IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 1208 of 2011 (O&M) Date of decision: February 21, 2011 Vikas Dahiya .. Petitioner Vs. Ajmer Singh Dhillon and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. S.S. Dinarpur, Advocate for the petitioner. A.N. Jindal, J This petition assails the order dated 14.2.2011 (Annexure P2) passed by the Additional Civil Judge (Sr. Division), Panchkula, declining to implead the petitioner Vikas Dahiya as party defendant in the suit for specific performance filed by Ajmer Singh Dhillon plaintiff- respondent (herein referred as, 'the respondent') for specific performance of the agreement. The facts in the background of the case are that Baldev Kishan Bhardwaj and Janak Bhardwaj both respondents (living abroad) had allegedly executed a power of attorney in favour of Rama Rani respondent who on the strength of which entered into an agreement to sell with Ajmer Singh Dhillon who while placing reliance on the same filed a suit against the original owners as well as Rama Rani and it was pending since 12.6.1999. During the pendency of the suit, Baldev Kishan Bhardwaj and Janak Bhardwaj executed a power of attorney in favour of Sham Lal who in turn sold the said property vide sale deed dated 17.5.2001 in favour of the petitioner. Thereafter, the petitioner on the basis of the said sale deed moved an application for impleading him as party defendant to contest the suit on 21.5.2010 which was declined by the trial court. Arguments heard. Record perused. The conduct of the petitioner is not above board. The respondent No.1 had filed a suit on the basis of the agreement to sell executed by Rama Rani alleged general power of attorney of respondents No.3 and 4, who had also challenged the general power of attorney in Civil Revision No. 1208 of 2011 (O&M) -2- *** favour of Rama Rani having been obtained as a result of fraud and undue influence, but they instead of waiting the fate of the case executed another power of attorney in favour of Sham Lal and sold the property through him to the petitioner. The trial court has rightly placed reliance on the judgment delivered in case Bibi Zubaida Khatoon vs. Nabi Hassan Saheb and another 2004 (1) RCR (Civil) 216 wherein it was observed as under :- “9. It is not disputed that the present petitioner purchased the property during pendency of the suit without seeking leave of the court as required by Section 52 of the Transfer of Property Act. The 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 the instant case, the trial court has assigned cogent reasons for rejecting such joinder starting 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. 10. The 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 Civil Revision No. 1208 of 2011 (O&M) -3- *** 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.” 11. In 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 properly 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 the adversary.” 12. The 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 Civil Revision No. 1208 of 2011 (O&M) -4- *** 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.” This court while relying upon the judgment delivered in Bibi Zubaida Khatoon's case (supra) took the similar view in case Joginder Singh vs. Kashmir Singh and others 2009 (4) RCR (Civil) 735. As such, the defendant being transferee pendente lite cannot be impleaded as party- defendant. Faced with the situation, learned counsel for the petitioner has sought indulgence of this Court to substitute him in place of respondents No.3 and 4 and permit him to argue the case without providing him opportunity to put up fresh defence. In this regard, he has referred me to the judgment delivered in case Bhupinder Singh and others vs. Pritam Singh and others 1993 P.L.J. 578 wherein it was observed as under :- “.............. As a matter of fact, the application should have been made under Order 22 Rule 10 of the Code and not under Order 1 Rule 10. Order 22 rule 10 of the Code provides 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. In the present case, interest of Dalip Singh has devolved upon the petitioners on account of purchase of the property and in view of the provisions of rule 10 of Order 22 of the Code, they have a right to substitution in place of Dalip Singh and continue proceedings from the stage they made their application. In my view, it is not a case under Order 1 rule 10 of the Code for impleading of a party as defendant. As observed above, the petitioners will represent the interest of Dalip Singh, they having purchased a part of the property from him during the pendency of the suit on the basis of the pleas, if any, already raised by the predecessor-in- interest of the petitioners. Gurbux Singh's case (supra) relied Civil Revision No. 1208 of 2011 (O&M) -5- *** upon by the trial court has no application to the facts of the present case and in fact, learned counsel for the respondents did not rely on the aforesaid judgment. Learned counsel for the respondents, however, placed reliance on Sukhdip Singh v. Arjan Singh Mihan Singh and another, AIR 1961 Punjab 326 to contend that the order passed by the trial Court under rule 10 of Order 22 of the Code is only a discretionary order and that since the trial Court in the present case did not allow the application of the petitioners for substitution as defendants, this Court should not interfere with the discretion exercised. According to the learned counsel, an assignee is not entitled as a matter of right to continue the proceedings. There can be no quarrel with the proposition as mentioned in the above noticed case, but the facts of the reported case are entirely different. It was case of compromise and thus, it was held that the assignee would be bound by the compromise effected between the assignor and the opposite party unless he were to be permitted by the Court to reopen the settlement and show that the compromise was a fraud on his right and that the Courts amongst other things. In the present case, as already noticed, the petitioner had purchased a part of the property, the subject matter of the suit, from Dalip Singh during the pendency of the suit and his interest was not being represented by anybody, he having been proceeded ex parte. He having sold the property is no longer interested in the suit. The interest of justice requires that the petitioners be substituted in place of Dalip Singh ........” In the instant case also, the petitioners appear to have already sold the property they having their residences abroad have lost interest in the property and, therefore, the petitioners being the assignee by way of sale deed has to watch his interest in the property particularly when the rights of the parties have not yet been settled between the plaintiff and the assignor. No prejudice would be caused to the respondent No.1 if the petitioner is Civil Revision No. 1208 of 2011 (O&M) -6- *** allowed to be substituted by the respondents No.3 and 4 even though the application filed by him is not under the particular provisions of law particularly when he has undertaken not to file any written statement, claim any further issues and would not lead any evidence, however, he would only defend his case on the basis of the evidence already on the record. Thus, for the aforesaid reasons, this petition is disposed of with the modification that the petitioner would be permitted to argue the case on the basis of the evidence already recorded by the court. This petition is disposed of at the motion stage keeping in view that the case is pending since 1999 and with a view to impart complete justice to the parties and to save the huge expenses, which may be incurred by the respondents as also in order to avoid unnecessary delay in adjudication of the matter. Still, if dissatisfied, the respondents may move to this court for recalling this order. February 21, 2011 (A.N. Jindal) deepak Judge