Jaswinder Singh and Others vs Charanjit Kaur and Another

K. Kannan, J.—The revision is against an order dismissing an application for impleadment filed under Order 22 Rule 10 CPC. The applicant was a purchaser pending suit for a mandatory injunction for restoration of a passage alleged to have been obliterated by the defendant. The trial Court, before which the application has been filed, had allowed it, but in appeal, it appears to have been set aside by the appellate Court. It is against this order, the revision has been filed. The ground on which the application was filed was that the defendant, who had lost interest in the property through the sale, was trying to collude with the plaintiff. He should have the benefit of defence of whatever right that his vendor had at the time of the institution of the suit and he should be permitted to take up all those pleas which were tenable. The Court shall be liberal in their exercise of impleadment by a subsequent purchaser where there is a danger of vendor giving a walk over to a plaintiff without entering a defence or allowing for a plaint not to be prosecuted after selling the property. There could be exceptions where the presence of a subsequent purchaser will be irrelevant and where issues of bona fides cannot be considered. An example could be u/s 19 of the Specific Relief Act which protects purchase and allows for bona fides of purchase to be brought if such a purchase was previous to suit. Any pendente lite purchaser in such a situation would not have any equities. Declaratory actions are on different judicial map and a purchaser cannot lose his right in the property only by the fact that his purchase is after suit.

The counsel for the respondent states that there was an order of injunction and a purchase was made by the present petitioner with his eyes open and he shall not be permitted to be brought on record. I am afraid, I cannot accept this argument, since the injunction granted was not against alienation of the property. Indeed, there could be no fetter of alienation as a matter of law and as a matter of public policy except under the Government Grants Act where there could be restriction imposed by the Government for alienation. Otherwise, the tenor of the provision contained under Sections 9 to 11 of the Transfer of Property Act shows that even a condition imposed against alienation will be bad. The principle is that a right of alienation is the most potent right in his right of ownership over the property. Such a right can never be fettered. Section 52 of the Transfer of Property Act also enacts a rule of public policy that a person who purchased a property pendente lite gets no new right and his rights will be subject to the right of his vendor in suit. This is to ensure that a party is not vexed to litigate against a subsequent purchaser when rights of parties have concluded against the vendor. In this case, when the suit is pending and when the application is filed by the purchaser, it should be only fair and appropriate that the purchaser is brought on record. We have to take note of the existing reality of courts'' inability to dispose of cases in a short span of time. A litigation ought not to be understood as suspending of rights of ownership during the course of litigation. If anyone party is compelled to effect a sale, there is no requirement to take permission from the Court, unless there is a restraint order itself against the alienation in which case any sale will constitute a suspension of the order of injunction. The dismissal of the application for impleadment was, therefore, not appropriate and the intervention made at the appellate Court was erroneous. The order is set aside and the revision petition is allowed restoring the order passed by the first court.