In a recent decision of the Hon'ble Supreme Court in THOMSON PRESS (INDIA) LTD., v. NANAK BUILDER & INVESTORS P. LTD., & OTHERS [2013 (2) CTC 104], a similar question was considered though it arose out of a case pertaining to specific performance of an agreement of sale and the Hon'ble Supreme Court while considering the said question held as follows:.A simple reading of the above provision would show that in cases of 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. What has troubled us is whether independent of Order I Rule 10 CPC the prayer for addition made by the appellant could be considered in the light of the above provisions and, if so, whether the appellant could be added as a party-defendant to the suit. Our answer is in the affirmative. It is true that the application which the appellant made was only under Order I Rule 10 CPC but the enabling provision of Order XXII Rule 10 CPC could always be invoked if the fact situation so demanded.1
This Civil Revision Petition filed under Article 227 of the Constitution of India is directed against the fair and decreetal order dated 26.4.2010, in I.A.No.1200 of 2009 in O.S.No.40 of 2005, on the file of the District Munsif, Tiruppur.
2.The petitioner is a third party to the proceedings and the first respondent is the plaintiff. The Suit in O.S.No.40 of 2005 was filed for partition of the suit schedule property to divide the same into three equal shares and allotted one such share to the plaintiff. The third defendant resisted the suit claim by filing a written statement. The petitioner herein filed I.A.No.1200 of 2009 under Order 1 Rule 10(2) CPC to permit him to implead himself as the 11th defendant in the Suit, on the ground that he has purchased a portion of the suit property from the first respondent.
3.The first respondent/plaintiff resisted the Application by stating that the sale deed dated 13.9.2006 executed in favour of the petitioner is hit by lis pendens. The trial Court held that the petitioner who is a pendente lite purchaser of the suit property has no better right than his vendor, is neither a proper nor a necessary party to the Suit and dismissed the Application by order dated 26.4.2010. This order is impugned in this Revision.
4.I have heard Mr.V.Nicholas, learned counsel appearing for the petitioner and Mr.K.Vignesh Karthikeyan, learned counsel for the first respondent.
5.The petitioner claims to have purchased a portion of the suit property by sale deed dated 13.9.2006. There is no dispute that the petitioner is a purchaser pendente lite. The issue as to whether the said pendente lite purchaser should be made a party to a proceedings is no longer resintegra and it would be suffice to refer to the decision of the Hon'ble Supreme Court inAMITKUMAR SHAW v. FARIDA KHATOON [(2005) 11 SCC 403].
6.The Hon'ble Supreme Court held that an alienee 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 Order 1 Rule 10. The operative portion of the Judgement is quoted herein below:
14. An alienee 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 Order 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.
15. Section 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:
1. There must be a suit or proceeding pending in a court of competent jurisdiction.
2. The suit or proceeding must not be collusive.
3. The litigation must be one in which right to immovable property is directly and specifically in question.
4. There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation.
5. Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order. 16*. The doctrine of lis pendens applies only where the lis is pending before a court. Further 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, where 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. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party, under Order 22 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 his predecessor-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case."
7.In a recent decision of the Hon'ble Supreme Court in THOMSON PRESS (INDIA) LTD., v. NANAK BUILDER & INVESTORS P. LTD., & OTHERS [2013 (2) CTC 104], a similar question was considered though it arose out of a case pertaining to specific performance of an agreement of sale and the Hon'ble Supreme Court while considering the said question held as follows: "53.A simple reading of the above provision would show that in cases of 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. What has troubled us is whether independent of Order I Rule 10 CPC the prayer for addition made by the appellant could be considered in the light of the above provisions and, if so, whether the appellant could be added as a party-defendant to the suit. Our answer is in the affirmative. It is true that the application which the appellant made was only under Order I Rule 10 CPC but the enabling provision of Order XXII Rule 10 CPC could always be invoked if the fact situation so demanded. It was in any case not urged by counsel for the respondents that Order XXII Rule 10 could not be called in aid with a view to justifying addition of the appellant as a party- defendant. Such being the position all that is required to be examined is whether a transferee pendete lite could in a suit for specific performance be added as a party defendant and, if so, on what terms.
8.In the light of the above decisions, it has to be held that the petitioner is entitled to get himself impleaded in the Suit. Accordingly, the Civil Revision Petition is allowed, the impugned order is set aside and trial Court is directed to implead the petitioner as the 11th defendant in the Suit and thereafter proceed in accordance with law. No costs. 02.08.2013
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Madras High Court
Kariappan vs Kondappan Alias Kondathu Gounder on 2 August, 2013
This Civil Revision Petition filed under Article 227 of the Constitution of India is directed against the fair and decreetal order dated 26.4.2010, in I.A.No.1200 of 2009 in O.S.No.40 of 2005, on the file of the District Munsif, Tiruppur.
2.The petitioner is a third party to the proceedings and the first respondent is the plaintiff. The Suit in O.S.No.40 of 2005 was filed for partition of the suit schedule property to divide the same into three equal shares and allotted one such share to the plaintiff. The third defendant resisted the suit claim by filing a written statement. The petitioner herein filed I.A.No.1200 of 2009 under Order 1 Rule 10(2) CPC to permit him to implead himself as the 11th defendant in the Suit, on the ground that he has purchased a portion of the suit property from the first respondent.
3.The first respondent/plaintiff resisted the Application by stating that the sale deed dated 13.9.2006 executed in favour of the petitioner is hit by lis pendens. The trial Court held that the petitioner who is a pendente lite purchaser of the suit property has no better right than his vendor, is neither a proper nor a necessary party to the Suit and dismissed the Application by order dated 26.4.2010. This order is impugned in this Revision.
4.I have heard Mr.V.Nicholas, learned counsel appearing for the petitioner and Mr.K.Vignesh Karthikeyan, learned counsel for the first respondent.
5.The petitioner claims to have purchased a portion of the suit property by sale deed dated 13.9.2006. There is no dispute that the petitioner is a purchaser pendente lite. The issue as to whether the said pendente lite purchaser should be made a party to a proceedings is no longer resintegra and it would be suffice to refer to the decision of the Hon'ble Supreme Court inAMITKUMAR SHAW v. FARIDA KHATOON [(2005) 11 SCC 403].
6.The Hon'ble Supreme Court held that an alienee 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 Order 1 Rule 10. The operative portion of the Judgement is quoted herein below:
14. An alienee 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 Order 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.
15. Section 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:
1. There must be a suit or proceeding pending in a court of competent jurisdiction.
2. The suit or proceeding must not be collusive.
3. The litigation must be one in which right to immovable property is directly and specifically in question.
4. There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation.
5. Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order. 16*. The doctrine of lis pendens applies only where the lis is pending before a court. Further 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, where 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. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party, under Order 22 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 his predecessor-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case."
7.In a recent decision of the Hon'ble Supreme Court in THOMSON PRESS (INDIA) LTD., v. NANAK BUILDER & INVESTORS P. LTD., & OTHERS [2013 (2) CTC 104], a similar question was considered though it arose out of a case pertaining to specific performance of an agreement of sale and the Hon'ble Supreme Court while considering the said question held as follows: "53.A simple reading of the above provision would show that in cases of 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. What has troubled us is whether independent of Order I Rule 10 CPC the prayer for addition made by the appellant could be considered in the light of the above provisions and, if so, whether the appellant could be added as a party-defendant to the suit. Our answer is in the affirmative. It is true that the application which the appellant made was only under Order I Rule 10 CPC but the enabling provision of Order XXII Rule 10 CPC could always be invoked if the fact situation so demanded. It was in any case not urged by counsel for the respondents that Order XXII Rule 10 could not be called in aid with a view to justifying addition of the appellant as a party- defendant. Such being the position all that is required to be examined is whether a transferee pendete lite could in a suit for specific performance be added as a party defendant and, if so, on what terms.
8.In the light of the above decisions, it has to be held that the petitioner is entitled to get himself impleaded in the Suit. Accordingly, the Civil Revision Petition is allowed, the impugned order is set aside and trial Court is directed to implead the petitioner as the 11th defendant in the Suit and thereafter proceed in accordance with law. No costs. 02.08.2013
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