Khatoon Vs. Nabi Hassan Saheb & Anr  Insc 555 (6 November 2003)
V. Patil & D.M. Dharmadhikari Dharmadhikari J.
Appeal (civil) 856 of 1998
appeals are directed against a common judgement dated 28.7.1997 passed by High
Court of Patna in two revisions under section 115 of the Code of Civil
Procedure [hereinafter referred to as 'the Code'].
cross suits, one filed for redemption of mortgage and the other filed for
specific performance of Agreement of Sale, the petitioner made two
applications, for her impleadment as co-plaintiff in one suit and defendant in
the other. Third application was filed for amendment of the pleadings
consequent to her proposed joinder as a party in the two suits. The three
applications were made respectively under Order 1 Rule 10, Order 22 Rule 10 and
Order 6 Rule 17 of the Code.
to the petitioner during pendency of the suits, she has purchased the suit
property in the year 1996 from the original plaintiff Amichand Agarwal and
has, thus, acquired in his place the right of redemption of the mortgaged suit
property. In the cross suit of the opposite party seeking specific performance
of the Agreement of Sale based on the same acquisition of title during pendency
of suit, joinder was sought to that suit as defendant.
trial court by order dated 11.10.1996 rejected the prayer for joinder of the
petitioner in the two suits observing that the property having been purchased
during pendency of the suit the decree passed in the suit shall bind the
transferee pendente-lite. It also observed that suit being old of the year
1983, its earliest disposal is necessary.
the same reasons that two other applications under Order 1 Rule 10 and Order 6
Rule 17 were also rejected by the trial court.
impugned common order, the High Court in its revisional jurisdiction which was
invoked under section 115 of the Code, declined to interfere. Aggrieved
thereby, the present appeals have been filed.
learned senior counsel Shri S.B. Sanyal strenuously urged that even though the
petitioner is a transferee pendente-lite within the meaning of section 52 of
the Transfer of Property Act to afford effective opportunity to her to
prosecute the suit for redemption of mortgage and the counter suit for specific
performance of the contract, her joinder in two suits as party and prayer to
bring subsequent events on record by proposed amendment to the pleadings ought
to have been allowed by the trial court. It is submitted that the High Court
ought to have interfered in the orders of the trial court as the latter had
failed to exercise its judicial discretion in accordance with law. Reliance is
placed on Khemchand Shankar Choudhari & Anr vs. Vishnu Hari Patil & Ors
[1983(1) SCC 18]; Jayaram Mudaliar vs. Ayyaswami & Ors [AIR 1973 SC 569]; Savitri
Devi vs. District Judge, Gorakhpur & Ors. [AIR 1999 SC 976]; Saila Bala Dassi
vs. Nirmala Sundari Dassi & Anr. [1958 SCR 1287]; and Dhurandhar Prasad
Singh vs. Jai Prakash University & Ors. [2001 (6) SCC 534].
learned counsel, appearing for the contesting respondents, supported the
impugned orders of the trial court and the common order passed by the High
Court. Reliance is placed on Savinder Singh vs. Dalip Singh & Ors. [1996
(5) SCC 539].
not disputed that the present petitioner purchased the property during pendencey
of the suit and without seeking leave of the court as required by section 52 of
the Transfer of Property Act.
petitioner being a transferee pendente lite without leave of the court cannot,
as of right, seek impleadment as a party in the suits which are long pending
since 1983. It is true that when the application for joinder based on transfer pendente
lite is made, the transferee should ordinarily be joined as party to enable him
to protect his interest. But in instant case, the trial court has assigned
cogent reasons for rejecting such joinder stating that the suit is long pending
since 1983 and prima facie the action of the alienation does not appear to be
bona fide. The trial court saw an attempt on the part of the petitioner to
complicate and delay the pending suits.
decisions cited and relied on behalf of the appellant turned on the facts of
each of those cases. They are distinguishable. There is no absolute rule that
the transferee pendente-lite without leave of the court should in all cases be
allowed to join and contest the pending suits. The decision relied on behalf of
the contesting respondents of this court in the case of Savinder Singh (supra)
fully supports them in their contentions. After quoting section 52 of the
Transfer of Property Act, the relevant observations are thus :- "Section
52 of the Transfer of Property Act envisages that :- 'During the pendency in
any court having authority within the limits of India .. of any suit or proceeding 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
the decree or order which may be made therein, except under the authority of
the court and on such terms as it may impose.' It would, therefore, be clear
that 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 these
circumstances, the respondents cannot be considered to be either necessary or
proper parties to the suit.
case of Dhurandhar Prasad Singh(supra), observations relevant for the purpose
of these appeals read thus :- "Where a party does not ask for leave, he
takes the obvious risk that the suit may not be property 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
above statement of law by this Court in the cases (supra) clearly shows that
the trial court has rightly exercised its discretion in rejecting the three
applications for impleadment of the transferee pendente-lite as party to the
suits and for amendment of the pleadings. The High Court was also justified in
refusing to interfere with the order of the trial court. Consequently, there is
absolutely no merit in any of these appeals. They are, accordingly, dismissed
with costs to be borne by the petitioner of the contesting respondents.