BIBI ZUBAIDA KHATOONversusNABI HASSAN SAHEB AND ANR.

A                            BIBI ZUBAIDA KHA TOON
                                           V.

                        NABI HASSAN SAHEB AND ANR.

                                NOVEMBER 6, 2003

B           (SHIVARAJ V. PATIL AND D.M. DHARMADHIKARI, JJ.]


           Transfer of Property Act, 1882-Section 52-Suits--Transfer of suit
     property during pendency ofsuit-Transferee pendente-lite without permission
C    of Court seekingjoinder to the suits and amendment ofpetilion-Rejection of
     plea by Trial Court and High Court-On appeal, held: ordinarily, such
     transferee should be joined as party but in the/acts of the case,joinder of the
     transferee to the suits was rightly rejected-Code of Civil Procedure, 1908-
     0rder 1 Rule JO and Order 6 Rule 17.

D           During pendency of two cross-suits, appellant purchased the suit
     property without seeking leave of the Court as required by Section 52 of
     Transfer of Property Act, 1882. On the strength of having purchased the
     property, she filed two applications for being impleaded as party in the
     suits and third application for amendment of the pleadings consequent to
     her proposed joinder as party to the suits. Trial Court dismissed the three
E    applications on the grounds that property having been purchased during
     pendency of the suit, the decree passed in the suit shall bind her pendente-
     /ite; and that the suit being old, needed earliest disposal. Revision against
     the orders was dismissed by High Court.

F          In appeal to this Court, appellant contended that even though the
     petitioner is a transferee pendente-lite within the meaning of Section 52 of
     the Transfer of Property Act, trial court should have afforded effective
     opportunity to her to prosecute the suits and her applications ought to
     have been allowed.

G          Dismissing the appeals, the Court

            HELD : Trial Court has rightly exercised its discretion in rejecting
     t'he three applications for impleadment of the transferee pendete-lite as
     party to the suits and for amendment of the pleadings. High Court was
     also justified in refusing to interfere with the order of the trial court. The
II                                        290
        BIBI ZUBAIDA KHA TOON v. NAB! HASSAN SAHEB [DHARMADHIKARI, J.]   29 J

petitioner being a transferee pendete-lite without leave of the court cannot,   A
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 the instant case, the
trial court has assigned cogent reasons for rejecting such joinder stating      B
that the suit is long pending since 1983 and prima facie the act of the
alienation does not appear to be bona fide. The trial court saw an attempt
on the party of the petitioner to complicate and delay the pending suits.
                                                        [294-D-E; 293-C-D)

    Savinder Singh v. Dalip Singh and Ors., [1996) 5 SCC 539 and                C
Dhurandhar Prasad Singh v. Jai Prakash University and Ors., [2001] 6 SCC
534, relied on.

        Khemchand Shankar Choudhari and Anr. v. Vishnu Hari Patil and Ors.,
(1983] 1 SCC 18; Jayaram Mudaliar v. Ayyaswami and Ors., AIR (1973)
SC 569 and Savitri Devi v. District Judge, Gorakhpur and Ors., AIR (1999) D
SC 976 and Saila Bala Dassi v. Nirmala Sundari Dassi and Anr., [1958] SCR
1287, distinguished.

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 854-855 of
1998.
                                                                                E
      From the Judgment and Order dated 28.7.97 of the Patna High Court
in C.R. No. 137 and 180 of 1997.
                                    WITH
        C.A. No. 856 of 1998.
                                                                                F
    S.B. Sanyal, Akhilesh K. Pandey, Ashok K. Pandey and Ranjan
Mukherjee for the Appellants.

     A. Sharan, Bharat Ram Praveen Swarup and A.P. Medh for the
Respondents.
                                                                                G
        The Judgment of the Court was delivered by

      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'].                                                                    H
    292                      SUPREME COURT REPORTS (2003] SUPP. 5 S.C.R.
A          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
B    IO and Order 6 Rule I 7 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
    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
C   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 I I.I 0.1996 rejected the prayer for joinder
    of the petitioner in the two suits observing that the property having been
D   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.

         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.
E
           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
F   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
G   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
H   Ors., AIR (1999) SC 976; Saila Bala Dassi v. Nirmala Sundari Dassi and
      BIBI ZUBAIDA KHA TOON v. NAB! HASSAN SAHEB [DHARMADHIKARI, J.]      293
Anr., [1958] SCR 1287 and Dhurandhar Prasad Singh v. Jai Prakash                  A
University and 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 v. Dalip Singh and Ors.
[I996J 5 sec 539.                                                                 B
       It is not disputed that the present petitioner purchased the property
during pend ency 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 C
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 D
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   E
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 :-                F

            'During the pend ency in any court having authority within the
            limits of India .. 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 G
            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 H
    294                      SUPREME COURT REPORTS (2003) SUPP. 5 S.C.R.

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
B            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 :-

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