Kusum Sardhana v. Jagan Nath Sharma & Ors.

Hon'ble Mr. Justice L.N. Mittal Present : Mr. Rose Gupta, Advocate, for the petitioner L.N. Mittal, J. (Oral) CM No. 31776.CII of 2012 Allowed as prayed for. Civil Revision No. 7718 of 2012 In this revision petition filed by Kusum Sardhana under Article 227 of the Constitution of India, challenge is to order dated 19.7.2011 Annexure P/1 and order dated 21.7.2012, Annexure P/5 passed by the trial court thereby dismissing applications for impleading the petitioner (being transferee pendente lite) as party to the suit. Civil Revision No. 7718 of 2012 (O&M) -2- Respondent no. 1/plaintiff has filed suit for pre-emption of sale of half share of the disputed house made by vendor defendant no. 2/proforma respondent no. 2 in favour of purchaser defendant no. 1/proforma respondent no. 3. By order Annexure P/1, the trial court dismissed application moved by defendant no. 1 under Order 22 Rule 10 of the Code of Civil Procedure (in short, CPC) for impleadment of the present petitioner as party to the suit on the plea that defendant no.

1 had sold the suit property to the petitioner vide registered sale deed dated 8.9.2010 (during pendency of the suit), inter alia observing that the petitioner could be impleaded as party to the suit either on her own application or on the application of the plaintiff and not on the application moved by defendant no. 1. By order Annexure P/5, the trial court has dismissed the application Annexure P/3 moved by petitioner under Order 22 Rule 10 CPC for her impleadment as party to the suit on the same ground. Feeling aggrieved, the instant revision petition has been filed to challenge the aforesaid orders. I have heard counsel for the petitioner and perused the case file. Under Order 22 Rule 10 CPC, the suit may be continued by or against transferee pendente lite. Petitioner herein is transferee pendente lite of subject matter of the suit from defendant no. 1. Consequently, the petitioner should be impleaded as party and she has to step into shoes of defendant no.

1 and has to join the suit from the present stage and cannot Civil Revision No. 7718 of 2012 (O&M) -3- take new defence. Counsel for the petitioner after seeking instructions stated that suit is now fixed for 22.12.2012 for final arguments before the trial court. The trial court in order Annexure P/1 observed that the petitioner could be impleaded as party to the suit either on her own application or on application moved by plaintiff but not on the basis of application moved by defendant no. 1. However, when immediately thereafter, the petitioner moved application Annexure P/3 for her impleadment, the said application has also been dismissed by the trial court vide order Annexure P/5. In the aforesaid circumstances, impugned order Annexure P/5 passed by the trial court cannot be sustained. The said order is illegal and suffers from jurisdictional error. The trial court observed that in view of doctrine of lis pen dens, the petitioner is not necessary or proper party to the suit.