Nisar Mohd. vs Dhapu Bai and Others

Sandeep Mehta, J.�Today the matter comes upon an application being I.A. No. 5888/2013 filed on behalf of the applicant M/s. Royal Palace Mattel, Sirohi through its partner Sh. Vikram Singh Rajput under Order 1 Rule 10 CPC for being impleaded as a party respondent in the appeal.

It has been claimed in the application that during the pendency of the lis between Nisar Mohd. and Durga Devi, the applicant purchased the land in question through a registered sale deed dated 12.12.2012. It is claimed in the application that the possession of the property in question has also been handed over to the applicant and thus, the applicant is a proper and necessary party in the present appeal, which has been preferred by Nisar Mohd. against the rejection of his application under Order 39 Rules 1 & 2 CPC.

Shri Sandeep Shah learned counsel for the applicant relies on the decisions rendered by the Hon''ble Supreme Court in the cases of A. Nawab John and Others Vs. V.N. Subramaniyam, and Thomson Press (India) Ltd. Vs. Nanak Builders and Investors P. Ltd. and Others, and submits that the transfer pendent-lite is neither illegal nor void-ab-initio and impleadment of the subsequent purchaser of the property is essential for the just decision of the case.

Shri Richin Surana learned counsel for the appellant placed reliance on the decision rendered by the Hon''ble Supreme Court in the case of Sanjay Verma Vs. Manik Roy and Others, and submits that the transferee, who during the pendency of the litigation knowingly purchased the property from the defendant without leave of the Court cannot claim impleadment in view of the doctrine of lis pendens. Thus, he submits that the application filed under Order 1 Rule 10 CPC praying for impleadment of party should be rejected.

I have considered the arguments advanced by the learned counsel for the applicant M/s. Royal Palace Mattel, Sirohi and the learned counsel for the appellant.

The Hon''ble Supreme Court in the subsequent two decisions of A. Nawab John and Thomson Press (India) Limited (supra), considered in detail the earlier judgments in the cases of Amit Kumar Shaw and Another Vs. Farida Khatoon and Another, and held as below:

"17. It is settled legal position that the effect of Section 52 is not to render transfers affected during the pendency of a suit by a party to the suit void; but only to render such transfers subservient to the rights of the parties to such suit, as may be, eventually, determined in the suit. In other words, the transfer remains valid subject, of course, to the result of the suit. The pendent lite purchaser would be entitled to or suffer the same legal rights and obligations of his vendor as may be eventually determined by the Court.

"12. .... 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." Sanjay Verma Vs. Manik Roy and Others,

Such being the scope of Section 52, two questions arise: whether a pendent lite purchaser (1) is entitled to be impleaded as a party to the suit; (2) once impleaded what are the grounds on which he is entitled to contest the suit.

This Court on more than one occasion held that when a pendent lite purchaser seeks to implead himself as a party - defendant to the suit, such application should be liberally considered. This Court also held in Saila Bala Dassi Vs. Sm. Nirmala Sundari Dassi and Another, , that, "justice requires", a pendente lite purchaser "should be given an opportunity to protect his rights". It was a case, where the property in dispute had been mortgaged by one of the respondents to another respondent. The mortgagee filed a suit, obtained a decree and ''commenced proceedings for sale of the mortgaged property''. The appellant Saila Bala, who purchased the property from the judgment-debtor subsequent to the decree sought to implead herself in the execution proceedings and resist the execution. That application was opposed on various counts. This Court opined that Saila Bala was entitled (under Section 146 of the C.P.C.) to be brought on record to defend her interest because, as a purchaser pendent elite, she would be bound by the decree against her vendor.

There is some divergence of opinion regarding the question, whether a 26 pendent elite purchaser is entitled, as a matter of right, to get impleaded in the suit, this Court in Amit Kumar Shaw and Another Vs. Farida Khatoon and Another, , held that:

"16. ... Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the court has a discretion to make him a party. 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. A transferee 26 pendent elite to the extent he has acquired interest from the defendant is vitally interested in the litigation, where the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party, under Order 22 Rule 10 an alienee pendente lite may be joined as party. As already noticed, the court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The court has held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where his predecessor-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case."

[Emphasis supplied]

The preponderance of opinion of this Court is that a pendente lite purchaser''s application for impleadment should normally be allowed or "considered liberally".

Thus, in view of the judgments rendered by the Hon''ble Supreme Court in the case of A. Nawab John and Thomson Press (India) Limited (supra), this Court is of the opinion that the applicant, who is subsequent purchaser of the property in question by a registered sale deed has a right to be impleaded in the proceedings and to be heard therein. The purchaser steps into the shoes of the vendor and thus, he has recourse to all the rights held by the vendor.

The application is thus allowed. The applicant M/s. Royal Palace Mattel, Sirohi through its partner Sh. Vikram Singh Rajput is permitted to be impleaded as party respondent to the appeal.

Learned counsel for the appellant to file amended cause title within a period of ten days.