HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 58 Case :- MATTERS UNDER ARTICLE 227 No. - 5891 of 2015 Petitioner :- M/S S.K.S. Infra City Private Limited Thru' Its M.D. Respondent :- Mahendra Singh & 8 Others Counsel for Petitioner :- C.K. Parekh,Sree Nivas Rai Counsel for Respondent :- Manish Joshi,Rahul Saxena,Ramendra Ashthana Hon'ble Suneet Kumar,J.
The defendant-applicant has approached this Court assailing the order dated 14 August 2015, passed by Addl. District Judge (Court no.8), Mathura in Civil Revision No. 72 of 2014, whereby amendment application under Order 1 Rule 10 read with Order 22 Rule 10 C.P.C has been rejected being subsequent purchaser.
The submission of the learned counsel for the applicant is that the impugned orders perse is illegal, admittedly vendor is not interested to pursue the lis , therefore, in order to protect the suit property, the applicant would be a necessary party to the suit. He placed reliance upon a judgement rendered by Supreme Court in Thomson Press (India) Limited Vs. Nanak Builders and Investors; 2013(5) SCC 379.
Learned counsel appearing for the respondent would submit that there is no finding to the effect that the contesting respondent-defendant has colluded with the plaintiff and is not interested in the suit.
It is well settled that the principle of lis pendens is a doctrine based on the principle that it is necessary for the administration of justice that the decision of a court in a suit should be binding not only on the litigating parties but on those who derive title pendente lite. The provision of section 52 of Transfer of Property Act does not indeed anull the conveyance or the transfer otherwise, but renders it subservient to the rights of the parties to a litigation.
The Supreme Court in Vinod Seth Versus Devendra Bajaj; 2010 (8) SCC 200, held that Section 52 of the Transfer of Property Act, 1882 does not render transfers effected during the pendency of the suit void but only render such transfers subservient to the rights as may be eventually determined by the court.
In Thomson Press (supra) the Supreme Court upon considering the law on Section 52 of the Transfer of Property Act held that transferee pendente lite who had purchased the entire suit property is entitled to be added as a party- defendant to the suit.
"55. We are not on virgin ground insofar as that question is concerned. Decisions of this Court have dealt with similar situations and held that a transferee pendente lite can be added as a party to the suit lest the transferee suffered prejudice on account of the transferor losing interest in the litigation post transfer. In Khemchand Shankar Choudhari v. Vishnu Hari Patti 1983(1) SCC 403, this Court held that:
"6......The position of a person on whom any interest has devolved on account of a transfer during the pendency of a suit or a proceeding is somewhat similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding....."
The Supreme Court relying on its earlier decision in Amit Kumar Shaw Versus Farida Khatoon; 2005 (11) SCC 403 observed as follows:-
"A transferor pendente lite may not even defend the title properly as he has no interest in the same or collude with the plaintiff in which case the interest of the purchaser pendente lite will be ignored. To avoid such situations the transferee pendente lite can be added as a party defendant to the case provided his interest is substantial and not just peripheral. This is particularly so where the transferee pendente lite acquires interest in the entire estate that forms the subject matter of the dispute.
The Supreme Court in Vidur Impex and Traders Private Limited Vs. Tosh Apartments Private Limited; 2012(8) SCC 384, after considering its earlier judgment in BiBi Jubaida Khatoon Versus Nabi Hassan Saheb and another; 2004(1) SCC 191, held as follows:-
41. 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. 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. A 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 a 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." (Refer. Neelam Chaudhary Vs. Khajan Singh( dead) and others); 2014(8) ADJ 62.
The facts of the case would reveal that there are four Suits being Suit No. 268 of 1990, Suit No. 512 of 1992, Suit No. 950 of 1994 and Suit No. 563 of 2012, in all the suits the first respondent is the plaintiff, all the suits have been consolidated. The present suit arises from O.S. No. 512 of 1992 in which relief has been claimed for sale deed dated 12 December 1977 which is subject matter of suit No. 268 of 1990, the impleadment application of the applicant has been allowed in the connected suit No. 950 of 1994 whereas it has been rejected in the present suit.
In paragraph 33 of the petition, it has been stated that the vendor Sabarmal is not contesting the suit as he has lost interest in the suit property, therefore, there is apprehension that the suit would go uncontested. In this background the present petition has been filed.
Learned counsel for the respondent would submit that the petition be decided without calling for counter affidavit as the facts are not in dispute.
Having considered the specific averment made in the petition that the vendor has lost interest in the suit property and is not pursuing the lis, further, the applicant has already been impleaded in the connected suit, as such the court below was not justified in rejecting the impleadment application filed by the applicant.
The observation of Supreme Court in Sangram Singh Versus Election Tribunal, Kotah and another, AIR 1955 SC 425, is as follows:-
"A Code of procedure must be regarded as such. It is procedure, something designed of facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up."
Having due regard to the fact and law stated herein above, the petition is allowed, the impugned order dated 14 August 2015, passed by Addl. District Judge (Court no.8) and order dated 24 March 2014, passed by Civil Judge (Junior Division), Mathura is set aside, the applicant shall be impleaded in Suit No. 512 of 1992 (Mahendra Singh Vs. Sabarmal), pending before the court of Civil Judge (Junior Division), Mathura.
No order as to costs.
Order Date :- 16.11.2015 sfa/