Allowed

Nishit Kumar Singh @ Nishant K v. Ramanand Prasad Gupta and Ors.

Patna HC13 Sept 2013CWJC/17708/2011

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging the rejection of an impleadment application. The court held that although the transfer was subject to lis pendens, the petitioner, as a transferee pendente lite with substantial interest, was entitled to be impleaded before the court of first instance, setting aside the lower order.

What did the court decide?

The impugned order dated 15.10.2009 is set aside; the petitioner is entitled to be impleaded as a party-defendant in the suit filed by Lalita Devi.

Nishit Kumar Singh @ Nishant K Vs Ramanand Prasad Gupta and… — Property and Title | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.17708 of 2011

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====================================================== Nishit Kumar Singh @ Nishant Kr.Singh, son of Sri Nagendra Kumar Singh, resident of Mohalla Janki Asthan Present Nagar Parishad, Sitamarhi, Ward No.1, P.S. and Town Sitamarhi .... .... Petitioner/s

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Versus

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Ramanand Prasad Gupta son of Ram Ekbal Prasad

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Sirmati Mridula Kumari Gupta wife of Rama Nand Prasad Gupta, both are resident of Ashogi Via Riga P.S. Riga District Sitamarhi, at present Ward No.31, Mohalla Janki Asthan, Town, P.S. and District Sitamarhi.

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Sri Tripurari Prasad Singh

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Sri Tribhuwan Prasad Singh

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Sri Binod Kumar Singh

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Sri Pramod Kumar Singh ( Deleted vide order dated 22.11.2011)

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Sri Raghvendra Kumar Singh @ Bhola Singh Opposite party no.3 to 7 are sons of Late Kuwar Prasad Singh, All are resident of village Rewasi P.O. Rewasi P.S. Riga, District Sitamarhi

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Most Lalita Devi wife of late Sri Kuwar Prasad Singh @ Jhulan Babu resident of Rewasi P.S. Riga Disttt-Sitamarhi (deleted vide order dated 22.11.11) .... .... Respondent/s

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====================================================== Appearance :

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For the Petitioner/s : Mr. Lala Sachindra Kumar & Mr. Ashok Kum ar Sinha No.2 For the Respondent/s : Mr. Yogendra Mishra & Binod Kumar ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER

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13 13.09.2013 The petitioner in the present case is aggrieved by an order dated 15.10.2009 passed by learned Sub Judge-3^rd, , Sitamarhi in Title Suit No. 75 of 1998, by which intervention petition filed by the petitioner for his impleadment as party to the said suit has been rejected on the ground that the said petition is

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barred under Section 52 of the Transfer of Property Act, 1882 (hereinafter referred to as the „Act‟)

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I have heard Mr. Lala Sachindra Kumar learned counsel for the petitioner as well as Mr. Yogendra Mishra learned counsel appearing on behalf of respondent nos. 1 and 2 at length.

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There are certain facts which are not in dispute. The Title Suit No. 75 of 1998 was filed by Lalita Devi in the year 1998 for setting aside a sale deed No. 2216 dated 12.5.1999 said to have been executed by the plaintiff in favour of respondent no.2, who has been impleaded as defendant no.2 in the Court below. The ground for setting aside the sale deed as taken in the plaint was that the sale deed was forged, fabricated and obtained fraudulently. The plaintiff had also sought for recovery of possession.

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The case of the petitioner is that during the pendency of the suit, he purchased the entire suit property through a registered sale deed dated 10.2.2006 executed by the plaintiff Lalita Devi in favour of petitioner. The sole plaintiff died on 13.3.2011. On 19.7.2011 the sons of the sole plaintiff, who were impleaded as defendant nos. 3 to 7 filed an application for their transposition as plaintiff, they being the

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legal heirs of the plaintiff. In the meanwhile on 8.6.2009, the petitioner filed an application under Order 1 Rule 10(2) of the Code of Civil Procedure seeking his impleadment as party to the suit on the basis of being transferee pendente lite. Petitioner‟s prayer by the impugned order dated 15.10.2009 has been rejected on the basis that the transfer of the suit property made during the pendency of the suit was hit by doctrine of lis pendens as contained in Section 52 of the Transfer of Property Act. Challenging the said order dated 15.10.2009, a Civil Revision No. 47 of 2010 came to be filed by the petitioner on 13.1.2010 before this Court. Evidently the said Civil Revision petition was filed questioning rejection of application for his impleadment as party-defendant in the suit before the death of sole plaintiff. In view of the amendment in the Code of Civil Procedure and subsequent judgment in case of Durga Devi vs. Bijay Poddar reported in 2010 (2) PLJR 954, this Court by an order dated 29.8.2011, permitted the petitioner to convert this Civil Revision into an application under Article 227 of the Constitution of India and accordingly, the present application under Article 227 of the Constitution of India came to be registered as CWJC No. 17708 of 2011.

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Learned counsel for the petitioner submits that he,

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being the transferee pendente lite, should have been allowed to be impleaded by the Court below as a party under Order 1 Rule 10(2) of the Code so as to protect his interest as he, through the sale deed dated 10.2.2006, had purchased the entire suit property. Learned counsel for the petitioner has relied upon a Supreme Court judgment reported in AIR 2005 SC 2209 (Amit Kumar Shaw Vs. Farida Khatoon) with a particular reference to paragraphs 10 and 16 of the said judgment, in support of his submission.

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Learned counsel appearing on behalf of the respondents, on the other hand, while opposing this application has strenuously contended that Lalita Devi the sole plaintiff died on 13.3.2011. No steps for substitution of her legal heirs in her place were taken within the statutory time limit and thus the suit abated after 90 days on 12.6.2011, automatically by operation of Order 22 Rule 3 of the Code. He submits that no petition for setting aside the abatement was filed, thereafter and that application for transposition of legal heirs in place of plaintiff filed after the suit abated was meaningless as the suit, which abated by operation of statutory provision, could not be revived without any express order for setting aside the abatement, and for which even no application has so far been

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filed. In support of his submission he has placed reliance upon a Supreme Court judgment reported in 2001 ( 3) BBCJ ( SC) 30 (Dhurandhar Prasad Singh Vs. Jai Prakash University and others). Advancing his submission further, he submits that present application questioning the order by which the petitioner‟s application for addition of party in the suit stood dismissed, has become infructuous as the suit no more survives, after it stood abated with effect from 12.6.2011 by operation of Order 22 Rule 3 of the Code. He further submits that the plea of the petitioner that his impleadment in the suit was essential as the plaintiff was not taking interest is not sustainable in view of the fact that heirs of sole plaintiff are taking care of the suit and they have already filed their application for their transposition in place of the plaintiff. He has drawn my attention towards I. A. No. 5151 of 2013, filed on behalf of respondent nos. 1 and 2, for recall of the order dated 22.11.2011 to the extent this Court had allowed the legal heirs of the plaintiff to be substituted in her place in the present proceeding.

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I will be dealing firstly with the sustainability of the impugned order dated 15.10.2009, refusing the petitioner to be impleaded as party, he being the transferee pendente lite, on

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the ground that the transaction itself was hit by Section 52 of the Transfer of Property Act, 1882. This point has to be decided keeping in mind the facts as they existed on the date of passing of the said impugned order dated 15.10.2009. Admittedly, the sole plaintiff Lalita Devi was alive on 15.10.2009.

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Whether a transferee pendente lite can be refused to be impleaded as a party on the ground that such proceeding is hit by Section 52 of the Transfer of Property Act, 1882 has been considered by Supreme Court on several occasions including in case of Amit Kumar Shaw Vs. Farida Khatoon ( supra), reliance upon which has been placed by learned counsel appearing on behalf of the petitioner, paragraph 16 of which reads as follows:-

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“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 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

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collude with the plaintiff. Hence, 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 alienee would ordinarily be jointed as a party to enable him to protect his interest. The Court has held that a transferee pendente lite of an interest in immovable property is a representative-in- interests 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 merits of the case.”

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The Courts have held that the power of the Court to add a party to the proceeding cannot 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. The status of a transferee pendente lite for the purpose of his impleadment in the suit has been considered extensively in a recent judgment of the Supreme Court reported in ( 2013) 5 S CC 397 ( Thomson Press ( India) Ltd. Vs. Nanak Builders & Investors (p) Ltd.) Their Lordships examined the provisions as contained in order I Rule 10(2) of the Code and Section 52 of the Transfer of Property Act, 1882 and quoted with approval the observation of the Supreme

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Court in case of Khemchand Shankar Choudhari Vs. Vishnu Hari Patil, ( 1983) SCC 18 that the position of person to 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 legatee of a party, who dies during the pendency of the suit or a proceeding. Their Lordships further observed that such heir, legatee or transferee cannot be turned away when he or she applied to be added as a party to the suit. The Supreme Court further quoted the passage from the case of Khem Chandra choudhwary ( Supra), paragraph 6 of which reads as follows:-

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“6. Section 52of the Transfer of the 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 Code of Civil Procedure clearly recognizes 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 applied to be impleaded as a party and to be heard, he has got to be so impleaded and heard. He can also

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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 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.”

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(emphasis supplied)

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The Supreme Court, in case of Thomson Press (India) Ltd. V. Nanak Builders and Investors (P) Ltd ( supra) held succinctly that a transfer pendente lite was not illegal ipso jure but remained subservient to the pending litigation. The Supreme Court, in that case, though held the transferees pendente lite not to be a bonafide purchaser, but observed in paragraph 57.3 as follows:-

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“Since the Appellant has purchased the entire estate that forms the subject matter of the suit, the appellant is entitled to be added as a partydefendant to the suit.”

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As has been noted above, the petitioner is said to have purchased the entire suit property during pendency of the suit. In my opinion, therefore, rejection of application for impleadment filed by the petitioner on 8.6.2009 by the impugned order dated 15.10.2009 is not based on sound legal principles and is unsustainable. The petitioner was entitled to be impleaded as party as on that date. This observation is being made to deal with the submissions made on behalf of the contesting respondents that in view of the death of sole plaintiff, the suit abated and the petitioner was not required to be impleaded as a party any more in a dead suit. The suit was certainly alive on the date when the impugned order was passed. The plea of the petitioner before the Court below that the plaintiff lost interest in the suit after execution of the sale deed is vindicated by the development that after her death, no steps for substitution were taken and application for transposition was filed after 90 days of her death on 19.7.2011. The plea on behalf of the contesting respondents that because heirs of the sole deceased plaintiff are taking care of the suit and, therefore no purpose would be served by allowing this petitioner to be impleaded as a party cannot be sustained.

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In view of the above discussion, the impugned

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order dated 15.10.2009 is unsustainable and, is accordingly, set aside. The petitioner is entitled to be impleaded as party defendant in the suit and accordingly, the Court below is directed to implead the petitioner as a party to the suit.

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The petitioner will have the liberty to raise the question of abatement of suit before the Court below and the Court below will consider, if such plea is taken, in accordance with law.

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The Court below, however, will deal with the application for transposition of the heirs of the deceased plaintiff as plaintiffs, which according to the petitioner is still pending, without being prejudiced by order passed by this Court for their substitution in the present proceeding in place of Lalita Devi The Court below shall proceed from the stage where the application for impleadment of the petitioner as a party to the suit was rejected by order dated 15.10.2009, after impleading this petitioner as a party to the suit.

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This application is allowed with the observations as aforesaid.

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(Chakradhari Sharan Singh, J)

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Arun Kumar/-

Nishit Kumar Singh @ Nishant K v. Ramanand Prasad Gupta and Ors.

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Nishit Kumar Singh @ Nishant K v. Ramanand Prasad Gupta and Ors.

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