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2014 DIGILAW 1241 (PNJ)

Satish Kumar v. Anup Singh

2014-09-02

BHARAT BHUSHAN PARSOON

body2014
Dr. Bharat Bhushan Parsoon, J. 1. Dismissal of application of the subsequent vendees i.e. the petitioners herein under Order I Rule 10 C.P.C. for being impleaded as defendants in the suit on the basis of sale deed dated 15.5.2008 i.e. during pendency of the suit of the respondents-plaintiffs, for partition of the suit land, forms the genesis of this civil revision petition. It is claimed by the applicants-petitioners that the lower court failed to take note of the fact that suit of the respondents-plaintiffs for partition of the suit land was not being contested by the respondents-defendants including their vendor i.e. respondent-defendant No. 2. In short, it is claimed that the lower court completely ignored the fact that the respondent-vendor of the applicants-petitioners having sold his share, is left with no right, title or interest in the land and thus, is not even bothered to contest the suit, causing great prejudice to the right and interest of the applicants-petitioners as subsequent vendees. 2. Claim of the only contesting respondent-defendant, on the other hand, is that sale in favor of the applicants-petitioners having been effected by one of the respondents-defendants during pendency of the suit, is subject to applicability of doctrine of lis pendens in terms of Section 52 of the Transfer of Property Act, 1882 and thus, the applicants-petitioners would be subject to the rights and liabilities of their vendor respondent-defendant No. 2 to be adjudicated by the lower court. It is, thus, reiterated that dismissal of the application of the applicants-petitioners was correct. 3. Counsel for the parties have been heard while perusing the impugned order; the attending facts and circumstances emerging from the paper book have also been appreciated. 4. In the suit preferred by the plaintiffs, there are 55 defendants. Except for contest being made by one defendant viz. Smt. Geeta Devi, defendant No. 54, there is no contest to the suit of the plaintiffs from any of the other defendants. Even in this petition, position is the same. Rather, even contesting defendant No. 54 in the suit below, has not come forward to contest this petition. The only contesting respondent in the petition herein is Anup Singh, who is one of the plaintiffs as all the 4 plaintiffs have been impleaded as respondents No. 1 to 4 in the present revision petition. 5. Suit is for seeking possession by way of partition of the suit land. The only contesting respondent in the petition herein is Anup Singh, who is one of the plaintiffs as all the 4 plaintiffs have been impleaded as respondents No. 1 to 4 in the present revision petition. 5. Suit is for seeking possession by way of partition of the suit land. Sale in favor of the applicants-petitioners from respondent No. 6 herein, who is defendant No. 2 in the suit, pending before the lower court has resulted in transfer of right, title and interest of such vendor to the applicants-petitioners. As is apparent from the record, he is no more prosecuting his cause. 6. Merely because principle of lis pendens applies to the sale in favor of the petitioners, ipso-facto is no ground to reject their prayer for being impleaded as defendants in the suit. When the vendor of the applicants-petitioners is playing truant with the lower court, clearly there is none to watch interest of the applicants-petitioners. Rather, when vendor of the applicants-petitioners has already been proceeded ex-parte and is not watching either his interest or interest of his vendees, there is no good reason for refusing application of the applicants-petitioners for being impleaded as defendants. 7. Counsel for the contesting respondents-plaintiffs has not been able to convince this Court as to how the respondents-plaintiffs are going to be prejudiced or affected by impleadment of the applicants-petitioners as the defendants in the court below. For ready reference, relevant observations of the lower court contained in para 8 of the impugned order are reproduced as below: "In view of the discussion made above I am of the opinion that the applicants are neither necessary nor proper party for the just adjudication of the manner in dispute as their interest is being duty represented by defendant No. 2. The defendant No. 2, although has been proceeded against ex-parte in the instant case but nevertheless he is co-sharer in the suit land and is the party to the suit land and at the time of adjudication of the suit, his right and share in the suit land will be duly determined and the rights of the applicants will if any be subject to the rights of defendant No. 2, so no question of any prejudice being caused to the applicants is there." 8. Approach of the learned lower court in refusing application of the applicants-petitioners knowing it well that their vendor defendant No. 2 is ex-parte and is not watching and protecting interest of the subsequent vendees, is wrong. When no one is representing and watching interest of the petitioners-vendees, they would definitely be prejudiced in their defence, which will remain unrepresented and unprotected. 9. Keeping in view the totality of aforesaid facts and circumstances, it is held that the impugned order is neither correct on facts nor in law and is thus, set aside. Sequelly, accepting this petition, the applicants-petitioners are allowed to be impleaded as defendants and they would furnish their written statement before the lower court. 10. Parties are directed to appear before the lower court on 7.10.2014. Nothing observed above shall have any bearing on the merits of the suit pending before the lower court.