Manoj Kumar Parashar And Another vs State Of U.P. And 2 Others
2021 Latest Caselaw 4063 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 23.2.2021
 
Delivered on 19.3.2021
 

 
Court No. - 10
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 2029 of 2020
 

 
Petitioner :- Manoj Kumar Parashar And Another
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Amit Kumar Mishra
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Tripathi
 

 
Hon'ble Prakash Padia,J.

1. Heard Sri Amit Kumar Mishra, counsel for the petitioner and Sri Anil Kumar Sharma, counsel for the respondent no.3.

2. The petitioners have preferred present petition inter-alia with the following prayer :-

"(a) Set aside the impugned order dated 18.01.2020 passed in Misc. Case No.235 of 2006 in Misc. Appeal No.487 of 1985 (Shri Krishna Kumar Parashar & others Vs. State of U.P. & others) passed by District Judge Agra by which allowed the impleadment application no.158ka of respondent no.3 (Annexure No.13 of the Misc. Petition);"

3. The facts in brief as contained in the petition is that the dispute is regarding the property bearing Khasra plots No. 134-A measuring 2 bighas 11 biswas 9 biswansis and 7 kachwansis and plot no.134-B measuring 4 bighas 11 biswas and 10 biswansis equivalent to 16495.8015 sq. meter situated in Village Tora, Tehsil and District Agra and the petitioners are owner of the land in question, which is clear from fasli year 1422-27, i.e., for the year 2015-20. The competent authority has declared the above mentioned land in question as surplus/excess land under Section 8(4) of the Urban Land (Ceiling and Regulation) Act, 1976 in Case No.4955/3605 of 1976-77 on 5.6.1980. Aggrieved against the order dated 5.6.1980, the father of the petitioners filed Misc. Appeal No.487 of 1985 (Babulal Vs. State of U.P. and others) under Section 33 of the U.P. Urban Land (Ceiling and Regulation) Act, 1976. The said misc. appeal was dismissed in default. Against the order of dismissal petitioners filed the restoration application no.4ga, which was registered as Misc. Case No.235 of 2006 (Krishna Kumar Parashar & others Vs. State of U.P. and others). The aforesaid restoration application was admitted and notice was issued to the opposite parties and 18.07.2006 was date fixed for objection and disposal by the District Judge, Agra. Mr. Anup Kumar executed power of attorney on 29.01.2016 in the name of Gaurav Parashar for 1/4 part of the land in question. On the basis of power of attorney the Gaurav Parashar on 30.01.2016 executed registered sale deed in the name of Vikas Jain for the land in question. Manoj Kumar executed alleged power of attorney on 24.06.2016 in the name of Ashish Upadhay which was registered on 02.07.2016 for 1/3rd part of khata no.84 khasra no.134 area 0.1040 hectare and khata no.92 khasra no.134 area 1.6480 hectare. On the basis of alleged power of attorney Ashish Upadhaya on 4.7.2016 executed registered sale deed in the name of Vikas Jain for the land in question. On 23.04.2019 respondent no.3 filed an application no.158-ka supported with an affidavit no.159ka under Order 1 Rule 10 read with Order 22 Rule 10 and Section 151 CPC in Misc. in Case No.235 of 2006 for impleading them as party as applicant/appellant no.3. On 26.4.2019 petitioners filed reply 174C to the impleadment application dated 23.4.2019 and submitted that petitioners have never executed any power of attorney and never authorized anyone to sell or otherwise deal with their share in the land in question and denied the execution of power of attorney dated 29.01.2016 and 24.06.2016 and also denied the execution of sale deeds dated 30.01.2016 and 04.07.2016 and therefore the impleadment application is not legally maintainable and is liable to be quashed. The private respondent has given the reply. The District Judge, Agra allowed the impleadment application no.158-ka of respondent no.3 on 18.01.2020.

4. Mr. Moti Singh, learned Standing Counsel has vehemently opposed the aforesaid prayer.

5. Normally as a public policy, once a suit has been filed pertaining to any subject matter of the property, in order to put an end to such kind of litigation, principals of lis pendens has been evolved so that litigation may finally terminate without the intervention of a third party. This is because of public policy, otherwise no litigation will come to an end. Therefore, in order to discourage that same subject matter of property being subjected to subsequent sale to a third person, this kind of transaction is to be checked. Otherwise, litigation will never come to an end.

6. The doctrin of lis pendens has been dealt with in great detail by the Hon'ble Supreme Court in the case of Jayaram Mudaliar Vs. Ayyaswami and Ors. reported in (1972) 2 SCC 200. The relevant paragraph namely paragraph nos.42 to 46 is reproduced hereinbelow :-

"42. As some argument has been advanced on the supposed inapplicability of the general doctrine of lis pendens to the impugned sales, the nature, the "basis, and the scope of this doctrine may be considered here.

43. It has been pointed out, in Bennet "On lis pendens", that, even before Sir Francis Bacon framed his ordinances in 1816 "for the better and more regular administration of justice in the chancery, to be daily observed" stating the doctrine of lis pendens in the 12th ordinance, the doctrine was already recognized and enforced by Common law Courts. Bacon's ordinance on the subject said :

"No decree bindeth any that commeth in bona fide, by conveyance from the defendant before the bill exhibited, and is made no party, neither by bill, nor the order; but, where he comes in pendente lite, and, while the suit is in full prosecution, and without any colour of allowance or privity of the court, there regularly the decree bindeth; but, if there were any intermissions of suit, or the court made acquainted with the conveyance, the court is to give order upon the special matter according to justice."

The doctrine, however, as would be evident from Bennet's work mentioned above, is derived from the rules of jus gentium which became embodied in the Roman Law where we find the maxim : "Rem (sic) de qua controversia prohibemur (sic) in acrum dedicare" (a thing concerning which there is a controversy is prohibited, during the suit from being alienated). Bell, in his commentaries on the laws of Scotland said that it was grounded on the maxim : "Pendente lite nibil innovandum". . He observed :

"It is a general rule which seems to have been recognized in all regular systems of jurisprudence, that during the pendence of an action, of which the object is to vest the property or obtain the possession of. real estate, a purchaser shall be held to take that estate as. it stands in the person of the seller, and to be bound by the claims which shall ultimately be pronounced."

44. In the Corpus Juris Secundum (Vol. LIV-p. 570), we find the following definition :

"Lis pendens literally means a pending suit; and the doctrine of lis pendens has been defined as the jurisdiction, power, or control which a court acquires over property involved in suit, pending the continuance of the action, and until final judgment therein."

45. Expositions of the doctrine indicate that the need for it arises from the very nature of the jurisdiction of Courts and their control over the subject 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.

46. It is useful to remember this background of Section 52 of our Transfer of Property Act which lays down :

"During the pendency in any Court...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."

7. In the case of Raj Kumar versus Sardari Lal and others, 2004 AIR SCW 470, the doctrine of lis pendens as expressed in Section 52 of the Transfer of Property Act was considered by the Supreme Court. The transfer took place during the pendency of the suit, but the Decree passed ex-parte in the suit was sought to be set aside, not by the defendant on record, but by a person, who did not come or was not brought on record promptly, and hence, apparently appeared to be a third party. The Supreme Court observed that such a person in accordance with the principles incorporated in Section 52 of the Transfer of Property Act would be a representative-in-interest of the defendant-judgement debtor. Under Section 52 of the Transfer of Property Act, a decree passed against the defendant transferor would also be executed against the lis pendens transferee of the defendant, even though he was not a party to the suit. Such a person can prefer an appeal being a person aggrieved. The person who is liable to be proceeded against in execution of the decree can file an appeal against the decree. Such a person can also file an application for recall under Rule 13 of Order IX of the CPC, as such, a person stepped into the shoes of the defendant and the decree was sought to be executed against him. It was held by the Supreme Court that a lis pendens transferee, though not brought on record under Order XXII Rule 10 of CPC, is entitled to move an application under Order IX Rule 13 of CPC to set aside a decree passed against his transferor, the defendant in the suit.

8. In the case of A Nawab John and others versus V.N. Subramaniyam, 2012 AIR SCW 4248, the Supreme Court was considering a case where a specific performance of a registered agreement and delivery of possession was sought by the plaintiff in a suit before the trial court. During the pendency of the suit, the sole respondent V.N. Subramaniam filed an application, praying that he may be impleaded as a party-defendant to the said suit on the ground that he had purchased the suit property. His application for impleadment was allowed and the plaint came to be amended mentioning the details of subsequent events. The Supreme Court examined the background of insertion of the doctrine of lis pendens in Section 52 of the Transfer of Property Act.

9. The Supreme Court referred to the language of Section 52 of the Transfer of Property Act and observed in Paragraph-17 that it is settled legal position that the effect of Section 52 is not to render transfers effected during pendency of a suit by a party to the suit void, but only to render such transfers subservient to the rights of the parties to such suit, as may be, eventually, determined in the suit. In other words, the transfer remains valid subject, of course, to the result of the suit. The pendente lite purchaser would be entitled to, or suffer the same legal rights and obligations of his vendor as may be eventually determined by the court. The mere pendency of the suit does not prevent one of the parties to the suit from dealing with the subject matter of the suit. The Section only postulates a condition that the lis pendens alienation will in no manner affect the rights of the other party under any decree, which may be passed in the suit unless the property alienated with the permission of the Court. In Paras 18 and 19 of the said judgment, the Supreme Court observed thus:-

"18. Such being the scope of Section 52, two questions arise: whether a pendente lite purchaser: (1) is entitled to be impleaded as a party to the suit?; (2) once impleaded what are the grounds on which he is entitled to contest the suit.

19. This Court on more than one occasion held that when a pendente lite purchaser seeks to implead himself as a party-defendant to the suit, such application should be liberally considered. This Court also held in Saila Bala Dassi v. Nirmala Sundari Dassi [AIR 1958 SC 394] that, "justice requires", a pendente lite purchaser "should be given an opportunity to protect his rights". It was a case, where the property in dispute had been mortgaged by one of the respondents to another respondent. The mortgagee filed a suit, obtained a decree and "commenced proceedings for sale of the mortgaged property". The appellant Saila Bala, who purchased the property from the judgment-debtor subsequent to the decree sought to implead herself in the execution proceedings and resist the execution. That application was opposed on various counts. This Court opined that Saila Bala was entitled (under Section 146 CPC) to be brought on record to defend her interest because, as a purchaser pendente lite, she would be bound by the decree against her vendor. There is some divergence of opinion regarding the question, whether a pendente lite purchaser is entitled, as a matter of right, to get impleaded in the suit, this Court in Amit Kumar Shaw v. Farida Khatoon [(2005) 11 SCC 403]: (AIR 2005 SC 2209: 2005 AIR SCW 2078), held that:

"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, 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."

The preponderance of opinion of this Court is that a pendente lite purchaser's application for impleadment should normally be allowed or "considered liberally."

(emphasis supplied)

10. In the case of Thomson Press (India) Limited versus Nanak Builders and Investors Private Limited and others 2013 (5) SCC 397, the Supreme Court was considering an appeal arising out of a suit for specific performance of prior agreement to sell filed by the buyer against the original owner/transferor/seller pendente lite. In Paragraph 26 to 29 of the said judgment, the Supreme Court after referring to Section 52 of the Transfer of Property Act, observed that transfer during pendency of suit does not automatically render such transfer void. The provisions of the Section only render such transfers subservient to the rights of the parties to a litigation. The transferees acquiring any immovable property during litigation over it, are held to be bound, by application of the doctrine of lis pendens and 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 property, which are the subject matter of litigation, to the power and jurisdiction of the Court so as to prevent the object of a pending action from being defeated." The Supreme Court further observed in Paragraphs 55 and 56 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 such transfer. Sometimes a transferor pendente lite may not even defend the title properly as he has no interest in the same or may collude with the plaintiff in which case the interest of the purchaser pendente lite will be ignored. To avoid such situations, transferee pendente lite can be added as a party defendant to the suit provided his interest is substantial and not just peripheral. This is particularly so where the transferee pendente lite acquires the interest in the entire estate that forms the subject matter of the dispute.

11. It is evident from a careful consideration of latest judgments of the Supreme Court dealing with Section 52 of Transfer of Property Act that the Supreme Court has emphasized that a transferee pendente lite is not void ab initio. It only makes such transfer subject to the rights of the parties finally determined.

12. In the facts and circumstances of the case, the Court is of the opinion that the order impugned, which is under challenge, does not want for any interference by this Court.

13. The petition is devoid of merit is liable to be dismissed. Since the misc. appeal is pending a further direction is given to the court below to decide the aforesaid appeal in accordance with law most expeditiously and positively within a period of six months from the date of production of certified copy of this order but after after giving opportunity to the parties concerned and without granting unnecessary adjournments to either of the parties.

14. Accordingly, present petition is dismissed.

Order Date :- 19.03.2021

Pramod Tripathi