Late Hameed filed a suit, being Suit No. 817 of 1999, Hameed vs. Alauddin, on 10.9.1999, for permanent injunction, restraining the defendant from causing any interference in the peaceful possession and occupation over the land in dispute. It appears that during the pendency of the suit on 4.10.1999, the sole defendant executed a registered sale deed of the property in dispute in favour of the respondent no.2, Shubhan Ali Ansari. The plaintiff filed an application for temporary injunction, which has been dismissed by the Trial court vide order dated 23.11.2001. The appeal filed against the said order was also dismissed on 18.8.2004. The plaintiff filed Writ Petition No. 43408 of 2004, Smt. Asiya Begum vs. IIIrd Additional District Judge, Court No.2, Mirzapur and others, before this Court in which an interim order has been passed on 14.10.2004. During the pendency of the suit, plaintiff, Hameed died on 13.2.2004. The heirs of the plaintiff were substituted. On the basis of the registered sale deed, dated 4.10.1999, the respondent n.2, filed an application dated 10.4.2008, under Order 1, Rule 10 of the CPC for his impleadment as a defendant. The Trial court rejected the impleadment application vide order dated 2.12.2010 against which Revision No. 18 of 2011 was filed, which was allowed by the order dated 13.4.2011 and Shubhan Ali Ansari has been impleaded as a defendant.
Heard Sri Rajeev Misra, learned counsel for the petitioners and Smt. Vibha Srivastava, learned counsel appearing on behalf of the respondent.
Learned counsel for the petitioners submitted that if a sale has been made during the pendency of the suit, without permission of the court, the subsequent purchaser cannot be made a party to the suit. In support of the contention, he placed reliance on the decisions of the Apex Court in the cases of Bibi Zubaida Khatoon vs. Nabi Hassan Saheb and another, reported in (2004) 1 SCC 191, Sanjay Verma vs. Manik Roy and others, reported in (2006) 13 SCC 608 and Sunil Gupta vs. Kiran Girhotra and others, reported in (2007) 8 SCC 506.
Learned counsel for the respondent submitted that, being the subsequent purchaser, the right of the respondent has been vested in the property in dispute. Any decision in the suit will substantially affect the right of the respondent and, therefore, the respondent has been rightly impleaded as the party to the suit.
I have considered the rival submissions and perused the impugned order.
In the case of Amit Kumar Shaw and another vs. Farida Khatoon and another, reported in 2005 SCFBRC 325, during the pendency of the Second Appeal, a party has acquired leasehold right of the purchaser by a deed of assignment and also by the sale deed. Another party sold and transferred the rights in favour of the said party. By virtue of the aforesaid transfer, the said party has become owner of the property. The Apex Court held that the interest of the party will be highly prejudiced, in case they may not be made party of the suit. In the circumstances, the Apex Court held that the subsequent purchaser should be made a party.
Following the aforesaid decision, this Court in Writ Petition No. 15486 of 2001, Rup Singh vs. Gopal Prasad and others, decided on 4.4.2011, has held that the subsequent purchaser should be made as a party inasmuch as by transfer of right his interest has been vested in the property.
In the case of Bibi Zubaida Khatoon vs. Nabi Hasan Saheb and another (supra), the Apex Court held that normally a joinder, based on transfer, pendente lite, is permitted to enable the transferee to protect his interest. However, the claim of the impleadment can be rejected if it is not bonafide.
In the case of Sanajay Verma vs. Manik Roy and others (supra), the Apex Court held that in case of a transfer, pendente lite, without the leave of the Court, such party, as a matter of right, cannot claim impleadment in a pending suit. If the suit is decreed, the same shall be binding upon such party.
The decisions cited by the learned counsel for the petitioners are based on the facts of the said cases. In the present case, the court below has allowed the impleadment on a consideration of entire facts and circumstances. I do not see any reason to interfere with the order of the court below. In the result, the writ petition fails and is, accordingly, dismissed.
Order Date :- 31 .05.2011 bgs/