Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8725 of 2013 ====================================================== 1. Mosst. Ram Pukari Devi W/O Late Mod Narayan Jha Permanent Resident Of Village - Phulhara, Post - Phulhara, P.S. Singhiya, Sub - Division - Rosera, Distt. - Samastipur And Presently Residing At Mirzapur, Mohalla - Saiffulaganj / Rajkumarganj, Near Poor Home, Ward No. 6, P.S. Darbhanga ( Town ), Distt. - Darbhanga 2. Jayant Kumar Jha S/O Late Mod Narayan Jha Permanent Resident Of Village - Phulhara, Post - Phulhara, P.S. Singhiya, Sub - Division - Rosera, Distt. - Samastipur And Presently Residing At Mirzapur, Mohalla - Saiffulaganj / Rajkumarganj, Near Poor Home, Ward No. 6, P.S. Darbhanga ( Town ), Distt. - Darbhanga 3. Parvati Kumari W/O Sri Murari Chaudhary And D/O Late Mod. Naayan Jha Permanently Residing At Village - Ladho ( Pokhrama ) Via Biraul, P.S. Biraul, Distt. - Darbhanga .... .... Petitioner/s Versus 1. Sunaina Devi W/O Late Mohan Jha Permanent Resident Of Village - Phulhara, Post - Phulhara, Sub - Division - Rosera, Distt. - Samastipur 2. Manohar Jha S/O Sri Jagganath Jha Permanent Resident Of Village - Phulhara, P.S. Singhiya, Distt. - Samastipur Presently Residing At Mohalla - Rajkumarganj, P.S. Darbhanga ( Town ), Distt. - Darbhanga 3. Bhabesh Kumar Tiwary S/O Sri Shyam Sunder Tiwary Resident Of Village And P.O. Radhi, P.S. Jalley, Distt. - Darbhanga 4. Smt. Poonam Devi W/O Sri Manohar Jha Permanent Resident Of Village - Phulhara, P.S. Singhiya, Distt. - Samastipur Presently Residing At Mohalla - Rajkumarganj, P.S. Darbhanga ( Town ), Distt. - Darbhanga 5. Smt. Mamta Devi W/O Sri Bhavesh Kumar Tiwari Resident Of Village And P.O. Radhi, P.S. Jalley, Distt. - Darbhanga 6. Ganesh Kumar Tiwari S/O Sri Shyam Sundar Tiwari Resident Of Village And P.O. Radhi, P.S. Jalley, Distt. - Darbhanga .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Vivekanand Prasad Singh ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 2 24-07-2013 1. The only question which the present application under Article 227 of the Constitution of India involves is as to whether a transferee pendete lite can be impleaded as a party to the 2 Patna High Court CWJC No.8725 of 2013 (2) dt.24-07-2013 2 / 11 suit on his application and whether this Court in exercise of supervisory jurisdiction should interfere with an order allowing the application of such party under Order I Rule 10 of the Code of Civil Procedure to be impleaded as defendant. 2. The order dated 11.1.2013 passed by learned Sub- Judge-IVth, Darbhanga in Title Suit No. 105 of 2005 is under challenge. By the said order, the Court below allowed a petition filed by the respondents second party and third party under Order I Rule 10(2) of the Code of Civil Procedure (hereinafter referred to as the „Code‟), seeking their impleadment in the suit on the ground that they had purchased the suit land during the pendency of the Title Suit No. 105 of 2005, by registered deeds from respondent
Legal Reasoning
Code of Civil Procedure clearly recognises the right of a transferee to be impleaded as a party to the proceedings and to be heard before any order is made. It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard, he has got to be so impleaded and heard. He can also prefer an appeal against an order made in the said proceedings but with the leave of the appellate court where he is not already brought on record. The position of a person on whom any interest has devolved on account of a transfer during the pendency of any suit or a proceeding is somewhat similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding, or an Official Receiver who takes over the assets of such a party on his insolvency. An heir or a legatee or an Official Receiver or a transferee can participate in the execution proceedings even though their names may not have been shown in the decree, preliminary or final. If they apply to the court to be impleaded as parties they cannot be turned out. The Collector who has to effect partition of an estate under Section 54 of the Code of Civil Procedure has no doubt to divide it in accordance with the decree sent to him. But if a party to such a decree dies leaving some heirs about whose interest there is no dispute should he fold up his hands and return the papers to the civil court? He need not do so. He may proceed to allot the share of the deceased party to his heirs. Similarly he may, when there is no dispute, allot the share of a deceased party in favour of his legatees. In the case of insolvency of a party, the Official Receiver may be allotted the share of the insolvent. In the case of transferees pendente lite also, if there is no dispute, the Collector may proceed to make allotment of properties in an equitable manner instead of rejecting their claim for such equitable partition on the ground that they have no locus standi. A transferee from a party of a property which is the subject-matter of partition can exercise all the rights of the transferor. There is no dispute that a party can ask for an equitable partition. A transferee from him, therefore, can also do so. Such a construction of Section 54 of the Code of Civil 11 Patna High Court CWJC No.8725 of 2013 (2) dt.24-07-2013 11 / 11 taking Procedure advances the cause of justice. Otherwise in every case where a party dies, or where a party is adjudicated as an insolvent or where he transfers some interest in the suit property pendente lite the matter has got to be referred back to the civil court even though there may be no dispute about the succession, devolution or transfer of interest. In any such case where there is no dispute if the Collector makes an equitable partition the interests of all concerned including those on whom any interest in the subject-matter has devolved, he would neither be violating the decree nor transgressing any law. His action would not be ultra vires. On the other hand, it would be in conformity with the intention of the legislature which has placed the work of partition of lands subject to payment of assessment to the Government in his hands to be carried out “in accordance with the law (if any) for the time being in force relating to the partition or the separate possession of shares”. into consideration 15. In view of the ratio laid down by the Supreme Court in case of Thomson Press ( India) Ltd., I am of the view that the impugned order does not need any interference. I am also of the view that an order passed while exercising discretion, as available to Court under Order I Rule 10 of the Code, should ordinarily not be interfered with in supervisory jurisdiction under Article 227 of the Constitution of India. This application is, accordingly, dismissed. (Chakradhari Sharan Singh, J) Arun Kumarl/-
Arguments
3. Mr. Vivekanand Prasad Singh, learned counsel appearing on behalf of the petitioners has assailed the impugned order on the ground that the transfer made in favour of the respondents second set and third set through power of attorney by the respondent no.1/defendant during the pendency of the suit is hit by doctrine of lis-pendense and Section 52 of the Transfer of Property Act. He submits that the respondents second set and third set purchased the suit property knowing well that a suit was pending, without seeking leave of the Court. He submits that in 3 Patna High Court CWJC No.8725 of 2013 (2) dt.24-07-2013 3 / 11 such circumstance, the transfer during the pendency of the suit cannot be said to be bonafide and the Court below without realizing the correct legal position and the effect of such impledment allowed the said application under Order I Rule 10 of the Code. He submits that the property said to have been purchased by the intervener/defendants are undisputedly co- parcenery property of the family of the plaintiff/defendant no.1. In this situation particularly, he submits that the Court below should not have allowed the application under Order I Rule 10 of the Code. 4. Mr. Singh has placed reliance on following judgment of the Supreme Court as well as this High Court and other High Courts:- 1. (2003) 1 SCC 722(Venbkatrao Anantdeo Joshi and others vs. Malatibai and others) 2. (2008) 7 SCC 144 ( Usha Sinha Vs. Dina Ram and others). 3. 2009 (4) PLJR 117( Smt. Sumitra Devi Vs. Sitasharan Bubna) 4. 2006(4) PLJR 65 (Ram Lochan Sharan Vs. Balmukund Yadav) 5. AIR 2004 SC 173 (Bibi Zubaida Khatoon Vs. Nabi 4 Patna High Court CWJC No.8725 of 2013 (2) dt.24-07-2013 4 / 11 Hassan Saheb) 6. (1996) 6 SCC 433 (Sankalchan Jaychandbhai Patel & ors. Vs. Sithalbhai Jaychand Bai Patel and ors). 7. AIR 2009 (NOC) SC 2694 (Chennai Jananayaga Madhar Sangam Vs. S. R. Naidu & anr). 8. AIR 2007 A.P. 46 ( Pannala Renuka & anr. Vs. Kavali ( Rajumouni) Venkataiah & ors.). 5. In course of this submission, Mr. Singh placed heavy reliance on a Supreme Court judgment reported in case of Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb. Paragraph 9 of the said judgment reads as follows:- “9. It is not disputed that the present petitioner purchased the property during pendency of the suit and without seeking leave of the Court as required by Section 52 of the Transfer of Property Act. The petitioner being transferee pendent elite 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 bonafide. The trial Court saw an attempt on the part of the petitioner to complicate and delay the pending suits.” 6. Mr. Singh, learned counsel appearing on behalf of the petitioners gave much emphasis on the submission that the 5 Patna High Court CWJC No.8725 of 2013 (2) dt.24-07-2013 5 / 11 respondents second and third set/interveners/defendant purchased the property in question though they had the knowledge about the pendency of the suit. To support his submission he drew my attention to the intervention petition filed on their behalf before the Court below under Order I Rule 10 of the Code. Referring to the contents of the petition, he has tried to submit that the intervener/defendants had knowledge not only about the pendency of the suit but also the stage of the suit. In such circumstance the transferee could not be said to be bonafide and they should not have been allowed to be impleaded as a party, according to him. 7. Mr. Singh has also submitted that vendor of the intervener-defendant is pursuing the case and in such circumstance, there could not need of impleading the transferees pendete lite. 8. The Supreme Court in case of Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb (supra) recognized the principle that when the application for joinder based on transferee penedete lite is made, the transferee should ordinarily be joined as party to enable him to protect his interest. However, in that case the Court refused to interfere with an order passed by the trial Court rejecting such joinder as trial Court had assigned cogent reason for such rejection. 6 Patna High Court CWJC No.8725 of 2013 (2) dt.24-07-2013 6 / 11 9. It is true that such impleadment cannot be claimed as a matter of right. The impledment of a party in exercise of power under Order I Rule 10 of the Code of Civil Procedure is discretionary in nature and can be interfered with only if such discretion has been exercised in most arbitrary and unreasonable manner. 10. So far as the order of this Court reported in 2009 (4) PLJR 117 ( Smt. Sumitra Devi Vs. Sitasharan Bubna) is concerned, it is true that in the facts and circumstances of that case this Court held in paragraph 8 as follows:- “8. The principle of law is well settled that if a person has purchased a property knowing about the litigation, his fate would lie with the fate of his vendor and as such Opposite parties 3rd set will get an appropriate portion from the lands/premises given to his share in the final decree of partition. In the instant case the opposite parties 3rd set had full knowledge and information of the partition suit, but in spite of that he purchased the suit property during the pendency of the final decree proceeding, hence they had taken the risk and should be bound by the provisions of law as mentioned above.” 11. The question involved in the present case, however, in my opinion, is squarely covered by a recent judgment of the Supreme Court reported in ( 2013) 5 SCC 397 ( Thomson Press ( India) Ltd. Vs. Nanak Builders & Investors (P) Ltd., wherein the Court held that the doctrine of lis- pendense is a doctrine based on 7 Patna High Court CWJC No.8725 of 2013 (2) dt.24-07-2013 7 / 11 the ground that it is necessary for the administration of justice that the decision of a Court in a suit should be binding not only on litigating parties but on those who derive title pendente lite. The Court specifically observed that provision of Section 52 of the Transfer of Property Act does not annul pendent elite conveyance or transfer otherwise, but renders it subservient to rights of a party to a litigation. The Court has held that order I Rule 10 of the Code empowers the Court to add any person as party at any stage of proceeding if the person whose presence in the Court is necessary or proper for effective adjudication of the issue involved in the suit. The Supreme Court further held that it was manifest that Order I Rule 10(2) of the Code gave a wider discretion to the Court to meet every case or defect of a party and to proceed with a person who is either a necessary party or a proper party whose presence in the Court is essential for effective determination of the issues involved in the suit. The Court dealing with Section 52 of the Transfer of Property Act, for the purpose of deciding the question of impleadment of the purchaser during the pendency of the suit held that such transfer could not be said to be illegal ipso jure but remained subservient to the pending litigation. 12. This is to be noted that in the said case of Thomson Press ( India) Ltd. Vs. Nanak Builders and investors (P) Ltd, the 8 Patna High Court CWJC No.8725 of 2013 (2) dt.24-07-2013 8 / 11 transfer was made despite having notice and knowledge of injunction by the Court passed in pending suit, prohibiting transaction or alienation of suit property. Dealing with even such situation the Court held that transfer in favour of the purchaser pendete lite was effective in the transferee in title subject to certain obligation as decision of a Court in a suit is binding not only on litigating parties but also on those who derive title pendete lite. 12. Relying upon a judgment of the Supreme Court reported in (2012) 7 SCC 738 in case of A Nawab John Vs. V.N. Subramaniyam, wherein the Court had held that mere pendency of a suit did not prevent one of the parties from dealing with the properties constituting the subject matter of the suit, the Supreme Court in case of Thomson Press ( India) Ltd. Vs. Nanak Builders & Investors (P) Ltd. (supra) held that any heir, legatee or transferee cannot be turned away when he applied for being added as a party to the suit. The Court quoted the following passage from another judgment reported in ( 1983) 1 SCC 18 ( Khemchand Shankar Choudhari Vs. Vishnu Hari Patil):- “6…… The position of a person on whom any interest have devolved on account of a transfer during the pendency of a suit or a proceeding is somewhat similar to the position of an heir or a 9 Patna High Court CWJC No.8725 of 2013 (2) dt.24-07-2013 9 / 11 legatee of a party who dies during the pendency of a suit or a proceeding…” 13. On such reasoning the Supreme Court did not interfere with impleadment of a transferee pendente lite in case of Thomson Pres ( India) Ltd. ( supra). 14. Dealing with the submission that a vendor of the respondents second party were already contesting the suit and therefore, transferees should not have been allowed to be impleaded as defendants, it is not in dispute that such has substantial interest in the suit property and interest cannot be said to be just peripheral as they have purchased the property through registered sale deed. The Supreme Court in case of Khemchand Shankar Choudhari Vs. Vishnu Hari Patil reported in ( 1983) 1 SCC 18 has held that the position of a person on whom any interest has devolved on account of transfer during the pendency of a suit or a proceeding is somewhat similar to the position of an heir or a legatee of a party who dies during the pendency of suit or a proceeding. Paragraph 6 of the said judgment reads thus:- “6. Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in an immovable property which is the subject- matter of a suit from any of the parties to the suit will be bound insofar as that interest is concerned by the proceedings in the suit. Such a transferee is a representative in interest of the party from whom he has acquired that interest. Rule 10 of Order 22 of the 10 Patna High Court CWJC No.8725 of 2013 (2) dt.24-07-2013 10 / 11