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2012 DIGILAW 883 (HP)

Bhupinder Kumar v. Kuldip Sharma

2012-11-26

V.K.SHARMA

body2012
JUDGMENT : V.K. Sharma, J. (Oral) Heard. Facts necessary for disposal of the present petition are simple and straight. The suit land belongs to the respondents herein, namely, Smt. Dharto Devi, Smt. Pawna Devi and Kumari Swarna Devi, who are defendants before the learned trial court. They entered into an agreement of sale of this land in favour of the respondent herein, Shri Kuldeep Sharma, who is plaintiff before the learned court below. However, when the defendants failed to execute the sale deed, the plaintiff filed a suit for specific performance against them, which is pending and in which an ad interim injunction order pending suit is also stated to have been issued against the defendants. However, even despite that the defendants sold the land in dispute to the petitioner herein, Shri Bhupinder Kumar, who moved the learned trial court by way of an application under Order 1 Rule 10 and Section 151 of the Code of Civil Procedure, 1908 (in short CPC) for being impleaded as a party to the suit being a pendente lite purchaser, which has been dismissed by the learned trial court, vide the impugned order dated 13.12.2011, which is under challenge in the present petition under Article 227 of the constitution of India. 2. I have heard the learned counsel for the parties and gone through the order under challenge. 3. A bare reading of the impugned order dated 13.12.2011 would go to show that the prayer of the petitioner for being impleaded as a party to the suit being the pendente lite purchaser, has been declined mainly on the ground that the defendants have sold the suit land to him in violation of the ad interim injunction order pending suit, passed by the learned trial court in an application under Order 39 Rules 1 and 2 CPC. True it is that it is not disputed before this court that the sale was effected during existence of such ad interim injunction order. Even if it was so, the defendants could be proceeded under law for disobedience of the ad interim injunction order, under Order 39 Rule 2-A CPC. True it is that it is not disputed before this court that the sale was effected during existence of such ad interim injunction order. Even if it was so, the defendants could be proceeded under law for disobedience of the ad interim injunction order, under Order 39 Rule 2-A CPC. However, the petitioner has independent right to be impleaded as a party to the suit, even despite the fact that he is a pendente lite purchaser, as has been held by the Honble Supreme Court in a case arising out of a suit for specific performance of agreement of sale or property reported as A. Nawab John and others v. V.N. Subramaniyam, (2012) 7 Supreme Court Cases 738, vide paras 18,19,20,21 and 22 of the judgment, which are extracted below:- "18. It is settled legal position that the effect of Section 52 is not to render transfers effected during the pendency of a suit by a party to the suit void; but only to render such transfers subservient to the rights of the parties to such suit, as may be, eventually, determined in the suit. In other words, the transfer remains valid subject, of course, to the result of the suit. The pendente lite purchaser would be entitled to or suffer the same legal rights and obligations of his vendor as may be eventually determined by the court. "12. ..The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject-matter of the suit. The section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the court." 19. Such being the scope of Section 52, two questions arise: whether a pendent elite purchaser: (1) is entitled to be impleaded as a party to the suit?; (2) once impleaded what are the grounds on which he is entitled to contest the suit? 20. This Court on more than one occasion held that when a pendent elite purchaser seeks to implead himself as a party-defendant to the suit, such application should be liberally considered. This Court also held in Saila Bala Dassi v. Nirmala Sundari Dassi that, "justice requires", a pendent elite purchaser "should be given an opportunity to protect his rights". 20. This Court on more than one occasion held that when a pendent elite purchaser seeks to implead himself as a party-defendant to the suit, such application should be liberally considered. This Court also held in Saila Bala Dassi v. Nirmala Sundari Dassi that, "justice requires", a pendent elite purchaser "should be given an opportunity to protect his rights". It was a case, where the property in dispute had been mortgaged by one of the respondents to another respondent. The mortgagee filed a suit, obtained a decree and "commenced proceedings for sale of the mortgaged property". The appellant Saila Bala, who purchased the property from the judgment-debtor subsequent to the decree sought to implead herself in the execution proceedings and resist the execution. That application was opposed on various counts. This Court opined that Saila Bala was entitled (under Section 146 CPC) to be brought on record to defend her interest because, as a purchaser pendent elite, she would be bound by the decree against her vendor. 21. There is some divergence of opinion regarding the question, whether a pendent elite purchaser is entitled, as a matter of right, to get impleaded in the suit, this Court in Amit Kumar Shaw v. Farida Khatoon held that: (SCC p. 411, para 16) "16. 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 pendent elite 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 pendent elite 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 pendent elite 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. 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 pendent elite 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 e 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." (emphasis supplied) 22. The preponderance of opinion of this Court is that a pendent elite purchasers application for impleadment should normally be allowed or "considered liberally". 4. In view of the above, the petition succeeds and is accordingly allowed. However, it shall be subject to costs of Rs. 2500/- (rupees two thousand five hundred) to be tendered before the learned trial court on the date to be fixed hereinafter. Consequently, the impugned order dated 13.12.2011 shall stand set aside and instead the petitioner shall stand impleaded as co-defendant No.4 in the suit pending trial between the plaintiff and defendants before the learned trial court being Civil Suit No. 60 of 2009, titled Kuldeep Sharma v. Smt. Dharto Devi and others, where the plaintiff shall file amended memo of parties. 5. The parties through their learned counsel are directed to appear before the learned trial court on 12th December, 2012. Let a copy of this judgment be sent to the learned trial court for information and compliance forthwith.