Maqsood Ali vs State Of U.P. And 5 Others
2022 Latest Caselaw 15146 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 52
 

 
Case :- WRIT - B No. - 1881 of 2021
 

 
Petitioner :- Maqsood Ali
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Arvind Kumar Rai
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Chandra Kumar Rai,J.

Heard Sri Arvind Kumar Rai, learned counsel for the petitioner and learned Standing Counsel for respondent nos.1 to 3.

The instant petition has been filed against the order rejecting the impleadment application filed by petitioner in the pending revision before the Board of Revenue.

Brief facts of the case are that plaintiff-petitioner filed a Suit No.724 of 1996, under Section 229B of U.P.Z.A. & L.R. Act for declaration on the basis of registered sale-deed executed in his favour in the year 1996, the suit was decreed ex-parte on 13.10.1997. One Shikha Pandey filed an application for recalling the order dated 13.10.1997 passed by trial Court on which interim order dated 28.9.2017 was passed staying the execution of the order dated 13.10.1997. Petitioner challenged the interim order dated 28.9.2007 through revision before Board of Revenue in the year 2007 which is still pending before the Board of Revenue. Petitioner filed an application under Order 1 Rule 10 of Civil Procedure Code for impleadment of respondent nos.4, 5 & 6 as opposite parties in the pending revision which has been dismissed vide order dated 20.9.2021, hence this writ petition.

Learned counsel for the petitioner submitted that the impleadment application filed by the petitioner in the pending revision has been dismissed without assigning reasons in support of the order. He further submitted that in the impleadment application, the petitioner has stated that the opposite parties have transferred the land in dispute in favour of some persons whose impleadment is necessary in the pending revision for the effective decision of the revision. Counsel for the petitioner placed reliance upon the Order 1 Rule 10 (2) of Civil Procedure Code which is as follows:

"(2) Court may strike out or add parties.? The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."

I have considered the argument advanced by learned counsel for the parties and perused the record.

There is no dispute about the fact that the petitioner filed a suit under Section 229B of the U.P.Z.A. & L.R. Act which was decided ex-parte dated 13.10.1997 without framing issues. Against the ex-parte judgment and decree of the trial Court, restoration application was filed by respondent no.5 in which the interim order was granted staying operation of the ex-parte judgment and decree dated 13.10.1997. Against the interim order dated 28.9.2007, petitioner filed revision in the year 2007 impleading opposite parties before the Board of Revenue which is pending for disposal. During pendency of the revision, petitioner filed an application for impleadment to implead purchaser pendente lite which has been rejected by the impugned order.

Since, the suit under Section 229B of U.P.Z.A. & L.R. Act has been filed by the plaintiff-petitioner impleading the defendants in the suit and those defendants have been impleaded in the revision by the petitioner, as such, there is no necessity to implead the purchaser of the defendant in the pending revision.

On the point of impleadment of transferee pendente lite, Hon'ble Apex Court in a case reported in AIR 2004 Supreme Court 173 (Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb and Another has held that rejection of impleadment of application to implead transferee pendente lite by trial Court is just and proper in the circumstances of the case. Paragraph No.9, 10, 11 & 12 of the judgment are relevant, which are as follows:

"9.It is not disputed that the present petitioner purchased the property during pendency of the suit and without seeking leave of the court as required by Section 52 of the Transfer of Property Act. The petitioner being a transferee pendente lite without leave of the court cannot, as of right, seek impleadment as a party in the suits which are long pending since 1983. It is true that when the application for joinder based on transfer pendente lite is made, the transferee should ordinarily be joined as a party to enable him to protect his interest. But in the instant case, the trial court has assigned cogent reasons for rejecting such joinder stating that the suit is long pending since 1983 and prima facie the action of the alienation does not appear to be bona fide. The trial court saw an attempt on the part of the petitioner to complicate and delay the pending suits.

10.The decisions cited and relied on behalf of the appellant turned on the facts of each of those cases. They are distinguishable. There is no absolute rule that the transfereependente litewithout leave of the court should in all cases be allowed to join and contest the pending suits. The decision relied on behalf of the contesting respondents of this Court in the case ofSarvinder Singh[(1996) 5 SCC 539] fully supports them in their contentions. After quoting Section 52 of the Transfer of Property Act, the relevant observations are thus: (SCC pp. 541-42, para 6)

"6. Section 52 of the Transfer of Property Act envisages that:

'During the pendency in any court having authority within the limits of India ? 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 the decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.'

It would, therefore, be clear that the defendants in the suit were prohibited by operation of Section 52 to deal with the property and could not transfer or otherwise deal with it in any way affecting the rights of the appellant except with the order or authority of the court. Admittedly, the authority or order of the court had not been obtained for alienation of those properties. Therefore, the alienation obviously would be hit by the doctrine oflis pendensby operation of Section 52. Under these circumstances, the respondents cannot be considered to be either necessary or proper parties to the suit."

11.In the case ofDhurandhar Prasad Singh[(2001) 6 SCC 534] observations relevant for the purpose of these appeals read thus: (SCC pp. 541-42, para 7)

Where a party does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the plaintiff on record, yet he will be bound by the result of the litigation even though he is not represented at the hearing unless it is shown that the litigation was not properly conducted by the original party or he colluded with the adversary.

12.The above statement of law by this Court in the cases (supra) clearly shows that the trial court has rightly exercised its discretion in rejecting the three applications for impleadment of the transfereependente liteas a party to the suits and for amendment of the pleadings. The High Court was also justified in refusing to interfere with the order of the trial court. Consequently, there is absolutely no merit in any of these appeals. They are, accordingly, dismissed with costs to be borne by the petitioner of the contesting respondents."

In the present case also revision is pending for the last about 15 year before revisional Court and transfer has been made by one of the opposite party during pendency of the revision without leave of the Court hence there is no necessity to implead transferee pendente lite.

Considering the entire facts and circumstances as well as ratio of law laid down by Apex Court in Bibi Zubaida Khatoon (supra) no interference is required against the impugned order passed by the Board of Revenue. The writ petition has no merit and the same is dismissed. However, since the revision is pending before the Board of Revenue since 2007, it is directed that Board of Revenue shall decide the Revision No.3 of 2007-2008 after giving an opportunity of hearing to the parties in accordance with law expeditiously preferably within a period of three months from the date of production of certified copy of this order before him.

Order Date :- 31.10.2022

Rameez