Rama Shankar Kushwaha vs Addl. District Judge and Others

Prakash Krishna, J.—The present writ Petition is on behalf of a person who purchased the disputed property during the pendency of the litigation knowing well about the litigation and whose application for impleadment has been rejected by the impugned order passed by the Appellate Court.

The facts leading to the filing of the present writ Petition may be noticed in brief. The dispute relates to plot No. 869 area 54.00 decimals situate in village Baghauch, Tappa Malsi Saraini, Pargana Sidhuwa Jobna, Tehsil and District Deoria. The said plot originally belonged to Haridwar Rai, Respondent No. 2 herein. He transferred the said plot by means of a sale deed dated 7th of March, 1983 executed in favour of two persons namely Sukhdev Shah (father of Respondent Nos. 3, 4, 5) and Uma Shanker, Respondent No. 6. Haridwar Rai instituted suit No. 1416 of 1989 against the aforesaid two persons namely Sukhdev Shah and Uma Shanker for cancellation of the sale deed dated 7th of March, 1989. On 26th of April, 1990 the suit was decreed exparte. An application to set aside the exparte decree under Order 9 Rule 13 CPC was filed which was dismissed in default on 9th of October, 1998. Another application was filed by them to recall the order dated 9th of October, 1998 on the ground that the counsel could not reach the Court in time. It was supported with an application u/s 5 of Limitation Act for condonation of delay in filing of the restoration application. The said application was hotly contested by Haridwar Rai, Plaintiff and was dismissed on 14.2.2002.

Challenging the said order Misc. Appeal No. 10 of 2002 was filed by them against Haridwar Rai.

In appeal Sukhdev died leaving behind him his sons namely Suresh, Pradeep and Dilip, Respondent Nos. 3, 4 and 5 herein as his heirs and legal representatives. The substitution application was allowed.

An application dated 15th of November, 2002 was filed by heirs and legal representatives along with Haridwar Rai to dismiss the appeal as not pressed. Uma Shanker entered into an agreement for sale of disputed plot in favour of the present Petitioner and a sale deed was ultimately executed in his favour on 26th of March, 2003. Thereafter, the purchaser namely Petitioner filed an application for his impleadment under Order 22 Rule 10 CPC in the appeal. Uma Shanker, the vendor of the Petitioner, filed two applications/objections. He objected the impleadment application filed by the Petitioner. Another application paper No. 47 C was filed to dismiss the misc. appeal.

The impleadment of Petitioner was also opposed by Haridwar Rai by filing objections.

The Court below by the impugned order dated 7.4.2003 dismissed the impleadment application filed by the Petitioner.

Heard Sri Sankatha Rai, learned Counsel for the Petitioner and Shri Fauzdar Rai, learned Counsel for the contesting Respondent.

The learned Counsel for the Petitioner contends that the Petitioner is a bonafide purchaser and is a transferee pendente lite, is entitled for impleadment. Reliance has been placed on following two decisions of the Apex Court:

Savitri Devi v. District Judge, Gorakhpur and Ors. 1999 (17) LCD 706; and

Amit Kumar Shaw and Another Vs. Farida Khatoon and Another,

In contra, the Respondent contends that the present Petitioner who filed application for his impleadment is neither necessary nor a proper party in the suit. Elaborating the argument, it was submitted that the Petitioner, as a matter of fact, has purchased litigation knowing well that a dispute is pending before the Civil Court and a decree against his vendor is in operation.

Strong reliance was placed upon the judgment of the Apex Court in Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb and Another,

Considered the respective submissions of the learned Counsel for the parties and perused the record. No doubt, the decisions relied upon by the Petitioner prima facie do support his case. In the case of Savitri Devi it has been held that a transferee pendente lite may be impleaded as a party in the suit, after taking note of provisions of Section 52 of the Transfer of Property Act as well as the provisions of Rule 10 of Order 22 CPC The aforesaid decision has been followed in the case of Bibi Jubaida Khatoon (supra).

It may be desirable that ordinarily a transferee pendente lite may be impleaded as one of the parties in the suit to enable him to watch his interest. But the said proposition is not of universal application and in a given case, discretion vests in the Court to reject such application when it is apparent that transfer is not bonafide one. In the case on hand, the decree cancelling the sale deed in favour of the Petitioner''s vendor was in operation. Meaning thereby that on the day of agreement to sell dated 3.12.2002 or on the date of sale deed dated 26th of March, 2003, the vendor of the Petitioner in the eyes of law had no title to the property in dispute. He could not legally transfer any interest in the property as he was not its owner nor had any interest.

The suit for cancellation of the sale deed instituted by Haridwar Rai against the vendor of the Petitioner stood decreed at the relevant point of time and the application to set aside the said decree stood rejected. Annexure-19 to the writ Petition is the copy of agreement for sale in favour of the Petitioner. From it, it is but obvious, that the vendor and vendee both were aware about pendency of the litigation. It is mentioned in no uncertain terms that the suit No. 1416 of 1989 instituted by Haridwari Rai against Sukhdev and others has been decreed exparte on 26th of April, 1990. An application to set aside the exparte decree was filed which was registered as Misc. Case No. 6 of 1991 and was also dismissed in default on 3rd of October, 1998. To recall the said order, Misc. Case No. 58 of 1998 was filed which was dismissed on 14.2.2002 against which Misc. Appeal No. 10 of 2002 is pending before the Third Additional District Judge. This being so, it does not lie in the mouth of the Petitioner to say that he is bonafide purchaser or was unaware of the real fact situation.

Secondly, in the said agreement it is mentioned that sale deed will be executed in favour of the Petitioner after a decision in favour of his vendor. This clearly stipulates the execution of the sale deed only after the vendor gets his title restored to the suit property and not otherwise.

In no uncertain terms, it is mentioned that execution of the sale deed during the pendency of the litigation is not possible. The exact words are reproduced below:

Dauran Mukadma Bainama Ho Pana Sambhav Nahin Hai....

But even then the Petitioner got the sale deed executed in violation of the terms of agreement to sell.

One of the conditions as mentioned in the sale agreement is that if ultimately the first party i.e. Uma Shanker does not succeed in the litigation referred to above even then the second party i.e. the Petitioner has agreed that he will not be entitled for refund of the advance money. It follows that the party to sale deed never intendeds to transfer the title in the land till the decision in favour of its vendor.

In peculiar facts of the present case, the ratio as laid down by the Apex Court in the case of Bibi Jubaida Khatoon (supra) is more appropriately applicable to the present case. In this very case, it has been held that Section 52 of the T.P. Act prohibits the parties to the suit to deal with the property by way of transfer or otherwise. The alienation made in violation of Section being void, the transferee "cannot be considered to be either necessary or proper parties to the suit." It has quoted from its earlier judgment in the case of Dhurandhar Prasad Singh Vs. Jai Prakash University and Others, that "Where a party does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the Plaintiff on record, yet he will be bound by the result of the litigation even though he is not represented at the hearing unless it is shown that the litigation was not properly conducted by the original party or he colluded with the adversary.

In the case of Raj Kumar v. Sardari Lal and Ors. AIR 2004 SCW 470 the Apex Court has held in a matter where the exparte decree in the suit was passed that an application filed by a transferee of the Defendant would be a representative in interest of the Defendant judgment debtor. A decree passed against the Defendant is available for execution against the transferee or assignee of the Defendant judgment debtor and it does not make any difference whether such transfer or assignment has taken place after the passing of the decree or before passing of the decree without notice or leave of the Court.

Coming to the facts of the case in hand, it may be noted that execution of the sale deed in favour of the Petitioner is being contested by his vendor as well. In this fact situation and taking into consideration that the day when the alleged agreement for sale was arrived at the vendor had lost his right, title or interest, if any, to the disputed property, the Court below has committed no error in rejecting the impleadment application filed by the Petitioner, who if at all took a calculated risk by entering into the arena of litigation on the strength of the sale deed pendente lite without leave of the Court. About 21 years have passed and it is desirable that the litigation should now come to an end.

Taking into consideration the undisputed fact that in the agreement to sell relied by the Petitioner wherein the Petitioner with his wide open eyes agreed that he will not claim refund of the advance money given to the vendor, obviously the Petitioner is not going to suffer any loss by rejection of his impleadment application.

I find no good ground to interfere in the present writ Petition. The writ Petition is dismissed. But no order as to costs.