Court No. - 30
Case :- MATTERS UNDER ARTICLE 227 No. - 3986 of 2018 Petitioner :- Rajesh Jaiswal And Another Respondent :- Amit Shyam And 3 Others Counsel for Petitioner :- Saurabh Raj Srivastava Counsel for Respondent :- Jitendra Narayan Tripathi
Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the petitioners as well as learned counsel for the caveator-respondents and perused the record.
Present petition has been filed for setting aside the impugned order dated 5.9.2017 passed by the Additional Civil Judge (S.D.), Court No. 14, Allahabad allowing the application no. 110GA (under Order 1 Rule 10 CPC) and the impugned judgement and order dated 30.4.2018 passed by the Additional District Judge, Court No. 10, Allahabad in Civil Revision No. 13 of 2018 (Rajesh Jaiswal and another vs. Amit Shyam and others) arising out of O.S. No. 127 of 2008 (Rajesh Jaiswal & another vs. Amit Shyam and others). A further prayer has been made direct the Additional Civil Judge (S.D.) Court No. 14, Allahabad to hear and decide the O.S. No. 127 Rajesh Jaisal & another vs. Amit Shyam and others) expeditiously.
By the impugned order dated 5.9.2017, impleadment application filed by the contesting respondents no. 1 and 2 under Order 1 Rule 10 was allowed by the trial Court. The revision against the same was dismissed by the lower appellate Court on 30.4.2018.
Submission of the learned counsel for the petitioner is that the applications have been illegally allowed and the Courts below have not recorded a single finding regarding principle of list pendens based on Section 52 of the Transfer of Property Act and have not recorded a finding as to why third parties/respondents are proper and necessary party of the suit and therefore, their impleadment is patently illegal. In support of his arguments, he has placed reliance on the judgements of Hon'ble Apex Court rendered in the case of Sanjay Verma vs. Manik Roy and Ors., AIR 2007 SC 1332 and Bibi Zubaida Khatoon vs. Nabi Hassan Saheb and another, AIR 2004 SC 173.
Per contra, learned counsel for the respondents has pointed out that a suit was filed in the year 2008. The same was dismissed for non-prosecution on 1.5.2011. In the meantime, a sale deed was executed in favour of the third party (respondents no. 3 and 4 herein) on 19.6.2012. The suit was restored to its original number in the year 2016. Submission, therefore, is that they are necessary party as property stands transferred to them. In support of his submissions, he has placed reliance on the judgements of this Court rendered in the case of Ram Pyare Verma vs. IIIrd Additional District Judge, Faizabad & 3 others, 2015 (110) AIILR 383 and Gulfam and another vs. Rajesh Goyal and others, 2012 (91) ALR 110.
I have considered the rival submissions and perused the record.
In the case of Thomas Press (India) Ltd. vs. Nanak Builders & Investors Pvt. Ltd. & others, (2013) 5 SCC 397, the Hon'ble Apex Court has held that subject matter of the suit, a person who has purchased the property is entitled to be added as a party defendant to the suit. Same view has been expressed by Hon'ble Apex Court in Amit Kumar Shaw and another vs. Farida Khatoon and another, (2005) 11 SCC 403. It is well settled that mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject matter of suit and it only provides that alienation will in no manner affect rights of the other party under any decree which may be passed in the suit. In the present case, the suit was not in existence and had also been dismissed for want of prosecution in the year 2011 and a sale deed was executed in the year 2012 and the suit was restored to its original number in the year 2016.
The law is settled that the transferee would not get better title than the original owner and would be bound by the final decree. Once discretion has been exercised by the Courts below in the facts and circumstances as noted above, I do not find any legal infirmity or jurisdictional error in the orders.
In such view of the matter, I do not find any good ground to interfere with the orders impugned herein.
Present petition lacks merit and is accordingly dismissed. No order as to costs.
Order Date :- 29.5.2018 Abhishek