Research › Search › Judgment

Madhya Pradesh High Court · body

2015 DIGILAW 1081 (MP)

Sanjay Singh v. Ombabu Jain

2015-10-08

K.K.TRIVEDI

body2015
ORDER : K.K. Trivedi, J. This writ petition under Article 227 of the Constitution of India takes exception to the order dated 3-7-2015 passed in Civil Suit No. 500-A/2010 by X Additional District Judge, Bhopal, by which the application made by the petitioner under Order 1, Rule 10 of the Code of Civil Procedure (hereinafter referred to as 'the Code') for his impleadment as defendant in the suit filed by the respondent No. 1 has been rejected. The respondent No. 1 filed a suit for specific performance of contract against the respondents No. 2, 3 and 4. During pendency of the said suit, it appears that the respondents/defendants have executed a sale deed in favour of the petitioner herein, without even disclosing that any litigation in that respect was pending consideration before the trial Court. After the registration of the said sale deed, it appears that when the petitioner came to know about the pendency of the aforesaid suit, he moved an application under Order 1, Rule 10 of the Code for his impleadment as a defendant in the said suit. It was contended in the application that though the intention to purchase the property was brought to the notice of the general public by publication of notice to that effect in the newspaper, yet no objection in that respect was raised by anybody and, therefore, under a bona fide belief that the petitioner was purchasing undisputed property, the sale deed was got registered. However, when the petitioner came to know about such a suit, he immediately moved an application for his impleadment as a defendant in the suit. Such a prayer made by the petitioner was opposed by the respondent No. 1 and it was contended that the petitioner was a subsequent purchaser and any such purchase made by him would be hit by section 52 of the Transfer of Property Act, 1982 (hereinafter referred to as 'the Act') and as such the petitioner was not to be impleaded as a party in the suit proceedings. Without even considering the law laid down by the Apex Court, since the application has been rejected by the impugned order, therefore, the order impugned is liable to be set aside. 2. Without even considering the law laid down by the Apex Court, since the application has been rejected by the impugned order, therefore, the order impugned is liable to be set aside. 2. Per contra, it is contended by the learned counsel for the respondents that well settled position of law is that the petitioner being a subsequent purchaser would not be entitled to be heard especially when the sale has been effected after filing of the suit by the respondent No. 1 and the principles of lis pendens would be applicable in such case. Even otherwise, considering all these aspects the trial Court has granted an injunction in favour of the respondent No. 1 with respect to maintaining the possession of the respondent No. 1 on the suit land. The petitioner is going to face consequence of getting the sale deed executed during the pendency of the lis and as such if the application has been rejected by the trial Court, interference in the order impugned is not called for. 3. After hearing learned counsel for the parties and after going through the record available and after examining the law laid down in this respect, it is clear that the application of the petitioner was not properly considered by the trial Court. In the case of Amit Kumar Shaw and Another Vs. Farida Khatoon and Another, AIR 2005 SC 2209 the Apex Court has categorically held after combined reading of the provisions of Order 1, Rule 10 as also Order 22, Rule 10 of the Code and keeping in view the principles laid down under section 52 of the Act that it is not necessary that all subsequent purchasers may not be allowed to become a party in the suit if one is filed for specific performance of contract prior to obtaining the right by the subsequent transferee. While considering these aspects the Apex Court has categorically held in paragraphs 9, 10, 14 and 16, which read thus:- "9. The object of Order 1, Rule 10 is to discourage contests on technical pleas, and to save honest and bona fide claimants from being non-suited. The power to strike out or add parties can be exercised by the Court at any stage of the proceedings. The object of Order 1, Rule 10 is to discourage contests on technical pleas, and to save honest and bona fide claimants from being non-suited. The power to strike out or add parties can be exercised by the Court at any stage of the proceedings. Under this Rule, a person may be added as a party to a suit in the following two cases: (1) When he ought to have been joined as plaintiff or defendant, and is not joined so, or (2) When, without his presence, the questions in the suit cannot be completely decided. 10. The power of a Court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The question is whether the right of a person may be affected if he is not added as a party. Such right, however, will necessarily include an enforceable legal right. 14. An alienee pendente lite is bound by the final decree that may be passed in the suit. Such an alienee can be brought on record both under this rule as also under Order 1, Rule 10. Since under the doctrine of lis pendens a decree passed in the suit during the pendency of which a transfer is made binds the transferee, his application to be brought on record should ordinarily be allowed. 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. 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. 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 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) 4. The aforesaid provisions of law was considered by this Court as well in the case of Smt. Nirmala Devi Vs. Dayal Singh Gaur and Others, (2007) 4 MPHT 189 . Again in the case of A. Nawab John and Others Vs. V.N. Subramaniyam, (2012) 7 SCC 738 while considering the law laid down in the case of Amit Kumar Shaw (supra), the Apex Court has reiterated the propriety of permitting subsequent purchaser to participate in the suit proceedings, if suit is for specific performance of contract. 5. In view of the aforesaid law laid down by the Apex Court, it is clear that the trial Court has not considered these aspects. True it is that for the purpose of establishing the right the petitioner could have also filed a suit for declaration of his title and that suit could have been decided along with the suit filed by the respondent No. 1, that would be nothing, but multiplicity of the litigation. 6. Keeping in view the aforesaid, the writ petition is allowed. The order dated 3-7-2015 passed on the application of the petitioner under Order 1, Rule 10 of the Code is hereby set aside. The application of the petitioner is allowed. He be impleaded as defendant in the suit. After the impleadment the petitioner would file his written statement within a period of 15 days, failing which his right to file written statement would be closed. Let the suit be decided expeditiously and no delayed practice be allowed to the petitioner by the trial Court. He be impleaded as defendant in the suit. After the impleadment the petitioner would file his written statement within a period of 15 days, failing which his right to file written statement would be closed. Let the suit be decided expeditiously and no delayed practice be allowed to the petitioner by the trial Court. The writ petition is allowed to the extent indicated hereinabove. There shall be no order as to cost.