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2016 DIGILAW 1817 (ALL)

Jaitun v. Amit Kumar

2016-05-11

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri Tarun Kumar Tiwari for the petitioners. 2. This petition has been filed for setting aside the order of Additional Civil Judge(Senior Division) dated 19.5.2014 and Additional District Judge dated 18.01.2016. By the impugned orders the application for impleadment filed by Amit Kumar and Awnish Kumar, respondents-1 and 2, in O.S. No.281 of 1999 (Smt. Jaitun and others vs. Atar Singh and another) has been allowed and the revision filed by the petitioners has been dismissed. 3. Amit Kumar and Awnish Kumar filed an application for impleadment stating therein that Atar Singh has executed a sale deed dated 28.2.2007 and thereafter 14.3.2008 of the land in dispute. Thus, interest has been assigned to them during pendency of the suit as such they were entitled to be impleaded as defendants in the suit. The trial court has allowed the impleadment application by order dated 19.5.2014 and revision filed by the petitioners against the aforesaid has been dismissed by order dated 18.1.2016. 4. The counsel for the petitioners submits that during pendency of the suit without leave of the court subject matter of suit cannot be transferred in view of Section 52 of Transfer of Property, 1882. Therefore, the impugned orders are illegal and liable to be set aside. 5. I have considered the arguments of the counsel for the petitioners and examined the record. In order to appreciate arguments, relevant provisions of Transfer of Property Act, 1882 and Civil Procedure Code, 1908 are quoted below: - 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 proceeding which is not collusive and in which any right to immovable 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 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 and complete satisfaction or discharge of such 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. 146. Proceedings by or against representatives.-- Save as otherwise provided by this 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 1 Rule 10. Suit in name of wrong plaintiff.-- (1) .......... (2)Court may strike out or add parties.--The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. Order 22 Rule 10. Procedure in case of assignment before final order in suit.-- (1) In other cases 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 or against the person to or upon whom such interest has come or devolved. 6. Section 52 of Transfer of Property Act, 1882 safeguard the right of the litigant from pendete lite transfer. The Court is empowered to have the control over the subject matter of the suit so that decree obtained by successful party may not be defeated by pendente lite transfer. 6. Section 52 of Transfer of Property Act, 1882 safeguard the right of the litigant from pendete lite transfer. The Court is empowered to have the control over the subject matter of the suit so that decree obtained by successful party may not be defeated by pendente lite transfer. However it does not impose a complete prohibition of the transfer of subject matter of the suit as the Court is given jurisdiction to grant leave to transfer. The issue in this respect came for consideration before a Bench of three Hon'ble Judges of Supreme Court in Jayaram Mudaliar v. Ayyaswami, (1972) 2 SCC 200 , in which it has been held that expositions of the doctrine of lis pendence indicate that the need for it arises from the very nature of the jurisdiction of Courts and their control over the subject-matter of litigation so that parties litigating before it may not remove any part of the subject-matter outside the power of the court to deal with it and thus make the proceedings infructuous. The purpose of Section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward. Supreme Court again in Hardev Singh v. Gurmail Singh, AIR 2007 SC 1058 , held that Section 52 of the Transfer of Property Act, 1882 merely prohibits a transfer. It does not state that the same would result in an illegality. Only effect of this provision is the purchaser during the pendency of a suit would be bound by the result of the litigation. The transaction, therefore, was not rendered void and/or of no effect. Same view has been taken in T.G. Ashok Kumar Vs. Govind Ammal, (2010) 14 SCC 317 and Thomson Press (India) Ltd. Vs. Nanak Builders & Investors (P) Ltd., AIR 2013 SC 2389 . 7. Order 1 Rule 10 C.P.C., the Court has jurisdiction to direct impleadment of necessary and proper party. Under Order 1 Rule 10 (2) C.P.C., the Court is required to record a finding that person sought to be impleaded as party in the suit is either necessary or proper party. 7. Order 1 Rule 10 C.P.C., the Court has jurisdiction to direct impleadment of necessary and proper party. Under Order 1 Rule 10 (2) C.P.C., the Court is required to record a finding that person sought to be impleaded as party in the suit is either necessary or proper party. While Section 146 read with Order 22 Rule 10 C.P.C. confers right upon the person claiming title through a party to the litigation to be impleaded with the leave of the Court and continue the litigation. While deciding an application under Section 146 and Order 22 Rule 10 C.P.C., the Court is not required to go in to the controversy as to whether person sought to be impleaded as party in the suit is either necessary or proper party. If the person sought to be impleaed as party is legal representative of a party to the suit, it is sufficient for the Court to order impleadment/substitution of such person. A transferee pendente lite is a legal representative of the party. 8. A Bench of four Hon'ble Judges of Supreme Court in Saila Bala Dassi v. Nirmala Sundari Dassi, AIR 1958 SC 394 held that Section 146 was introduced for the first time in the Civil Procedure Code, 1908 with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment, and being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. The right to file an appeal must therefore be held to carry with it the right to continue an appeal which had been filed by the person under whom the applicant claims, and the petition of the appellant to be brought on record as an appellant in Appeal No. 152 of 1955 must be held to be maintainable under Section 146. 9. Supreme Court in Dhurandhar Prasad Singh v. Jai Prakash University, (2001) 6 SCC 534 , held that the plain language of Order 22 Rule 10 C.P.C. does not suggest that leave can be sought by that person alone upon whom the interest has devolved. It simply says that the suit may be continued by the person upon whom such an interest has devolved and this applies in a case where the interest of the plaintiff has devolved. It simply says that the suit may be continued by the person upon whom such an interest has devolved and this applies in a case where the interest of the plaintiff has devolved. Likewise, in a case where interest of the defendant has devolved, the suit may be continued against such a person upon whom interest has devolved, but in either eventuality, for continuance of the suit against the persons upon whom the interest has devolved during the pendency of the suit, leave of the court has to be obtained. If it is laid down that leave can be obtained by that person alone upon whom interest of a party to the suit has devolved during its pendency, then there may be preposterous results as such a party might not be knowing about the litigation and consequently not feasible for him to apply for leave and if a duty is cast upon him then in such an eventuality he would be bound by the decree even in cases of failure to apply for leave. As a rule of prudence, initial duty lies upon the plaintiff to apply for leave in case the factum of devolution was within his knowledge or with due diligence could have been known by him. The person upon whom the interest has devolved may also apply for such a leave so that his interest may be properly represented as the original party, if it ceased to have an interest in the subject-matter of dispute by virtue of devolution of interest upon another person, may not take interest therein, in ordinary course, which is but natural, or by colluding with the other side. If the submission of Shri Mishra is accepted, a party upon whom interest has devolved, upon his failure to apply for leave, would be deprived from challenging correctness of the decree by filing a properly constituted suit on the ground that the original party having lost interest in the subject of dispute, did not properly prosecute or defend the litigation or, in doing so, colluded with the adversary. Similar view are taken by Supreme Court in Raj Kumar Vs. Sardari Lal, (2004) 2 SCC 601 . 10. Similar view are taken by Supreme Court in Raj Kumar Vs. Sardari Lal, (2004) 2 SCC 601 . 10. Supreme Court in Amit Kumar Shaw v. Farida Khatoon, AIR 2005 SC 2209 , held that 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 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. This judgment has again been followed in Thomson Press (India) Ltd. Vs. Nanak Builders & Investors (P) Ltd., AIR 2013 SC 2389 . 11. Thus in view of judgment of Supreme Court in Jayaram Mudaliar's case (supra) that purpose of Section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward and such a transfer is not void and in Saila Bala Dassi's case (supra) holding that the object of Section 146 is to facilitate the exercise of rights by persons in whom they come to be vested by devolution or assignment, and being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. 12. In view of the aforesaid discussions, impugned orders do not suffer from any illegality. 12. In view of the aforesaid discussions, impugned orders do not suffer from any illegality. However, the trial court shall proceed to decide the suit expeditiously without granting adjournments to either of the parties, preferably within a period of one year from the date of production of a certified copy of this order before the court concerned. The petition is disposed of.