C.R.DASH, J. W.P.(C) NO. 16053 OF 2010 (Decided on 20.04.2011) LINGARAJA MOHANTY ………. Petitioner. .Vrs. BINODINI MOHANTY & ORS. …. …..Opp.Parties. TRANSFER OF PROPERTY ACT, 1882 (ACT NO. 4 OF 1882 ) – S.52. r/w Order 1 Rule 10 & Order 22, Rule 10 C.P.C. For Petitioner - M/s. Amit Prasad Bose, R.K.Mohapatra & Ashok Ku.Das. For Opp.Parties- M/s. Samir Ku.Mishra, P.Prusty, K.r.Mohanty & J.Pradhan (for O.P.No.8) Mr. Subrat Kumar Nayak (O.P.No.9) (In person) C.R.DASH, J. Whether a lis pendens purchaser should be added as a party either Under Order-1 Rule-10 or Order-22, Rule-10, Code of Civil Procedure is the main question that arises for consideration in the present writ petition. 2. The present petitioner is the plaintiff. He filed Civil Suit No.75 of 2003 in the court of learned Civil Judge (Junior Division), Puri inter alia for declaration that he (plaintiff) is the only legal successor of Swarnalata Mohanty and Radhashyam Mohanty of Kumbharpada, Puri and defendant no.1 (present opp. Party no.8) is not the legally married wife of said Radhashym Mohanty and defendant no.2 (present opp. Party no.1) is not the daughter of said Radhashyam Mohanty. He also sought for other incidental and ancillary reliefs as enumerated in paragraph-3 of the writ petition. Subrat Kumar Nayak (opp. party no.9) is the husband of Binodini Mohanty (defendant no.2-present opp. party no.1) and son-in-law of Bainamani Mohanty, (defendant no.1-present opp. party no.8). The aforesaid defendant no.1 and 2 filed their joint written statement denying the plaint averments. They appeared in the court through aforesaid Subrat Kumar Nayak (opp. party no.9), who is a practising advocate. In course of the proceeding in the suit, defendant no.1 (Bainamani Mohanty) sold the disputed property, which is the subject matter of the suit in favour of Subrat Kumar Nayak (opp. party no.9). Such fact regarding devolution of interest of the suit property on Subrat Kumar Nayak (opp. party no.9) was not brought to the notice of the court. When Subrat Kumar Nayak (opp. party no.9) tried to take possession over the suit property by force, the plaintiff came to know about the lis pendens transfer which was effected in the year 2006. In order to avoid multiplicity of proceedings and to ensure that the suit reaches its logical, legal and effective determination, the plaintiff (present petitioner) filed a petition under Order-1, Rule-10 read with Oder-22, Rule-10, C.P.C. for impleading aforesaid Subrat Kumar Nayak (opp. party no.9), the purchaser of the suit property as a party in the suit. Defendant no.2 (present opp. party no.1) contested the petition by asserting that she is in peaceful possession of the suit property and no attempt had been made by her husband (Subrat Kumar Nayak) to enforce possession over the disputed property. 3. Learned court below on consideration of the inter se pleadings of the parties in the proceeding and their submissions, ruled that a lis pendens purchaser being neither a necessary party nor a proper party need not be impleaded when the suit has been posted for argument. Accordingly the petition filed by the present petitioner (plaintiff) under Order-1, Rule-10 read with Order-22, Rule-10, C.P.C. was dismissed. The petitioner has, therefore, been obliged to move this Court under Article 227 of the Constitution of India. 4. Mr. Amit Prasad Bose, learned counsel for the petitioner submits that when Order-22, Rule-10, C.P.C. clearly states in favour of the substitution of the assignee on assignment, creation or devolution of any interest during pendency of the suit, the learned trial court should have impleaded Subrat Kumar Nayak (opp. party no.9) as a party by invoking its jurisdiction under Order-1, Rule-10 read with Order-22, Rule-10, C.P.C. It is further submitted that the learned court below having failed to follow the decision of the Hon’ble Supreme Court in the case of Marurudraiah & ors. v. B. Sarojamma and ors.; 2009 SAR (Civil) 557 and the decision of this Court in the case of Shuvam Construction Pvt. Ltd. v. Smt. Babita Mohanty and another; 2010 (I) OLR 97, the order impugned is not sustainable in the eyes of law. He also relies on the decision of Hon’ble Supreme Court in the case of Dhanalakshmi and others v. P. Mohan and others; AIR 2007 S.C. 1062, to substantiate his contention that a lis pendens purchaser would be a necessary and a proper party to the suit. Learned counsel for the contesting opp. parties on the other hand supports the impugned order. 5. Before addressing the question raised by the parties it is pertinent to state the facts admitted at the Bar that (1) the suit is one for declaration and other consequential reliefs; (2) Sri Subrat Kumar Nayak (opp. party no.9) is a lis pendens purchaser; (3) defendant no.2 (present opp. party no.1) who is the wife of aforesaid Subrat Kumar Nayak is on record to contest the suit; (4) Sri Subrat Kumar Nayak (opposite party No.9) has not opted to be impleaded as a party and (5) the plaintiff wants that Subrat Kumar Nayak (opp. party No.9) be impleaded as a party either Under Ofder-1, Rule-10 or Under Order-22, Rule-10 C.P.C. The grounds on which Subrat Kumar Nayak (opp. party No.9) is sought to be impleaded are that, if he is not impleaded as a party, he may take the plea that the decision in the suit shall not be binding on him and there may be multiplicity of litigation. 6. To appreciate the question involved, it is necessary to bear in mind the principles embodied in Section 52 of the Transfer of Property Act, which I do not propose to quote to avoid burden on the judgment. The said Section is based on the English common law maxim “ut lite pendente nihil innovetur” i.e. during litigation nothing new should be introduced. This doctrine aims at the prevention of multiplicity of suits. The Section 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. The Section is based on equity and good conscience and is intended to protect the parties to litigation against alienations by their opponent during the 2 pendency of the suit. In order to constitute a lis pendens the following elements must be present :- (I) There must be a suit or proceeding pending in a Court of competent jurisdiction. (II) The suit or proceeding must not be collusive. (III) The litigation must be one in which right to immovable property is directly and specifically in question. (IV) There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation. (V) Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order. The object of Order 1, Rule 10, C.P.C. is to discourage contest on technical pleas, and to save honest and bona fide claimants from being non-suited. The power to strike out or add parties can be exercised by the Court at any stage of the proceedings. Under this Rule, a person may be added as a party to the suit in the following two contingencies :- (i) When he ought to have been joined as plaintiff or defendant, and is not joined so, or (ii) When, without his presence, the questions in the suit cannot be completely decided. The power of a 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. Such right, however, will include necessarily an enforceable legal right. Order 22, Rule 10, C.P.C. speaks of cases of an assignment, creation or devolution of any interest during the pendency of a suit and 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. The scope and ambit of the aforesaid provisions shall be discussed at the appropriate stage. 7. Learned counsel for the petitioner having raised the contention to the effect that learned court below has failed to appreciate the principles decided in the case of Shuvam Construction Pvt. Ltd 2010(I) OLR 97 supra, I propose to discuss the principles decided by the Full Bench of this Court in the Case of Sri Jagannath Mahaprabhu v. Pravat Chandra Chatterjee and other; AIR 1992 Orissa 47, which is the very basis of the decision in the case of Shuvam Construction Pvt. Ltd. This Court, in the case of Sri Jagannath Mahaprabhu (supra), while discussing the principles under Section 52 of the Transfer of Property Act, observed thus :- 3 “The principle embodied in Section 52 borrowed from the Common Law doctrine was aptly stated by Turner, L.J. in Bellamy v. Sabine, (1857) 1 Deg and J 566, in the following words: “It is, as I think, a doctrine common to the Courts both of Law and Equity, and rests, as I apprehend, upon this foundation that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendente lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant’s alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceeding.” And Lord Cranworth said : “It is scarcely correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the Courts often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party.” The rule is based not on the doctrine of notice but on principle of expediency and public policy. Hence, no question of good faith or bona fides arises.” This Court proceeded further and observed about the effect of Section 52 of the Transfer of Property Act in the following words :- “The effect of S.52, therefore, is that a lis pendens transferee is bound by the decree whether on contest, ex parte or on compromise. The plaintiff is under no obligation to implead a lis pendens transferee. We do not agree with the view expressed by the Full Bench of the Kerala High Court in Lakshmanan V. Kamal (AIR 1959 Kerala 67) (supra) that “the effect of Section 52 is to render void as against the decree-holder transfer or other dealing with the suit property pendent elite and he is entitled to ignore it “because Section 52 has been enacted with a view to safeguarding the interest of the plaintiff so that his decree is not defeated at the instance of a third party in whose favour there has been a lis pendens transfer. Our view is fortified by a decision of the Supreme Court in Nagubai Ammal v. B. Shama Rao, AIR 1956 S.C. 593.” This Court proceeded further and quoted and referred to the decision of Hon’ble Supreme Court at Page 602 in the aforesaid case of Nagubai Ammal v. B. Shama Rao - “………That sale was no doubt pendent elite, but the effect of S.52 is not to wipe it out altogether but to subordinate it to the rights based on the decree in the suit. As between the parties to the transaction, however, it was perfectly valid, and operated to vest the title of the transferor in the transferee………” 4 This Court observed further that “the contention that the words ‘the property cannot be transferred’ in Section 52 rendered a transfer which fell within the mischief of Section 52 non est was repelled with the following observation” by Hon’ble Supreme Court in Nagubai Ammal’s case :- “This contention gives no effect to the words “so as to affect the rights of any other party thereto under any decree or order which may be made therein”, which make it clear that the transfer is good except to the extent that it might conflict with rights decreed under the decree or order. It is in this view that transfers pendent elite have been held to be valid and operative as between the parties thereto.” “………We are, therefore, unable to accede to the contention of the appellants that a transferor pendente lite must, for purposes of S.52, be treated as still retaining title to the properties.” With the aforesaid discussion in mind and taking note of decision of this Court in the case of Uchhab Patra v. Brundaban Mallik, AIR 1969 Orissa 142 and Rusi Behera v. Mst. Pancha Behera (1976) 42 CLT 330, this Court in Sri Jagannath Mahaprabhu’s case (supra), in Paragraph-8, observed thus:- “We hope, the aforesaid discussion would have made it clear that a transferee pendent 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 collude with the plaintiff. That is the reason why G.K. Misra, J. (as he then was) observed that Order 22, Rule 10(1) enabled the transferee to continue the suit with the leave of the Court and though there was no bar operating against the transferor continuing the suit for the benefit of the transferee, Order 22, Rule 10 was an alternative procedure which safe-guarded against the danger that the original plaintiff being no longer interested in the proceedings might not vigorously prosecute the same or might even collude with the adversary and B.K. Ray, J concurred with the aforesaid view in Rusi Behera’s case (1976 (42) Cut LT 330) (supra). 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. The plaintiff is not bound to make him a party. But 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. (See Mulla’s Transfer of Property Act, seventh edition, page 253).” Proceeding further in the matter, this Court in paragraphs 9 and 10 of the judgment in the case of Sri Jagannath Mahaprabhu (supra) held thus :- “9. Though in Basant Ram’s case (ILR (1974) Him Pra 276) (supra), it has been held that a lis pendens transferee is not a proper party, we are of the view that even if a lis pendens transferee is not a necessary party and the plaintiff can ignore the transfer even if he has notice thereof and a decree or order obtained by him would be binding on the lis pendens transferee, when a 5 motion is made by the lis pendens transferee to be impleaded as a party, the court may, in exercise of its discretion judicially, add him as a proper party to prevent multiplicity of suits. 10. Assuming that he is not a proper party, he may be impleaded as an assignee under the provisions of O.22, R.10 (1). Even if an application has been filed under O.1, R.10, labelling of the application being misconceived, the court should ignore the labelling of the application as one under O.1, R.10 and treat the same as one filed under O.22, R.10 (1), C.P.C., if the ingredients thereof are satisfied. This aspect of the law was not brought to the notice of the Division Bench which decided Pranakrushna’s case (AIR 1989 Orissa 148) (supra) and rejected the application of the pendente lite transferee solely upon a consideration of the principles embodied in Order 1, Rule 10, CPC.” 8. In the case of Sri Jagannath Mahaprabhu v. Pravat Chandra Chatterjee and others (supra) the petitioner had instituted the suit for a decree for eviction of the defendant, recovery of possession and damages for illegal occupation. Opposite Party No.1 denied the assertions of the petitioner and his title. By registered sale deed dated 27.02.1984, a portion of the property involved in the suit was sold by opposite party No.1 in favour of opposite parties 2 and 3 who filed an application on 01.10.1985 under Order 1, Rule 10 of the Code of Civil Procedure to be impleaded as parties. Despite objection of the petitioner, by the impugned order the learned Munsif allowed their payer holding that though no doubt the transfer was hit by the rule of lis pendens, inasmuch as the defendant-opposite party No.1 might not be interested after sale in properly conducting the suit and that might cause prejudice to the lis pendens purchasers, they should be arrayed as parties under Order 22, Rule 10 of the Code of Civil Procedure. 9. This Court in the aforesaid case, as the discussion shows, brought under the sweep of Order 22, Rule 10, C.P.C. even a transaction culminating in assignment, creation or devolution of interest by act of parties and held that when there is apprehension regarding collusion of transferor with the adversary party in the suit and there is also apprehension to the effect that the transferor may not prosecute the lis as diligently as he would have, had he not transferred the property, the transferee pendente lite is to be held to be having substantial interest in the suit and without being swayed away by the nomenclature of the petition, the competent court has the judicial discretion to implead a lis pendens transferee as a proper party in the suit in such a situation. 10. Same is the view of the Hon’ble Supreme Court in the Case of Amit Kumar Shaw and another v. Farida Khatoon and another; AIR 2005 S.C. 2209, and in that case also the transferees pendente lite had come forward to be impleaded as parties. Hon’ble Supreme Court in the case of Dhanalakshmi and others v. P. Mohan and others, AIR 2007 SC 1062 held that a lis pendens purchaser would be a necessary and a proper party. In the case of Dhanalakshmi, the appellants had purchased the undivided shares of some of the co-sharers and Hon’ble Supreme Court ruling as aforesaid, allowed those appellants to be impleaded as parties for effective carving of shares in the final decree proceeding. This Court in the case of Shuvam Construction Pvt. Ltd (supra), where also the lis pendens transferee had come forward to be impleaded as parties, has taken the same view by observing thus :- 6 “On an analysis of the principles of law, as discussed above, it is evident that the proposition of law that a lis pendens purchaser is not a necessary party to the suit is not an absolute one and the question depends upon facts and circumstances of each case and the Court in a given case has the discretion to add a pendente lite transferee as a party to the suit for a substantial justice and effectual adjudication of the suit, and also to avoid multiplicity of litigations. As per the provision of Section 52 of the T.P. Act, a transferor pendent lite is treated in the eye of law as a representative-in-interest of the transferee, who shall be bound by the decree that may be passed against the transferor. Therefore, a transferee pendente lite has vital interest in the suit property. In a contingency where the transferor after alienating the suit property and having no more any interest, does not properly defend the suit and colludes with the adversaries, the alienee pendente lite may be joined as a party and on motion being made, the Court should exercise its discretion judicially and an alienee should ordinarily be allowed to join the suit as a party to enable him to protect his interest.” * (the underline words may be read as transferee in place of transferor and transferor in place of transferee) 11. The fact in Shuvam Construction Pvt. Ltd (supra) was almost similar to the facts in the case of Sri Jagannath Mahaprabhu (supra). In both the aforesaid Orissa cases and in both the Supreme Court cases referred to supra, the transferees pendente lite had moved the competent court to be added as parties to protect their interest as the transferors after the transfer had lost interest in prosecuting the lis. Taking into consideration the facts and circumstances peculiar to the aforesaid cases this Court and Hon’ble Supreme Court had allowed the lis pendens purchasers to be added as parties to safeguard their interest. 12. In the case of Dhurandhar Prasad Singh v. Jai Prakash University and others, AIR 2001 S.C. 2552, Hon’ble Supreme Court has addressed the question as to whether application under Order 22, Rule 10, C.P.C. seeking leave of the Court is required under law to be filed by that person alone, upon whom interest has devolved during the pendency of the suit and by no body else. Hon’ble Supreme Court in paragraph-25 of the judgment held thus : “25. Plain language of Rule 10 referred to above does not suggest that leave can be sought by that person alone upon whom the interest has devolved. It simply says that the suit may be continued by the person upon whom such an interest has devolved and this applies in a case where the interest of plaintiff has devolved. Likewise, in a case where interest of defendant has devolved, the suit may be continued against such a person upon whom interest has devolved, but in either eventuality, for continuance of the suit against the persons upon whom the interest has devolved during the pendency of the suit, leave of the Court has to be obtained. If it is laid down that leave can be obtained by that person alone upon whom interest of party to the suit has devolved during its pendency, then there may be preposterous results as such a party might not be knowing about the litigation and consequently not feasible for him to apply for leave and if a duty is cast upon him then in such an eventuality he would be bound by the 7 decree even in cases of failure to apply for leave. As a rule of prudence, initial duty lies upon the plaintiff to apply for leave in case the factum of devolution was within his knowledge or with due diligence could have been known by him. The person upon whom the interest has devolved may also apply for such a leave so that his interest may be properly represented as the original party, if it ceased to have an interest in the subject-matter of dispute by virtue of devolution of interest upon another person, may not take interest therein, in ordinary course, which is but natural, or by colluding with the other side. If the submission of Shri Mishra is accepted, a party upon whom interest has devolved, upon his failure to apply for leave, would be deprived from challenging correctness of the decree by filing a properly constituted suit on the ground that the original party having lost interest in the subject of dispute, did not properly prosecute or defend the litigation or, in doing so, colluded with the adversary. Any other party, in our view, may also seek leave as, for example, where plaintiff filed a suit for partition and during its pendency he gifted away his undivided interest in the Mitakshara Coparcenary in favour of the contesting defendant, in that event the contesting defendant upon whom the interest of the original plaintiff has devolved has no cause of action to prosecute the suit, but if there is any other co-sharer who is supporting the plaintiff, may have a cause of action to continue with the suit by getting himself transposed to the category of plaintiff as it is