another suit has been filed as Regular Suit No. 313 of 2006 for declaration in which the revisionist is a party, so as per the said position and the provision of Section 52 of the Act, any transfer which has been made during the pendency of the partition suit, any party who has purchased the share which is a subject matter of the partition suit is bound by the outcome of the said matter, so the revisionist is neither necessary nor proper party for adjudication of the dispute involved in the Suit No. 94 of 1998.
Thus, in order to decide the controversy of the present case, it will be appropriate to go through the provisions as provided under Section 52 of the Act, quoted 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 proceedings which is not collusive and in which any right to immovable property is directly 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 any 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."
Further, Doctrine of lis pendens is expressed in the maxim "ut lite pendente nihil innovetur". It imposes a prohibition on transfer or otherwise dealing of any property, during the pendency of a suit, provided the conditions laid down in Section 52 of the Act are satisfied.
The principle of lis pendens, it is said, owe its origin to the maxim of Roman Law "Rem de qua controversia prohib mur in acrum dedicate", which means, where the subject in dispute owing to contest passes into the custody of the judiciary, parties to it are under an obligation not to withdraw it from the protection of the Judge.
Tracing back the genesis of doctrine, it relate back to a decision of 1857 in Bellamy Vs. Sabine, (1857) 1 De G & J 566 wherein Lord Justice Turner said:
"It is, as I thing, a doctrine common to the Courts both of Law and Equity, and rests, as I apprehend, upon this foundation that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendente lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant's alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceeding."
The definition of lis pendens Corpus Juris Secundum, Vol. LIV, page 570, reads as under:
"Lis pendens literally means a pending suit; and the doctrine of lis pendens has been defined as the jurisdiction, power, or control which a court acquires over property involved in suit, pending the continuance of the action, and until final judgment therein."
A Division Bench in Nathaji Anandrav Patil Vs. Nana Sarjerao Patil, 1907(9) Bom.L.R. 1173 said that doctrine of lis pendens is not based on the equitable doctrine of notice but on the ground that it is necessary to administration of justice that decision of a Court in a suit should be binding not only on the litigant parties but all those who derives title from them pendente lite whether that notice to the suit or not. It refers to the decision in Bellamy Vs. Sabine (supra) and a more ancient judgment in Bishop of Winchester Vs. Paine (1805) 11 Ves. 197 where the Master of Rolls said:
"Ordinarily, it is true, the decree of the Court binds only the parties to the suit. But he, who purchases during the pendency of the suit, is bound by the decree, that may be made against the person, from whom he derives title. The litigating parties are exempted from the necessity of taking any notice of a title, so acquired. As to them it is as if no such title existed. Otherwise suits would be indeterminable: or which would be the same in effect, it would be in the pleasure of one party, at what period the suit should be determined."
The Division Bench also referred to another decision of Vice Chancellor in Metcalfe Vs. Pulvertoft (1813) 2 Ves. & B. 204 where it was said:
"The effect of the maxim, pendente lit nihil innovetor understood as making the conveyance wholly inoperative, not only in the suit depending but absolutely to all purposes in all future suits and all future time, is founded in error."
In Ramdhone Bulakidas vs Kedarnath Mohata and others, AIR 1938 Cal 1 Hon'ble Ameer Ali, J. while construing Section 52 of the Act, said that the Section although in general terms, does limit its own operation. It must be a suit in which the rights to immovable property are in issue; the order must be an order relating to rights to such property, and the transaction which will give place or be made subject to the order of the Court must be one which derogates from the other parties' rights to the property in suit. His Lordship then explain what has been said above in para 14 of the judgment as under:
"A cannot transfer his interest in X so as to affect any right in X which the Court might have established in favour of B, Therefore that any order which the Court might have made as to the right of B in respect of X will override or prevail over any alienation by A. I think however that the order of the Court must relate to rights which the parties claim, or which they might have claimed in the property X. The Court cannot create proprietary right in B on grounds distinct from the' property itself."
In other words the aforesaid doctrine is based on the principle that the parties to a suit cannot allowed to shorten the arms of Court in dealing with suit by giving effect to the transfers of disputed property to third party. In other words the doctrine is one of convenience.
In Gouri Dutt Vs. Sukur Mohammed, AIR 1948 PC 147 it was held that broad principle underlying Section 52 of Act, is to maintain status quo uneffected by act of any party to the litigation pending its determination and the expression "decree" or "order" includes a decree or order made pursuant to the agreed terms of compromise.
In Krishanaji Pandharinath Vs. Anusayabai, AIR 1959 Bom. 475 it was held that even after dismissal suit, the purchaser is subject to lis pendens of an appeal afterwards, if filed. The broad principles underlying Section 52 of the Act is to maintain status quo, unaffected by act of any party, to the litigation, pending its determination. The lis continues so long as a final decree or order has not been obtained and complete satisfaction thereof has not been rendered.
In Jayaram Mudaliar Vs. Ayyaswami and others, AIR 1973 SC 569 the Court said:
"It is evident that the doctrine, as stated in section 52, applies not merely to actual transfers of rights which are subject-matter of litigation but to other dealings with it by any party to the suit or proceeding, so as to affect the right of any other party thereto. Hence it could be urged that where it is not a party to the litigation but an outside agency such as the tax collecting authorities of the Government, which proceeds against the subject-matter of litigation, without anything done by a litigating party, the resulting transaction will not be hit by section 52. Again, where all the parties which could be affected by a pending litigation are themselves parties to a transfer or dealings with property in such a way that they cannot resile from or disown the transaction impugned before the Court dealing with the litigation the Court may bind them to their own acts. All these are matters which the Court could have properly considered. The purpose of Section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward."
In Jayaram Mudaliar (supra) the Court also observed that exposition of doctrine indicate that need for it arisen from the very nature of jurisdiction of the Court and their control over the subject matter of litigation so that parties litigating before it may not remove any part of subject matter outside the power of Court to deal with it and thus make the proceedings infructuous. The doctrine of lis pendens was intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of a court, in which a dispute on rights or interests in immovable property is pending, by private dealings which may remove the subject matter of litigation from the ambit of the court's power to decide a pending dispute or frustrate its decree. Alienees acquiring any immovable property during a litigation over it are held to be bound, by an application of the doctrine, by the decree passed in the suit even though they may not have been impleaded in it. The whole object of the doctrine of Its pendens is to subject parties to the litigation as well as others, who seek to acquire rights in immovable property which are the subject matter of a litigation, to the power and jurisdiction of the Court so as to prevent the object of a pending action from being defeated. This has been followed in another decision in Rajender Singh and others Vs. Santa Singh and others, AIR 1973 SC 2537.
Section 52 of the Act has been construed by a three Judge Bench of Apex Court in Dev Raj Dogra and others vs Gyan Chand Jain and others, AIR 1981 SC 981 and it says that for application of said Section following conditions have to be satisfied:
"1. A suit or a proceeding in which any right to immovable property must be directly and specifically in question, must be pending;
2. The suit or the proceeding shall not be a collusive one;
3. Such property during the pendency of such a suit or proceeding cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the right of any other party thereto under any decree or order which may be passed therein except under the authority of Court. In other words, any transfer of such property or any dealing with such property during the pendency of the suit is prohibited except under the authority of Court, if such transfer or otherwise dealing with the property by any party to the suit or proceeding affects the right of any other party to the suit or proceeding under any order or decree which may be passed in the said suit or proceeding."
A Division Bench in Mohammed Ali Abdul Chanimomin Vs. Bisahemi Kom Abdulla Saheb Momin and another, AIR 1973 Kant 131 said that object of Section 52 of the Act is to subordinate all derivative interests or all interests derived from parties to a suit by way of transfer pendente lite to the rights declared by the decree in the suit and to declare that they shall not be capable of being enforced against the rights acquired by the decree-holder. A transferee in such circumstances therefore takes the consequences of the decree which the party who made the transfer to him would take as the party to the suit. This is founded on the principle of public policy and no question of good faith or bona fides arises. The transferee from one of the parties to the suit cannot assert or claim any title or interest adverse to any of the rights and interests acquired by another party under the decree in suit. The principle of lis pendens prevents anything done by the transferee from operating adversely to the interest declared by the decree.
This Court in Thakur Prasad Vs. Board of Revenue and others, 1979 A.L.J. 1273 said that a transfer lis pendens is not a bad transfer. It is a transfer subject to result of ultimate decree that might be passed in the case.
In Smt. Sayar Bai Vs. Smt. Yashoda Bai and others, AIR 1983 Raj 161 the Court said that during pendency of an action, of which the object is to vest the property or obtain the possession of real estate, a purchaser shall be held to take that estate as it stands in the person of the seller, and would be bound by the claims which shall ultimately be pronounced. When a suit is filed in respect of immovable property, the jurisdiction, power or control over the property involved in the suit is acquired by the Court, pending the continuance of the action and until the final judgment is pronounced and any transaction or dealing of the property by the parties to the suit or proceedings would not affect the decree or order which may be passed by the Court.
In Ramjidas Vs. Laxmi Kumar and others, AIR 1987 MP 78 (Gwalior Bench) following several authorities of different Courts including the Apex Court's decision in Jayaram Mudaliar (supra) the Court observed that the purpose of Section 52 is not to defeat any just and equitable claim but only to subject them to the authority of Court which is dealing with the property to which the claims are put forward.
In Lov Raj Kumar Vs. Dr. Major Daya Shanker and others, AIR 1986 Delhi 364 it was held:
"31. The principles contained in Section 52 of transfer of Property Act are in accordance with the principle of equity, good conscience or justice, because they rest upon an equitable and just foundation, that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. Allowing alienations made during pendency of a suit or an action to defeat rights of a Plaintiff will be paying premium to cleverness of a Defendant and thus defeat the ends of justice and throw away all principles of equity."
The Court went to the extent that even in those cases where Section 52 of Act, as such, is not applicable, since it is founded on the principle of justice, equity and good conscious, the principle as such can be applied.
In Narendrabhai Chhaganbhai Bharatia Vs. Gandevi Peoples Co-op. Bank Ltd. and others, AIR 2002 Guj 209 the Court said:
"20. The principle underlying the object of the aforesaid provision is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. The principles contained in this section are in accordance with the principle of equity, good conscience or justice because they rest upon an equitable and just foundation, that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. Allowing alienations made during pendency of a suit or an action to defeat rights of a plaintiff bank will be paying premium to cleverness of a defendant and thus defeat the ends of justice and throw away all principles of equity."
In Hardev singh Vs. Gurmail Singh (Dead) by Lrs., 2007(1) AWC 907 (SC) the Court said that Section 52 of the Act merely prohibits transfer. It does not say that the same would result in an illegality. The only declaration by application of Section 52 is that the purchaser during pendency of suit would be bound by result of litigation. The transaction, therefore, from its inception was not void or of no effect but would abide by the decision in pending suit. The real question up for consideration therein was in regard to Sections 41 and 43 of Act, 1882. The Court clarified doctrine of feeding the estoppel embodied in Section 43 which envisages that where a granter has purported to grant an interest in land which he did not at the time possess, but subsequently acquires the benefit of a subsequent acquisition goes automatically to the earlier grantee or as it is usually expressed, feeds the estoppel. The principle is based on equitable doctrine that a person who promise to perforce more than he can perform must make good his contract when he acquires power of performance. The Court also clarified that transfer where is invalid the above doctrine will have no application.
The Apex Court recently in Jagan Singh Vs. Dhanwanti, 2012(2) SCC 628 has favoured to apply principle of lis pendens irrespective of the fact, whether there was any stay order passed by Court or not. The Court said:
"If such a view is not taken, it would plainly be impossible that any action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail. The explanation to this section lays down that the pendency of a suit or a proceeding shall be deemed to continue until the suit or a proceeding is disposed of by 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. In the present case, it would be canvassed on behalf of the respondent and the applicant that the sale has taken place in favour of the applicant at a time when there was no stay operating against such sale, and in fact when the second appeal had not been filed. We would however, prefer to follow the dicta in Krishanaji Pandharinath (supra) to cover the present situation under the principle of lis-pendens since the sale was executed at a time when the second appeal had not been filed but which came to be filed afterwards within the period of limitation. The doctrine of lis-pendens is founded in public policy and equity, and if it has to be read meaningfully such a sale as in the present case until the period of limitation for second appeal is over will have to be held as covered under section 52 of the T.P. Act."
So, 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 to render it subservient to the rights of the parties to a litigation. Discussing the principles of lis pendens, the Privy Council in the case of Gouri Dutt Maharaj v. Sukur Mohammed & Ors. AIR (35) 1948, observed as under:
"The broad purpose of Section 52 is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. The applicability of the section cannot depend on matters of proof or the strength or weakness of the case on one side or the other in bona fide proceedings. To apply any such test is to misconceive the object of the enactment and in the view of the Board, the learned Subordinate Judge was in error in this respect in laying stress, as he did, on the fact that the agreement of 8.6.1932, had not been registered."
Thus, it is true that a purchaser who purchased the property during the pendency of the suit is bound by the decree in the suit and such purchaser cannot be considered as a necessary party to the suit. But, he certainly can be considered as a proper party to the suit, looking into the peculiar facts and circumstances of the case, particularly so when he comes up with a plea that the plaintiff and the the defendant had collued to harm his interest. Failure to implead him would lead to multiplicity of litigation.
In addition to the abovesaid facts, the next provision which is to be considered to resolve the controversy in the instant matter is Order 1 Rule 10(2) CPC, reads as under:-
"Court may stirke 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 joined, 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. "
From the perusal of order 1 Rule 10 (2) CPC, it covers two types of of cases:-
(a) of a party who ought to have been joined but not joined and is a necessary party, and
(b) of a party without whose presence the question involved in the case cannot be completely decided.
The former is called a necessary party and the latter a proper party. Sub-R. (2) of O.1, R.10, therefore, is attracted when the question is covered by one of the above. A party seeking such a joinder as a proper party will have to prima facie establish that such a party has interest in the subject-matter of the litigation and as such should be before the Court.
The simple test in such controversy would be as to whether the presence of such a party is appropriate in view of the subject-matter in adjudication. If the answer be in the affirmative, joinder can be permitted. By reason of direct interest in the subject-matter or even by reason of eventual reliefs sought, such a test would be answered. Power being there, it is all a matter of appreciation of the controversy in issue and its possible ramifications.
O. 1, R. 10 (2), C.P. Code gives a very wide discretion to the Court to deal with any such situation which may result in prejudicing the interest of affected party if not impleaded in the suit and where the impleadment of the said party is necessary and vital for the decision of the suit. It is true that the discretion has to be exercised judicially but at the same time the concerned civil or appellate court where the suit on appeal is pending has also to take into consideration that the party which is necessary to be impleaded will be put to a greater difficulty if not impleaded by the plaintiff who may have ulterior motives of not impleading such party and if the decision is given which may affect the interest of the said party greater prejudice would be caused to the said party as a result of not impleading while no prejudice or loss would be caused to the plaintiff because he will have full opportunity to defend his rights and interest as against aggrieved party who has been impleaded as a party to the suit.
The important aspect which should be looked into by the Civil Courts while deciding the applications under O.1, R.10(2), C.P. Code is to avoid multiplicity of litigation and also conflicting decisions being passed in different suits which will be safeguarded as a result of allowing necessary party to be impleaded in the suit (See Baijnath v. Ganga Devi A.I.R. 1998 Raj. 125).
The expression "to settle all questions involved" used in O.1, R.10(2), is susceptive of liberal and wide interpretation so as to adjudicate all the questions pertaining to the subject-matter thereof.
The Parliament in its wisdom while framing this rule must have thought that all the material questions common to the parties to the suit and to the third parties should be tried once for all and the Court is clothed with the power to secure the aforesaid result with judicious discretion to add parties, including third parties (See Abdul Jaleel v. Aishabi A.I.R. 1992 Karn. 380).
The word "At any stage" in Order 1 Rule 10 (2) CPC means that there is no requirement of law that an application for addition of a party as defendant must be made at any particular stage of the trial though in a given case delay in moving an application might be one of the considerations for the decision (See. Gurmauj Saran v. Joyce C. Salim A.I.R. 1990 Del. 13 (D.B.).
The use of the expression "at any stage of proceedings" in O.1, R.10(2) shows that the power vested in the Court under it can be exercised only when the proceedings before it are alive and still pending. Once the adjudication itself of all the disputes in the case is over, this provision cannot be made use of by any party (See Sardar Ali Khan v. Special Deputy Collector A.I.R. 1973 Andh. Pra. 298 (D.B.).
Under Order 1 Rule 10(2) C.P.C., the power to add a party to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The question is whether the right of a person may be affected if he is not added as a party. Such right, however, will include necessarily an enforceable legal right.
O.1, R.10(2) empowers the Court to implead any person as party suo motu, who ought to have been joined, whether as plaintiff or defendant or whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. True, the plaintiff is dominus litis, but a Court has to guard against the obtaining of a collusive decree against the real owner or interested person without impeading him as a party and to see that such a decree does not become final affecting vitally the rights of such person. Therefore, to avoid such a situation and also to avoid multiplicity of proceedings, a Court should permit such a person to be added as a party (See Kamta Prasad v. Vidyawati A.I.R. 1994 Madh. Pra. 181).
In the case of Savinder Singh Vs. Dalip Singh, (1996) 5 SCC 539, Hon'ble the Apex Court held as under:-
"It would, therefore, be clear that the defendants in the suit were prohibited by operation of Section 52 to deal with the property and could not transfer or otherwise deal with it in any way affecting the rights of the appellant except with the order or authority of the Court. Admittedly, the authority or order of the Court had not been obtained for alienation of those properties. Therefore, the alienation obviously would be hit by the doctrine of lie pendens by operation of Section 52. Under these circumstances, the respondents cannot be considered to be either necessary or proper parties to the suit."
The same view has been reiterated by Hon'ble the Apex Court in the case of Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb, 2003 AIR SCW 5858 and in the case of Sanjay Verma Vs. Manik Roy (2006) 13 SCC 608.
In the case of Savitri Devi Vs. District Judge, Gorakhpur, 1999 (2) SCC 577, Hon'ble Supreme Court after considering the provisions of Order 1 Rule 10 CPC and the law on the point in issue as laid down in the cases of Khemchand Shankar Choudhari and Anr. v. Vishnu Hari Patil and Ors., 1983 (1) SCC 18, Ramesh Hirachand Kundanmal Vs. Municipal Corpn. Of Greater Bombay, 1992 (2) SCC 524 held as under:-
"Order I, Rule 10 C.P.C. enables the Court to add any person as 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 multiplicity of proceedings is also one of the objects of the said provision in the Code.
10. In Khemchand Shankar Choudhari and Anr. v. Vishnu Hari Patil and Ors. [1983]1SCR898 this Court held that a transferee pendente lite of an interest in an immovable property which is the subject matter of suit is a representative in interest of the party from whom he has acquired that interest and has a right to be impleaded as a party to the proceedings. The Court has taken note of the provisions of Section 52 of the Transfer of Property Act as well as the provisions of Rule 10 of Order XXII C.P.C. The Court said:
...It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard he has got to be so impleaded and heard....
11. In Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and Ors. [1992]2SCR1 this Court discussed the matter at length and held that though the plaintiff is a 'dominus litis' and not bound to sue every possible adverse claimant in the same suit, the Court may at any stage of the suit direct addition of parties and generally it is a matter of judicial discretion which is to be exercised in view of the facts and circumstances of a particular case. The Court said:
"The case really turns on the true construction of the rule in particular the meaning of the words "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".
"The Court is empowered to Join a person whose presence is necessary for the prescribed purpose and cannot under the rule direct, the addition of a person whose presence is not necessary for that purpose. If the intervener has a cause of action against the plaintiff relating to the subject-matter of the existing action, the Court has power to join the intervener so as to give effect to the primary object of the order which is to avoid multiplicity of actions.
The Court also observed that though prevention of actions cannot be said to be main object of the rule, it is a desirable consequence of the rule. The test for impleading parties prescribed in Razia Begum v. Anwar Begum [1959]1SCR1111 that the person concerned must be having a direct interest in the action was reiterated by the Bench."
In the case of Amit Kumar Shaw v. Farida Khatoon, AIR 2005 SC 2209, Hon'ble the Supreme Court has held that a transferee pendente lite can be added as a proper party if his interest in the subject-matter of suit is substantial and not just peripheral. The relevant paragraph 16 of the said judgment reads as under:-
"The doctrine of lis pendens applies only where the lis is pending before a Court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the Court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, whether the transfer is of the entire interest of the defendant, the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party; under O. XXII R.10 an alienee pendente lite may be joined as party. As already noticed, the Court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interest."
In the case of Amit Kumar Shaw (Supra), Hon'ble the Supreme Court has referred to the provision of Order 1 Rule 10(2) and Order 22 Rule 10 CPC as also Section 52 of the Act, and observed as under:-
"15. Section 52 of the Transfer of Property Act is an expression of the principle "pending a litigation nothing new should be introduced". It provides that pendente lite, neither party to the litigation, in which any right to immovable property is in question, can alienate or otherwise deal with such property so as to affect his appointment. This section is based on equity and good conscience and is intended to protect the parties to litigation against alienations by their opponent during the pendency of the suit. In order to constitute a lis pendens, the following elements must be present:
1. There must be a suit or proceeding pending in a court of competent jurisdiction.
2. The suit or proceeding must not be collusive.
3. The litigation must be one in which right to immovable property is directly and specifically in question.
4. There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation.
5. Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order."
16.The doctrine of lis pendens applies only where the lis is pending before a court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, where the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party, under Order 22 Rule 10 an alienee pendente lite may be joined as party. As already noticed, the court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests."
In the case of Dhanlakshmi & Ors. VS. P. Mohan & Ors, 2007 SAR(Civil) 155, relevant paragraph quoted as under:-
"Section 52 deals with a transfer of property pending suit. In the instant case, the appellants have admittedly purchased the undivided shares of the respondents Nos. 2, 3, 4 & 6. It is not in dispute that the first respondent P. Mohan has got an undivided share in the said suit property. Because of the purchase by the appellants of the undivided share in the suit property, the rights of the first respondent herein in the suit or proceeding will not affect his right in the suit property by enforcing a partition. Admittedly, the appellants, having purchased the property from the other co-sharers, in our opinion, are entitled to come on record in order to work out the equity in their favour in the final decree proceedings. In our opinion, the appellants are necessary and proper parties to the suit, which is now pending before the Trial Court. We also make it clear that we are not concerned with the other suit filed by the mortgagee in these proceedings."
In the case of Vidur Impex and traders Private Limited and others Vs. Tosh Apartments Private Limited and others, 2012 (8) SCC 384, Hon'ble the Supreme Court after considering the various law on the point under consideration and after placing reliance on the judgment of Vinod Seth Vs. Devinder Bajaj, 2010 (8) SCC 1 and Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb, 2004 (1) SCC 191 Hon'ble the Supreme Court, has considered the correctness of the High Court's order, which declined to interfere with the order passed by the trial Court dismissing the applications filed by the appellant for impleadment as party to the cross suits of which one was filed for redemption of mortgage and the other was filed for specific performance of the agreement for sale. While dismissing the appeal, Hon'ble the Supreme Court after taking into consideration the judgments in the case of Sarvinder Singh Vs. Dalip Singh (Supra) and Dhurandhar Prasad Singh v. Jai Prakash University (2001) 6 SCC 534, held as under:-
"41.Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are:
"41.1. The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the suit.
41.2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the Court.
41.3. A proper party is 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.
41.4. If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff.
41.5. In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation.
41.6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the Court or the application is unduly delayed then the Court will be fully justified in declining the prayer for impleadment."
Recently in the case of Thomson Press (India) Ltd. vs Nanak Builders & Investrs.Pvt. Ltd. & Others, 2013 (2) JCLR 56 (SC), after considering the provisions of Order 1 Rule 10 CPC as well as Section 52 of the Transfer of Properties Act and Section 19 of the Specific Relief Act, Hon'ble the Supreme Court had examined the question that whether a transferee pendelite could in a suit for specific performance, be added as a party defendant and, if so, on what terms, held as under (relevant portion):-
"1) The appellant is not a bona fide purchaser and is, therefore, not protected against specific performance of the contract between the plaintiffs and the owner defendants in the suit.
(2)The transfer in favour of the appellant pendente lite is effective in transferring title to the appellant but such title shall remain subservient to the rights of the plaintiff in the suit and subject to any direction which the Court may eventually pass therein.
(3) Since the appellant has purchased the entire estate that forms the subject matter of the suit, the appellant is entitled to be added as a party defendant to the suit.
(4)The appellant shall as a result of his addition raise and pursue only such defenses as were available and taken by the original defendants and none other."
Further, as per provision of O.22, R.10 CPC an alienee pendente lite may be joined as party. Although the plaintiff is not bound to make him a party. But the Court has discretion in the matter to allow him to be a party but the same must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests.
In Surjit Singh and Ors. v. Harbans Singh and Ors, 1995 (6) SCC 50, Hon'ble the Supreme Court held that if the assignees made an application under Order XXII, Rule 10 C.P.C. for impleadment as parties to the final decree proceedings. It was contended on their behalf that assignment of decree was different from alienation of property and the same was not prohibited by the order of injunction. The application for impleadment was allowed by the trial court and the appeal filed by the plaintiffs was dismissed by the Additional District Judge. The High Court dismissed their revision and the matter came to this Court. There was no dispute in that case that the assignors and the assignees had knowledge of the order of the injunction passed by the Court. On those facts, this Court held that the deed of assignment was not capable of conveying any right to the assignees and the order of impleadment of the assignees as parties was unsustainable. Consequently, the appeal was allowed. The relevant passage in the judgment reads thus:
" 4. 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 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 the 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 to treat the alienation/assignment as having not taken place at all for its 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 that is emphasised is that the assignees in the present facts and circumstances had no cause to be impleaded as parties to the suit."
Thus, where a defendant in a suit transfers his share in the suit property during the pendency of the suit, the lis pendens purchaser is often left in the lurch, because the transferor defendant after alienating the property, does not properly defend the suit and sometimes even colludes with the plaintiff. Therefore an aliene shall ordinarily be allowed to join the suit as a party to enable him to protect his interest.
In view of the above discussion on the point in issue, I do not feel appropriate to deal with the argument as advanced by learned counsel for O.P. No. 2 on the basis of maxim (per inqureim) and judgmenet cited hereinabove, further the submission as made by him on the basis of provisions of Section 22 of the Hindu Succession Act read with Section 52 of the Act has got no force, hence rejected.
For the foregoing reasons, the impugned judgment and order dated 16.01.2007 passed in Regular Suit No. 94 of 1998 (Gopal Narain Chaube and others Vs. Krishna Narain Chaube and others) by Civil Judge (Sr. Div.), Malihabad, Lucknow is set aside and the revisionist/ M/S. Bhavya Dwellings Pvt. Ltd. Lucknow is directed to be impleaded as defendant in Suit No. 94 of 1998 and the court below is directed to decide the matter in question expeditiously.
With the above observations and direction, the revision is allowed.
Order Date :- 12.02.2014 Ravi/