Punjab-Haryana High Court
Inderjeet Wadhwa vs Jagjit And Anr. on 7 January, 2005
Equivalent citations: AIR2005P&H216, (2005)140PLR247, AIR 2005 PUNJAB AND HARYANA 216, (2005) 32 ALLINDCAS 283 (P&H), 2005 (32) ALLINDCAS 283, (2005) 2 PUN LR 247, (2005) 3 ICC 732, (2005) 3 CURCC 535, (2005) 2 RECCIVR 316, (2005) 4 CIVLJ 480, (2005) 1 CURLJ(CCR) 439
Author: V.M. Jain
Bench: V.M. Jain
JUDGMENT V.M. Jain, J.
1. This Regular Second Appeal has been filed by Inderjit W adhwa, Appellant, a gainst the judgments and decrees of the courts below, whereby the suit filed by Jagjit plaintiff against Bharat Singh defendant (who was ex parte) was decreed and the appeal filed by Inderjit Wadhwa, appellant was dismissed as time barred (after dismissing the application seeking condonation of delay in filing the appeal), by the Additional District Judge.
2. The facts which are relevant for the decision of the present case are that on 30.10.2000, Jagjit plaintiff filed a suit for possession with consequential relief of permanent injunction against Bharat Singh defendant, alleging therein that he had purchased disputed plot measuring 204 square yards from Smt. Vidyawati, vide registered sale deed dated 30.1.1989 and the possession of the disputed plot was also delivered to the plaintiff by said Smt. Vidyawati on the same day and since then the plaintiff was the owner in possession of the said plot, It was alleged that subsequently it came to the notice of the plaintiff that the entire area out of the aforesaid plot, as detailed in the sale deed dated 30.1.1989 and the site plan Ex.P1, had not been delivered to him and that the disputed portion ABCD, shown in red colour in the site plan, was in illegal and unauthorised possession of Bharat Singh defendant, whose plot was adjoining the plot in dispute. It was alleged that the plaintiff requested the defendant to hand over the possession of the disputed portion ABCD but the defendant refused to do so which resulted in the filing of the present suit for possession.
3. Bharat Singh defendant initially contested the suit and filed written statement admitting therein that the plaintiff had purchased plot No. 249 but it was denied that he (defendant) was in illegal and unauthorised possession of the disputed portion. On the other hand, it was alleged that in fact he was owner in possession of the disputed portion. Subsequently, on 2.3.2001, no one appeared on behalf of the defendant and accordingly, Bharat Singh defendant was proceeded against ex parte and the case was fixed for ex parte evidence of the plaintiff. After recording ex parte evidence of the plaintiff, the learned trial Court, vide judgment and decree dated 12.5.2003, decreed the suit of Jagjit plaintiff ex parte by declaring that he was the owner of the disputed portion ABCD, shown in red colour in the site plan Ex.P1 and the defendant was directed to handover possession thereof to the plaintiff.
4. Aggrieved against the aforesaid judgment and decree dated 12.5.2003, passed by the trial Court, Inderjit Wadhwa, appellant filed appeal before the District Judge. Along-with the appeal he filed two applications. One application was for permission to file the appeal while the other application was for seeking condonation of delay in filing the appeal.
5. In the application filed by Inderjit Wadhwa, appellant, seeking permission to file the appeal, it was alleged that he had purchased a portion of the H. No. 249 L, Model Town, Sonepat from one Jagbir Singh vide registered sale deed dated 15.11.2000 and another portion vide registered sale deed dated 19.12.2000, executed by Bharat Singh, defendant. It was alleged that for this reason he (Inderjit Wadhwa) was a necessary party to the suit as the plaintiff had filed the suit for possession of the portion of this house against the defendant namely Bharat Singh who had ceased to have any right, title or interest in the suit property, after selling the same to the appellant, namely Inderjit Wadhwa. It was alleged that Bharat Singh defendant had concealed the fact of the aforesaid two sale deeds from the trial Court and had preferred to stay away from the proceedings in the trial Court and accordingly, ex parte proceedings were initiated against him by the trial Court vide order dated 2.3.2001. It was alleged that both the parties to the suit had colluded with each other which facilitated in the passing of the impugned judgment and decree by the trial Court, in favour of the plaintiff. It was alleged that applicant appellant Inderjit Wadhwa being a necessary party would suffer irreparable loss and injury since he had purchased the house in dispute and was owner in possession thereof. It was accordingly prayed that necessary permission may be granted to him to file the appeal against the judgment and decree of the trial Court in the interest of justice. This application is dated 27.1.2004.
6. In the application seeking condonation of delay in filing the appeal, it was alleged by Inderjit Wadhwa, appellant, that the parties to the suit had colluded with each other which resulted in the passing of the ex parte judgment and decree in favour of the plaintiff for possession of a part of H. No. 249 L, Model Town, Sonepat, which had been purchased by the applicant appellant from Bharat Singh, defendant and one Jagbir Singh and that the applicant was a necessary party to the suit but was not impleaded as a party. It was alleged that he applicant came to know about the judgment and decree passed by the trial court about a week back when one Rajinder Kumar had informed the applicant about the passing of the said judgment and decree by the trial Court in favour of the plaintiff and against Bharat Singh defendant, in respect of a portion of H. No. 249 L, Model Town, Sonepat. It was alleged that the Bailiff and Clerk of an Advocate had also come to the shop of the applicant about a week back and had disclosed about the pendency of the execution proceedings, whereupon the applicant after getting the records inspected, applied for certified copies and thereupon the appeal was filed. This application is also dated 27.1.2004. Both the applications were contested by plaintiff respondent No. 1 Jagjit,
7. After hearing both sides, the learned Additional District Judge, vide judgment and decree dated 17.11.2004, dismissed the application seeking condonation of delay in filing the appeal and resultantly dismissed the appeal filed by Inderjit Wadhwa, as time barred. Aggrieved against the same, Inderjit Wadhwa, appellant filed the present appeal in this Court.
8. 1 have heard the learned counsel for the appellant and have gone through the record carefully.
9. As referred to above, Jagjit plaintiff had filed the suit for possession on 30.10.2000 against Bharat Singh defendant. In the said suit, Bharat Singh, defendant had filed the written statement contesting the suit filed by the plaintiff. Thereafter on 2.3.2001, Bharat Singh defendant did not appear in the trial Court and was proceeded against ex parte. Thereafter, after recording ex parte evidence, the learned trial court decreed the suit of the plaintiff, vide judgment and decree dated 12.5.2003. Aggrieved against the same, Inderjit Wadhwa appellant filed the appeal before the District Judge on 27.1.2004 alongwith the two applications, referred to above. In the application seeking condonation of delay in filing the appeal it was alleged by Inderjit Wadhwa, appellant that he came to know about the judgment and decree of the trial Court about a week back from one Rajinder Kumar and also when the Bailiff and a Clerk of an Advocate, had come to his shop and had disclosed about the pendency of the execution proceedings.
10. From reading of the allegations made in the application, seeking condonation of delay in filing the appeal, as also from a reading of the application filed by the appellant seeking permission to file the appeal, it would be clear that the main ground on which Inderjit Wadhwa, appellant was seeking condonation of delay in filing the appeal was that he had purchased the property in dispute from Bharat Singh, defendant, vide sale deed dated 19.12.2000 and another portion from one Jagbir Singh Deswal son of Bharat Singh, vide sale deed dated 15.11.2000 and that he has a necessary party in the suit which had been filed by Jagjit plaintiff and since he had not come to know about the passing of the judgment and decree by the trial court in favour of Jagjit plaintiff till about a week prior to the filing of the appeal, there were sufficient grounds to condone the delay in filing the appeal.
11. In the grounds of appeal filed on behalf of the appellant in the present Regular Second Appeal, it has inter alia been alleged that the sale deeds in favour of the appellant were not hit by Section 52 of the Transfer of Property Act as the appellant was not aware about the pending litigation in respect of the suit property and this fact was concealed from him by Bharat Singh, defendant. One of the substantial questions of law framed on behalf of the appellant, in ground No. 6 in the grounds of appeal, is as to whether the principles of lis pendens would apply to a property purchased under registered sale deed for consideration and without notice of litigation.
12. Besides taking the question regarding principles of lis pendens in the grounds of appeal, the learned counsel appearing for Inderjit Wadhwa, appellant submitted before me that the application filed by the appellant seeking condonation of delay in filing the appeal before the District Judge could not have been dismissed since he came to know about the judgment and decree of the trial Court only a week prior to the filing of the appeal and he was not impieaded as a patty by the plaintiff before the trial Court and the principles of lis pendens, as detailed in Section 52 of the Transfer of Property Act, would not apply to the present case since the appellant is a purchaser in good faith, for consideration and without notice of the litigation. Reliance has been placed on Avinash Chander and Anr. v. Hazura Singh and Ors. (2002-3)132 P.L.R. 383. It was submitted that on the facts and circumstances of the present case the learned Additional District Judge ought to have condoned the delay in filing the appeal.
13. However, 1 find no force in these submissions of the learned counsel for the appellant. As referred to the above, the judgment and decree passed by the trial Court are dated 12.5.2003. Inderjit Wadhwa appellant had filed appeal before the District Judge on 27.1.2004 alongwith application seeking condonation of delay in filing the appeal in which it was alleged that he had come to know about the judgment and decree of the trial court only a week back. The aforesaid judgment and decree dated 12.5.2003 passed by the trial court in favour of Jagjit plaintiff and against Bharat Singh defendant was an exparte decree since Bharat Singh defendant, who had initially contested the suit and had filed written statement, was proceeded against ex parte on 2.3.2001. Admittedly, Inderjit Wadhwa appellant had purchased the property in dispute from Bharat Singh,defen-dant on 19.12.2000 i.e. during the pendency of the suit filed by Jagjit plaintiff against Bharat Singh defendant.
14. Section 52 of the Transfer of Property Act reads as under:-
"52. Transfer of property pending suit relating thereto.- During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or 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 dispose 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.]
15. In Simla Banking & Industrial Co. Ltd. v. Firm Luddar Mal Khushi Ram and Ors., A.I.R. 1959 Punjab 490, it was held by this Court as under;-
"The rule of lis pendens extends the scope of the rule of res judicata, the principle of which, is, that the parties and their privies are bound by the judgment of the Court. The rule of lis pendens goes a step further and lays down that whoever purchases a property during the pendency of an action, is held bound by the judgment that may be made against the person from Whom he derived his title, even though such a purchaser was not a party to the action or had no notice of the pending litigation, xx xx xx xx xx It is a rule of public policy or otherwise successive alienations will defeat the very purpose of litigation, making it interminable."
16. In Santa Singh Gopal Singh and Ors. v. Rajinder Singh Bur Singh and Ors., A.I.R. 1965 Punjab 415, it was held by a Full Bench of this Court as under:-
"The doctrine of lis pendens is expressed in the maxim "ut lite pendente nihilinnovetur", and the principle on which it rests is explained in Bellamy v. Sabine, (1857)1 De G & J 566. The exposition of law in that case by Cranworth L.C. and Turner L.J. was followed by the Privy Council in Faiyaz Husain Khan v. Munshi Prag Narain, 34 Ind. App 102 (PC) the principle being that "pendente lite neither party to the litigation can alienate the property in dispute so as to affect his opponent." As mentioned in Mulla's Transfer of Property Act, the rule is based not on the doctrine of notice but of expediency. According to story, the effect of the maxim is not to annul the conveyance, but, only to render it subservient to the rights of the parties to the litigation.."
17. In Sadar Hari Bachan Singh v. Major S. Har Bhajan Singh and Anr., (1975)77 P.L.R. 21 : A.I.R. 1975 Punjab & Haryana 205, it was held by this Court as under:-
"The rule of lis pendens contained in Section 52 is based, not on the doctrine of notice, but on expediency. The effect of this rule is not to annul the transfer but only to render it subservient to the rights of the parties to the litigation. According to this rule of lis pendens, whosoever purchases a property during the pendency of a suit is held bound by the judgment that may be made against the pers'on from whom he derived his title even though such a purchaser was not a party to the action or had no notice of the pending litigation."
18. Reliance was placed on the law laid down in the cases A.I.R. 1959 Punjab 490 (supra) and A.I.R. 1965 Punjab 415 (Full Bench) (supra),
19. In Balwinderjit Kaur v. Financial Commissioner, Punjab and Anr., A.I.R. 1987 Punjab and Haryana 189, it was held by this Court as under:-
"By now it is well laid down that in the case of a transfer which is hit by the doctrine of lis pendens under Section 52 of the Transfer of Property Act the question of good faith which is essential to be established before an equitable relief can be granted in favour of a subsequent vendee under Section 41 or Section 51 of the Transfer of Property Act is totally irrelevant (see Shanu Ram v. Basheshar Nath, (1966)68 Pun.L.R. (D)44. In the face of this settled legal position, the plea raised on behalf of respondents 5 to 10 that they were bona fide purchasers without notice from Paramjit Singh and Jagjit Singh was obviously of no consequence".
20. In Shanu Ram v. Basheshar Nath and Ors., (1966)68 Punjab Law Reporter 44 (Delhi Section) it was held by a Division Bench of this Court as under:-
"It is manifest that right or interest acquired in a property which is the subject matter of interest acquired in a property who is eventually held entitled to it and changes effected are done at the risk of the concerned party itself. The transfer itself being hit by the doctrine of list pendens under Section 52 of the Transfer of Property Act, the question of good faith which is essential to be established before equitable relief could be granted under section 51 becomes obviously irrelevant."
21. In Mohammed All Abdul Chanimomin v. Bisahemi Kom Abdulla Saheb Momin and Anr. A.I.R. 1973 Mysore 131, it was held as under:-
"The principle of lis pendens embodied in Section 52 being a principle of public policy, no question of good faith or bona fides arises."
22. In Krishanji Pandharinath v. Anusayabai and Anr. A.I.R. 1959 Bombay 475, it was held as under:-
"The contention that the appellant was a bona fide purchaser for value without notice of the claim of the plaintiff is in my view futile. The application of the doctrine of lis pendens does not depend upon the purchaser having notice of the suit; even if the transferee 'pendente lite' from a party has no notice of the suit, the rights of the other party to a suit in which a right to immovable property is directly and specifically in question under the decree cannot be prejudicially affected by the transfer."
23. In Achut Sitaram. Patwardhan v. Shivajirao Krishnarao Gaikward and Ors., A.I.R. 1937 Bombay 244, it was heid as under:-
"It is clear from the terms of this section, that the doctrine of lis pendens is not based upon notice, but it rests upon the ground that neither party to a suit can alienate the property in the suit pending the suit so as to defeat the rights of the other party .As the decisions show, it is based upon expediency, and it is immaterial whether the alienee pendente lite had or had not notice of the suit: see I De G & J 566. The mere pendency of a suit will not prevent one of the parties from selling the property, the subject matter of the suit, but the purchase will in no manner affect the right of the other party under any decree which may be made in the suit, unless the property was sold with the permission of the Court."
24. In Dhanna Singh and Ors., v. Baljinder Kaur and Ors., A.I.R. 1997 Supreme Court 3720, it was held by the Hon'ble Supreme Court as under;-
"Apart from the doctrine of lis pendens under section 52 of the T.P.Act, the subsequent purchaser does not get any right to lead to any evidence, as he stepped into the shoes of the first defendant, who had given up the right to lead evidence. In view of these circumstances, he does not get any right to lead any evidence".
25. From a perusal of the law laid down in the authorities, referred to above, in my opinion, it would be clear that the case of the appellant would be fully covered by the principle of lis pendens and that the appellant did not have an independent right inasmuch as the appellant had stepped into the shoes of Bharat Singh defendant after he had purchased the property in question from him vide sale deed dated 19.12.2000, since the sale was during the pendency of the suit filed by Jagjit Singh plaintiff against Bharat Singh defendant. Furthermore, the appellant would be bound by the decree that had been passed against his vendor namely Bharat Singh defendant and he did not have an independent right in the litigation. Furthermore, in view of the law laid down in the above said authorities and on the facts and circumstances of the present case, it could not be said that principle of lis pendens as detailed in Section 52 of the Transfer of Property Act would not apply to the present case simply on the ground that the appellant is a purchaser in good faith for consideration and without notice of the litigation, as alleged. Furthermore, as per the law laid down in the aforesaid authorities, whoever purchases a property during the pendency of a suit is bound by the judgment that may be made against the person from whom he derived his title even though such a purchaser was not party to, the action and had no notice of the pending litigation, and that the plea regarding bonafide purchaser without notice would be of no consequence. In the present case, as referred to above, Bharat Singh, defendant had contested the suit by filing written statement. Subsequently, he was proceeded against exparte as he failed to appear in the Court. Since the present appellant namely Inderjit Wadhwa, had allegedly purchased the suit property from Bharat Singh defendant during the pendency of the suit, in my opinion, it was for the present appellant to have got himself substituted as a defendant in place of Bharat Singh, as provided under Order 22 Rule 10 C.P.C. and with the leave of the court could have continued the suit against him, However, nothing of the kind was done by the present appellant On the other hand, Bharat Singh, defendant was not only proceeded exparte on 2.3.2001, but after recording exparte evidence, the learned trial court had decreed the suit exparte on 12.5.2003. Even thereafter, no steps were taken by the present appellant to file the appeal against the aforesaid judgment and decree dated 12.5,2003 and it was only on 27.1.2004 that Inderjit Wadhwa appellant filed the appeal before the District Judge, Sonepat alongwith application seeking condonation of delay in filing the appeal.
26. On the facts and circumstances of the present case, in my opinion, the learned Additional District Judge was perfectly justified in dismissing the application of the present appellant seeking condonation of delay in filing the appeal, inasmuch as the applicant appellant had failed to make out sufficient cause for condoning the delay of more than six months in filing the appeal (limitation for filing the appeal is only 30 days). On the facts and circumstances of the present case, in my opinion, it could not be said that the limitation for filing the appeal would start from the date of knowledge, since Inderjit Wadhwa appellant would be deemed to have the knowledge since had purchased the property in dispute from Bharat Singh, defendant during the pendency of the litigation and had stepped into the shoes of the defendant and did not have an independent right, as held in the various authorities, referred to above.
27. So far as the authority Avinash Chander v. Hazura Singh. (2002-3)132 P.L.R 383 (supra), relied upon by the learned counsel for the appellant is concerned, in my opinion, the said authority would have no application to the facts of the present case, in view of the law laid down in various authorities referred to above, including a Full Bench judgment of this Court. In fact, Avinash Chander's case (supra) was decided without noticing the precedents of this Court and as such did not lay down a binding precedent and is per incuriam. The said case is deemed to have been decided on the facts of its own case.
28. In view of the above, in my opinion, it would be clear that the learned Additional District Judge had rightly dismissed the application seeking condonation of delay in filing the appeal and had rightly dismissed the appeal as time barred and no fault could be found with the same. Furthermore, no question of law much less substantial question of law arises for determination in this appeal.
29. In view of the above, finding no merit in this appeal the same is hereby dismissed.