Revathi Mutually Aided Cooperative Housing Society Limited vs Smt. K. Prameela and Others

G. Yethirajulu, J.—The review petitioner is a Mutually Aided Cooperative Housing Society Limited. The petitioner came forward with a petition to implead it as one of the respondents in the revision petition contending that respondents 11 to 13 executed a registered agreement of sale and Power of Attorney in its favour on 24-10-2002. It is pleaded on behalf of the petitioner that a substantial amount running into several lakhs of rupees was paid to respondents 11 to 13 with a view to purchase and develop the disputed land pending adjudication in C.R.P. No. 282 of 2000. The petitioner applied to the Cantonment Board on 02-12-2002 for sanction of layout and it is under consideration of the Cantonment Board. In 1995 the Revenue Divisional Officer issued Section 38E Certificate to the legal heirs of late Bandigari Sattaiah i.e., respondents 11 to 13. In 1996 the respondents 1 to 10 preferred an appeal before the Joint Collector and when the order of the Joint Collector went against them, they preferred the revision petition in the year 2000. The review petitioners claim that it entered into an Agreement-cum-General Power of Attorney with respondents 11 to 13 on 24-10-2002 i.e., about two years after the filing of the revision petition. During the pendency of the revision petition, the petitioner-society filed C.M.P. No. 22654 of 2003 and the same was dismissed by this Court on 9-2-2004 observing that the society obtained only an agreement of sale and not a registered sale-deed from respondents 11 to 13 and that as the property was purchased during the pendency of the litigation, it is hit u/s 52 of the Transfer of Property Act, therefore, the petitioner is neither a necessary party nor a proper party and it cannot be permitted to come on record. The review petitioner being aggrieved by the order of this Court preferred this revision petition contending that the order of this Court dated 9-2-2004 is liable to be set aside on the following grounds:

1) The order is vitiated by error of law and fact apparent on the face of the record;

2) The protected tenancy (P.T.) Certificate given in favour of late Bandigari Sattaiah in the year 1975 was not produced and respondents 11 to 13 produced only the certified copy of the said certificate issued in the year 1995;

3) The learned Judge did not consider the Division Bench judgment of this Court reported in Conugunta Subbarayudi Vs. Eluri Brahmanadan and Others, regarding the right of the purchaser pendente lite to get itself impleaded in a pending proceeding;

4) The learned Judge did not consider a judgment of the Supreme Court in Saila Bala Dassi Vs. Sm. Nirmala Sundari Dassi and Another, which was followed by a Division Bench of this Court in C. Subbarayudu (1 supra).

5) The learned Judge also did not consider the judgment of the Supreme Court in Razia Begum Vs. Sahebzadi Anwar Begum and Others, ;

6) The learned Judge ought not have followed the judgment of Supreme Court in Sarvinder Singh Vs. Dalip Singh and Others, which is a judgment of two Judges of the Apex Court rendered without considering the judgments in Saila Bala (2 supra) and Razia Begum (3 supra);

7) The learned Judge ought to have seen that the subsequent purchase of the schedule property confers upon the petitioner a right to get itself impleaded to protect its rights.

8) The learned Judge ought not have set aside the order dated 17-12-2003 without any application.

In the light of the contentions raised by the review petitioner, the following point arises for consideration:

Whether there are grounds to review the order dated 9-2-2004 in C.M.P. No. 22654 of 2003?

Point:

This Court while passing the orders on 9-2-2004 relied on a judgment of the Supreme Court in Sarvender Singh (4 supra) wherein the Supreme Court held that the property having been purchased during the pendency of the litigation is hit u/s 52 of the Transfer of Property Act, therefore, the purchaser is neither a necessary party nor a proper party and he cannot be permitted to come on record. Following the judgment in Sarvinder Singh (4 supra), a learned single Judge of this Court rendered a judgment in Kuna Ramulu v. Kuna Annapurnamma 2002 (2) An.W.R. 491 (A.P.). The learned Judge while dealing with the application of Order 1 Rule 10 C.P.C. held that where the property was purchased during the pendency of the litigation, it is hit by the provisions of Section 52 of the Transfer of Property Act.

In Saila Bala (2 supra), the appellant therein sought for intervention in the execution of a mortgage decree. She purchased the properties covered by the decree for Rs. 60,000/- under a covenant that they are free from encumbrances. After her purchase, the first respondent started proceedings for sale of the properties nearly 18 years after the decree has been passed. The appellant pleaded that the execution proceedings are barred by limitation and desired to be heard on that question. The appellant contended that the properties in her hands could, under no circumstances, be made liable for the decree amount, interest, costs etc. Under those circumstances, the Supreme Court held as follows:

As a purchaser pendente lite, the appellant will be bound by the proceedings taken by the first respondent in execution of her decree, and justice requires that she would be given an opportunity to protect her rights.

In Razia Begum (3 supra), the Supreme Court held that the question of addition of parties under O.1 R.10 C.P.C. is generally not one of initial jurisdiction of the court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case, but in some cases, it may raise controversies as to the power of the court, in contradistinction to its inherent jurisdiction or, in other words, of jurisdiction in the limited sense in which it is used in S.115 of the Code. In a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the subject matter of the litigation. Where the subject-matter of a litigation is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party, it would be in a better position effectually and completely to adjudicate upon the controversy. The cases contemplated in the last proposition have to be determined in accordance with the statutory provisions of Sections 42 and 43 of the Specific Relief Act. The Supreme Court further held that since this is a matter where the lower Court exercised its discretion, there will be no interference with the discretion of the courts below.

In C. Subbarayudu (1 supra) a Division Bench of this Court while considering the scope of Order 22 Rule 10 and Order 23 Rule 3 C.P.C. held as follows:

The scope of Order 22 Rule 10 C.P.C. is not wide enough so as to permit a settle during the pendency of the suit to apply to be impleaded as a party in the appeal because the transfer was not effected pending that proceeding, but prior thereof. But the setlee can take benefit of Section 146 and apply to be brought on record, for such a course is not prohibited by any other provision of the Code. Section 146 being a beneficial provision should be construed liberally so as to advance the cause of justice and not in a restricted technical sense.

The Division Bench further held that though addition as a party is discretionary with the Court, it is a discretion which is to be exercised judicially after duly considering the petition. The Division Bench laid down the above principle by relying on the decision of the Supreme Court in Saila Bala (2 supra).

The Supreme Court as well as the A.P. High Court in the above decisions held that it is the discretion of the Court to entertain the applications to bring such parties on record.

The contention of the learned counsel for the review petitioner is that since there is no reference in the judgment of the Supreme Court in Sarvender Singh (4 supra) about the judgments reported in Saila Bala (2 supra) and Razia Begum (3 supra), it is not a good law, therefore, the principle laid down in the above decision cannot be relied on.

The Supreme Court in its recent judgment in Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb and Another, while distinguishing the judgment in Saila Bala (2 supra) and relying on Sarvinder Singh (4 supra) held that in the case of transfer of property without leave of the Court pending litigation, the transferee cannot, as of right, seek impleadment in the suit though normally a joinder based on transfer pendente lite is permitted to enable the transferee to protect his interest; moreso, when the suit had been long pending and the alienation prima facie did not appear to be bona fide.

In the above decision, the Supreme Court relied on the observations made by it in Sarvinder Singh (4 supra) and the same are as follows:

The defendants in the suit were prohibited by operation of Section 52 to deal with the property and could not transfer or otherwise deal with it in any way affecting the rights of the appellant except with the order or authority of the Court. Admittedly, the authority or order of the Court had not been obtained for alienation of those properties. Therefore, the alienation obviously would be hit by the doctrine of lis pendens by operation of Section 52. Under the above circumstances the respondents cannot be considered to be either necessary or proper parties to the suit.

The Supreme Court also relied on the observations made by the said Court in another judgment in Dhurandhar Prasad Singh Vs. Jai Prakash University and Others, and the same are as follows:

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.

The judgment of the Supreme Court in Bibi Zubaida Khatoon (6 supra) makes the position further clear that permitting a transferee to be added as a party is a discretionary one and the discretion has to be exercised keeping in view the facts and circumstances of each case.

In the case on hand, the petitioner is only an agreement holder for purchase and development. No title has been transferred to the petitioner from respondents 11 to 13. Therefore, the petitioner cannot be treated as a transferee of the land. The petitioner stepping into the shoes of respondents 11 to 13 as transferee does not arise. The petitioner knowing fully well about the respondents 1 to 10 agitating before the Revenue Divisional Officer and the Joint Collector and about the pendency of the revision petition before this Court entered into the alleged agreement, preparing to take the risk of the result of the litigation. The review petitioner did not raise any plea that respondents 11 to 13 did not properly conduct the enquiry or that they colluded with respondents 1 to 10. The order passed against respondents 1 to 10 is a clear indication that there is no collusion between respondents 1 to 10 and respondents 11 to 13. The petitioner either on the ground that there was transfer of title from respondents 11 to 13 or in the light of the principle laid down by the Supreme Court is not entitled to come on record. There is no error apparent on the face of the order dated 9-2-2004 passed by this Court. The review petition is accordingly dismissed. No order as to costs.