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CASE NO.: Appeal (civil)  854-855 of 1998 Appeal (civil)  856 of 1998

PETITIONER: Bibi Zubaida Khatoon     

RESPONDENT: Nabi Hassan Saheb & Anr.                                 

DATE OF JUDGMENT: 06/11/2003

BENCH: Shivaraj V. Patil & D.M. Dharmadhikari                           

JUDGMENT: J U D G M E N T  

Dharmadhikari J.

       These appeals are directed against a common judgement dated  28.7.1997 passed by High Court of Patna in two revisions under  section 115 of the Code of Civil Procedure [hereinafter referred to as  ’the Code’].

        In the cross suits, one filed for redemption of mortgage and  the other filed for specific performance of Agreement of Sale, the  petitioner made two applications, for her impleadment as co-plaintiff  in one suit and defendant in the other. Third application was filed for  amendment of the pleadings consequent to her proposed joinder as a  party in the two suits. The three applications were made respectively  under Order 1 Rule 10, Order 22 Rule 10 and Order 6 Rule 17 of the  Code.  

       According to the petitioner during pendency of the suits, she  has purchased the suit property in the year 1996 from the original  plaintiff \026 Amichand Agarwal and has, thus, acquired in his place the  right of redemption of the mortgaged suit property. In the cross suit  of the opposite party  seeking specific performance of the Agreement  of Sale based on the same acquisition of title during pendency of suit,  joinder was sought to that suit as defendant.  

       The trial court by order dated 11.10.1996 rejected the prayer  for joinder of the petitioner in the two suits observing that the  property having been purchased during pendency of the suit the  decree passed in the suit shall bind the transferee pendente-lite. It  also observed that suit being old of the year 1983, its earliest  disposal is necessary.  

       For the same reasons that two other applications under Order 1  Rule 10 and Order 6 Rule 17 were also  rejected  by the trial court.  

       By the impugned common order, the High Court in its revisional  jurisdiction which was invoked under section 115 of the Code,  declined to interfere. Aggrieved thereby, the present appeals have  been filed.  

       The learned senior counsel Shri S.B. Sanyal strenuously  urged  that even though the petitioner is a transferee pendente-lite within  the meaning of section 52 of the Transfer of Property Act to afford  effective opportunity to her to prosecute the suit for redemption of  mortgage and the counter suit for specific performance of the  contract, her joinder in two suits as party and prayer to bring  subsequent events on record by proposed amendment to the

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pleadings ought to have been allowed by the trial court.   It is  submitted that the High Court ought to have interfered in the orders  of the trial court as the latter had failed to exercise its judicial  discretion in accordance with law. Reliance is placed on Khemchand  Shankar Choudhari & Anr vs. Vishnu Hari Patil & Ors  [1983(1)  SCC 18]; Jayaram Mudaliar vs. Ayyaswami & Ors [AIR 1973 SC  569]; Savitri Devi vs. District Judge, Gorakhpur & Ors. [AIR  1999 SC 976]; Saila Bala Dassi vs. Nirmala Sundari Dassi & Anr.  [1958 SCR 1287]; and Dhurandhar Prasad Singh vs. Jai Prakash  University & Ors. [2001 (6) SCC 534].

       The learned counsel, appearing for the contesting respondents,  supported the impugned orders of the trial court and the common  order passed by the High Court. Reliance is placed on Savinder  Singh vs. Dalip Singh & Ors. [1996 (5) SCC 539].  

       It is not disputed that the present petitioner purchased the  property during pendencey of the suit and 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 instant case, the trial court has assigned  cogent reasons for rejecting such joinder stating 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.  

       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  within the limits of India \005.. 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. "

       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

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the suit may not be property 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.   

       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 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.