Jagdish Chander and anr. Vs. Om Piari and ors. - Court Judgment

Excerpt:
civil - impleadment - order 1 rule 10 and order 22 rule 10 of code of civil procedure, 1908 (cpc) - petitioners filed suit for declaration that they are owners in possession of suit land on basis of will executed by their father - trial court directed parties to maintain status quo - respondent no.1 allegedly sold part of land i.e. 1/5th share out of suit land in favour of respondent nos. 4 & 5 - respondent nos. 4 & 5 filed application under order 1 rule 10 of cpc for being impleaded as parties - trial court allowed and impleaded respondents nos. 4 & 5 as parties - hence, present revision - held, in view of order 22 rule 10 of cpc expressions used in order 1 rule 10 of cpc did not permit suit to be continued by or against person to or upon whom such interest has come to be assigned or devolved, subject as always to judicial discretion of court - therefore, apparent that assignee of suit property, pending adjudication of lis, cannot be impleaded as party under order 1 rule 10 of cpc but may be allowed to continue or defend suit under order 22 rule 10 of cpc, by stepping into party assigning property to him - in view of above, revision petition is allowed and order is set aside - however, respondent nos. 4 & 5 would be at liberty to file application, in terms of order 22 rule 10 of cpc, before trial court - in case such an application is filed, same shall be considered and decided by trial court, in accordance with law, within period of fifteen days of filing thereof - rajive bhalla, j.1. the petitioners impugn an order, dated 31.7.2006, passed by the learned civil judge (junior division), gurdaspur, whereby an application, filed under order 1 rule 10 of the cpc, has been accepted.2. the petitioners herein filed a suit on 18.5.2006 for declaration to the effect that they are owners in possession of the land in dispute on the basis of a will, dated 17.7.1985, executed by their father sant ram. the petitioners also sought a declaration to the effect that mutation as well as entries showing the defendants-respondents as co-sharers were illegal, null and void.3. the learned trial court, vide order, dated 18.5.2006, directed the parties to maintain status quo with regard to alienation of the suit property. om piari-respondent no. 1 allegedly sold land measuring 25 kanals 2 marla i.e 1/5th share out of the suit land in favour of respondents no. 4 & 5 on 22.5.2006. respondents no. 4 & 5 filed an application under order 1 rule 10 of the c.p.c. for being impleaded as parties to the suit. vide order dated 31.7.2006, the learned trial court allowed the application and impleaded respondents no. 4 & 5 as parties.4. counsel for the petitioners states that respondents no. 4 & 5 are neither necessary nor proper parties and, therefore, have no right to be impleaded as parties, under order 1 rule 10 of the cpc. it is submitted that as these respondents are purchasers pendente lite, they have no independent right and are, therefore, bound by any order/judgment or decree that may be passed against their vendor om piari. it is further submitted that the reasoning, adopted by the learned trial court, that om piari may not contest the suit properly, discloses a disregard to the petitioners of section 52 of the transfer of property act. respondents no. 4 & 5 are neither necessary nor proper parties, and, therefore, could not be impleaded as defendants, whatever be the ground.5. reliance for the above proposition is placed upon the judgments of the hon'ble apex court in sanjay verma v. manik roy and ors. : air2007sc1332 and sunil gupta v. kiran girhotra and ors. 2007 (4) r.c.r. (civil) 553 : 2007(4) c.c.c. 813.6. counsel for the respondents, however, submits that respondents no. 4 & 5 are not only necessary but also proper parties to the pending lis. the suit was filed on 18.5.2006 and before the injunction granted on 18.5.2006 could be served, om piari-respondent no. 1 sold a part of the suit land to respondents no. 4 & 5. as respondents no. 4 & 5 are assignees of the property and owners thereof, they would be entitled to be brought on record as parties so as to protect their interest. it is further submitted that even if it is presumed that respondents no. 4 & 5 are not necessary or proper parties, their plea for being brought on record as parties has to be allowed under order 22 rule 10 of the cpc, as a part of the suit property has been assigned to them during the pendency of the lis. it is further submitted that section 52 of the transfer of property act does not bar the sale of property in suit, it merely sets out the consequences of such a dispute and, therefore, respondents no. 4 & 5, being vendees of the share of om piari, would be entitled to protect their interest, as om piari may loss interest in the suit and/or collude with the petitioners.7. counsel for the respondents places reliance upon the judgment of the hon'ble apex court in savitri devi v. district judge, gorakhpur and ors. : [1999]1scr725 .8. i have heard counsel for the parties and perused the impugned order.9. om piari executed a sale deed, transferring a part of the suit land to respondents no. 4 & 5, on 22.5.2006. order 1 rule 10(2) of the cpc enables a court, at any stage of the proceedings, either upon a motion by a party or otherwise, to either join or strike out any person, whether as a plaintiff or a defendant, whose presence may not be necessary, to effectually and completely adjudicate upon and settle all questions arising in a suit. thus, in essence, order 1 rule 10 of the cpc, confers a plenary power upon a court to add necessary/proper or delete unnecessary parties, so as to ensure an effectual and complete adjudication of the pending lis. section 52 of the transfer of property act enacts a provision that prohibits any party from transferring or otherwise dealing with any property subject to a pending lis except with the authority of the court. section 52 of the transfer of property act also prescribes the consequences of transfer made in violation of the provisions of section 52 of the transfer of property act, by providing that in case a party proceeds to alienate suit property, without authority of a court, such an alienation will not affect the rights of the other party. while considering the ambit of order 1 rule 10 of the cpc, in the contest of the provisions of section 52 of the transfer of property act, the hon'ble supreme court, in sanjay verma's case (supra) held as follows:10. 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 of lis pendens by operation of section 52. under these circumstances, the respondents cannot be considered to be either necessary or proper parties to the suit.xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx12. the principles specified in section 52 of the transfer of property act are in accordance with equity, good conscience or justice because they rest upon an equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. a transferee pendente lite is bound by the decree just as much as he was a party to the suit. the principle of lis pendens embodied in section 52 of the transfer of property act being a principle of public policy, no question of good faith or bona fide arises. the principle underlying section 52 is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. the mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject matter of the suit,. the section only postulates a condition that the 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 was alienated with the permission of the court.10. in sunil gupta's case (supra), the hon'ble apex court held that transferee of property, during the pendency of proceeding, is not a necessary party. a relevant extract from the aforementioned judgment reads as follows:13. a transferee of a property during the pendency of proceeding is not a necessary party. citations are necessary to be made to only of those who, inter alia, claim through or under the will or deny or dispute the execution thereof.xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx17. citation, as is well-known, should be conspicuously displayed on a notice board. before purchasing the properties, amit pahwa and consequently the appellant had taken a calculated risk. in a situation of this nature, he is not a necessary party. he took the risk of the result of the probate proceedings. his apprehension that raj kumar may not take any interest in the litigation cannot be itself a ground for interfering with the impugned judgment. it is speculative in nature.xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx20. even otherwise ordinarily a transferee pendent lite without leave of the court cannot be impleaded as a party. see: bibi zubaida khatoon v. nabi hassan saheb and anr. : air2004sc173 .21. furthermore, the plaintiff in the suit is the dominus litis. if he intends to take a calculated risk in the matter, the court may not exercise its discretionary jurisdiction. see: kasturi v. iyyamerumal and ors. : air2005sc2813 and dhannalal v. kalawatibai and ors. : [2002]supp1scr19 .a considered appraisal of the provisions of order 1 rule 10 of the cpc, section 52 of the transfer of property act, as also the above judgments i.e. sanjay verma's case (supra) and sunil gupta's case (supra), as also the judgments referred to therein, leaves no manner of doubt mat a transferee pendente lite, without leave of the court, is neither a necessary nor a proper party and cannot, therefore, be impleaded as party to a pending lis, by invoking the provisions of order 1 rule 10 of the cpc. the fact that the vendor may not take further interest in the matter is irrelevant, as such a consideration would not alter the status of a vendee pendente lite. in view of the principles of law, noticed herein above, it would have to be held that a vendee pendente lite is neither a necessary or a proper party, under order 1 rule 10 of the c.p.c. to the pending lis. the learned trial court, therefore, had no jurisdiction to entertain and allow respondents no. 4 and 5 to be impleaded as defendants by relying upon the provisions of order 1 rule 10 of the cpc.11. however, there is another aspect, arising from the provisions of order 22 rule 10 of the cpc that would merit attention. order 22 rule 10 of the cpc reads as follows:10. procedure in case of assignment before final order in suit.- (1) in other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, be leave of the court, be continued by or against the person to or upon whom such interest has come or devolved.(2) the attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).12. order 22 rule 10 of the cpc deals with a situation, wherein pending lis, an interest is created in or devolves upon person not arrayed as a party. such a person may, subject to the discretion of a court, file an application praying that he be arrayed as a party, whether as a plaintiff or a defendant subject to his establishing assignment, creation or devolution of any interest in the suit property during the pendency of the suit. the words and expressions appearing in order 22 rule 10 of the cpc unlike the words and expressions used in order 1 rule 10 of the cpc, permit the suit to be continued by or against the person to or upon whom such interest has come to be assigned or devolved, subject as always to the judicial discretion of a court. it is, therefore, apparent that the assignee of suit property, pending adjudication of a lis, cannot be impleaded as party under order 1 rule 10 of the cpc but may be allowed to continue or defend the suit under order 22 rule 10 of the cpc, by stepping into the shoes of the party assigning property to him.13. in view of what has been stated herein above, the revision petition is allowed and the order, dated 31.7.2006 is set aside.14. however, respondents no. 4 & 5 would be at liberty to file an application, in terms of order 22 rule 10 of the cpc, before the trial court. in case such an application is filed, the same shall be considered and decided by the trial court, in accordance with law, within a period of fifteen days of the filing thereof.