Research › Search › Judgment

Madhya Pradesh High Court · body

2016 DIGILAW 803 (MP)

ASHOK KUMAR DUBEY v. PARWATI BAI

2016-09-12

NANDITA DUBEY

body2016
ORDER : NANDITA DUBEY, J. 1. With the consent of learned counsel for both the parties, this petition is finally heard. This petition under Article 227 of the Constitution of India is filed by the petitioners assailing the order dated 19-1-2016 in Civil Suit No. 32-A/2008 passed by Additional Judge to the Court of Civil Judge Class-I, Sihora, District Jabalpur whereby the application of the plaintiff under Order 1, Rule 10, Civil Procedure Code for impleading the subsequent purchasers of the suit land (Khasra No. 326 and 373) was rejected. 2. Shri R. P. Khare, learned counsel for the petitioners submits that an application under Order 1, Rule 10, Civil Procedure Code for impleading the subsequent purchaser as defendant was moved on the basis of information that during pendency of the suit defendant/respondent had sold the disputed suit land Khasra No. 326 Area 0.260 Hectare and Khasra No. 373 Area 1.500 Hectare Village Umariya to one Shri R. K. Tiwari, Smt. Sushma Gupta and Anurag Shrivastava by registered sale deeds. This fact was admitted by the defendants' witness Ravishankar Pandey (DW-1) in Para 7 of his deposition. It is further urged that as the present defendants/respondents have alienated the whole of the property and have no more interest and rights left in the suit property, the subsequent purchaser of the suit property is a necessary and proper party for complete and effective adjudication of the suit. 3. The respondents had not denied the sale of that suit land, but resisted the application on the ground of pendency of suit. It was further contended that the matter was remanded by the Appellate Court for cross-examination to the respondent witnesses, and the impleadment of new parties would further delay the case, and prayed for dismissal of the application. 4. The trial Court vide impugned order dismissed the application filed by the petitioner/plaintiff. 5. Before adverting to the issue whether subsequent purchaser is a necessary party, provision of section 52 of TP Act and Order 1, Rule 10, Civil Procedure Code may be referred to. section 52 of the Transfer of Property Act speaks about the doctrine of lis pendens. Section 52 reads as under :- "52. 5. Before adverting to the issue whether subsequent purchaser is a necessary party, provision of section 52 of TP Act and Order 1, Rule 10, Civil Procedure Code may be referred to. section 52 of the Transfer of Property Act speaks about the doctrine of lis pendens. Section 52 reads as under :- "52. Transfer of Property pending suit relating thereto :- During the pending 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 of immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt which 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". It is well settled that doctrine of lis pendens is based on the ground that the decision of a Court in a suit is binding not only on the litigating parties but also on those who derive title pendente lite. 6. In Rajendra Singh and ors. v. Santa Singh and ors., (1973) 2 SCC 705 the Apex Court while approving the principles laid down in Javaram Mudaliar v. Ayyaswami and ors., (1972) 2 SCC 200 has reiterated :- 75. 6. In Rajendra Singh and ors. v. Santa Singh and ors., (1973) 2 SCC 705 the Apex Court while approving the principles laid down in Javaram Mudaliar v. Ayyaswami and ors., (1972) 2 SCC 200 has reiterated :- 75. The doctrine of lis pendens was intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of a Court, in which a dispute on rights or interests in immovable property is pending, by private dealings which may remove the subject-matter of litigation from the ambit of the Court's power to decide a pending dispute or frustrate its decree. Alienees acquiring any immovable property during a litigation over it are held to be bound, by an application of the doctrine, by the decree passed in the suit even though they may not have been impleaded in it. The whole object of the doctrine of lis pendens is to subject parties to the litigation as well as others, who seek to acquire rights in immovable properly, which are the subject-matter of a litigation, to the power and jurisdiction of the Court so as to prevent the object of a pending action from being defeated. 7. Order 1, Rule 10, Civil Procedure Code empowers that Court to add any person as party at any stage of proceedings if the person whose presence before the Court is necessary or proper for effective adjudication of the issue involved in the suit. In the case of Vidur Impex and Traders Private Ltd and ors. v. Tosh Apartments Private Ltd. and ors. 2012 MPLJ Online (S.C.) 19 = (2012) 8 SCC 384 the Hon'ble Apex Court has reiterated the broad principle governing the disposal of application under Order 1, Rule 10, Civil Procedure Code as underlay. Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are: 41.1 The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as Plaintiff or Defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the Suit. 41.2. 41.2. A necessary party is the person who ought to be joined as party to the Suit and in whose absence an effective decree cannot be passed by the Court. 41.3. proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom decree is to be made. 41.4. If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the Plaintiff. 41.5. In a Suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files Application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation. 41.6 However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the Court or the Application is unduly delayed then the Court will be fully justified in declining the prayer for impleadment. 8. A perusal of the impugned order makes it clear that the application of the petitioner was rejected by the trial Court relying on the judgment of Hon'ble Apex Court in the case of Dhanna Singh and others v. Baljinder Kaur and others, reported in AIR 1997 SC 3720 wherein Para 4 and 5 it was held as under:- "4. Pending the suit, though several opportunities were given, no evidence was adduced by the defendant. The Court passed an order on September 22, 1995 foreclosing the evidence of the defendant on the statement of the counsel that the first defendant was not willing to lead any evidence. An application for impleadment was filed earlier by the appellant who is a subsequent purchaser from the first defendant. After impleadment, he filed application for adduction of evidence which was rejected. Thus this appeal. 5. The undisputed fact is that in the plaint the plaintiff-respondent had already sought for a relief of injunction of alienation, yet the alienation came to be made. After impleadment, he filed application for adduction of evidence which was rejected. Thus this appeal. 5. The undisputed fact is that in the plaint the plaintiff-respondent had already sought for a relief of injunction of alienation, yet the alienation came to be made. Apart from the doctrine of lis pendens under section 52 of the T. P. Act, the subsequent purchaser does not get any right to lead to any evidence, as he stepped into the shoes of the first defendant, who had given up the right to lead evidence. In view of these circumstances, he does not get any right to lead any evidence. " 9. It has also been observed that as per the order of High Court of M. P., Jabalpur, the matter is to be decided within four months. 10. In the case of Dhanna Singh (supra) the defendant had given up his rights to lead evidence. Thereafter impleadment of subsequent purchaser, an application to lead evidence by the subsequent purchasers was filed, which came to be rejected holding that subsequent purchaser has stepped into the shoes of 1st defendant who had given up his right to lead evidence. The facts of the instant case are entirely different. Here, the plaintiff has filed an application for impleadment of the subsequent purchasers to whom the disputed land was sold by the defendant during the pendency of the suit. 11. It is apparent from Annexure P/3 that respondent/defendant entered into a clandestine transaction with the subsequent purchaser in 2011 and got the property transferred by a registered sale deed in their favour during the pendency of the appeal. It is also apparent that the defendants have knowingly suppressed this fact from the appellant as well as from the Court. Under the circumstances intention of defendants to remove the subject matter of the suit from ambit of Court's power cannot be ruled out. 12. Having regard to the facts and circumstances of the case, the arguments advanced and law discussed hereinabove, this petition deserves to be allowed. Accordingly, the order of trial Court is set aside. It is directed that the subsequent purchaser be added as a party-defendant in the suit. Petition allowed.