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2014 DIGILAW 2440 (MAD)

Joseph Joys v. Jesu Jebamalai

2014-08-07

V.M.VELUMANI

body2014
Judgment : 1. This Civil Revision Petition has been filed to set aside the fair and decretal order, dated 11.02.2010, passed in I.A.No.243 of 2009 in O.S.No.564 of 2005, by the learned II Additional District Munsif, Nagercoil. 2. The petitioner is the proposed third party. The first respondent filed the suit in O.S.No.564 of 2005 against the second respondent, for permanent injunction restraining him from blocking or obstructing the plaint schedule property at any place. 3. According to the second respondent, the pathway is a private pathway, not a public pathway. Pending suit, a portion of the property was purchased by the petitioner's Principal on 10.11.2008. After such purchase, the petitioner filed I.A.No.243 of 2009, to implead him as third defendant in the suit. The first respondent/plaintiff resisted the said application. 4. The learned Judge after considering all the materials on record, dismissed the said application on the ground that the petitioner's principal purchased the property during pendency of the suit. The petitioner's principal knowing fully well about the pendency of litigation, purchased the said property. Against the said order, the present civil revision petition is filed. 5. Heard Mr.M.P.Senthil, learned counsel for the revision petitioner and Mr.S.Subbiah, learned counsel for the first respondent. 6. Learned counsel for the petitioner argued that the third respondent also the subsequent purchaser and she was impleaded as the second defendant, by the order, dated 28.11.2006, made in I.A.No.1065 of 2006. He also argued that the petitioner is also similarly placed person like the third respondent and the learned Judge ought to have allowed the application. 7. In support of his submission, the learned counsel for the petitioner relied on the following Judgments:- (i) 2005 (4) CTC 47 [Amit Kumar Shaw and Another Vs. Farida Khatoon and Another]; (ii) 2013 (2) CTC 104 [Thomson Press (India) Ltd., Vs. Nanak Builders & Investors P. Ltd. & Others; and (iii) 2014 (3) LW 769 [V.L.Dhandapani Vs. Revathy Ramachandran & Others] 8. Learned counsel for the petitioner placed much reliance on the Judgment of the Division Bench of this Court reported in 2014 (3) LW 769 [V.L.Dhandapani Vs. Revathy Ramachandran & Others], wherein in paragraph Nos.11 to 16, it has been held as follows:- "11. Revathy Ramachandran & Others] 8. Learned counsel for the petitioner placed much reliance on the Judgment of the Division Bench of this Court reported in 2014 (3) LW 769 [V.L.Dhandapani Vs. Revathy Ramachandran & Others], wherein in paragraph Nos.11 to 16, it has been held as follows:- "11. The issue required to be answered by us has already been dealt with in extenso by the decision of the Supreme Court in THOMSON PRESS (INDIA) LIMITED V. NANAK BUILDERS AND INVESTORS PRIVATE LIMITED AND OTHERS (2013) 5 Supreme Court Cases 397. Therefore we are of the view that the reference as sought for by the learned single Judge is no longer required to be answered. However, as the cases are pending for quite some time and arguments have been made before us on merits, we would like to pass final orders instead of requesting the learned single Judge to decide them. This we do so also for the reason that there is no intra Court Appeal or Revision against the order of the learned single Judge. Therefore, the parties also would not lose any right to approach the Forum before this Court. 12. In the decision referred supra, the Supreme Court has considered the scope of both Section 52 of the Transfer of Property Act, 1882, as well as the Order 1 Rule 10 of the Code of Civil Procedure. In the said case, the suit was filed for specific performance. Inspite of the prohibitory orders passed, there was an alienation by a party to the suit. Even though the purchaser could not be termed as a bona fide purchaser, the Supreme Court, after considering the scope and ambit of Section 52 of the Transfer of Property Act, 1882, and Order 1 Rule 10 of the Civil Procedure Code and Section 19(b) of the Specific Relief Act, 1963, allowed the application for impleadment sought for. 13. Considering the scope of Section 52 of the Transfer of Property Act, 1882, after considering all the earlier judgments, it has been held that doctrine of lis pendens does not indeed annul the conveyance or the transfer otherwise, but merely makes it subservient to the rights of the parties to a litigation. 13. Considering the scope of Section 52 of the Transfer of Property Act, 1882, after considering all the earlier judgments, it has been held that doctrine of lis pendens does not indeed annul the conveyance or the transfer otherwise, but merely makes it subservient to the rights of the parties to a litigation. Section 52 of the Transfer of Property Act, 1882, does not render transfers affected during the pendency of the suit as void and a mere pendency of the suit does not prevent one of the parties from dealing with the property constitute in the subject matter of the suit. On the contrary, it only postulates a condition that the alienation will in no manner affects the rights of the other party to the suit. 14. Similarly, on the scope of Order 1 Rule 10, it has been held that a transferee pendente lite can be added as a party to the suit. Where a transfer is effected, the transferor would lose all his rights and interest in the litigation post transfer. Therefore, it is imperative that the transferee will have to be allowed to step into the shoes of the transferor and prosecute the case in his place. The duty of the Civil Court is to conclude and settle the dispute between the parties instead of driving them to multiply the proceedings. It would be proper to implead all the parties. It cannot be said that a transferee has got no interest in the suit in which the transferor is a party. The following paragraphs of the Supreme Court are apposite: 26...... It is well settled that the doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a court in a suit should be binding not only on the litigating parties but on those who derive title pendente lite. The provision of this Section does not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parties to a litigation. The provision of this Section does not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parties to a litigation. 31.......From the bare reading of the aforesaid provision, it is manifest that sub-rule (2) of Rule 10 gives a wider discretion to the Court to meet every case or defect of a party and to proceed with a person who is a either necessary party or a proper party whose presence in the Court is essential for effective determination of the issues involved in the suit. 49. The second aspect which the proposed judgment succinctly deals with is the effect of a sale pendete lite. The legal position in this regard is also fairly well settled. A transfer pendete lite is not illegal ipso jure but remains subservient to the pending litigation. In Nagubai Ammal & Ors. v. B. Shama Rao & Ors. AIR 1856 SC 593, this Court while interpreting Section 52 of the Transfer of Property Act observed: "25. The words ''so as to affect the rights of any other party thereto under any decree or order which may be made therein", make it clear that the transfer is good except to the extent that it might conflict with rights decreed under the decree or order. It is in this view that transfers pendent lite have been held to be valid and operative as between the parties thereto". 50. To the same effect is the decision of this Court in Vinod Seth v. Devinder Bajaj (2010) 8 SCC 1 where this Court held that Section 52 does not render transfers affected during the pendency of the suit void but only render such transfers subservient to the rights as may be eventually determined by the Court. The following passage in this regard is apposite: "42. It is well settled that the doctrine of lis pendens does not annul the conveyance by a party to the suit, but only renders it subservient to the rights of the other parties to the litigation. Section 52 will not therefore render a transaction relating to the suit property during the pendency of the suit void but render the transfer inoperative insofar as the other parties to the suit. Section 52 will not therefore render a transaction relating to the suit property during the pendency of the suit void but render the transfer inoperative insofar as the other parties to the suit. Transfer of any right, title or interest in the suit property or the consequential acquisition of any right, title or interest, during the pendency of the suit will be subject to the decision in the suit." 51. The decision of this Court in A. Nawab John & Ors. v. V.N. Subramanyam (2012) 7 SCC 738 is a recent reminder of the principle of law enunciated in the earlier decisions. This Court in that case summed up the legal position thus: "18.....''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." 52. We may finally refer to the decision of this Court in Jayaram Mudaliar v. Ayyaswami and Ors. (1972) 2 SCC 200 in which were extracted with approval observations made on the doctrine of lis pendens in b?#Commentaries of Laws of Scotland, by Bell. This Court said: "43....Bell, in his commentaries on the Laws of Scotland said that it was grounded on the maxim: Pendente lite nibil innovandum. He observed: ''It is a general rule which seems to have been recognised in all regular systems of jurisprudence, that during the pendence of an action, of which the object is to vest the property or obtain the possession of real estate, a purchaser shall be held to take that estate as it stands in the person of the seller, and to be bound by the claims which shall ultimately be pronounced.'' 53. There is, therefore, little room for any doubt that the transfer of the suit property pendete lite is not void ab initio and that the purchaser of any such property takes the bargain subject to the rights of the plaintiff in the pending suit. There is, therefore, little room for any doubt that the transfer of the suit property pendete lite is not void ab initio and that the purchaser of any such property takes the bargain subject to the rights of the plaintiff in the pending suit. Although the above decisions do not deal with a fact situation where the sale deed is executed in breach of an injunction issued by a competent Court, we do not see any reason why the breach of any such injunction should render the transfer whether by way of an absolute sale or otherwise ineffective. The party committing the breach may doubtless incur the liability to be punished for the breach committed by it but the sale by itself may remain valid as between the parties to the transaction subject only to any directions which the competent Court may issue in the suit against the vendor. 56. To the same effect is the decision of this Court in Amit Kumar Shaw v. Farida Khatoon (2005) 11 SCC 403 where this Court held that a transferor pendente lite may not even defend the title properly as he has no interest in the same or collude with the plaintiff in which case the interest of the purchaser pendente lite will be ignored. To avoid such situations the transferee pendente lite can be added as a party defendant to the case provided his interest is substantial and not just peripheral. This is particularly so where the transferee pendente lite acquires interest in the entire estate that forms the subject matter of the dispute. This Court observed: "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 the 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. 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 the transferee pendente lite is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case." To the same effect is the decision of this Court in Rikhu Dev, Chela Bawa Harjug Dass v. Som Dass (deceased) through his Chela Shiama Dass, (1976) 1 SCC 103 . 57. To sum up: 57.1 The appellant is not a bona fide purchaser and is, therefore, not protected against specific performance of the contract between the plaintiffs and the owner defendants in the suit. 57.2 The transfer in favour of the appellant pendente lite is effective in transferring title to the appellant but such title shall remain subservient to the rights of the plaintiff in the suit and subject to any direction which the Court may eventually pass therein. 57.3 Since the appellant has purchased the entire estate that forms the subject matter of the suit, the appellant is entitled to be added as a party defendant to the suit. 57.4 The appellant shall as a result of his addition raise and pursue only such defenses as were available and taken by the original defendants and none other." 15. 57.3 Since the appellant has purchased the entire estate that forms the subject matter of the suit, the appellant is entitled to be added as a party defendant to the suit. 57.4 The appellant shall as a result of his addition raise and pursue only such defenses as were available and taken by the original defendants and none other." 15. Now coming to the reference made, we are of the view that in the light of the decision rendered in THOMSON PRESS (INDIA) LIMITED V. NANAK BUILDERS AND INVESTORS PRIVATE LIMITED AND OTHERS (2013) 5 Supreme Court Cases 397 that a transferee pendente lite can be impleaded as a party to the suit. However, we make it clear that the question as to whether such a party is entitled to be impleaded will have to be decided from the facts of the case. Accordingly, the reference sought for is answered. 16. In the light of the above pronouncements, we are of the view that all these revision petitions will have to be allowed. Merely because the sale has been effected a few years after the pendency of the suit, it would not non-suit the purchaser pendente lite from seeking to implead himself as a party defendant. It is also not as if the petitioners in all these revisions are trying to put up a different case other than the case of their vendors. There are no materials to hold that the petitioners are not the bonafide purchasers for the value. Considering the above, we are inclined to allow all the revision petitions. However, there is no order as to costs. Consequently, the connected miscellaneous petitions are closed." 9. In view of the above Judgment, the learned counsel for the petitioner argued that the impugned order of the learned Judge must be set aside. 10. Per contra, the learned counsel for the first respondent contended that the when the vendor of the petitioner is already on record, the petitioner, who is the subsequent purchaser is not a necessary and proper party. 11. I have considered the arguments of the learned counsel for the petitioner as well as the first respondent and perused the materials available on record. 12. As per the ratio laid down in the Judgment of the Division Bench of this Court reported in 2014 (3) LW 769 [V.L.Dhandapani Vs. 11. I have considered the arguments of the learned counsel for the petitioner as well as the first respondent and perused the materials available on record. 12. As per the ratio laid down in the Judgment of the Division Bench of this Court reported in 2014 (3) LW 769 [V.L.Dhandapani Vs. Revathy Ramachandran & Others], the petitioner is a necessary and proper party and the Division Bench of this Court in the said Judgment considered all the Judgments on this point and concluded that the subsequent purchaser is also a necessary and proper party to the suit and this issue has to be decided on the facts of the each case. 13. In the present case, the petitioner has purchased seven cents out of seventeen cents in the suit property and the third respondent is also purchased a portion of the suit property subsequent to the suit and she was impleaded as second defendant in the suit by the order, dated 28.11.2006, made in I.A.No.1065 of 2006. The petitioner is also similarly placed person like the third respondent and there is no reason to differentiate the petitioner from the third respondent. Applying the ratio laid down in the Judgment of the Division Bench of this Court reported in 2014 (3) LW 769 [V.L.Dhandapani Vs. Revathy Ramachandran & Others], the third respondent is a necessary and proper party. 14. For the above reasons, this Civil Revision Petition is allowed and the impugned order of the learned Judge is set aside. No costs. Consequently, connected Miscellaneous Petition is closed.