Research › Search › Judgment

Rajasthan High Court · body

2014 DIGILAW 970 (RAJ)

Nisar Mohd v. Dhapu Bai

2014-04-21

SANDEEP MEHTA

body2014
JUDGMENT 1. - Today the matter comes upon an application being I.A. No. 5888 of 2013 filed on behalf of the applicant M/s. Royal Palace Mattel, Sirohi through its partner Shri Vikram Singh Rajput under Order 1, Rule 10 C.P.C. for being impleaded as a party respondent in the appeal. 2. It has been claimed in the application that during the pendency of the Us between Nisar Mohd. and Durga Devi, the applicant purchased the land in question through a registered sale deed dated 12.12.2012. It is claimed in the application that the possession of the property in question has also been handed over to the applicant and thus, the applicant is a proper and necessary party in the present appeal, which has been preferred by Nisar Mohd. against the rejection of his application under Order 39 Rules 1 and 2 C.P.C. 3. Shri Sandeep Shah learned Counsel for the applicant relies on the decisions rendered by the Hon'ble Supreme Court in the cases of A. Nawab John and Ors. v. V.N. Subramaniyam reported in (2012) 7 SCC 738 and Thomson Press (India) Limited v. Nanak Builders and Investors Private Limited and Ors. reported in (2013) 5 SCC 397 and submits that the transfer pendente lite is neither illegal nor void-ab-initio and impleadment of the subsequent purchaser of the property is essential for the just decision of the case. 4. Shri Richin Surana learned Counsel for the appellant placed reliance on the decision rendered by the Hon'ble Supreme Court in the case of Sanjay Venna v. Manik Roy and Ors. reported in AIR 2007 SC 1332 and submits that the transferee, who during the pendency of the litigation knowingly purchased the property from the defendant without leave of the Court cannot claim impleadment in view of the doctrine of lis pendence. Thus, he submits that the application filed under Order 1, Rule 10 C.P.C. praying for impleadment of party should be rejected. 5. I have considered the arguments advanced by the learned Counsel for the applicant M/s. Royal Palace Mattel, Sirohi and the learned Counsel for the appellant. 6. The Hon'ble Supreme Court in the subsequent two decisions of A. Nawab John and Thomson Press (India) Limited (supra), considered in detail the earlier judgments in the cases of Sanjay Verma and Amit Kumar Shaw v. Farida Khatoon reported in (2005) 11 SCC 403 and held as below: "17. 6. The Hon'ble Supreme Court in the subsequent two decisions of A. Nawab John and Thomson Press (India) Limited (supra), considered in detail the earlier judgments in the cases of Sanjay Verma and Amit Kumar Shaw v. Farida Khatoon reported in (2005) 11 SCC 403 and held as below: "17. It is settled legal position that the effect of Section 52 is not to render transfers affected 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." (Sanjay Verma v. Manik Roy, AIR 2007 SC 1332 , para 12) 18. Such being the scope of Section 52, two questions arise: Whether a pendente lite 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. 19. This Court on more than one occasion held that when a pendente lite purchaser seeks to implead himself as a party - defendant to the suit, such application should be liberally considered. This Court also held in Smt. Saila Bala Dassi v. Smt. Nirmala Sundari Dassi and another, AIR 1958 SC 394 , that, "justice' requires", a pendente lite 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'. 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 of the C.P.C.) to be brought on record to defend her interest because, as a purchaser pendente lite, she would be bound by the decree against her vendor. 20. There is some divergence of opinion regarding the question, whether a 26 pendente lite purchaser is entitled, as a matter of right, to get impleaded in the suit, this Court in (2005) 11 SCC 403 , held that: "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 pendete lite can be added as a proper party if his interest in the subject-manner of the suit is substantial and not just peripheral. A transferee pendent elite (sic. 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 Us 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 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] 21. He is entitled to be 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] 21. The preponderance of opinion of this Court is that a pendente lite purchaser's application for impleadment should normally be allowed or "considered liberally"." 7. Thus, in view of the judgments rendered by the Hon'ble Supreme Court in the case of A. Nawab John and Thomson Press (India) Limited (supra), this Court is of the opinion that the applicant, who is subsequent purchaser of the property in question by a registered sale deed has a right to be impleaded in the proceedings and to be heard therein. The purchaser steps into the shoes of the vendor and thus, he has recourse to all the rights held by the vendor. 8. The application is thus allowed. The applicant M/s. Royal Palace Mattel, Sirohi through its partner Shri Vikram Singh Rajput is permitted to be impleaded as party respondent to the appeal.Learned Counsel for the appellant to file amended cause title within a periodApplication allowed. *******