Hitesh Bhardwaj and Another vs Alaknanda Properties P. Ltd. and Another

V.K. Shali, J.—This is a regular second appeal u/s 100(2) CPC against the order dated 17.3.2008 passed by the learned Additional District Judge in R.C.A. No. 84/2005 titled M/s. Alaknanda Properties Pvt. Ltd. Vs. Parmeshwari & Ors. The present appeal is pending in this court for the last almost five years. The learned counsel for the appellants has contended that the appellants have a right to maintain the regular second appeal while as this court has reservations about the said right. In order to appreciate this issue, it may be relevant to give brief background of the case.

M/s. Alaknanda Properties Pvt. Ltd./respondent No. 1 herein originally filed a suit for specific performance and possession on 7.5.1996 against one Parmeshwari/respondent No. 2 herein. During the pendency of the suit, it came to light that respondent No. 2 herein had transferred the interest in the suit property jointly in favour of Hitesh Bhardwaj and Ramesh Kumari, the present appellants. Both Hitesh Bhardwaj and Ramesh Kumari were impleaded as defendants in the said suit. Neither Hitesh Bhardwaj nor Ramesh Kumari are purported to have filed the written statement (as none was on the record) and consequently, no evidence was adduced on their behalf although they are purported to have cross-examined the witnesses of the plaintiff/respondent No. 1 (counsel for the appellants has stated that written statement was filed by them although the same was not found to be on record at the time of final arguments. The suit for specific performance was dismissed by the trial court on 14.9.2005.

Feeling aggrieved, M/s. Alaknanda Properties Pvt. Ltd., the respondent No. 1 herein preferred an appeal against the said judgment and the decree being R.C.A. No. 84/2005 titled M/s. Alaknanda Properties Pvt. Ltd. Vs. Parmeshwari & Ors. Hitesh Bhardwaj, Ramesh Kumari and Parmeshwari were all shown as respondents in the first appeal. The first appellate court reversed the finding of the civil judge and passed a decree 17.3.2008 for specific performance in favour of M/s. Alaknanda Properties Pvt. Ltd./respondent No. 1 herein.

Vide sale deed dated 28.5.1996, Hitesh Bhardwaj and Ramesh Kumari, the purchasers from Parmeshwari/respondent No. 2 herein preferred the present regular second appeal. The second appeal is permissible only if a party is able to show that any substantial question of law is involved. Although the appeal was filed in the year 2008, however, for one reason or the other, the appeal was kept alive till it was brought to the notice of the court on 14.2.2011 by the learned counsel for respondent No. 1 that defendant No. 2 in the suit, namely, Hitesh Bhardwaj (appellant No. 1 herein) had sold the property to M/s. Deepak Resort and it has not been made as a party. This fact was not controverted by the learned counsel representing the appellant, Hitesh Bhardwaj and as a matter of fact, time was sought to file appropriate application in this regard. From 14.2.2011, more than 21/2 years have elapsed but no such application has been filed either by Hitesh Bhardwaj/appellant No. 1 or by M/s. Alaknanda Properties Pvt. Ltd./respondent No. 1 to implead M/s. Deepak Resort as a party. On the last date of hearing, that is, 23.8.2013, the appellants were directed to file an affidavit giving the details of the date on which the suit property was purportedly purchased by them and the fact as to whether they had transferred the interest in the suit property and if so, the date including the name of the transferee party. This affidavit has been filed although, the same is not on record. A photocopy of the said affidavit has been handed over in court.

After hearing the learned counsel for the appellants as well as the learned counsel for respondent No. 1, it has transpired that it is not in dispute that the appellants, Hitesh Bhardwaj and Ramesh Kumari had got the interest in the property transferred on 28.5.1996 by virtue of a sale deed purported to have been executed by Parmeshwari, respondent No. 2 in the present appeal. It has also not been disputed by the learned counsel that the appellants have transferred, assigned or parted with their interest in the suit property on 2.1.2006 in favour of M/s. Deepak Resort. Having done so, I feel that Order 22 Rule 10 CPC lays down the procedure for cases where assignment before final order in the suit is passed. Order 22 Rule 10 CPC reads as under:-

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, by 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).

In the instant case, it is not disputed by the learned counsel that the appellants have divested themselves of the interest in the suit property. The appellants have also not filed any application for substituting in their own place M/s. Deepak Resorts as the appellant. No such application has either been filed by the appellants or by the respondents. That being the position, I feel that as the appellants having already transferred, assigned or alienated their interest in favour of M/s. Deepak Resort and by virtue of Order 22 Rule 10 CPC, they are ceased to have an interest and they cannot maintain the present regular second appeal. Accordingly, the same is dismissed.