Posted On by &filed under High Court, Punjab-Haryana High Court.


Punjab-Haryana High Court
Smt. Harbans Kaur And Ors. vs Yashpal Pandit And Ors. on 21 February, 2002
Author: M Kumar
Bench: M Kumar


JUDGMENT

M.M. Kumar, J.

1. This is a revision petition directed against the order dated 11.9.2001 passed by the Civil Judge (Junior Division), Chandigarh allowing the application of the plaintiff-respondent filed under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for brevity ‘the Code’) whereby amendment of the plaint has been allowed. The view of the learned Civil Judge with regard to the amendment reads as under:

“The plaintiff has filed the application u/o 6, Rule 17 CPC for amendment of the plaint as he wants to seek declaration to the effect that he is owner to the extent of l/6th share in the property in suit and also wants to seek declaration that all the 5 sale deeds executed by Prem Paul Pandit during the pendency of the suit are null and void and he also wants to add the fact that Sh. Ved Pal Prashar has neither been heard nor seen since 28.12.88 being missing and his legal heirs are defendants No.5 to 8. The defendants have opposed the application stating that the amendment sought is barred by limitation because, admittedly, the sale deeds which were executed by Prem Pal Pandit and which are sought to be challenged by way of this amendment were executed in the month of October, 1993 and it was well within the knowledge of the plaintiff that the sale deeds were executed by Prem Pandit in October, 1993. And now after the period of more than 3 years the sale deed cannot be challenged. But from perusal of file, I find that the present suit was filed on 13.5.93 and the alleged sale deeds were executed by Prem Pal Pandit in October, 1993. As such the same were executed during the pendency of the suit and it is settled law that the alienation made during the pendency of the suit is always subject to the final decision of the case and is hit by the Section 52 of the Transfer of Property Act. Even otherwise, the plaintiff has filed an application dated 28.8.1996 in this suit for impleading the subsequent purchaser i.e. defendants No.12 to 23 and the application was allowed vide order dated 26.9.96. The plaintiff had impleaded all the subsequent purchasers during the pendency of this suit well within three years and it does not make any difference that the plaintiff had not challenged the sale deeds specifically and he did not claim declaration against the sale deeds. So, the amendment now sought by the plaintiff cannot be considered as barred by limitation and it is just in an explanatory form. The plaintiffs had filed the present suit originally for partition of the joint property and rendition of accounts. As such, in the original sate deeds also, the Court had to determine the share of the plaintiff for the purpose of passing preliminary decree for partition and by way of present amendment the plaintiff had sought declaration that he is owner to the extent of l/6th share in the property in suit. As such, the amendment sought is not going to change the nature of the suit. Even otherwise, the plaintiff wants to raise plea and he will succeed only if he will be able to prove the same and as such if the amendment is allowed no prejudice will be caused to the defendants and for the purpose of delay they can be compensated by costs.

In view of my afore mentioned discussion, the application filed by the plaintiff for amendment of the plaint is allowed subject to payment of Rs.800/- as costs. 2. Brief facts necessary for deciding the controversy raised in the present revision petition may first be noticed. A suit for partition and rendition of accounts was filed by the plaintiff-respondent no.1 against six persons who are now represented by their legal representatives which would be explicit from the following tables.

3. The pedigree table would explain the relationship and status of some of parties to the suit.

Table-I Chuni Lal Pandit (expired)

Yash Pal Pandit Plaintiff -Respondent No.1)

Prem Paul Pandit (Defendant No.1) (expired)

Ved Paul Pandit (Defendant No.2.) (expired)

Pushpa Sharma (Defendant Respondent No. 10)

ShantaSharma (Defendant Respondent No.11)

Kanta Sharma (Defendant Rspondent No. 12)

 

|

Vikram Pandit (Defendant-Respondent No. 13)

 

Table-II (Depicting the Legal Representatives)
L.Rs of
defendant-Prem Paul Pandit

Bikram Pandit Defendant-Respondent No,2

Suit. Pandit widow defendant-Respondent No.3.

Nisha Pandit Defendant-RespondentNo.4.

Pooja Bhalla Defendant-RespondentNo.5

Table-III (Depicting the Legal Representatives)
L.Rs of defendants-Ved Paul Parashar

Santosh Parashar Defendant-Respondent No.6 No.7.

Anuradhadaughter Defendant-Respondent No.8

Abilasha daughter Defendant-Respondent No.9.

Veena daughter Defendant-Respondent

4. After filing of the suit between 19.10.1993 to 26.10.1993, five sale deeds were executed by late Shri Prem Pal Pandit, now represented by his LRs defendant-respondent Nos. 2 to 5 in favour of defendant-respondents No. 14 to 20. On 14.5.1996 both the parties made a statement that there would be no alienation of the property. Even defendant-respondent No. 13 Bikram Pandit, filed a written statement admitting the fact of execution of five sale deeds.

5. On 28.8.1996, an application was filed under Order 1 Rule 10 of the Code which was allowed on 26.9.1996 and the petitioner vendees as well as defendant-respondent Nos.14 to 20 were allowed to be impleaded as parties on the ground that Shri Prem Pal Pandit now represented through his LRs defendant-respondent nos.2 to 5 has sold the house No. ER 20 Civil Lines, Pucca Bagh, Jalandhar City to the petitioners as well as defendant-respondent Nos.14 to 20. Subsequently, on 26.9.1996 and 17.10.1996 amended title of the suit were filed showing that plaintiff-respondent No. 1 had the knowledge of sale deeds executed by defendant-respondent Prem Paul Pandit now represented by his LRs defendant-respondent nos.2 to 5. Thereafter, issues were framed on 14.8.1999. On 21.11.2000, an application under Order 6 Rule 17 of the Code seeking amendment of the plaint was filed which was allowed vide impugned order dated 11.9.2001.

6. Shri Dhirinder Chopra, learned counsel for the petitioners has argued that defendant-petitioners as well as defendant-respondent Nos.14 to 20 are the bona-fide purchasers and the amendment of the suit at this stage would completely change the nature of the suit which was initially for partition and rendition of accounts. He further argued that the Civil Judge has committed grave error by allowing the application under Order 6 Rule 17 of the Code because if the suit was to be filed on 21.11.2000 challenging the sale deeds dated 19.10.1993 to 26.10.1993, the suit would be barred as the period of three years would lapse on the date of seeking the amendment. He has further argued that it has been the consistent stand of the defendant-petitioners as well as defendant-respondents No.14 to 20 that the suit has been filed in collusion between plaintiff-respondent No. 1 and defendant-respondent Nos.2 to 13. According to the learned counsel, the provisions of Section 52 of the Transfer of Property Act, 1889 (for brevity ‘the Act’) would protect the rights of the plaintiff-respondent No. 1 and other defendant-respondents as the doctrine of lis pendens would apply, In other words if any alienation has taken place during the pendency of the suit it would adversely affect the rights of the parties. For this proposition, the learned counsel has placed reliance on a judgment of the Supreme Court in the case of Radhika Devi v. Bajrangi Singh and Ors., A.I.R. 1996 S.C. 2358 and Vishwambhar v. Laxminarayana A.I.R. 2001 S.C. 2607.

7. Having heard the learned counsel for the petitioners and pursing the documents placed on record by him, I am of the considered opinion that this revision petition does not deserve to be accepted because firstly the defendant-petitioners as well as defendant-respondent Nos.14 to 20 were allowed to be impleaded as parties being the vendees of the property and once they are party in a suit where partition of the property has to take place then it would be necessary to allow the sale deed which confer title on them to be challenged. The scope of the suit which was initially for partition and rendition of accounts would no doubt be enlarged which is subject matter of the suit it would be just and proper if the claim with regard to the same property is also allowed to be raised by challenging the sale deeds which of course have been executed subsequently. In so far as the question of limitation is concerned, it would not require serious consideration for the reason that any transaction with regard to immovable property taking place during the pendency of the suit would itself be hit by the provisions of Section 52 of the Act and therefore in such a situation the period of limitation for challenging the sale deeds independent of the provision of lis pendens cannot be taken. Moreover, the amendment which is sought would avoid multiplicity of litigation in so far as the challenge to the five sale deeds executed between 19.10.1993 to 26.10.1993 is concerned. The argument of Shri Dhirinder Chopra that the suit is collusive cannot be considered at this stage because no Court has returned a finding to that effect. Another reason for disagreeing with the learned counsel for the petitioners is that the Hon’ble Supreme Court in Prem Bakshi and Ors. v. Dharam Dev and Ors.. J.T. 2002(1) S.C. 34 has held that it is not conceivable that amendment allowed under Order 6 Rule 17 of the Code would ordinarily cause any prejudice to the rights of the parties. Therefore, the revision petition against an order passed under Order 6 Rule 17 of the Code allowing the amendment is not maintainable.

8. In so far as the transferee pendente lite of interest in immovable property is concerned, the Supreme Court in Savitri Devi v. District Judge, Gorakhpur and Ors., 1999(2) S.C.C. 577 has observed that such like transferees would be a necessary/proper party. The reasons recorded by Their Lordships is that in such like cases the plea of bona fide transferees for value in good faith may have to be decided even if transfer deeds were executed during the pendency of suit and covered by Section 52 of the Act. No reason given is that their impleadment would avoid multiplicity of litigation because otherwise the sale deed has to be challenged in a separate suit. The observations of their Lordships reads as under:

“The plea raised by Respondents 3 to 5 that they were bona fide transferees for value in good faith may have to be decided before it can be held that the sales in their favour created no interest in the property. The aforesaid questions have to be decided by the Court either in the suit or in the application filed by Respondents 3 to 5 for impleadment in the suit. If the application for impleadment is thrown out without a decision on the aforesaid questions, Respondents 3 to 5 will certainly come up with a separate suit to enforce their alleged rights which means a multiplicity of proceedings. In such circumstances, it cannot be said that Respondents 3 to 5 are neither necessary nor proper parties to the suit.

Order 1 Rule 10 CPC enables the court to add any person as a party at any stage of the proceedings if the person whose presence before the court is necessary in order to enable the court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of a multiplicity of proceedings is also one of the objects of the said provision in the Code.”

9. For the reasons recorded above, this petition fails and is accordingly dismissed.


Leave a Reply

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

8 queries in 0.153 seconds.