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2017 DIGILAW 770 (ORI)

Ashok Kumar Rout v. Susama Patra @ Jena

2017-07-21

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. By this application under Article 227 of the Constitution of India, challenge is made to the order dated 28.03.2017 passed by the learned District Judge, Khurda at Bhubaneswar in R.F.A. No. 20 of 2007, whereby and whereunder learned appellate court allowed the application for amendment of plaint. 2. One Nisamani Jena, predecessor-in-interest of opposite party nos.1 to 5 instituted T.S. No.313 of 1994 in the court of the learned Civil Judge (Sr. Divn.), Bhubaneswar for declaration of title, confirmation of possession, recovery of possession, if found to have been dispossessed in the meantime, declaration of the registered sale deed dated 15.3.94 executed in favour of the defendant no. 2 to be void or in the alternative for a direction to refund the consideration amount of Rs.1,00,000/- along with interest and damages impleading the predecessor-in-interest of opposite party nos.6 to 8 and petitioner as defendants. The suit was dismissed. Assailing the judgment and decree of the learned trial court, the plaintiff filed R.F.A. No. 20 of 2007 in the court of the learned District Judge, Khurda at Bhubaneswar. During pendency of the appeal, she died. Her legal representatives had been substituted. While the matter stood thus, the appellants filed an application under Order 6 Rule 17 C.P.C. for amendment of plaint. It is stated that during pendency of the suit, the defendant no.2 alienated a portion of the suit land in favour of two persons. In the proposed amendment, they sought to implead the lis pendens purchasers as defendant-respondents and to incorporate the said fact. The defendant no.2 filed objection to the same stating therein that the defendant no.1 in his cross-examination has clearly disclosed the factum of alienation. After lapse of 18 years, the proposed amendment was filed. In the event the same is allowed, the defendant no.2 will be seriously prejudiced. Further the lis pendens purchasers are bound by the result of the suit. Learned appellate court came to hold that the proposed amendment will not change the nature and character of the suit. Held so, it allowed the same. 3. Heard Mr. D.P. Mohanty, learned counsel for the petitioner and Mr. Ayushman Mahanta, learned counsel for the opposite parties. 4. Mr. Mohanty, learned counsel for the petitioner submitted that in cross-examination, defendant no.1 stated the factum of alienation. After lapse of 18 years, the application for amendment has been filed. Held so, it allowed the same. 3. Heard Mr. D.P. Mohanty, learned counsel for the petitioner and Mr. Ayushman Mahanta, learned counsel for the opposite parties. 4. Mr. Mohanty, learned counsel for the petitioner submitted that in cross-examination, defendant no.1 stated the factum of alienation. After lapse of 18 years, the application for amendment has been filed. In the event the same is allowed, the defendant no.2 will be seriously prejudiced. He further contended that the lis pendens purchasers are bound by the result of the suit and as such they are neither necessary nor property parties to the suit. 5. Per contra, Mr. Mahanta, learned counsel for the opposite parties submitted that during pendency of the suit, the defendant no.2 alienated a portion of the suit land by means of sale deeds. The original plaintiff died. The appellants, who are the legal representatives of the plaintiff, were not aware of the sale transactions. They came to know that defendant no.2 had alienated the property in favour of two persons. Thereafter they filed an application for amendment of plaint with a prayer to implead the lis pendens purchasers as defendant-respondents and to incorporate the said fact. The proposed amendment will not change the nature and character of the suit. The same is necessary for determining the real dispute between the parties. He relied on the decision of the apex Court in the case of Amit Kumar Shaw and another vs. Farida Khatoon and another, (2005) 11 SCC 403 . 6. In Amit Kumar Shaw and another (supra), the apex Court held thus: “12. Under Order 22 Rule 10, no detailed inquiry at the stage of granting leave is contemplated. The Court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit by or against the person on whom the interest has devolved by assignment or devolution. The question about the existence and validity of the assignment or devolution can be considered at the final hearing of the proceedings. The Court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit. 13. In this connection, the provisions of Section 52 of the Transfer of Property Act, 1882 which has been extracted above may be noted. 14. An alienee pendente lite is bound by the final decree that may be passed in the suit. 13. In this connection, the provisions of Section 52 of the Transfer of Property Act, 1882 which has been extracted above may be noted. 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. 15. Section 52 of the Transfer of Property Act is an expression of the principle "pending a litigation nothing new should be introduced". It provides that pendente lite, neither party to the litigation, in which any right to immovable property is in question, can alienate or otherwise deal with such property so as to affect his appointment. This Section is based on equity and good conscience and is intended to protect the parties to litigation against alienations by their opponent during the pendency of the suit. In order to constitute a lis pendens, the following elements must be present: 1. There must be a suit or proceeding pending in a Court of competent jurisdiction. 2. The suit or proceeding must not be collusive. 3. The litigation must be one in which right to immovable property is directly and specifically in question. 4. There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation. 5. Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order. 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. 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, whether 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 XXII 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 the transferee pendente lite is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case.” 7. In view of the decision of the apex Court in the case of Amit Kumar Shaw and another (supra), the petition merits no consideration. Accordingly, the same is dismissed. No costs.