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2017 DIGILAW 23 (ALL)

Vishesh Tyagi v. Rajni Tyagi

2017-01-03

MANOJ MISRA

body2017
JUDGMENT Manoj Misra, J. -- Heard learned counsel for the petitioner. 2. The present petition has been filed challenging an order dated 20th January, 2016 passed by the Civil Judge (Senior Division), Moradabad in O.S. No.196 of 2013 by which the Impleadment Application No.29-Ga moved by transferee of the property in suit seeking impleadment as a plaintiff has been allowed. The petitioner also challenges the revisional court's order dated 31.08.2016 by which the Civil Revision No.12 of 2016 preferred by the defendant-petitioner against the order allowing impleadment has been dismissed. 3. A perusal of the record would go to show that the plaintiff-respondent instituted O.S. No.196 of 2013 for mandatory injunction seeking eviction of the defendant-petitioner from the suit property as also for mesne profit by claiming that the property in suit had been purchased by the plaintiff through a registered sale deed. It was alleged that the defendant-petitioner had been a licensee and his licence was terminated by a notice dated 31.10.2012. During pendency of the suit, impleadment application No.29-Ga was filed by Vishal Tyagi, Smt. Varsha Tyagi and Smt. Rajbala Tyagi by claiming that the property in suit has been sold by the plaintiff to the applicants vide sale deed dated 05.06.2015, therefore, they may be impleaded as plaintiffs to enable them to pursue the suit. The court below allowed the impleadment application and the revision of the petitioner against the impleadment order has been dismissed. 4. The learned counsel for the petitioner has submitted that the defendant petitioner had challenged the title of the plaintiff therefore, without the permission of the court allowing transfer lis pendens, the sale deed was void and the court ought not to have allowed the impleadment application. 5. The aforesaid contention of the learned counsel for the petitioner cannot be accepted, inasmuch as, whether the plaintiff had any title or the sale deed in his favour was void or not is a matter which can be adjudicated by the court below on the weight of evidence led during the course of trial. In so far as the submission that the sale in favour of intervenor plaintiffs being lis pendens therefore void is concerned, suffice to say that the said submission is not acceptable, particularly, in absence of any interim order restraining transfer of the suit property. In the case of Thomson Press (India) Ltd. Vs. In so far as the submission that the sale in favour of intervenor plaintiffs being lis pendens therefore void is concerned, suffice to say that the said submission is not acceptable, particularly, in absence of any interim order restraining transfer of the suit property. In the case of Thomson Press (India) Ltd. Vs. Nanak Builders and Investors (P) Ltd., 2013 (2) ARC 121 : (2013) 5 SCC 397 , the Apex Court by relying upon earlier judgment in Vinod Seth Vs. Devinder Bajaj (2010) 8 SCC 1 : 2010 (2) ARC 683 held that Section 52 of the Transfer of Property Act does not render transfers effected during the pendency of the suit void but only render such transfer subservient to the rights as may be eventually determined by the Court. In Thomson Press case (supra) after considering various judgments, the Apex Court held that a transferee lis pendens can be allowed to be impleaded as a party in the suit in exercise of power under Order 22, Rule 10 CPC even though the application may have been moved under Order 1 Rule 10 of the Code. While holding so, by relying on observations made by the Apex Court in a previous decision in Amit Kumar Shaw Vs. Farida Khatoon (2005) 11 SCC 403 : 2005 (2) ARC 174, the Apex Court observed that a transferor pendente lite may not even defend the title properly as he has no surviving interest in the same or may collude with the other side. Therefore, to avoid such situations, the transferee pendente lite can be added as a party. 6. In the instant case, the learned counsel for the petitioner has not been able to demonstrate that the sale deed in favour of the transferees was in violation of any injunction order. Under the circumstances, as also on the ground that the plaintiff is not before the court disputing the sale, this Court does not find it appropriate to entertain this petition of the defendant-petitioner against the impleadment order. The petition is, accordingly, dismissed.