AMIT KUMAR SHAW AND ANR. versus FARIDA KHATOON AND ANR.

Citation: [2005] 3 S.C.R. 509 · Decided: 13-04-2005 · Supreme Court of India · Bench: ASHOK BHAN · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

AMIT KUMAR SHAW AND ANR. 
A 
v. 
F ARI DA KHA TOON AND ANR. 
APRIL 13, 2005 
[ASHOK BHAN AND DR. AR. LAKSHMANAN, JJ.] 
B 
. . 
Code of Civil Procedure, I 908-0rder I Rule I 0, Order 22 Rule I 0-
Necessary party-Subsequent transferee-Substitution of-During pendency 
of the second appeal, suit property purchased by appellants-Appel/ants' c 
application for substitution of their names in the appeal dismissed by the High 
Court-Justification of-Held: High Cour:t not justified in dismissing the 
application for substitution since appellants were the only persons having 
subsisting right, title and interest in the property and were absolutely necessary 
in order to decide the appeal on merits-Transfer of property Act, 1882-
Section 52. 
D 
Doctrines : 
Doctrine of /is pendens-Explained 
The question which arose for consideration in these appeals is E 
whether on a combined reading of Order 1 Rule 10, Order 22 Rule 10, 
CPC and Section 52 of the Transfer of Property Act, 1882, an application 
for substitution by a subsequent transferee pendente lite, can be rejected 
and he be non-suited altogether. 
Allowing the appeals, the Court 
F 
HELD: 1.1. Order 1 Rule 10 CPC envisages that a person may be 
added as party to a suit when he ought to have been join~d as plaintiff or 
defendant and is not joined so, or when without his presence, the questions 
in the suit cannot be completely decided. The object thereof is to G 
"' 
discourage contests on technical pleas, and to save honest and bona fide 
. 
claimants from being non-suited. The power to add a party can be 
exercised by the Court at any stage of the proceedings and would not 
depend solely on the question whether he has interest in the suit property. 
509 
H 
510 
SUPREME COURT REPORTS 
[2005) 3 S.C.R. 
A The question is whether the right of a person may be affected if he is not 
added as a party. Such right, however, will include necessarily an 
enforceable legal right. [516-G-H; F; 517-A) 
1.2. An application under Order 22 Rule 10, CPC can be made to 
the appellate Court even though the devolution of interest occurred when 
B the case was pending in the trial Court. The Court has only to be prima 
facie satisfied for exercising its discretion in granting leave for continuing 
the suit by or against the person on whom the interest has devolved by 
assignment or devolution. The question about the existence and validity 
of the assignment or devolution can be considered at the final hearing of 
C the proceedings. An alienee pendente lite is bound by the final decree that 
may be passed in the suit. Such an alienee can be brought on record beth 
under this rule as also under Order 1 Rule 10. Since under the doctrine 
of /is pendens a decree passed in the suit during the pendency of which a 
transfer is made binds the transferee, his application to be brought on 
record should ordinarily be allowed. (517-B; 518-B-C-D] 
D 
2.1. Section 52 of the Transfer of Property Act provides thatpendente 
lite, neither party to the litigation, in which any right to immovable 
property is in question, can alienate or otherwise deal with such property. 
This Section is based on equity and good conscience. and is intended to 
E protect the parties to litigation against alienation by their opponent during 
the pendency of the suit. The doctrine of lis pendens applies only where 
the lis is pending before a Court. Further pending the suit, the transferee 
is not entitled as of right to be made a party to the suit, though the Court 
has a discretion to make him a party. But the transferee pendente lite can 
be added as a proper party if his interest in the subject matter of the suit 
F is substantial and not just peripheral. A transferee pendente lite to the 
extent he has acquired interest from the defendant is vitally interested in 
the litigation, whether the transfer is of the entire interest of the defendant; 
the latter having no more interest in the property may not properly defend 
the suit. He may collude with the plaintiff. Hence, though the plaintiff is 
under no obligation to make a lis pendens transferee a party, under Order 
G 22 Rule 10 an alienee pendente lite may be joined as party. 
[518-E-F; 519-A-DI 
2.2. In the instant case, the applications for substitution were filed 
by the respective appellants in the second appeals which are still pending 
H on the file of the High Court though it was filed in the year 1993. The 
I 
AMITKUMARSHAWv. FARIDA KHATOON[LAKSHMANAN, J.] 
511

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