BIBI ZUBAIDA KHATOON versus NABI HASSAN SAHEB AND ANR.

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'].

p. 291, margin G

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 I Rule I 0, Order 22 Rule IO and Order 6 Rule I 7 of the Code.

p. 292, margin A

According to the petitioner during pendency of the suits, she has purchased the suit property in the year 1996 from the original plaintiff 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.

p. 292, margin B

The trial court by order dated I I.I 0.1996 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-Iite. It also observed that suit being old of the year 1983, its earliest disposal is necessary.

p. 292, margin C

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

p. 292, margin D

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.

p. 292, margin E

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 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 and Anr. v. Vishnu Hari Patil and Ors., [1983) I SCC 18; Jayaram Mudaliar v. Ayyaswami and Ors., AIR (1973) SC 569; Savitri Devi v. District Judge, Gorakhpur and Ors., AIR (1999) SC 976; Saila Bala Dassi v. Nirmala Sundari Dassi and

p. 292, margin E

The learned counsel, appearing for the contesting respondents, the impugned orders of the trial court and the common order passed High Court. Reliance is placed on Savinder Singh v. Dalip Singh [I996J 5 sec 539.

p. 293, margin A

It is not disputed that the present petitioner purchased during pend ency of the suit and without seeking leave of the court by section 52 of the Transfer of Property Act. The petitioner being pendente lite without leave of the court cannot, as of right, seek as a party in the suits which are long pending since 1983. It is true the application for joinder based on transfer pendente lite transferee should ordinarily be joined as party to enable him to interest. But in instant case, the trial court has assigned cogent rejecting such joinder stating that the suit is long pending since prima facie the action of the alienation does not appear to be bona fide. trial court saw an attempt on the part of the petitioner to complicate delay the pending suits.

p. 293, margin B

The decisions cited and relied on behalf of the appellant facts of each of those cases. They are distinguishable. There is rule that the transferee pendente-lite without leave of the court cases be allowed to join and contest the pending suits. The decision behalf of the contesting respondents of this court in the case Singh (supra) fully supports them in their contentions. After quoting section 52 of the Transfer of Property Act, the relevant observations "Section 52 of the Transfer of Property Act envisages that 'During the pend ency in any court having authority limits of India .. of any suit or proceeding which is and in which any right to immovable property is specifically in question, the property cannot be transferred otherwise dealt with by any party to the suit or proceeding to affect the rights of any other party thereto under order which may be made therein, except under the

p. 293, margin D

the court and on such terms as it may impose.' It would, therefore, be clear that the defendants in the A 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 /is pendens by operation of section 52. Under these circumstances, the respondents cannot be considered to be either necessary or proper parties to the suit."

pp. 293–294, margin G

In case of Dhurandhar Prasad Singh (supra), observations relevant for

p. 294

the purpose of these appeals read thus :- C "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

p. 294

not properly conducted by the original party or he colluded with the adversary.

p. 294

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

p. 294, margin D

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. K.K.T. Appeals dismissed.

p. 294, margin D