LawyerServices Judgment - Inderjeet Wadhwa v/s Jagjit

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Court Case No Date of Judgment
High Court of Punjab and Haryana Regular Second Appeal No. 4797 of 2004 07-01-2005
Judge(s)
THE HONOURABLE JUSTICE V.M. JAIN
Parties
Inderjeet Wadhwa v/s Jagjit
Advocate(s)
For the Appearing Parties: Vikram Punia, Advocate.
Equivalent Citation(s)
2005 AIR (P&H) 216
2005 AIR (P&H) 216
2005 (3) CCC 535
Judgment Full Text

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Srisailam Devasthanam Versus Bhavani Prameelamma Sohan Singh Versus Amrik Singh Sohan Singh Versus Amrik Singh

judgement - (1) THIS Regular Second Appeal has been filed by Inderjit Wadhwa appellant against the judgments and decrees of the Courts below whereby the suit filed by jagjit plaintiff against Bharat Singh defendant (who was ex parte) was decreed and the appeal filed by Inderjit Wadhwa appellant was dismissed as time barred (after dismissing the application seeking condonation of delay in filing the appeal) by the Additional District Judge. (2) THE facts which are relevant for the decision of the present case are that on 30-10-2000 Jagjit plaintiff filed a suit for possession with consequential relief of permanent injunction against Bharat Singh defendant alleging therein that he had purchased disputed plot measuring 204 square yards from Smt. Vidyawati vide registered sale deed dated 30-1-1989 and the possession of the disputed plot was also delivered to the plaintiff by said Smt. Vidyawati on the same day and since then the plaintiff was the owner in possession of the said plot. It was alleged that subsequently it came to the notice of the plaintiff that the entire area out of the aforesaid plot as detailed in the sale deed dated 30-1-1989 and the site plan ex. P-1 had not been delivered to him and that the disputed portion ABCD shown in red colour in the site plan was in illegal and unauthorised possession of Bharat Singh defendant whose plot was adjoining the plot in dispute. It was alleged that the plaintiff requested the defendant to hand over the possession of the disputed portion ABCD but the defendant refused to do so which resulted in the filing of the present suit for possession. (3) BHARAT Singh defendant initially contested the suit and filed written statement admitting therein that the plaintiff had purchased plot No. 249 but it was denied that he (defendant) was in illegal and unauthorised possession of the disputed portion. On the other hand it was alleged that in fact he was owner in possession of the disputed portion. Subsequently on 2-3-2001 no one appeared on behalf of the defendant and accordingly Bharat Singh defendant was proceeded against ex parte and the case was fixed for ex parte evidence of the plaintiff. After recording ex parte evidence of the plaintiff the learned trial court. vide judgment and decree dated 12-5-2003 decreed the suit of Jagjit plaintiff ex parte by declaring that he was the owner of the disputed portion ABCD shown in red colour in the site plan Ex. P-1 and the defendant was directed to handover possession thereof to the plaintiff. (4) AGGRIEVED against the aforesaid judgment and decree dated 12-5-2003 passed by the trial Court Inderjit Wadhwa appellant filed appeal before the Distt. Judge. Along with the appeal he filed two applications. One application was for permission to file the appeal while the other application was for seeking condonation of delay in filing the appeal.(5) IN the application filed by Inderjit wadhwa appellant seeking permission to file the appeal it was alleged that he had purchased a portion of the H. No. 249 L. Model Town Sonepat from one Jagbir Singh vide registered sale deed dated 15-11-2000 and another portion vide registered sale deed dated 19-12-2000 executed by Bharat singh defendant. It was alleged that for this reason he (Inderjit Wadhwa) was a necessary party to the suit as the plaintiff had filed the suit for possession of the portion of this house against the defendant namely bharat Singh who had ceased to have any right title or interest in the suit property after selling the same to the appellant namely Inderjit Wadhwa. It was alleged that bharat Singh defendant had concealed the fact of the aforesaid two sale deeds from the trial Court and had preferred to stay away from the proceedings in the trial Court and accordingly ex parte proceedings were initiated against him by the trial Court vide order dated 2-3-2001. It was alleged that both the parties to the suit had colluded with each other which facilitated in the passing of the impugned judgment and decree by the trial Court in favour of the plaintiff. It was alleged that applicant appellant Inderjit wadhwa being a necessary party would fer irreparable loss and injury since he had purchased the house in dispute and was owner in possession thereof. It was accordingly prayed that necessary permission may be granted to him to file the appeal against the judgment and decree of the trial Court in the interest of justice. This application is dated 27-1-2004. (6) IN the application seeking condonation of delay in filing the appeal it was alleged by Inderjit Wadhwa appellant that the parties to the suit had colluded with each other which resulted in the passing of the ex parte judgment and decree in favour of the plaintiff for possession of a part of H. No. 249 l Model Town Sonepat which had been purchased by the applicant appellant from Bharat Singh defendant and one jagbir Singh and that the applicant was a necessary party to the suit but was not impleaded as a party. It was alleged that the applicant came to know about the judgment and decree passed by the trial Court about a week back when one Rajinder Kumar had informed the applicant about the passing of the said judgment and decree by the trial court in favour of the plaintiff and against bharat Singh defendant in respect of a portion of H. No. 249 L Model Town Sonepat. It was alleged that the Bailiff and clerk of an advocate had also come to the shop of the applicant about a week back and had disclosed about the pendency of the execution proceedings whereupon the applicant after getting the records inspected applied for certified copies and thereupon the appeal was filed. This application is also dated 27-1-2004. Both the applications were contested by plaintiff respondent No. 1 Jagjit. (7) AFTER hearing both sides the learned addl. Distt. Judge vide judgment and decree dated 17-11-2004 dismissed the application seeking condonation of delay in filing the appeal and resultantly dismissed the appeal filed by Inderjit Wadhwa as time barred. Aggrieved against the same Inderjit wadhwa appellant filed the present appeal in this Court. (8) 1 have heard the learned counsel for the appellant and have gone through the record carefully. (9) AS referred to above Jagjit plaintiff had filed the suit for possession on 30-10-2000 against Bharat Singh defendant. In the said suit Bharat Singh defendant had filed the written statement contesting the suit filed by the plaintiff. Thereafter on 2-3-2001 bharat Singh defendant did not appear in the trial Court and was proceeded against ex parte. Thereafter after recording ex parte evidence the learned trial Court decreed the suit of the plaintiff vide judgment and decree dated 12-5-2003. Aggrieved against the same Inderjit Wadhwa appellant filed the appeal before the Distt. Judge on 27-1-2004 along with the two applications referred to above. In the application seeking condonation of delay in filing the appeal it was alleged by Inderjit Wadhwa appellant that he came to know about the judgment and decree of the trial Court about a week back from one Rajinder Kumar and also when the bailiff and a clerk of an Advocate had come to his shop and had disclosed about the pendency of the execution proceedings. (10) FROM a reading of the allegations made in the application seeking condonation of delay in filing the appeal as also from a reading of the application filed by the appellant seeking permission to file the appeal it would be clear that the main ground on which Inderjit Wadhwa appellant was seeking condonation of delay in filing the appeal was that he had purchased the property in dispute from Bharat Singh defendant vide sale deed dated 19-12-2000 and another portion from one Jagbir Singh Deswal son of Bharat Singh vide sale deed dated 15-11-2000 and that he was a necessary party in the suit which had been filed by Jagjit plaintiff and since he had not come to know about the passing of the judgment and decree by the trial Court in favour of Jagjit plaintiff till about a week prior to the filing of the appeal there were sufficient grounds to condone the delay in filing the appeal. (11) IN the grounds of appeal filed on behalf of the appellant in the present regular Second Appeal it has inter alia been alleged that the sale deeds in favour of the appellant were not hit by Section 52 of the transfer of Property Act as the appellant was not aware about the pending litigation in respect of the suit property and this fact was concealed from him by Bharat Singh defendant. One of the substantial questions of law framed on behalf of the appellant in ground No. 6 in the grounds of appeal is as to whether the principles of lis pendens would apply to a property purchased under registered sale deed for consideration and without notice of litigation. (12) BESIDES taking the question regarding principles of lis pendens in the grounds of appeal the learned counsel appearing for inderjit Wadhwa appellant submitted before me that the application filed by the appellant seeking condonation of delay in filing the appeal before the Distt. Judge could not have been dismissed since he came to know about the judgment and decree of the trial court only a week prior to the filing of the appeal and he was not impleaded as a party by the plaintiff before the trial Court and the principles of lis pendens as detailed in section 52 of the Transfer of Property Act would not apply to the present case since the appellant is a purchaser in good faith for consideration and without notice of the litigation. Reliance has been placed n avinash Chander v. Hazura Singh 2003 (1)Civil Court Cases 439 (P and H). It was submitted that on the facts and circumstances of the present case the learned Addl. Distt. Judge ought to have condoned the delay in filing the appeal. (13) HOWEVER I find no force in these submissions of the learned counsel for the appellant. As referred to above the judgment and decree passed by the trial Court are dated 12-5-2003. Inderjit Wadhwa appellant had filed appeal before the Distt. Judge on 27-1-2004 along with application seeking condonation of delay in filing the appeal in which it was alleged that he had come to know about the judgment and decree of the trial Court only a week back. The aforesaid judgment and decree dated 12-5-2003 passed by the trial Court in favour of Jagjit plaintiff and against Bharat Singh defendant was an ex parte decree since Bharat Singh defendant who had initially contested the suit and had filed written statement was proceeded against ex parte on 2-3-2001. Admittedly Inderjit Wadhwa appellant had purchased the property in dispute from bharat Singh defendant on 19-12-2000 i. e. during the pendency of the suit filed by Jagjit plaintiff against Bharat Singh defendant. (14) SECTION 52 of the Transfer of Property Act reads as under :-52. Transfer of property pending suit relating thereto - During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings 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 any decree or order which may be made therein except under the authority of the Court and on such terms as it may impose. [explanation.- For the purposes of this section the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been dispose of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force. ](15) IN Simla Banking and Industrial Co. Ltd. v. Firm Luddar Mal Khushi Ram AIR 1959 Punjab 490 it was held by this Court as under :-the rule of lis pendens extends the scope of the rule of res judicata the principle of which is that the parties and their privies are bound by the judgment of the Court. The rule of lis pendens goes a step further and lays down that whoever purchases a property during the pendency of an action is held bound by the judgment that may be made against the person from whom he derived his title even though such a purchaser was not a party to the action or had no notice of the pending litigation. It is a rule of public policy for otherwise successive alienations will defeat the very purpose of litigation making it interminable. (16) IN Santa Singh Gopal Singh v. Rajinder Singh Bur Singh AIR 1965 Punjab 415 it was held by a Full Bench of this Court as under:-the doctrine of lis pendens is expressed in the maxim ut lite pendente nihil innovetur and the principle on which it rests is explained in Bellamy v. Sabine (1857) 1 De G and J 566. The exposition of law in that case by Cranworth L. C. and turner L. J. was followed by the Privy council in Faiyaz Husain Khan v. Munshi Prag narain 34 Ind. App 102 (PC) the principle being that pendente lite neither party to the litigation can alienate the property in dispute so as to affect his opponent. As mentioned in Mullas Transfer of Property Act the rule is based not on the doctrine of notice but of expediency. According to story the effect of the maxim is not to annual the conveyance but only to render it subservient to the rights of the parties to the litigation. (17) IN Sardar Hari Bachan Singh v. Major S. Harbhajan Singh AIR 1975 Punjab and Haryana 205 (para 11) it was held by this Court as under :-the rule of lis pendens contained in Section 52 is based not on the doctrine of notice but on expediency. The effect of this rule is not to annul the transfer but only to render it subservient to the rights of the parties to the litigation. According to this rule of lis pendens whosoever purchases a property during the pendency of a suit is held bound by the judgment that may be made against the person from whom he derived his title even though such a purchaser was not a party to the action or had no notice of the pending litigation. (18) RELIANCE was placed on the law laid down in the cases AIR 1959 Punjab 490 (supra) and AIR 1965 Punjab 415 (Full Bench) (supra). (19) IN Balwinderjit Kaur v. Financial commissioner Punjab AIR 1987 Punj and har 189 it was held by this Court as under (at para 3) :-by now it is well laid down that in the case of a transfer which is hit by the doctrine of lis pendens under S. 52 of the Transfer of Property Act the question of good faith which is essential to be established before an equitable relief can be granted in favour of a subsequent vendee under Section 41 or S. 51 of the Transfer of Property Act is totally irrelevant (see Shanu Ram v. Basheshar Nath (1966) 68 Pun LR (D) 44. In the face of this settled legal position the plea raised on behalf of respondents 5 to 10 that they were bona fide purchasers without notice from Paramjit Singh and Jagjit singh was obviously of no consequence. (20) IN Shanu Ram v. Basheshar Nath 1966 Pun LR 44 (Delhi Section) it was held by a Division Bench of this Court as under :-it is manifest that right or interest acquired in a property which is the subject-matter of interest acquired in a properly who is eventually held entitled to it and changes effected are done at the risk of the concerned party itself. The transfer itself being hit by the doctrine of lis pendens under Section 52 of the Transfer of Property Act the question of good faith which is essential to be established before equitable relief could be granted under Section 51 becomes obviously irrelevant. (21) IN Mohammed Ali Abdul chanimomin v. Bisahemi Kom Abdulla saheb Momin AIR 1973 Mysore 131 (at para 14) it was held as under :-the principle of lis pendens embodied in Section 52 being a principle of public policy no question of good faith or bona fides arises. (22) IN Krishnaji Pandharinath v. Anusayabai AIR 1959 Bombay 475 it was held as under :-the contention that the appellant was a bona fide purchaser for value without notice of the claim of the plaintiff is in my view futile. The application of the doctrine of lis pendens does not depend upon the purchaser having notice of the suit : even if the transferee pendente lite from a party has no notice of the suit the rights of the other party to a suit in which a right to immoveable property is directly and specifically in question under the decree cannot be prejudicially affected by the transfer. (23) IN Achut Sitaram Patwardhan v. Shivajirao Krishnarao Gaikwad AIR 1937 bom 244 it was held as under (at page 251):-it is clear from the terms of this section that the doctrine of lis pendens is not based upon notice but it rests upon the ground that neither party to a suit can alienate the property in the suit pending the suit so as to defeat the rights of the other party. As the decisions show it is based upon expediency and it is immaterial whether the alienee pendente lite had or had not notice of the suit; see 1 De G and J 566. The mere pendency of a suit will not prevent one of the parties from selling the property the subject matter of the suit but the purchase will in no manner affect the right of the other party under any decree which may be made in the suit unless the property was sold with the permission of the Court. (24) IN Dhanna Singh v. Baljinder Kaur air 1997 SC 3720 it was held by the Honble supreme Court as under (at para 5) :-apart from the doctrine of Us pendens under Section 52 of the T. P. Act the subsequent purchaser does not get any right to lead to any evidence as he stepped into the shoes of the first defendant who had given up the right to lead evidence. In view of these circumstances he does not get any right to lead any evidence. (25) FROM a perusal of the law laid down in the authorities referred to above in my opinion it would be clear that the case of the appellant would be fully covered by the principle of Us pendens and that the appellant did not have an independent right inasmuch as the appellant had stepped into the shoes of Bharat Singh defendant after he had purchased the property in question from him vide sale deed dated 19-12-2000 since the sale was during the pendency of the suit filed by Jagjit Singh plaintiff against bharat Singh defendant. Furthermore the appellant would be bound by the decree that had been passed against his vendor namely bharat Singh defendant and he did not have an independent right in the litigation. Furthermore in view of the law laid down in the above said authorities and on the facts and circumstances of the present case it could not be said that principle of Us pendens as detailed in Section 52 of the Transfer of Property Act would not apply to the present case simply on the ground that the appellant is a purchaser in good faith for consideration and without notice of the litigation as alleged. Furthermore as per the law laid down in the aforesaid authorities whoever purchases a property during the pendency of a suit is bound by the judgment that may be made against the person from whom he derived his title even though such a purchaser was not party to the action and had no notice of the pending litigation and that the plea regarding bona fide purchaser without notice would be of no consequence. In the present Case as referred to above Bharat Singh defendant had contested the suit by filing written statement. Subsequently he was proceeded against ex parte as he failed to appear in the Court. Since the present appellant namely Inderjit Wadhwa had allegedly purchased the suit property from Bharat Singh defendant during the pendency of the suit in my opinion it was for the present appellant to have got himself substituted as a defendant in place of Bharat Singh as provided under Order 22 Rule 10 CPC and with the leave of the Court could have continued the suit against him. However nothing of the kind was done by the present appellant. On the other hand Bharat Singh defendant was not only proceeded ex parte on 2-3-2001 but after recording ex parte evidence the learned trial Court had decreed the suit ex parte on 12-5-2003. Even thereafter no steps were taken by the present appellant to file the appeal against the aforesaid judgment and decree dated 12-5-2003 and it was only on 27-1-2004 that Inderjit wadhwa appellant filed the appeal before the distt. Judge Sonepat along with application seeking condonation of delay in filing the appeal. (26) ON the facts and circumstances of the present case in my opinion the learned addl. Distt. Judge was perfectly justified in dismissing the application of the present appellant seeking condonation of delay in filing the appeal inasmuch as the applicant appellant had failed to make out sufficient cause for condoning the delay of more than six months in filing the appeal (limitation for filing the appeal is only 30 days). On the facts and circumstances of the present case in my opinion it could not be said that the limitation for filing the appeal would start from the date of knowledge. Since Inderjit wadhwa appellant would be deemed to have the knowledge since he had purchased the property in dispute from Bharat Singh defendant during the pendency of the litigation and had stepped into the shoes of the defendant and did not have an independent right as held in the various authorities referred to above. (27) SO far as the authority 2003 (1) Civil court Cases 439 (supra) relied upon by the learned counsel for the appellant is concerned in my opinion the said authority would have no application to the facts of the present case in view of the law laid down in various authorities referred to above including a Full Bench judgment of this Court. In fact Avinash Chanders case (supra) was decided without noticing the precedents of this Court and as such did not lay down a binding precedent and is per incuriam. The said case is deemed to have been decided on the facts of its own case. (28) IN view of the above in my opinion. it would be clear that the learned Addl. Distt. Judge had rightly dismissed the application seeking condonation of delay in filing the appeal and had rightly dismissed the appeal as time barred and no fault could be found with the same. Furthermore no question of law much less substantial question of law arises for determination in this appeal. (29) IN view of the above finding no merit in this appeal the same is hereby dismissed. Appeal dismissed.