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2012 DIGILAW 4114 (MAD)

S. Kumudham v. R. Rajendiran

2012-10-04

M.VENUGOPAL

body2012
Judgment 1. The Revision Petitioner/Plaintiff has projected the instant Civil Revision Petition as against the order dated 13.11.2009 in I.A. No.877 of 2009 in O.S. No.118 of 2009 passed by the learned Additional District Munsif, Cuddalore. 2. The learned Additional District Munsif, Cuddalore, while passing order in I.A. No.877 of 2009 in O.S. No.118 of 2009 on 13.11.2009 (filed by the Revision Petitioner/Plaintiff) has inter alia observed that. 'it is settled law that the subsequent purchaser need not be impleaded in the pending proceedings and that the subsequent transaction is invalid under Section 52 of the Transfer of Property Act' and resultantly dismissed the Application without costs. 3. According to the learned Counsel for the Revision Petitioner/Plaintiff, the Trial Court has failed to appreciate that impleading the purchaser will avoid multiplicity or proceedings and also shorten the litigation. 4. It is the submission of the learned Counsel for the Petitioner/Plaintiff that the agreement of sale is an ante-dated one and the purchaser claims right under the same. 5. Finally, it is the contention of the learned Counsel for the Revision Petitioner/ Plaintiff that it is not always necessary to say that a purchaser in a pending lis is an unnecessary party. 6. In response, the learned Counsel for the 1st Respondent/Defendant submits that the 1st Respondent/Defendant is not aware of the revocation of the Power Deed dated 12.12.2009, through registered Revocation Deed dated 20.3.2009 and that the 1st Respondent/Defendant entered into an Agreement of Sale with the proposed party viz., Raja, son of Jayaraman and received advance of Rs.50,000/-and agreed to receive the balance in six months time and executed Sale Deed and that the revocation is long after the 1st Respondent/Defendant has acted upon the Power Deed. 7. The Petitioner/Plaintiff in I.A. No.877 of 2009 has averred that she filed a Suit for permanent injunction against the 1st Respondent/Defendant, who was her Power of Attorney Agent and that she cancelled the said Power Deed and the alleged Sale Agreement dated 3.3.2009 made by the 1st Respondent/Defendant with the proposed party for Rs.1,50,000/- is ante dated, collusive and fraudulent one and later on 28.4.2009, the Sale Deed has been deliberately executed pending Suit and the purchase made by the proposed party, during the pendency of O.S. No.118 of 2009 is an invalid one. 8. 8. In the counter, the 1st Respondent/Defendant has Categorically averred that the property has been said after the Suit and further that the possession has been delivered. Further it is the stand of 1st Respondent/Defendant that the main Suit O.S. No.118 of 2009 filed by the Petitioner/Plaintiff against the 1st Respondent/ Defendant is only for permanent injunction and no right to immovable property is directly and specifically involve in the Suit and nowhere in Plaint, it is averred that the proposed party (2nd Respondent) is attempting to enter upon the suit property. 9. It is to be noted that Section 52 of the Transfer of Property Act deals with ‘transfer of property pending Suit relating thereto’. In fact, the said Section indicates the principle of ‘lis pendens’ known as ‘ut lite pendente nihil innovertur’. Indeed, the ingredient of Section 52 of the Transfer of Property Act created a right to be enforced, with a view to avoid a transfer made during the pendency of litigation, because of the reason that such a transfer is not void, but voidable is at the option of the aggrieved person to the pending proceedings (where the transfer is erected), a Suit normally begins by filing of the Plaint. 10. It is to be borne in mind that Section 52 of the Transfer of Property Act contemplates the fetter on the transfer of immovable property right to which is directly and substantially in question in a pending litigation. Ordinarily if the property is acquired pendente lite, the acquirer is certainly to abide by the decree finally to be passed against him in the pending litigation, at the time of acquisition also that a transferee pending litigation of the property in Suit may not be a necessary party as he is bound by the decree to be passed/passed in the Suit based on the principle of Section 52 of Transfer of Property Act. Of course in law, a transferee is not absolved from disability under Section 52 of Transfer of Property Act, 1882. 11. In fact, a Plaintiff in a pending litigation is not compelled to implead the acquirer as a transferee during the pending proceedings. A Court of law may exercise its process of judicial thinking mind, when an application for impleading the acquirer has been filed as a proposed party, to prevent plurality of proceedings. 11. In fact, a Plaintiff in a pending litigation is not compelled to implead the acquirer as a transferee during the pending proceedings. A Court of law may exercise its process of judicial thinking mind, when an application for impleading the acquirer has been filed as a proposed party, to prevent plurality of proceedings. It may be that a transferee pending litigation can be arrayed as a proper party if he is interested in the subject matter of the Suit is substantial and not a peripheral one. 12. A Court of law is not under an obligation to make a lis pendens Purchaser/ Transferee a subsequent party since he/she is not a necessary party, in an injunction Suit. As such a plea for his impleadment cannot be accepted. Alternatively, the Petitioner/Plaintiff is left with a remedy to file a separate Suit, seeking appropriate relief in the manner known to law and in accordance with law. 13. In law, a lis Pendens Purchaser/Trasnferee is bound by the decree whether on contest/ex parte or on compromise. Therefore, a Plaintiff is not obligated in law to implead a subsequent purchaser/transferee as a party to the Suit. 14. In the instant case, the Petitioner/Plaintiff has filed a Suit against 1st Respondent/ Defendant seeking the relief of permanent injunction restraining him, his men, agent, etc. from in any manner interfering with his peaceful possession and enjoyment of the suit property. A perusal of the cause of action paragraph of the Plaint (filed by the Revision Petitioner/Plaintiff) shows that the cause of action has arisen on 12.2.2009 when Power Deed has been executed by the Petitioner/Plaintiff and every day since when the Defendant (1st Respondent) has been attempting to alienate the suit property on 20.3.2009, when Power Deed has been revoked, etc. 15. It is evident from the Plaint averments in paragraph 8 that the Defendant (1st Respondent) wanted to sell the property and unjustly enrich himself and however, when the Revision Petitioner/Plaintiff has revoked the Power Deed dated 12.10.2009, through a registered Revocation Deed dated 20.3.2009. Also since the Defendant (1st Respondent) is attempting to interfere with the Revision Petitioner/Plaintiff’s possession since 21.3.2009, the Suit has been lodged for the relief of permanent injunction. 16. Also since the Defendant (1st Respondent) is attempting to interfere with the Revision Petitioner/Plaintiff’s possession since 21.3.2009, the Suit has been lodged for the relief of permanent injunction. 16. It is brought to the notice of this Court that the plaint schedule property has been sold to the proposed party/2nd Respondent by the 1st Respondent/Defendant during the pendency of the Suit on 28.4.2009. This Court taking note of the well established principle of law that there is no need for the Petitioner/Plaintiff to implead the subsequent purchaser or transferee of the suit property pending litigation, in the interest of justice comes to an inevitable conclusion that the Trial Court has rightly exercised its judicial discretion in dismissing the impleading application I.A. No.877 of 2009 (filed under Order 1, Rule 10 of C.P.C.) to implead the proposed party as 2nd Defendant and the said order suffers from no illegality or infirmity in the eye of law. Consequently, the Civil Revision Petition fails. In the result, the Civil Revision Petition is dismissed leaving the parties to bear their own costs.