HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 744 of 2007 (M/S) Rajeev Berry. ………..Petitioner Versus Addl. District Judge and others. …….Respondents Mr. Ram Ji Srivastava, Advocate for the petitioner. Mr. Sudhir Kumar, Brief Holder for the State/respondent nos. 1 & 2. Mr. M.M. Lamba with Mr. Neeraj Garg, Advocates for respondent no.3. Dated: June 25, 2010 Hon’ble V.K. Bist, J. Present petition has been filed by the petitioner challenging the order dated 13.04.2007 (annexure no.7), passed by Civil Judge (Sr. Div.), Dehradun as well as the judgment and order dated 31.05.2007 (annexure no. 9) passed by Addl. District Judge/1st F.T.C., Dehradun. 2. Concisely, the facts of the case are that the respondent no.5, namely, Smt. Radhika Sarin was the owner and in possession by virtue of sale deed dated 30.03.2000 over 0.26 acres of land of Khasra No. 512M., situated at Mauja Dhakpatti, Pargana-Kendriyadoon, District Dehradun. As the respondent nos. 3 & 4 were trying to interfere in Smt. Radhika Sarin’s possession over the land in dispute, she on 30.04.2003, instituted Original Suit No. 239 of 2003 ‘Smt. Radhika Sarin vs. Rajesh Kumar Srivastava and another’ against respondent nos. 3 & 4 in the Court of Civil Judge (Sr. Div.). Dehradun seeking permanent injunction restraining them from interfering in her peaceful possession and ownership over the land in dispute. Notices were issued to the defendants by the Trial Court and after filing the written statement of respondent no.4, the Trial Court vide order dated 2 08.05.2003, directed the parties to maintain status-quo over the land in question. The respondent no.3 also turned up before the Trial Court and filed his written statement with the counter claim to pass mandatory injunction for demolition of the wall constructed by respondent no.5. It is asserted in the petition that during pendency of said suit, the petitioner purchased the land in question from respondent no.5 & one Varun Sarin vide sale deed dated 27.12.2005 and the interest of petitioner became involved in the said suit. Accordingly, on 04.04.2007, the petitioner moved an application (paper no. 98c-2) under Order XXII Rule 10 read with Order 1 Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as the C.P.C.) before the Trial Court with the prayer seeking permission of his impleadment as plaintiff in the above suit. Against which, the respondent nos. 3 & 4 filed their objection (paper no. 100c-2). On 13.04.2007, the Trial Court rejected the application (paper no. 98c-2). Aggrieved with the order dated 13.04.2007 passed by the Trial Court, the petitioner preferred Misc. Appeal no. 46 of 2007 ‘Rajeev Berry vs. Rajesh Kumar Srivastava and others’ before the District Judge, Dehradun. Said Misc. Appeal was lateron transferred to the Court of Addl. District Judge, Dehradun who vide judgment and order dated 31.05.2007 also dismissed the appeal preferred by the petitioner. Hence this petition. 3. A counter affidavit has been filed on behalf of respondent no.3 by his attorney holder, in which ownership of respondent no.5 in respect of the land in question has been denied with the assertion that the respondent no.3 is the lawful owner in possession of the property in question. It is further stated that no sale deed 3 could have been executed by any parties during the pendency of the suit, and such sale, if any, is hit by doctrine of lis-pendens. It is further asserted that the learned Civil Judge vide its order dated 13.04.2007 rejecting the application for impleadment of the petitioner, held that application was not legally maintainable, the petitioner was neither necessary nor the party by virtue of Section 52 of Transfer of Property Act. Lastly, it is stated that the orders of Courts below are justified and reasonable and the writ petition deserves to be dismissed. 4. I have heard Mr. Ram Ji Srivastava, Advocate for the petitioner, Mr. Sudhir Kumar, Brief Holder for the State/respondent nos. 1 & 2, Mr. M.M. Lamba with Mr. Neeraj Garg, Advocates for respondent no.3 and perused the record. 5. The Trial Court vide order dated 13.04.2007 while rejecting the application (paper no. 98c-2) has observed that the applicant/petitioner has moved the application just to obscure the subject matter in the suit which is nothing but merely the delaying tactics adopted by the applicant. The Trial Court has further observed that the sale of land in question executed by respondent no.5 in favour of petitioner is not bonafide and the sale deed was executed without permission of the Court. Similarly, the learned Addl. District Judge vide order dated 31.05.2007 while sustaining the order of Trial Court also did not find any illegality or perversity in the order dated 13.04.2007 passed by the Trial Court. 4 6. The provision of Order XXII Rule 10 of C.P.C. deals with the creation or devolution of any interest, during pendency of the suit. For the sake of proper appreciation, the provision of Order XXII Rule 10 of C.P.C. is being reproduced as under:- “10. Procedure in case of assignment before final order in suit.- (1) In other cases of an 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. (2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).” 7. The learned counsel for petitioner argued that the learned Trial Court has rejected the application moved by him under Order XXII Rule 10 C.P.C. (paper no. 98c-2) mainly on the ground of delaying tactics, whereas the order-sheet relating to the suit reveals that the respondents are responsible for the delay, if any. He submitted that respondent no. 5 was the owner and in possession of the land in question; temporary injunction order was in favour of the respondent no.5; the respondent no.5 had every right to transfer the land in question, therefore, the petitioner purchased the land in question and the interest of petitioner has been created and developed in the suit. He argued that the Trial Court committed illegality in rejecting the application. He further contended that the petitioner is the bonafide purchaser of the land in question. The petitioner purchased the property in suit from respondent no.5 who is at present residing out of the country. 5 8. He further submitted that because of wrong appreciation of evidence, the Courts below did not find the sale deed executed by respondent no.5 in favour of petitioner bonafide, but the Courts below failed to record any reason towards the execution of sale deed. He contended that on one hand, the Trial Court while rejecting application of the petitioner took the ground that the application of petitioner has been filed just to make complication in the suit and adopting delaying tactics, but on the other hand, from perusal of extracts of order-sheet it is clear that the respondents are responsible for delaying the matter. He also submitted that there was no restriction of the Trail Court for selling the land in question. In written statement, the respondent no.3 also did not claim his ownership or possession over the land in question, therefore the respondent no.5 had legal right to sell the land in question, without permission of the Court, but the Courts below held otherwise and committed illegality in rejecting the application of the petitioner. Learned counsel for the petitioner submitted that decision of the said suit will affect the rights and possession of the petitioner over the land in question, as such, the petitioner cannot be deprived of justice by not impleading him as plaintiff in the said suit. In this regard he placed reliance on para 16 of the judgment of Hon’ble the Apex Court reported in AIR 2005 Supreme Court 2209 ‘Amit Kumar Shaw and another vs. Farida Khatoon and another’. The same is quoted below:- “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 6 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 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 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 the transferee pendente lite is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case.” 9. On the other hand Mr. M.M. Lamba and Mr. Neeraj Garg, the learned counsel for respondent no.3 contended that the respondent no.3 is the lawful owner in possession of the property in question. Learned counsel for respondent no.3 further submitted that no sale deed could have been executed by any party during the pendency of the suit, and such sale, if any, is hit by doctrine of lis- pendens. It is contended that the order of the Trial Court is just and reasonable. The Trial Court while rejecting the application of the petitioner has observed that the application of the petitioner is not legally maintainable as the petitioner is neither necessary nor the party by virtue of Section 52 of the Transfer of Property Act. Counsel for the respondent no.3 argued that in any event, the rights of the petitioners are not being affected as in the event the 7 suit is decreed, the decree would be binding upon subsequent transferee. It has been further argued that neither the respondent no.5 is the owner of the property in suit, nor she has any right to transfer the land in question. It is vehemently argued that the respondent no.5 himself obtained order of status-quo from the Trial Court, which was in force at the date of alleged sale in favour of petitioner, which is too in contravention and willful disobedience of the order passed by the Trial Court. It is also argued that the property was allegedly sold without permission of the Court. Placing reliance on the judgment of Hon’ble the Apex Court in Sanjay Verma vs. Manik Roy and ors., reported in AIR 2007 Supreme Court 1332, learned counsel for respondent no.3 argued that a transferee pendentilite is bound by the decree as much as by or against the transferor and he is neither the necessary nor the proper party to the suit. Placing reliance in the judgment rendered in 2004 (2) Supreme Court Cases-602, 2004 (1) Supreme Court Cases-191 and 2009 (5) Supreme Court Cases-630, the learned counsel for the respondent no.3 have submitted that both the Courts below have given concurrent findings, which do not warrant any interference by this Court. 10. In the present case, civil suit was pending between respondent no.5 and respondent no.3. There was also order of status quo passed on the application of respondent no.5. The property in question was sold by the respondent no.5 to the petitioner and he was fully conversant that status quo order was in existence. In such circumstances, no sale deed could have been executed by the respondent no.5 during the pendency of suit. Case law 8 cited by the learned counsel for the petitioner does not apply in such circumstances. 11. Section 52 of The Transfer of property Act, 1882 prohibits transfer of property during the proceedings of suit except under the authority of the Court. Section 52 of Transfer of property Act is quoted hereunder:- “52. Transfer of property pending suit relating thereto.- During the [pendency] in any court having authority [within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits by [the Central Government] of [any] suit or proceedings which is not collusive and in which any right to immoveable 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 any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.” 12. Admittedly, the petitioner purchased the property from respondent no.5 during the pendency of the suit and that too without leave of the Court as required under Section 52 of the Transfer of Property Act. Therefore, such alienation is hit by the doctrine of lis-pendens. The Hon’ble Supreme Court in para-7 of the judgment reported in 2001(6) Supreme Court Cases-534 Dhurandhar Prasad Singh vs. Jai Prakash University and others has observed that:- “7……If 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, and yet, as pointed out by Their Lordships of the Judicial Committee in Moti Lal v. Karrabuldin he will be bound by the result of the litigation even though he is not represented at the hearing unless it is shown 9 that the litigation was not properly conducted by the original party or he colluded with the adversary….” 13. In the case of Sanjay Verma vs. Manik Roy and Ors., reported in AIR 2007 Supreme Court 1332 the Hon’ble Apex Court observed that:- “12. The principles specified in Section 52 of the T.P. Act are in accordance with equity, good conscience or justice because they rest upon an equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. A transferee pendente lite is bound by the decree just as much as he was a party to the suit. The principle of lis pendens embodied in Section 52 of the T. P. Act being a principle of public policy, no question of good faith or bona fide arises. The principle underlying Section 52 is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject- matter of the suit. The Section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the Court.” 14. Though, it is true that Transferee pendente lite can be added as proper party if his interest in the subject matter of the suit is substantial but action of the parties dealing with the property during the pendency of suit should be bonafide. In the instant case, both the Courts below did not find the action of the respondent no. 5 as bona fide. Both the Courts below in their orders pointed out that clerk of the advocate who was appearing for the plaintiff/respondent no.5 was witness to sale deed in which it was mentioned that property is free from any 10 litigation. This fact was mentioned in the sale deed inspite of the fact the suit was instituted by the plaintiff/respondent no.5 herself. Even property was sold knowing fully that status-quo order was in existence. Reasons given by the Courts below for rejecting the application of the petitioner are cogent. 15. In view of the above discussions, the writ petition fails and is hereby dismissed. 16. Interim order dated 03.07.2007 passed by this Court stands vacated. 17. No order as to costs. (V.K. Bist, J.) 25.06.2010 NCM: