Sarita Gupta vs Om Prakash And Others

Hon''ble Sunil Hali, J.—Respondents No. 3 to 5 have filed a suit against respondent nos. 1& 2 restraining them from interfering with the passage which is being used by them. During pendency of the suit, it seems that the property in question was transferred by the respondent nos. 3 to 5 in favour of the petitioner. The suit of the plaintiffs was dismissed by the learned Trial Court against which an appeal has been filed before the appellate authority which is still pending. During pendency of the Suit before the Trial Court, an application under Order XXII Rule 10 of the CPC (hereinafter referred to as C.P.C.) was filed by the petitioner seeking his impleadment as co-plaintiff in the said suit on the principle of assignment. Trial Court rejected the application on the ground that the principle of lis-pendens will apply as such there is no necessity of impleading the petitioner as co-plaintiff in the suit. Thereafter another application came to be filed by the petitioner seeking his impleadment as co-plaintiff which was again rejected by the trial Court. It is under these circumstances, present petition has been filed.

Heard Mr. Pankaj Naqvi, learned counsel for the petitioner and have perused the material on record. None appeared on behalf of respondents.

The case set out by the petitioner is that he acquired an interest in the property on account of sale deed executed by the plaintiffs respondents no. 3 to 5 in this behalf. It is not disputed that the plaintiffs in the original suit as well as the defendants have a dispute with respect to the property in question as also the passage used by the plaintiffs. Petitioner having purchased the property in dispute has an interest in the said property. Trial Court has applied the principle of respondents which contemplates that any transfer made in respect of any property which is subject matter of dispute pending before the Court will not bind the parties to the dispute and in that eventuality transfer shall be deemed to be non-stand in law and will not in any way affect the right of any other party who opposes such transfer.

Even though in the present case, there is a dispute between the plaintiffs and defendants in respect to the property which is not subject matter of challenge by the parties. Plaintiffs have filed a suit for injunction only in respect of the passage, which is being used, has already suffered a judgment from the trial Court against which an appeal is pending before the appellate authority.

The short grievance of the petitioner is that the principle of lis-pendens will not apply in the present case and his application is required to be accepted under Order XXII Rule 10 of C.P.C. which is a case of assignment and not of impleadment. Principle of assignment is defined under Order XXII Rule 10 of C.P.C. which contemplates that creation of any right during the pendency of a suit can be continued by or against the person to or upon whom such interest has come or devolved. A bare reading of Order XXII Rule 10 of C.P.C. shows that it is only an enabling provision that permits and allows a transferee to move an application for being impleaded as a party because of the pendente lite transfer. There is no penal provision under Order XXII Rule 10 or in the entire Code in case a transferee/assignee does not move an application. Suit does not abate and cannot be dismissed on the ground that the transferee or assignee has not been brought on record. A transferee therefore need not always be impleaded and made a party. The law permits the original plaintiff to continue the proceedings against the defendant. However the transferee or the person who acquires rights under the assignment is bound by the decree, judgment or order passed by the Court unless the original plaintiff i.e the transferor has played a fraud. It is a trite proposition of law that the purchaser during the pendency of the suit is not a necessary party of the then pending proceedings, but it is also a common or garden principle of law that if a purchaser wants to get himself impleaded apprehending that his vendor would not protect his interest adequately, then it is open for him to get himself impleaded. After purchase of property, petitioner has acquired an interest in the said property as such his right for seeking assignment in the said proceedings cannot be over-looked. This, however, will not cloak the petitioner with any better right than that of original owner who is already litigating with the defendants. Limited right of the present petitioner shall be confined only in pursuing the litigation initiated by the original owners. Fate of the petitioner''s right will always be subject to the out come of the appeal which is pending before the Appellate Court.

Considering the facts and circumstances of the case, the writ petition is allowed. The impugned orders dated 6.9.2006 passed by the Court of Addl. District Judge (II) Bareilly in Civil Appeal No. 45 of 2005 and the Order dated 8.11.2001 passed by the Court of Civil Judge (JD), Aonla, Bareilly are hereby quashed. However, petitioner is permitted to contest the suit as co-plaintiff subject to riders mentioned herein above.