Madras High Court
D.Sunil Kumar vs M/S.Shah Builders on 1 April, 2010
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01-04-2010 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN C.R.P.(PD) No.1531 of 2008 and M.P.No.1 of 2008 D.Sunil Kumar .. Petitioner. Versus 1.M/s.Shah Builders Rep. By its Partner Mr.Shantilal Jain No.95, Govindappa Naicken Street, Chennai-600 001. 2.Mr.Theordone 3.The Official Trustee, High Court Buildings, Chennai-600 104. 4.The Collector of Madras, Office of Collectorate, Kamarajar Salai, Chennai-600 001. 5.The Tahsildar, Fort-Tondairpet Taluk, Sydenhams Road, Chennai-600 053. .. Respondents. PRAYER: Petition filed under Article 227 of the Constitution of India, seeking to set aside the order, dated 28.11.2007, made in I.A.No.11534 of 2006, in O.S.No.8734 of 1996 and implead the petitioner, as a necessary party in the suit O.S.No.8734 of 1996, on the file of the learned I Assistant Judge, City Civil Court, Chennai. For Petitioner : Mr.J.Sivanandaraj for Mr.V.Sankaranarayanan For Respondents: Mr.A.Anbarasu (R1) Mr.L.Damodaran (R2) Mr.G.Nalini (R3) Ms.P.Santhi Rakkappan (R4 & R5) Government Advocate O R D E R
This Civil Revision Petition has been filed against the order, dated 28.11.2007, made in I.A.No.11534 of 2006, in O.S.No.8734 of 1996, on the file of the I Assistant Judge, City Civil Court, Chennai.
2. The plaintiff in the suit, in O.S.No.8734 of 1996, is the first respondent in the present civil revision petition. The petitioner herein had filed I.A.No.11534 of 2006, in O.S.No.8734 of 1996, praying that he should be impleaded, as the 10th defendant in the said suit. In the interlocutory application, the petitioner had stated that he had purchased Block No.3 and part of Block No.4 from the first respondent herein, by way of a sale deed, dated 10.10.2005, bearing Document No.2349 of 2005. The petitioner had submitted that he had purchased 4000 Sq.Ft. of area in Block Nos.3 and 4 at Rundalls Road (E.V.K.Sampath Road), Vepery, Chennai. Thereafter, the petitioner has been in possession and enjoyment of the said property, along with the passage and open space in front of Block Nos.3 and 4 purchased by the petitioner from its erstwhile owner.
3. It has also been stated that the petitioner had purchased the property in question from the first respondent. The first respondent had filed the suit, in O.S.No.8734 of 1996, as the plaintiff in the said suit, praying for a declaration that the entire passage, including the vacant site marked in the sketch filed along with the plaint, having an extent of one ground 1063 square feet, from Rundalls Road (E.V.K Sampath Road) to the plaintiffs property, at Door No.34, E.V.K. Sampath Road, Vepery, Chennai, is meant for the possession and enjoyment of the plaintiff, solely and exclusively, and for certain other reliefs.
4. The petitioner had also stated that any order or decree made in the suit, in O.S.No.8734 of 1996, would also be binding on him and therefore, he would be a proper and necessary party in the suit. He had also stated that, even though the property in question had been purchased by the petitioner after the institution of the suit, it would be appropriate for the trial Court to implead him, as the 10th defendant in the suit, in the interest of justice and for the proper adjudication of the suit by the trial Court.
5. In the counter affidavit filed, in I.A.No.11534 of 2006, the averments and allegations of the petitioner have been denied. It has been stated that the interest of the petitioner in the subject matter of the suit is only peripheral and not substantial. The petitioner has not given any valid reason for impleading himself, as a defendant in the suit. The purchase of a portion of the property from the plaintiff will not confer on him any right to implead himself, as a defendant, especially, when the plaintiff had not prayed for any relief against him.
6. The petitioner had purchased the property in question knowing full well about the pendency of the legal proceedings. Therefore, the prayer of the petitioner, to implead himself in the suit, is hit by Section 52 of the Transfer of Property Act, 1882. It cannot be said that the issues arising for adjudication in the suit cannot be completely decided, without the presence of the petitioner. The suit has been filed for setting aside the order passed in the course of the revenue proceedings. The right vested with the first respondent cannot be extended to the petitioner, as he is not a party to the said proceedings. In such circumstances, the petitioner cannot be said to be a proper and necessary party to the suit proceedings. It has also been stated that the petitioner had purchased his property, without obtaining the leave of the Court, even though the suit, in O.S.No.8734 of 1996, was pending on the file of the I Assistant, City Civil Court, Chennai. Therefore, the present civil revision petition is devoid of merits.
7. The learned counsel appearing on behalf of the petitioner had submitted that, even though the reliefs claimed by the first respondent in the suit, in O.S.No.8734 of 1996, is in respect of a larger extent of the property, it would also have a bearing in respect of the property belonging to the petitioner, in Block Nos.3 and 4 at Rundalls Road (E.V.K.Sampath Road), Vepery, Chennai. The petitioner had purchased his property from the first respondent and the said property would not have any access, except through the passage way, which is in dispute in the said suit. The principle of lis pendens would not apply to the present case, as the property of the petitioner, in Block Nos.3 and 4 Rundalls Road (E.V.K.Sampath Road) do not form part of the suit schedule property.
8. The learned counsel had also submitted that the first respondent had sold away their entire property and they would have no serious interest in pursuing the proceedings in the suit, in O.S.No.8734 of 1996. Order I Rule 10 of the Civil Procedure Code, 1908, would alone apply to the present case and Section 52 of the Transfer of Property Act, 1882, will have no relevance to the present case. Further, the interest of the petitioner is substantial in nature and therefore, the interlocutory application filed by the petitioner, in I.A.No.11534 of 2006, ought to have been allowed by the trial Court.
9. He had also relied on the following decisions in support of his contentions:
9.1. In Savitri Devi Vs. District Judge [(1999) 2 SCC 577], the Supreme Court had held as follows:
"Order I 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."
9.2. In Amit Kumar Shaw V. Farida Khatoon (2005(4) CTC 47), the Supreme Court has held that an alienee pendente lite is bound by the final decree that may be passed in the suit. Such an alinee can be brought on record, under Order I, Rule 10 of the Civil Procedure Code, 1908. It has been further held that under the doctrine of lis pendens a decree passed in the suit, during pendency of which a transfer is made, binds the transferee, and for this reason his application to be brought on record should ordinarily be allowed.
9.3. In V.Ravimenon V. R.Ebnessar (2009(1) CTC 775),a learned Single Judge of this Court, following the ratio laid down by the Supreme Court, in Savitri Devi Vs. District Judge [(1999) 2 SCC 577], had held that the impleadment of a subsequent purchaser is essential for a complete adjudication of the rights of the parties.
10. Per contra, the learned counsel appearing on behalf of the second respondent had contended that the petitioner is not a proper and necessary party to the suit, especially, when no relief has been claimed against him in the said suit. Having purchased only a portion of the properties held by the first respondent, the petitioner cannot claim that he has a substantial interest in the properties in question. Even if the petitioner is entitled to claim any interest in respect of the suit properties, it is only peripheral in nature. Since, the petitioner had purchased his property during the pendency of the suit, without obtaining the leave of the Court, he cannot claim any interest in the suit properties, as it would be covered under the principle of lis pendens.
11. The learned counsel appearing on behalf of the second respondent had relied on the following decisions in support of his contentions:
11.1. In Bibi Zubaida Khatoon V. Nabi Hassan Saheb (AIR 2004 SC 173), the Supreme Court has held that there is no absolute rule saying that the transferee pendente lite, without the leave of the Court, should in all cases be allowed to join and contest the pending suits.
11.2. In Sanjay Verma V Manik Roy and others ( 2007(2) CTC 562), the Supreme Court had held that transferees pendente lite, without leave of Court, cannot as a matter of right seek impleadment in a suit pending for a long time.
11.3. In Krishnamoorthy V. Sukumar (2003(1) M.L.J. 623), a Division Bench of this Court had held as follows:
"Section 52 of the Transfer of Property Act envisages that during the pendency of any proceeding, in any Court, 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.
There is a statutory bar of alienation by the parties to the proceeding in respect of the properties which are the subject matter of the proceeding. If any one wants to alienate the property, they ought to have obtained the prior permission of the Court.
The purpose of the provision is any party to the litigation shall not act adverse to the interest of the other by alienating any of the properties which are the subject matter of the litigation. The intention of the legislature is that no party to the proceeding can defeat the claim of the other in case if he succeeds in the litigation."
11.4. In Bakthavatsalam and Anjapuli (2001(1) CTC 19), a learned Single Judge of this Court had held that the purchasers of property, during the pendency of a suit, are neither necessary, nor proper parties. The purchasers are bound by the decree in the suit and any alienation subsequent to the filing of the suit is hit by the doctrine of lis pendens.
11.5. In S.Krishnan V. Rathinavel Naicker (2006(4) M.L.J. 593), a learned Single Judge of this Court had held in paragraph-16 as follows:
"16. A party to a litigation is not entitled to use the provisions of Order 1, Rule 10(2), C.PC., to implead a person, just for the purpose of eliciting a statement from him, in whatever form, so as to make use of the same as a piece of evidence. As observed by this Court in Somasundaram Chettiyar and others V. Balasubramanian (1998(1) CTC 626: (1998) 2 MLJ 63, a person does not become a necessary party merely because he has some evidence relevant to the case on hand. A necessary witness is different from a necessary party."
11.6. In Marimuthu V. Elango (2006(1) M.L.J. 199), it has been held as follows:
"Where the property has been purchased during the pendency of the lis, even the question whether the purchaser acted bona fidely or not does not arise. Transfer of property is prohibited during the pendency of the suit as a matter of public policy and therefore the purchaser is estopped from claiming that she is bona fide purchaser."
11.7. In Nachammal V. Lavangammal (2006(3) CTC 543), it has been held that any alienation of property subsequent to the filing of the suit is hit by the doctrine of lis pendens and any decree passed, in respect of the property concerned is certainly binding on the subsequent purchaser.
11.8. In Rajalakshmi Sivakumar V. N.Rajavelu (2009(3) MLJ 215), it has been held as follows:
"In order to get oneself impleaded in a pending suit, a party who got alienation pendente lite, has to satisfy the statutory requirement which provides that alienation pending trial of the suit shall not be without the authority of the Court. A party who intends to get transfer of property during the pendency of the suit has to get sanction from the Court, otherwise, he could not get himself impleaded in the suit and whatever be the decree which adjudicates the rights of the transferor, the transferee pendente lite shall be bound by it."
12. In view of the submissions made by the learned counsel appearing on behalf of the parties concerned and on a perusal of the records available, and in view of the decisions cited above, it is clear that the petitioner would have a substantial interest, in respect of the issues arising for adjudication before the trial Court, in O.S.No.8734 of 1996. Merely for the reason that the interlocutory application, in I.A.No.11534 of 1996, had been filed by the petitioner, in the year, 2006, it cannot be, automatically, inferred that he had filed the said application only with the mala fide motive of prolonging the proceedings in the suit.
13. When substantial interests are involved it would only be appropriate to implead the party concerned, so that the issues are decided fully and completely. Even if it is said that the petitioner had purchased his property during the pendency of the suit, it cannot be said that he will have no right to implead himself to espouse his cause. Since, the first respondent had sold away all their properties, which are the subject matter of the suit, it may be appropriate to permit the petitioner to implead himself, as a party to the suit. As such, the impugned order of the trial Court, dated 28.11.2007, made in I.A.No.11534 of 2006, in O.S.No.8734 of 1996, is set aside and consequently, I.A.No.11534 of 2006, filed by the petitioner shall stand allowed. The Civil Revision Petition is ordered accordingly. No costs. Consequently, connected miscellaneous petition is closed.
csh To The I Assistant Judge, City Civil Court, Chennai