Judgment:
Lokeshwar Prasad, J.
(1) The above mentioned two petitions, filed under Article 227 of the Constitution, are directed against the two orders both dated the 2 2/02/1996, passed by the learned Financial Commissioner, Delhi in Case No.150/95-CA entitled Shri Bed Ram v. Wintex Imports and Exports (P) Ltd. and Others and case No. 149/95-CA entitled Shri Bed Ram v. Mis. Castle Builders (P) Ltd. and Others whereby the learned Financial Commissioner dismissed the applications of the petitioners, filed by them in the above mentioned appeals under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC') for being imp leaded as a party in the above said proceedings pending before the learned Financial Commissioner.
(2) Since the abovementioned two petitions, though filed by two different petitioners separately, raise common question for consideration, the same, with the consent of the learned Counsel for the parties have been heard together and are being disposed of by this common order. The facts relevant for the disposal of the abovementioned petitions.are also common and lie in a narrow compass. In both the abovementioned petitions the petitioners have purchased separate pieces of land, forming part of Khasra No. 715/1, situated in the Revenue Estate of Village Kilokheri, Tehsil Mehrauli by means of a registered sale deed, registered in the office of the sub Registrar Delhi on 23.6.1995 for a consideration of Rs l,95,000.00 each. It is asserted that both the petitioners are in possession of the property purchased by them vide above mentioned registered sale deeds. Both of them applied for mutation and the property purchased by them stands mutated in their favor in the revenue records.Shri Bed Ram (respondent No. 2) preferred an appeal in both the cases challenging the mutation. It is alleged that the petitioners in the month of December, 1995 came to know that a case was pending before the learned Financial Commissioner pertaining to the piece of land purchased by them and consequently both the petitioners filed separate applications in the proceedings pending before the learned Financial Commissioner under Order I Rule 10, Civil Procedure Code seeking impleadment as aparty in those proceedings. The learned Financial Commissioner vide impugned order has dismissed the applications of the petitioners, filed by them under Order1 Rule 10 read with Section 151, Civil Procedure Code for impleadment. Feeling aggrieved the petitioners have filed the present petitions under Article 227 of the Constitution before this Court.
(3) I have heard the learned Counsel for the parties at length and have also carefully gone through the documents/material on record. The learned Counsel for the petitioners has submitted that the learned Financial Commissioner, in the facts and circumstances of the case, was not justified in dismissing the applications of the petitioners because the petitioners, being the owners in possession of the lands in question are not only the interested parties but are likely to be affected by an order that may be passed by the learned Financial Commissioner in the proceedings pending before him. It was submitted by him that the orders, impugned in the present proceedings, deserve to be quashed and the applications filed by the petitioners before the learned Financial Commissioner under Order I Rule 10 read with Section 151, Civil Procedure Code for impleadment deserve to be allowed with costs. On the other hand the learned Counsel for respondent No. 2 (who is the only contesting respondent in the present proceedings) submitted that the present petitions are nothing but an abuse of the process of law because of the fact that a transfer made during the pendency of a proceeding is governed by the doctrine of lis pendente and if during the pendency of a litigation any person purchases the interest of a party to the litigation such a person cannot seek impleadment in the proceedings because he is neither a necessary nor a proper party in the proceedings.
(4) As per settled law, culled out from various judicial decisions, though the plaintiff is under no obligation to make a lis pendence transferee a party yet a transferee 'pendente lite' to the extent he has acquired interest from the defendant is vitally interested in the litigation and the Court has discretion in the matter, which must be exercised judicially, to allow such a transferee pendente lite to join as a party so as to enable him to protect his interest property. This is all the more necessary because the defendant, having no more interest in the property, may not properly defend the case or may collude with the plaintiff. The Supreme Court in case KhemChand Shankar Choudhary & Anr. v. Vishnu Hari Patil and Others, : [1983]1SCR898 has held -
'SECTION 52'of the Transfer of Property Act no doubt lays down that a transfer dependent lite of an interest in an immovable property which is the subject-matter of a suit from any of the parties to the suit will be bound in so far as that interest is concerned by the proceedings in the suit. Such a transferee is a representative in interest of the party from whom he has acquired that interest.Rule 10 of Order 22 of the Civil P.C. clearly recognises the right of a transferee to be imp leaded as a party to the proceedings and to be heard before any order is made. It may be that if he does not apply to be imp leaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be imp leaded as a party and to be heard, he has got to be so imp leaded andheard. He can also prefer an appeal against an order made in the said proceedings but with the leave of the Appellate Court where he is not already brought on record. The position of a person on whom any interest had devolved on account of a transfer during the pendency of any 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, or an official receiver who takes over the assets of such a party on his insolvency. An heir or a legatee or an official receiver or a transferee can participate in the execution proceedings even though their names may not have been shown in the decree,preliminary or final. If they apply to the Court to be imp leaded as parties they cannot be turned out.'
(5) A Division Bench of this Court in case Gurmauj Saran Baluja v. Mrs. Joyce. C. Salim and Others : AIR1990Delhi13 has held -
'A transferee pendente lite of the property in suit may not be a necessary party as he would be bound by the decree passed in the suit on account of the doctrine of lis pendence as contained in Sec.52 of the T.P.Act. Provisions of Sec.52 are applicable in a suit for specific performance of a contract of sale of immovableproperty, but in spite of the fact that in such a suit a plaintiff is protected by impendence the Court does at tinges protect him further by an injunction restraining the defendant from transferring the property during the pendency of thesuit, particularly where the Court prima facie finds that a valid contract of saleexists. 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.'
(6) The above decisions of the Supreme Court and that of the Division Bench of this Court, as a matter of fact, finally clinch the issue in favor of the petitioners. In the facts and circumstances of the case, where the petitioners have not only purchased the pieces of lands in question by means of a registered in the sale deed,registered office of the Sub Registrar, Delhi but they are also in possession of the lands in question and the property stands mutated in their favor in the revenuerecords, it cannot be stated that their interest in the subject matter of the appeals,pending before the learned Financial Commissioner, is not substantial and justperipheral. They may not be a necessary party but decidedly they can be added asa proper party in those proceedings.
(7) In view of the above discussion, the petitions (CM (M) 288/96 and CM(M)222/96 ) are allowed. The impugned orders are set aside and it is directed that the petitioners be imp leaded as a party in the above said proceedings pending before the learned Financial Commissioner. In the facts and circumstances of the case, the parties are left to bear their own costs.
(8) Nothing stated hereinabove shall amount to expression of any opinion on the merits of the case (s) pending before the learned Financial Commissioner.