C.R. No. 700 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 700 of 2006 Date of Decision: 6.8.2009 Birpal Bhardwaj ....Petitioner. Versus Rajinder Singh and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. A.K.Tyagi, Advocate, for the petitioner. Mr.N.K.Manchanda, Advocate for for Mr.Shiv Kumar, Advocate, for respondent No.3. AJAY KUMAR MITTAL, J. In this revision petition filed under Article 227 of the Constitution of India, the plaintiff-petitioner is aggrieved against the order dated 09.01.2006 passed by the trial Court whereby an application filed by respondent No.3 under Order 1 Rule 10 of the Code of Civil Procedure, 1908 (in short “the Code”) for being impleaded as defendant in the suit was allowed. Briefly stated, the facts of the case for the purpose of present revision petition are that the plaintiff-petitioner filed a suit on 31.05.1999 against defendant-respondent No.1 for specific performance of an agreement and for permanent injunction. An application under Order 39 Rules 1 and 2 read with Section 151 of the Code was also filed along with the suit. On a statement being made by defendant-respondent No.1 that he had sold the property to respondent No.2, Ved Parkash, he was C.R. No. 700 of 2006 2 impleaded as defendant in the suit. Thereafter, defendant No.2 sold the property to applicant-respondent No.3 vide sale deed dated 06.12.2004 whereupon an application under Order 1 Rule 10 of the Code was filed by respondent No.3 for being impleaded as a party. I have heard learned counsel for the parties and perused the record with their assistance. Learned counsel for the petitioner submitted that the trial Court was not right in allowing the application of the applicant for being impleaded as party-defendant No.3 in the suit. He further submitted that in such a case, the provisions of Section 52 of the Transfer of Property Act applies, according to which, there was no need to implead him as a party. On the other hand, learned counsel for respondent No.3 has placed reliance on the decision of Hon'ble Supreme Court in Amit Kumar Shaw and another Versus Farida Khatoon and another, 2005(2) RCR (Civil) 651, to contend that such an application could be filed both under Order 22 Rule 10 as well as under Order 1 Rule 10 of the Code for bringing the transferee pendente lite on record and the order passed by the trial Court which is impugned herein is in accordance with law. The Apex Court in Amit Kumar Shaw' s case(supra) while considering analogous situation in paras 14 to 16 recorded as under:- “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 C.R. No. 700 of 2006 3 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 proceedings 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, whether the transfer is of the entire interest of C.R. No. 700 of 2006 4 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”. In view of the above, finding no merit in this revision petition, the same is hereby dismissed. August 06, 2009 (AJAY KUMAR MITTAL) seema JUDGE