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Madhya Pradesh High Court · body

2007 DIGILAW 613 (MP)

Nirmala Devi v. Dayal Singh Gaur

2007-06-18

SHANTANU KEMKAR

body2007
ORDER Kemkar, J. -- 1. By filing this petition under Article 227 of the Constitution of India, the petitioner has challenged the order dated 13.2.2007 passed by the I Additional District Judge, Hoshangabad in Civil Suit No. 126-A/2005 whereby her application filed under Order I Rule 10 of the Code of Civil Procedure (for short 'CPC') has been rejected. 2. Briefly stated, the first respondent/plaintiff filed a suit for possession and removal of encroachment from his land against the respondents No.2 to 4. During the pendency of the said suit the second respondent/defendant No. 1 sold the disputed property to the petitioner vide registered saledeed dated 29.10.2005. On getting knowledge of the pendency of the aforesaid suit in regard to the property purchased by her, the petitioner filed an application under Order 1 Rule 10 CPC seeking her impleadment as defendant in the said suit. However, the said application of the petitioner has been rejected by the trial Court vide impugned order on the ground that since the suit land has been sold during the pendency of the suit, the doctrine of lis pendens would apply and, therefore, the petitioner is not a necessary party in the suit. Feeling aggrieved, the petitioner has filed this petition. 3. Heard, learned counsel for the parties. 4. It is not in dispute that the property purchased by the petitioner through the second respondent/defendant No. 1 is the subject matter of the suit and in the said suit the second respondent/defendant No.1 is not participating and the suit is being proceeded exparte against her. 5. In case of Amit Kumar Shaw v. Farida Khatoon [ (2005) 11 SCC 403 ] after combined reading of the provisions under Order 1 Rule 10, Order 22 Rule 10 of the CPC and section 52 of Transfer of Property Act, 1882 the Supreme Court answered the question as to whether an application for substitution by a subsequent transferee be rejected and the subsequent purchaser be non-suited altogether, and has held in paragraphs 9, 10, 14, 15 and 16 as under: "9. The object of Order 1 Rule 10 is to discourage contests on technical pleas, and to save honest and bona fide claimants from being nonsuited. The power to strike out or add parties can be exercised by the Court at any stage of the proceedings. The object of Order 1 Rule 10 is to discourage contests on technical pleas, and to save honest and bona fide claimants from being nonsuited. The power to strike out or add parties can be exercised by the Court at any stage of the proceedings. Under this rule, a person may be added as a party to a suit in the following two cases: (1) when he ought to have been joined as plaintiff or defendant, and is not joined so, or (2) when, without his presence, the questions in the suit cannot be completely decided. 10. The power of a Court 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 necessarily include an enforceable legal right. 14. An alienee pendente lite is bound by the final decree that may be passed in the suit. Such an alienee can be brought on record both under this rule as also under Order 1 Rule 10. Since under the doctrine of lis pendens a decree passed in the suit during the pendency of which a transfer is made binds the transfee, his application to be brought on record should ordinarily be allowed. 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. 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 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. The Court has held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where his predecessor-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case." 6. In case of Dhanlakshmi and others v. P. Mohan and others [ AIR 2007 SC 1062 ] the Supreme Court has held as under: "5. 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 No.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. 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 No.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 suitfiled by the mortgagee in these proceedings." (emphasis supplied) 7. The judgment of the Supreme Court in the case of Sarvinder Singh v. Dalip Singh and others [1997 (1) MPLJ 324], on which much reliance has been placed by learned counsel appearing for the first respondent, has no application to the facts of the present case. In the case of Sarvinder Singh (supra) a suit for declaration for ownership of the property was filed on the basis of a registered will. During the pendency of the said suit the property was alienated by the defendants. On the basis of the said alienation through registered sale deed an application was filed seeking impleadment in the suit. The said application filed under Order 1 of Rule 10 of the CPC was rejected by the trial Court and in revision was allowed by the High Court. Against the said order a civil appeal was filed before the Supreme Court and the Supreme Court has observed as under: "that a necessary party is one whose presence is absolutely necessary and without whose presence the issue cannot effectually and completely be adjudicated upon and decided between the parties. A proper party is one whose presence would be necessary to effectually and completely adjudicate upon the disputes. A proper party is one whose presence would be necessary to effectually and completely adjudicate upon the disputes. In either case the respondents cannot be said to be either necessary or proper parties to the suit in which the primary relief was found on the basis of the registered Will executed by the appellant's mother. Moreover, admittedly the respondents claimed right, title and interest pursuant to the registered sale deeds said to have been executed by the defendants-heirs. Pending suit, 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 lis pendens by operation of section 52. Under these circumstances, the: respondents cannot be considered to be either necessary or proper parties to the suit." In the present case the petitioner wants to defend her rights in the property purchased by her through the defendant No.1. In the suit filed by the first respondent plaintiff he has alleged encroachment on his land by the defendant No.1. The said property has now been purchased by the petitioner, in the circumstances she is certainly a necessary party and her presence is absolutely necessary for effective adjudication of the dispute. 8. In view of the law laid down in case of Amir Kumar Shaw (supra) and in case of Dhanlakshmi (supra) and the fact that the petitioner's interest in the subject matter of the suit is substantial and her right may be affected if she is not added as party, in my considered view she is entitled to be impleaded as defendant in the suit for just decision of it. The order of the trial Court rejecting her application if allowed to stand would occasion gross injustice to the petitioner. 9. Accordingly, the writ petition is allowed, the impugned order is quashed. The petitioner be allowed by the trial Court to be impleaded as one of the defendants to contest the matter on merits. No orders as to cost.