Kumar Shaw & Anr Vs. Farida Khatoon & Anr  Insc 245 (13 April 2005)
Bhan & Dr. Ar. Lakshmanan
out of S.L.P.(C) No.17780 of 2004) WITH
CIVIL APPEAL NO. OF 2005 (Arising out of S.L.P.(C) No. 18076 of 2004) Dr. AR. Lakshmanan,
two appeals are directed against the judgment and order dated 15.06.2004 passed
by the High Court at Calcutta in C.A.N. No. 2642 of 2004 in S.A.No.
631 of 1993 and in C.A.N. No. 2643 of 2004 in S.A.No. 632 of 1993 whereby the
High Court dismissed the applications filed by the appellants for substitution
of their names, namely, Amit Kumar Shaw and Anand Kumar Shaw as contesting
respondents in place and stead of Birendra Nath Dey and Smt. Kalyani Dey, both
since deceased and represented by their legal heirs in their place. According
to the appellants, the respondents above named had sold the suit property to
the appellants, who are the only persons interested in the said suit property.
service of notice is complete in both the matters but no one has entered
appearance on behalf of the respondents.
short facts are as follows:
property in question originally belonged to Khetra Mohan Das and subsequently
by way of lease and transfer; the said property ultimately came in the hands of
Birendra Nath Dey and Smt. Kalyani Dey. There were troubles in between the
original owner and the said Birendra Nath Dey and Smt. Kalyani Dey and as a
result of that, the suit was filed. One Fakir Mohammad claimed his right, title
and interest in respect of the property in question by way of adverse
possession. Ultimately, both the appeals being Title Appeal No. 400 of 1989 and
Title Appeal No. 7 of 1990 were allowed by a common judgment and decree dated
25.06.1992 and the suit was remanded back for rehearing before the trial Court.
Being aggrieved by the said decree, Fakir Mohammad filed S.A.Nos. 631 and 632
of 1993 challenging the said judgment of the first appellate Court. On
15.12.1995, by a deed of assignment Birendra Nath Dey assigned his leasehold
interest in respect of 132A, Circular Garden Reach Road, Calcutta in favour of the present
appellants. Similarly, by a sale deed on 15.12.1995, Kalyani Dey sold and
transferred 132 B
Circular Garden Reach Road, Calcutta in favour of the present appellants.
Therefore, the appellants filed applications for recording their names in the
Municipal records. At that time, the appellants, for the first time, came to
know about the pendency of the above two appeals. Immediately thereafter, the
appellants filed the petitions praying for adding them as a party in connection
with those two appeals. In this factual background, the following questions of
law arise for consideration by this Court in these appeals:
Whether on a combined reading of Order 1 Rule 10, Order XXII Rule 10 of the
Code of Civil Procedure, 1908 and Section 52 of the Transfer of Property Act,
1882, an application for substitution by a subsequent transferee can be
rejected and he be non-suited altogether?
Whether a decree for adverse possession is set aside in First Appeal in the
year 1992 and no stay application was filed for long 12 years (till 2004) in
the Second Appeal, whether a transferee interregnum from the owner/defendant,
without knowledge of the second appeal, is a necessary party or whether their
application for substitution can be rejected, when there is no allegation of mala
fide or ill motive?
Whether the High Court has not committed serious error while concluding that
the presence of the appellants is not necessary in order to decide the appeal
and there is no merit in the application for addition of party though the
application was made by the appellants for substitution of their names in place
and stead of contesting defendant No.10, who sold the suit property to the appellants?
Whether the High Court has not committed error by rejecting the appellants'
application for substitution treating the same as addition of party and thereby
rendering the appellants non-suited and remediless? We heard Mr. L. Nageswara Rao,
learned senior counsel, appearing for the appellants and perused the pleadings,
the annexures and the impugned order passed by the High Court.
Rao, learned senior counsel, appearing for the appellants submitted that the
presence of the appellants is absolutely necessary in order to effectively and
completely adjudicate the issues in between the parties. As against the similar
argument before the High Court, learned counsel for the respondents therein
submitted that a person is not to be added as a defendant merely because he or
she would be incidentally affected by the judgment and that the main
consideration should be whether or not the presence of such a person is
necessary to enable the Court to effectually and completely adjudicate upon and
settle the questions involved in the suit.
also submitted before the High Court that in a suit for declaration of title, a
transferee from the defendant pendente lite is neither a necessary party nor a
proper party inasmuch as he would be bound by the decree in the suit in view of
the principle laid down in Section 52 of the Transfer of Property Act, 1882.
While disposing of the applications, the High Court held as under:
far as the case in our hand is concerned, it is the admitted position that the
litigation was going on in between the parties for a long time and the parties
were contesting the said suit and subsequently the appeals. The dispute in
between the parties was in respect of the validity of the grant of the lease as
well as a claim of title by way of adverse possession. So those disputes in
between the parties have got no connection whatsoever with the present
applicants. The presence of the applicants is in no way required for
effectively adjudicate the appeals and as such the presence of the applicants
in my opinion is not at all necessary. In this respect, it can be said that the
applicants purchased the property during the pendency of the appeal and in all
probability with the knowledge of the said pendency. An attempt has been made
by the applicants to show that they were not aware about the pendency of the
appeals. But this claim, in my opinion, is not believable since the litigation
is going on for more than 40 years. Moreover being a purchaser, it is the duty
of the applicants to make proper enquiry before the purchase. Section 52 of the
Transfer of Property Act has clearly prohibited the transfer of property which
is subject matter of a pending suit. The purchase, in this respect, can only be
done with the permission of the Court.
no permission has been obtained and as such, this transfer in favour of the
applicants is certainly hit by the doctrine of lis pendens as provided under
Section 52 of the Act. So, the applicants cannot claim at this stage that their
interest is going to be affected unless they are made a party in this appeal.
In my considered opinion, the presence of the applicants is not at all
necessary in order to decide the appeals in question effectively and
conclusively. As such, I hold that there is no merit in the applications of the
applicants praying for adding them as parties in these two appeals.
from my above discussion, I am of the opinion, that there is no merit in the
present applications and as such the applicants' prayer for adding them as
parties in these two appeals are rejected. Both the CAN applications are thus
disposed of." It is beneficial to reproduce Order 1 Rule 10, Order XXII
Rule 10 of the Code of Civil Procedure, 1908 and Section 52 of the Transfer of
Property Act, 1882 which read as under:
1 Rule 10 (1) Suit in name of wrong plaintiff - Where a suit has been
instituted in the name of the wrong person as plaintiff or where it is doubtful
whether it has been instituted in the name of the right plaintiff, the Court
may at any stage of the suit, if satisfied that the suit has been instituted
through a bona fide mistake, and that it is necessary for the determination of
the real matter in dispute so to do, order any other person to be substituted
or added as plaintiff upon such terms as the Court thinks just.
Court may strike out or add parties - The Court may at any stage of the
proceedings, either upon or without the application of either party, and on
such terms as may appear to the Court to be just, order that the name of any
party improperly joined, whether as plaintiff or defendant, be struck out, and
that the name of any person who ought to have been joined, whether as plaintiff
or defendant, or whose presence before the Court may be necessary in order to enable
the Court effectually and completely to adjudicate upon and settle all the
questions involved in the suit, be added.
person shall be added as a plaintiff suing without a next friend or as the next
friend of a plaintiff under any disability without his consent.
Where defendant added, plaint to be amended - Where a defendant is added, the
plaint shall, unless the Court otherwise directs, be amended in such manner as
may be necessary, and amended copies of the summons and of the plaint shall be
served on the new defendant and, if the Court thinks fit, on the original
Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877),
section 22, the proceedings as against any person added as defendant shall be
deemed to have begun only on the service of the summons." Order XXII Rule
10 Procedure in case of assignment before final order in suit
other cases of an assignment, creation or devolution of any interest during the
pendency of a suit, the suit may, by leave of the Court, be continued by or
against the person to or upon whom such interest has come or devolved.
The attachment of a decree pending an appeal therefrom shall be deemed to be an
interest entitling the person who procured such attachment to the benefit of
sub-rule(1)." Section 52 of the Transfer of Property Act Transfer of
property pending suit relating thereto - During the pendency in any Court
having authority within the limits of India excluding the State of Jammu and
Kashmir or established beyond such limits by the Central Government of any suit
or proceedings which is not collusive and in which any right to immovable
property is directly and specifically in question, the property cannot be
transferred or otherwise dealt with by any party to the suit or proceeding so
as to affect the rights of any other party thereto under any decree or order
which may be made therein, except under the authority of the Court and on such
terms as it may impose.
- For the purposes
of this section, the pendency of a suit or proceeding shall be deemed to
commence from the date of the presentation of the plaint or the institution of
the proceeding in a Court of competent jurisdiction, and to continue until the
suit or proceeding has been disposed of by a final decree or order and complete
satisfaction or discharge of such decree or order has been obtained, or has
become unobtainable by reason of the expiration of any period of limitation
prescribed for the execution thereof by any law for the time being in
force." On a combined reading of Order 1 Rule 10, Order XXII Rule 10 of
the Code of Civil Procedure and Section 52 of the Transfer of Property Act, can
an application for substitution by a subsequent transferee be rejected and the
subsequent purchaser be non-suited altogether is the prime question for
consideration in these appeals.
object of Order 1 Rule 10 is to discourage contests on technical pleas, and to
save honest and bona fide claimants from being non-suited. The power to strike
out or add parties can be exercised by the Court at any stage of the
proceedings. Under this Rule, a person may be added as a party to a suit in the
following two cases:
When he ought to have been joined as plaintiff or defendant, and is not joined
without his presence, the questions in the suit cannot be completely decided.
power of a Court to add a party to a proceeding can not depend solely on the
question whether he has interest in the suit property. The question is whether
the right of a person may be affected if he is not added as a party. Such
right, however, will include necessarily an enforceable legal right.
application under Order XXII Rule 10 can be made to the appellate Court even
though the devolution of interest occurred when the case was pending in the
trial Court. In the instant case, the suit was decreed in favour of Fakir
Mohammad by judgment and decree dated 03.11.1989. The suit was contested by two
sets of defendants, one set of defendants was Birendra Nath Dey and Kalyani Dey
and other set of defendants was Jagat Mohan Das alone. The appeals were
preferred by the parties. Both the appeals were heard and by a common judgment
and order dated 25.6.1992, the said appeals were allowed and the judgment and
decree passed by the Munsif was set aside. By a deed of Assignment dated
15.12.1995, the said Birendra Nath Dey assigned his leasehold right in respect
of 132 A Circular Garden Reach Road, presently known as 132 A, Karl Marx Sarani),
Kolkata in favour of the appellants.
deed of sale executed on 15.12.1995, duly registered with the Additional
Registrar of Assurances, Calcutta, Kalyani Dey Sold the property being 132 B of
the above address to the other appellant. The second appeals filed by the
parties were pending on the file of the High Court at Calcutta. The appellants had no knowledge of
the second appeals. Thereafter on verification, the appellants came to know
about the pendency of the appeals which necessitated them to file the
applications for substitution in the second appeals. In the meanwhile, the
appellants filed the applications before the Municipal authorities for mutation
of their names in respect of the property on 24.12.2002 and the Municipal
authority informed the appellants that they are not in a position to mutate the
names of the appellants of the property in question because of the pendency of
the two second appeals before the High Court at Calcutta. Thereafter the
appellants engaged an advocate to find out whether any such appeals have been
filed by the parties. The advocate so engaged informed the appellants that two
appeals being S.A.Nos. 631 and 632 of 1993 were filed by Fakir Mohammad, Farida
Khatoon & Ors. Respondent Nos. herein. It was also informed that the said
appeals were admitted by the High Court but the impugned judgment and order was
neither prayed for stay nor stayed. Therefore, it was also submitted by the
appellants that since the appellants have become the absolute owners of the
property, their interest will be highly prejudiced and they will be vitally
affected, if any order is passed by the High Court without hearing the
appellants in the matter. Therefore, they prayed that the appellants are to be
substituted in place and stead of the present respondents, since they have no
existing and subsisting right, title or interest in the property.
Order XXII, Rule 10, no detailed inquiry at the stage of granting leave is
contemplated. The Court has only to be prima facie satisfied for exercising its
discretion in granting leave for continuing the suit by or against the person
on whom the interest has devolved by assignment or devolution. The question
about the existence and validity of the assignment or devolution can be
considered at the final hearing of the proceedings. The Court has only to be
prima facie satisfied for exercising its discretion in granting leave for
continuing the suit.
this connection, the provisions of Section 52 of the Transfer of Property Act,
1882 which has been extracted above may be noted.
pendente lite is bound by the final decree that may be passed in the suit. Such
an alienee can be brought on record both under this rule as also under O 1 Rule
10. Since under the doctrine of lis pendens a decree passed in the suit during
the pendency of which a transfer is made binds the transferee, his application
to be brought on record should ordinarily be allowed.
52 of the Transfer of Property Act is an expression of the principle
"pending a litigation nothing new should be introduced". It provides
that pendente lite, neither party to the litigation, in which any right to
immovable property is in question, can alienate or otherwise deal with such
property so as to affect his appointment. This Section is based on equity and
good conscience and is intended to protect the parties to litigation against
alienations by their opponent during the pendency of the suit. In order to
constitute a lis pendens, the following elements must be present:
There must be a suit or proceeding pending in a Court of competent
suit or proceeding must not be collusive.
litigation must be one in which right to immovable property is directly and
specifically in question.
There must be a transfer of or otherwise dealing with the property in dispute
by any party to the litigation.
Such transfer must affect the rights of the other party that may ultimately
accrue under the terms of the decree or order.
doctrine of lis pendens applies only where the lis is pending before a Court.
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
pendente lite to the extent he has acquired interest from the defendant is
vitally interested in the litigation, whether 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.
though the plaintiff is under no obligation to make a lis pendens transferee a
party; under Order XXII 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 the transferee pendente lite is made a
party to the litigation; he is entitled to be heard in the matter on the merits
of the case.
instant case, the applications for substitution were filed by the respective
appellants in the second appeals which are still pending on the file of the
High Court though it was filed in the year 1993. The appellants have properly,
sufficiently and satisfactorily explained the delay in approaching the Court.
We see bona fide in their explanation in not coming to the Court at the
earliest point of time. Therefore, the appellants who are transferees pendente lite
should be made as parties to the pending second appeals as prayed for by them.
In our opinion, the High court has committed serious error in not ordering the
applications for substitution filed by the appellants. In our view, the presence
of the appellants are absolutely necessary in order to decide the appeals on
merits. Since the High Court has committed error by rejecting the appellants'
applications for substitution treating the same as additional parties and
thereby rendering the appellants non-suited. We have no hesitation in setting
aside the said orders and permit the appellants to come on record by way of
substitution as prayed for. The High Court proceeded on a wrong premise that
the appellants had made the application for addition of party whereas the
application under consideration was for substitution as the owner had sold the
suit property to the appellants and had no interest in the pending litigation.
opinion, the presence of the appellants was absolutely necessary since the
appellants are the only persons who has got subsisting right, title and
interest in the suit. The appellants are at liberty to contest the matter on
the appeals shall stand allowed. However, there shall be no order as to costs.