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Madhya Pradesh High Court · body

2016 DIGILAW 138 (MP)

Penta Buildcon Pvt. Ltd. v. Laltobai

2016-02-19

J.K.MAHESHWARI

body2016
ORDER 1. This petition, under Article 227 of the Constitution of India, has been filed by the petitioner assailing the order dated 15.10.2015 passed by Xth ADJ, Gwalior in Civil Suit No.84-A/2014 rejecting his application under Order 22 rule 10, CPC, to implead him as defendant being purchaser during pendency of suit filed by respondent No.1. 2. On perusal of the order impugned, it reveals that the trial Court relying upon the judgment of Hon'ble the Supreme Court in the case of Sanjay Verma v. Manik Roy [ AIR 2007 SC 1332 ], has observed that in view of provision contained in section 52 of the Transfer of Property Act, 1882 (for short "the Act") and by virtue of doctrine of lis pendens, the applicants are bound by the final judgment in the suit. It has also been observed that the person, who has applied to the Court, cannot seek leave of the Court merely on the ground that his rights may not be duly represented in the proceedings. It has also been observed that if the prayer for joining the proposed parties is accepted, then it would lead to perpetuity of such further applicants who may purchase property during pendency of the suit. 3. Learned counsel for the petitioner contends that this is a case wherein suit seeking declaration of title and permanent injunction has been filed by respondent No.1 against respondents No.2 to 5 and on the basis of agreement to sell executed in her favour receiving entire amount of consideration by respondent No.2 and delivered the possession of suit land. The name of respondent No.1 was also recorded in the revenue papers. During pendency of the suit, the disputed property was transferred by respondent No.2 (defendant No.1) in the name of Dinesh Kumar Arya by registered sale-deed dated 23.2.2013, who in turn, alienated the same to petitioner-applicant vide registered sale-deed dated 23.2.2013. However, he has submitted an application inter alia contending that property in question has been purchased by him during the pendency of the suit, therefore, having assignment of the property in question, he may be joined as party to the proceedings extending leave in his favour, otherwise his rights shall be affected. However, he has submitted an application inter alia contending that property in question has been purchased by him during the pendency of the suit, therefore, having assignment of the property in question, he may be joined as party to the proceedings extending leave in his favour, otherwise his rights shall be affected. Learned counsel referring to the provisions of section 52 of the Act fairly contended that by lis pendens transfer the judgment and decree passed in the suit shall bind not only on the parties in a suit but also on those who purchase the same pendente lite. Thus, by purchasing the suit land right accrues to him deserves adjudication subservient to the rights of litigants in the suit, therefore, application under Order 22 rule 10, CPC may be allowed. In support of his contention, reliance has been placed on judgment of the apex Court in the case of Thomson Press (India) Ltd. v. Nanak Builders and Investors (P) Ltd. [ (2013)5 SCC 397 ]. It is also urged by him that rejection of application by the trial Court observing that allowing of the application would give a right to the purchasers who may further purchase the property during pendency of litigation may not be a ground to refuse leave as per the language of under Order 22 rule 10, CPC. However, prayed invoking jurisdiction under Article 227 of the Constitution of India, impugned order passed by the trial Court may be set aside allowing the application filed by the petitioner. 4. On the other hand, Shri Yogi and Shri Lalit Kumar, counsel representing respondent No.1 plaintiff (contesting party) have contended that suit is based on agreement to sell after passing the entire consideration amount and on having possession seeking declaration of title, and also on the basis of adverse possession because her name had already been recorded in the revenue records and continues as such since last 12 years. During the pendency of suit, the original defendant No.1 (respondent No.2) sold the property to one Dinesh Arya who had not applied to join as party to the proceedings. However, after the purchase by the petitioner-applicant, who claims title through Dinesh not entitle to join party to the proceedings however, the application has rightly been rejected by the trial Court. During the pendency of suit, the original defendant No.1 (respondent No.2) sold the property to one Dinesh Arya who had not applied to join as party to the proceedings. However, after the purchase by the petitioner-applicant, who claims title through Dinesh not entitle to join party to the proceedings however, the application has rightly been rejected by the trial Court. In support of their contentions, reliance has been placed on judgments of the apex Court in the case of Sarvinder Singh v. Dalip Singh [ (1996)5 SCC 539 ], Dhurandhar Prasad Singh v. Jai Prakash University [ (2001)6 SCC 534 ], and Jaskirat Datwani v. Vidyavati [ (2002)5 SCC 647 ], and the judgment in the case of Sanjay Verma (supra). Laying much emphasis on the decision in Dhurandhar's case (supra), as well as, on Sanjay Verma's case (supra), it is contended that in case of pendente lite transfer, parties cannot claim impleadment on the basis of doctrine of lis pendens and they would govern by the consequence to follow. It is further submitted that if the trial Court has rejected the application under Order 22 rule 10, CPC, it cannot be said to be an order illegal or in excess of its jurisdiction, thus extraordinary jurisdiction under Article 227 of the Constitution, cannot be allowed to be invoked. 5. Having heard, learned counsel for both the parties and on appreciating the arguments as advanced, the provisions as contained in section 52 of the Act, as well as, the provisions of Order 22 rule 10, CPC, require to be noticed. Thus, the same are reproduced as under : Section 52 of Transfer of Property Act : 52. Transfer of property pending suit relating thereto. -- During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceedings so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. Explanation : For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force. Order 22 rule 10 of Code of Civil Procedure : Order 22 rule 10. Procedure in case of assignment before final order in suit. -- (1) In other case of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by a against the person to or upon whom such interest has come or devolved. (2) The attachment of a decree pending an appeal there from shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1). 6. Prior to analysis of the aforesaid provisions, it is to be observed that section 52 of the Act is a substantive law, whereas Order 22 rule 10, CPC law down, procedure to be applied in case of assignment creation or devolution of any interest during pendency before final order. Further, in view of section 146 of the CPC, it is clear that in proceedings by or against representatives, save as otherwise provided by the Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him. Order 22 rule 10 makes it clear that in case of assignment, creation or devolution of any interest, during the pendency of suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. Thus, it is apparent that on creation, assignment and devolution of any interest in a property, the suit may be continued against the person to whom the right has been created. However, to continue such proceedings, leave of the Court is necessary. Thus, it is apparent that on creation, assignment and devolution of any interest in a property, the suit may be continued against the person to whom the right has been created. However, to continue such proceedings, leave of the Court is necessary. In the said context, if the provision of section 52 of the Act, as quoted hereinabove, is analyzed, then it is clear that in a suit or proceeding which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein except under the authority of the Court and on such terms as it may impose. Therefore, looking to said language, principle of lis pendens has been brought. Meaning and effect of doctrine of a lis pendens has been explained by the apex Court in the case of Thomson Press (supra), wherein judgment of Sanjay Verma (supra), has also been considered. The apex Court has observed that doctrine of lis pendens is based on the grounds necessary for administration of justice and that the decision of the Court in a suit should be binding not only on a litigant party but also on those who derive interest pendente lite. The Court has explained that section 52 of the Act, by itself, does not annul pendente lite conveyance or transfer or make it void but renders it subservient to rights of parties to a litigation as may be eventually determined by the Court. Thus, transfer made in favour of subsequent purchaser is subject to riders and restraint orders passed by Court, if any. 7. Considering the aforesaid principle, as laid down by the apex Court, the argument as advanced that transaction pendente lite would not confer any right to the parties to apply in a suit for being joined and the findings recorded in this respect by the trial Court, cannot be recognized under the law. In the case of Sarvinder Singh (supra), the fact situation was different, wherein the earlier suit was decided between the parties and decree was already passed and thereafter the person, in whose favour, the Will was executed had applied to the Court. In the case of Sarvinder Singh (supra), the fact situation was different, wherein the earlier suit was decided between the parties and decree was already passed and thereafter the person, in whose favour, the Will was executed had applied to the Court. However, the Court applying the principal of section 52 of the Act had observed that judgment and decree passed by the Court would apply to the assignment in view of determination already made by the Court. So far as judgment in the case of Dhurandhar Prasad (supra), is concerned, matter was with respect to functioning of a College wherein the defendant was the governing body of the College, had appeared and thereafter absented. After passing ex parte decree, at the time of execution, it revealed that during pendency of the suit, the College became constituent of the University. In the said circumstances, the issue of impleadment of the party has been dealt with, which cannot be equated with the facts of the present case. Therefore, I respectfully disagree with the ratio of the said judgments. Similarly, in the case of Jaskirat Datwani (supra), while dealing with the analogy of Order 22 rule 10, CPC, the apex Court has observed that in case of assignment, creation or devolution of interest during pendency of suit, the suit cannot be brought to end. Emphasizing the instinct of section 52 of the Act, it has been observed that right of parties can be determined applying the principle of lis pendens. 8. In view of the foregoing discussion and looking to the instinct of substantive provisions of section 52 of the Act, section 146 of the CPC, as well as, procedure prescribed under Order 22 rule 10, CPC, it can safely be held that under Order 22 rule 10 or section 146 of CPC, in case of assignment or devolution of any interest during pendency of suit, the proceedings may continue leave of the Court. It do not clarify that if a subsequent purchaser from original defendant has purchased the property and is not party to the proceedings and if subsequent purchaser applies, then there is any impediment to submit an application seeking leave to join as party to proceedings. It do not clarify that if a subsequent purchaser from original defendant has purchased the property and is not party to the proceedings and if subsequent purchaser applies, then there is any impediment to submit an application seeking leave to join as party to proceedings. In the present case, respondent No.1 sold the property to Dinay Kumar who had not applied to join, thereafter purchased by petitioner, applied to join as defendant, however both may claim title from defendant No.1, hence on same pedestal. However, in the said context, looking to the language of section 52 of the Act, relying upon the interpretation in the case of Thomson Press (supra), it can be held that doctrine of lis pendens is necessitated for administration of justice. The decision of the Court in a suit shall be binding not only on the litigant parties, but on those who derive title pendente lite. Mere assignment, devolution or interest in a property during pendency would not mean that such transfer is void, but it is subservient to the right of parties to the litigation which may be determined by the Court and as such transfer made in favour of subsequent purchaser is subject to riders and orders passed by the Court, meaning thereby, that if any subsequent purchaser or a person who has purchased form the defendant applies to the Court, he cannot be denied to join as a party to the proceeding merely under the presumption that if such an application is allowed, then aspirant purchasers, if any, may also have to be permitted to join the proceedings or the suit. The analogy, as taken by the trial Court, refusing leave to join the petitioner as party to proceeding, is not in conformity to the substantivce provisions, as well as, the procedure to be applied in case of assignment or devolution of right before final order of decree is passed in a suit. 9. In view of the aforesaid, the petition filed by the petitioner is allowed and the order impugned passed by the trial Court is set aside. The application under Order 22 rule 10, CPC filed by the petitioner is also allowed. The trial Court is directed to decide the suit after joining the petitioner as party, as accordance with law.