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2014 DIGILAW 1984 (MAD)

M. Krishnamoorthy v. Sahara Bibi

2014-07-04

R.KARUPPIAH

body2014
Judgment : 1. The revision petitioners have filed this civil revision petition against the fair and decretal order 11.10.2004 made in I.A.No.1072 of 2003 in A.S.No.5 of 2003 on the file of the Principal District Court, Coimbatore. 2. For the sake of convenience, the plaintiff 2 to 4 in the original suit are referred as revision petitioners 1 to 3 and the second defendant in the original suit is referred as the respondent hereafter. 3. The deceased Chellammal and three others originally filed a suit in O.S.No.2020 of 1996 for recovery of possession and damages against the sole defendant namely, Lakshmi ammal. During the pendency of the suit, one Sahara Bibi as a subsequent purchaser from the first defendant was impleased as second defendant. In the above said suit, both the defendants have filed written statements. But, at the time of trial, the second defendant in the suit namely, Sahara Bibi remained exparte and the trial Court has considered the oral and documentary evidence adduced on either side and finally, granted a relief of recovery of possession alone and dismissed the suit in respect of damages. 4. Aggrieved over the above said judgment and decree passed by the trial Court, the first defendant in the suit namely, Lakshmiammal had preferred an appeal suit in A.S.No.5 of 2003 impleading the plaintiffs 1 to 5 and also the second defendant in the suit as respondents in the appeal suit. During pendency of the first appeal, the sole appellant/first defendant died. In the above said Appeal Suit, the fifth respondent namely, Sahara Bibi filed an application in I.A.No.1072 of 2003 under Order 1 Rule 10 C.P.C. to transpose the fifth respondent in the appeal suit as the second appellant. 5. In the above said affidavit, the respondent/applicant in I.A.No.1072 of 2003 has stated that she had purchased the suit property under a registered sale deed dated 30.06.1981 from the deceased appellant, during the pendency of the original suit and the vendor of the applicant stoutly contested the suit before the trial Court, but, the trial Court has decreed the suit. As against the judgment and decree of the trial Court, the first defendant in the suit namely, Lakshmi ammal had preferred the first appeal impleading the plaintiffs 1 to 4 in the suit and also the second defendant in the suit as respondents 1 to 5. As against the judgment and decree of the trial Court, the first defendant in the suit namely, Lakshmi ammal had preferred the first appeal impleading the plaintiffs 1 to 4 in the suit and also the second defendant in the suit as respondents 1 to 5. During the pendency of the suit, the sole appellant died. Even though, the deceased has got legal representatives, the respondent herein (as a purchaser) has got the same interest and therefore, it is necessary to transpose the respondent herein as the second appellant in the Appeal Suit and also seeking permission to continue the appeal. 6. In the above said application, the revision petitioners herein, who are defendants 2 to 4 (D1 died) filed a counter in which it is stated that the respondent herein is a purchaser pendente lite and she was impleaded in the suit as the second defendant and the above said suit was decreed. It is also averred in the counter that the deceased appellant/first defendant alone contested the suit but the respondent herein/2nd defendant did not contest or examine herself or let in any evidence and also not preferred any appeal. Further, it is stated that the respondent herein was impleaded only as the fifth respondent in the above said appeal and therefore, the respondent herein cannot seek to transpose herself as the second appellant, but her remedy is only to file a separate appeal and hence, the application filed by the respondent is not at all maintainable. 7. The trial Court has considered both sides contentions and finally, allowed the above said I.A.No.1072 of 2003 and permitted the respondent herein to transpose as the second appellant in the appeal suit. Aggrieved over the above said order passed by the first appellate Court, the revision petitioners preferred this revision petition. 8. The learned counsel appearing for the revision petitioners mainly contended that the respondent herein was already impleaded as second defendant in the suit as purchaser pendente lite from the first defendant as per the order dated 11.10.1983 in I.A.No.14 of 1983. 8. The learned counsel appearing for the revision petitioners mainly contended that the respondent herein was already impleaded as second defendant in the suit as purchaser pendente lite from the first defendant as per the order dated 11.10.1983 in I.A.No.14 of 1983. But, the respondent herein remained exparte in the original suit and therefore, the respondent herein is estopped from continuing the appeal in the capacity as defined under Order 22, Rule 10 C.P.C. The learned counsel appearing for the revision petitioners further submitted that the respondent herein was already party in the suit and the appeal, but she did not contest the suit or appeal and therefore, the respondent herein has no right to contest the appeal. If any grievance in the decree and judgment passed by the trial Court, the respondent herein is entitled to file a separate appeal and not entitled to file any application to transpose the respondent herein as the second appellant and the order passed by the trial Court allowing the above said I.A.No.1072 of 2003 is invalid and therefore, prayed for to set aside the above said order. 9. In support of his contention, the learned counsel appearing for the revision petitioner relied on a decision of the Hon'ble Apex Court reported in Raj Kumar v. Sardari Lal and others [(2004)2 Supreme Court Cases 601], wherein paragraph No.5 reads as under: “5. The doctrine of lis pendens expressed in the maxim 'out lite pendente nihil innovetur' (during a litigation nothing new should be introduced) has been statutorily incorporated in Section 52 of the Transfer of Property Act, 1882. A defendant cannot, by alienating property during the pendency of litigation, venture into depriving the successful plaintiff of the fruits of the decree. The transferee pendente lite is treated in the eye of the law as a representative-in-interest of the judgment-debtor and held bound by the decree passed against the judgment-debtor though neither has the defendant chosen to bring the transferee on record by apprising his opponent and the Court of the transfer made by him nor has the transferee chosen to come on record by taking recourse to Order 22 Rule 10 CPC. In case of an assignment, creation or devolution of any interest during the pendency of any suit, Order 22, Rule 10 CPC confers a discretion on the Court hearing the suit to grant leave for the person in or upon whom such interest has come to vest or devolve to be brought on record. Bringing of a lis pendens transferee on record is not as of right but in the discretion of the Court. Though not brought on record the lis pendens transferee remains bound by the decree.” A careful reading of the above said decision revealed that the lis pendens transferee is to be treated in the eye of law as a representative-in-interest of the judgment-debtor. Therefore, from the above said decision itself, it is clearly reveals that the respondent herein is entitled to transpose as the second appellant as a representative-in-interest of the deceased appellant. 10. The learned counsel further relied on another decision of this Court reported in C.Rameswaran and 4 others v. N.Sambandam and 8 others (R-7 minor) represented by his mother and natural guardian Mrs.Chitra [2009-2 L.W. 260], wherein it is held that the petitioners are purchased the property, after two years of their vendor losing the battle and therefore, the Court has held that the petitioners cannot seek to revive the cause of action. Since the facts of the case differs from the facts of the present case, the above said decision is also not helpful to the revision petitioners herein. 11. The learned counsel appearing for the respondent submitted that this respondent has been impeaded as the second defendant in the suit as a purchaser pendente lite. Since the vendor of the property contested the suit and also preferred the first appeal, the respondent herein has not participated in the proceedings. But now, the vendor of the property (i.e.) sole appellant died and therefore, the respondent herein has every right to proceed with the appeal as a purchaser pendente lite in the place of the deceased appellant. The learned counsel further pointed out that the trial Court has rightly discussed and allowed the application and the above said finding is not perverse or illegal finding and hence, there is no need to interfere with the above said finding. 12. The learned counsel further pointed out that the trial Court has rightly discussed and allowed the application and the above said finding is not perverse or illegal finding and hence, there is no need to interfere with the above said finding. 12. In support of his contention, the learned counsel appearing for the respondent has relied on a decision of the Hon'ble Apex Court in Sm.Saila Bala Dassi v. Sm.Nirmala Sundari Dassi and another [AIR 1958 Supreme Court 394] in which para No.9 reads as follows: “9. ...... As a purchaser pendente lite, she will be bound by the proceedings taken by the first respondent in execution of her decree, and justice requires that has would be given an opportunity to protest her rights.” 13. The learned counsel appearing for the respondent also relied on another decision of the Orissa High Court reported in Bhismadev Taria and another v. Radhakishan Agarwalla and others [AIR 1968 Orissa 230 (Vol.55, C.67)] wherein, para No.8 reads as under: “8...... The principle is well settled that if there is a technical objection to passing a decree, the defect could be remedied by transposing the pro forma defendants as plaintiffs and such a course should always be adopted where it is necessary for a complete adjudication upon the questions involved in the suit and to avoid multiplicity of the proceedings.” 14. The learned counsel appearing for the respondent also relied on another decision of Kerala High Court reported in K.K.Abraham v. Joseph Varghese and another reported in [Air 2003 Kerala 1] wherein para No.7 reads as under: “7. Even though Order XXIII, Rule 1-A and O.1, Rule 10, CPC refers to the expression “suit” and the “plaintiff”, it cannot, for that reason, be sought to restrict the application of the provision to a proceeding in a suit alone since the appeal is the continuation of the proceedings of the suit and in the absence of any separate provision to deal with such a situation it has to be held that the principles contained under Order XXIII, (Ker3) Rule 1-A and Order 1, Rule 10 must apply to the proceedings in appeal as well. In this connection, reliance was placed on the decision of the Madras High Court in Govinda Iyer v. Kumar, AIR 1980 Madras 232, wherein it has been held that by virtue of S.107 and Order 22, Rule 1-A the Court can transpose a respondent as appellant when the appellant seeks to withdraw or abandon the appeal. A similar contention was raised by the contesting respondents in that case. It was contended that Order XXIII, Rule 1-A of the Code of Civil Procedure will apply only to a suit and not to a second appeal. However, repelling the contention the Court held that in view of S.107, CPC., procedural provision applicable to suits can also be applied to appeals or second appeals as far as it is practicable. In such circumstances, it was held that a Court has power to transpose the respondent as appellant in suitable cases when the appellant seeks to withdraw or abandon the appeal. Hence, the application filed by the petitioner herein for transposing himself as an appellant cannot be rejected on the mere ground that the application was filed in an appeal and not in a suit, since as already observed above, the provisions of Order XXIII, Rule 1-A read with Order 1, Rule 10, CPC will apply to a proceeding in appeal as well. A respondent in an appeal is entitled to seek himself to be transposed as an appellant, if he satisfies the conditions otherwise”. 15. It is not in dispute that revision petitioners 1 to 3 and also the deceased first plaintiff originally filed the suit for recovery of possession against the sole defendant namely, Lakshmiammal. During the pendency of the suit, the above said plaintiff filed an application to implead Sahara Bibi as the second defendant in the suit by saying that she is a purchaser pendente lite. The vendor of the suit property namely, Lakshmi ammal had contested the above said suit. But, the trial Court has decreed the suit. Aggrieved over the above said judgment and decree of the trial Court, the first defendant in the above said suit preferred the first appeal. During the pendency of the appeal, the above said Lakshmi ammal died. 16. In the above said circumstances, the respondent herein, who is the purchaser pendente lite filed the application to transpose from the second respondent to the second appellant in the appeal suit. During the pendency of the appeal, the above said Lakshmi ammal died. 16. In the above said circumstances, the respondent herein, who is the purchaser pendente lite filed the application to transpose from the second respondent to the second appellant in the appeal suit. The learned counsel appearing for the respondent herein would submit that in view of the law laid down by the Hon'ble Supreme Court and other Courts as already discussed, the respondent herein is entitled to file an application to transpose as the second appellant. The main contention of the revision petitioners is that since the respondent herein remained exparte before the trial Court and also not preferred any appeal against the judgment, she is not entitled to transpose. But, as rightly discussed by the trial Court and also considering the facts and circumstances of the case, this Court is of the view that the respondent is entitled to transpose as second appellant, since, it is necessary for a complete adjudication upon the questions involved in the suit and also to avoid multiplicity of proceedings, as rightly held by the Hon'ble Supreme Court and other Courts. 17. In view of the above said discussions, this Court is of the view that the order passed by the trial Court allowing the application filed by the respondent is not perverse or illegal and therefore, there is no need to interfere with the above said findings. 18. In the result, the civil revision petition is dismissed. No costs. Consequently, the connected Miscellaneous Petition is also closed.