Om Prakash vs Usha Godara and others

D.V. Sehgal, J. (Oral)

This judgment shall dispose of Civil Revision Nos. 1313, 1314, 1315 and 1316 of 1987. A common question of law arises in all of them and some of the parties to them are also the same. Reference to the facts and the parties shall, however, be made from Civil Revision No. 1313 of 1987.

The facts, in brief, are that Kishan Chand, Udo Dass, Ramesh Chand, Ved Parkash and Ashok Kumar sold the land in suit to Smt. Usha Godara, defendantrespondent No. 1, vide registered saledeed dated 18th of September, 1984, for a consideration of Rs. 18,500/. Jug Lal and Amar Singh, plaintiffrespondents No. 2 and 3, filed a suit for preemption of the said sale. They alleged that the vendors had sold the land to respondent No. 1 without notice to them and that they are the sitting tenants on suit land. This suit was filed on September 17, 1985 which, without doubt, is within limitation.

During the pendency of the suit, however, Smt. Usha Godara, respondent No. 1, sold the suit land to Om Parkash petitioner herein vide registered saledeed dated April 2, 1986. According to the petitioner, he came to know about the pendency of the suit later. He, therefore, filed an application under Order 1 Rule 10 of Code of Civil Procedure (for short `the Code'') for being impleaded as defendant to the suit in place of Smt. Usha Godara, his predecessorininterest. This application has, however, been dismissed by the learned trial Court vide its order dated January 14, 1987. Aggrieved against the same, Om Parkash petitioner has filed the present revision petition.

I have heard the learned counsel for the parties. The learned trial Court has observed that since respondent No. 1 sold the suit land to the petitioner during the pendency of the suit, the sale in his favour is hit by the doctrine of lis pendens. It is further noted that the vendee cannot improve his status after the institution of the suit for preemption. For this view the provisions of section 21A of the Punjab Preemption Act, 1913 have been invoked. The trial Court, thus, concluded that the petitioner cannot exercise his right on the basis of the said sale to get himself impleaded as a defendant.

I am of the considered view that the approach of the learned trial Court is erroneous. Rule 10 of Order 22 of the Code lays down inter alia that in case of 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 who or upon whom such interest has come or devolved. It could not be disputed by the learned counsel for the respondents that in an ordinary civil suit in case of sale of the property, which is its subjectmatter during its pendency, the vendee or assignee can invoke the provisions of Rule 10 ibid to be impleaded as a party in place of the assignor or the vendor. In fact this is the settled law.

Mr. Sarin, learned counsel for the respondents, however, contends that the learned trial Court has rightly dismissed the application of the petitioner because the sale of the suit land in his favour is an attempt to improve the status of the vendee after institution of the suit. No improvement of status otherwise than through inheritance or succession after institution of the suit for preemption can affect the right of the preemptorplaintiff in such suit. As far as provisions of Section 21A of the Punjab Preemption Act, 1913, are concerned, those do govern the status of the vendee or his successor after the institution of the suit for preemption and those provisions shall govern the instant suit also.

However, on persual of the application filed by the petitioner I find that nowhere has he stated that he possesses a right better than that of the plaintiff to preempt the sale in favour of respondent No. 1 or to maintain his ownership of the same in preference to the plaintiffrespondent Nos. 2 and 3. In their reply to the application of the petitioner the plaintiff has also nowhere mentioned that the attempt of the petitioner is to improve his status which may come within the mischief of section 21A of the above mentioned Act.

In such a situation, I have no hesitation to hold that the ordinary rules of procedure in a civil suit shall apply and the petitioner as the vendee from the defendant during the pendency of the suit in respect of the suit land ought to have been impleaded as a defendant in her place in accordance with the provisions of Rule 10 of Order 22 of the Code. The learned trial Court has also alluded to the doctrine of lis pendens. The suit in respect of the property in dispute is still pending. The petitioner, who is a vendee from the defendant steps into her shoes. His rights and interest in the suit remains the same as were that of the defendant. It is, therefore, difficult to understand how the doctrine of lis pendens to affects the right of the petitioner to be impleaded to the suit. The order of the learned trial Court, therefore, cannot be sustained.

Consequently, I allow this revisions petition, set aside the impugned order of the learned trial Court, allow the application of the petitioner and direct that he should be brought on the record as a defendant to the suit. The parties are, however, left to bearthe ir own costs.