Bundel Singh vs Ramdas And Others

The office has pointed out that this petition is not maintainable. As this petition has been filed under Article 227 of the Constitution of India, therefore, the office should have registered this case as Miscellaneous Petition and should not have registered this case as Writ Petition. Thus, it is clear that the mistake has been committed by the office of this Court by registering this case as Writ Petition and not as Miscellaneous Petition. Although the petitioner in the petition had mentioned this case as Writ Petition, but the office was not bound to register it as Writ Petition. The office was bound to consider that whether this petition has been filed under Article 226 or under Article 227 of the Constitution of India. Since the petition has been filed under Article 227 of the Constitution of India, therefore, no mistake was committed by the counsel for the petitioner except by mentioning this case as Writ Petition No.../2019. Under these circumstances, when the petitioner as well as the office of this Court both are at fault, therefore, the objection raised by the office is ignored.

This petition under Article 227 of the Constitution of India has been filed against the order dated 15/2/2019 passed by the First Civil Judge, Class-I, Khaniyadhana, District Shivpuri in Civil Suit No.25A/11, by which the application filed by the petitioner under Order I Rule 10 CPC has been rejected.

It is submitted by the counsel for the petitioner that the civil suit in respect of the property in dispute is pending between the parties. The petitioner has purchased the land in dispute from defendants no.1 and 2 on 21/8/2018 and 18/9/2018. Being the bonafide purchaser of the land in dispute, the petitioner is entitled to become a party to the suit, so that he can effectively protect his rights, because now there is a possibility that his sellers may not take interest in the civil suit.

Heard learned counsel for the petitioner.

The present petition has an exchequered history. It appears that an application under Section 45 of the Evidence Act was filed by the sellers of the petitioner. The said application was allowed. Against which, the plaintiffs had filed a writ petition before this Court, which was registered as Writ Petition No.4655/2013. The said writ petition was disposed of by the High Court and immediately after the disposal of the said writ petition, the sellers of the petitioner executed the sale deed in favour of petitioner. Thereafter, the sellers of the petitioner tried to avoid their appearance before the trial court and accordingly, the trial court proceeded ex parte against the sellers of the petitioner. The sellers of the petitioner filed a petition before this Court, which was registered as MP No.1325/2019 The said Miscellaneous Petition came up for hearing before this Court on 11/3/2019 and by order dated 11/3/2019 this Court has dismissed the Miscellaneous Petition filed by the sellers of the petitioner by holding that they have not made out any good reason for not appearing before the trial court. Thus, one thing is clear that the suit was filed in the year 2011 and the sale deed has been executed in the year 2018 and that too immediately after the dismissal of writ petition filed by the plaintiffs. Section 52 of the Transfer of Property Act reads as under:-

"52. Transfer of property pending suit relating thereto.-During the [pendency] in any Court having authority [within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by [the Central Government] of [any] suit or proceedings which is not collusive and in which any right to immoveable 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.

[Explanation.-For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.]"

Thus, if anybody purchases the property during pendency of the civil suit in respect of the said property, then the principle of lis pendens would apply and the subsequent purchaser would be bound by the decree, which would be ultimately passed in the said civil suit. When the petitioner was aware of pendency of the civil suit and if he has deliberately purchased the property during pendency of the civil suit without seeking leave from the trial court and once the sellers of the petitioner have already been proceeded ex parte by the trial court, then in the considered opinion of this Court, the principle of lis pendens would apply to the present case also and as the petitioner by purchasing the property in dispute during pendency of the civil suit has stepped into the shoes of his sellers, therefore, he will be bound by the decree, which would be passed in the civil suit.

Under the facts and circumstances of the case, this Court is of the considered opinion that no jurisdictional error could be pointed out by the counsel for the petitioner in the impugned order passed by the trial court. Accordingly, this petition fails and is hereby dismissed.