Case Note & Summary
The petitioner, Minalini Lalit Modi, purchased the suit flat from the tenant (respondent no.2) during the pendency of an eviction suit filed by the landlord (respondent no.1) in 1982. The trial court allowed her impleadment application under Order 1 Rule 10 CPC, but the appellate bench of the Small Causes Court set aside that order, holding that the principle of lis pendens under Section 52 of the Transfer of Property Act, 1882 barred her from being impleaded. The petitioner challenged this before the High Court under Article 227. The High Court allowed the petition, holding that the appellate bench erred in law. It clarified that the doctrine of lis pendens does not prevent a purchaser from being impleaded; it only binds the purchaser by the final decree. The court emphasized that the purchaser has a right to be heard to protect her interest, especially since the suit had been pending for over 35 years. The impugned order was set aside, and the trial court's order allowing impleadment was restored.
Headnote
A) Civil Procedure - Impleadment - Order 1 Rule 10 CPC - Lis Pendens - Transfer of Property Act, 1882, Section 52 - A purchaser of suit property during pendency of litigation is entitled to be impleaded as a party to protect his interest, as the principle of lis pendens does not bar impleadment but only binds the purchaser by the decree. The court held that the appellate bench erred in setting aside the trial court's order allowing impleadment, as the purchaser has a right to be heard to safeguard his interest in the property. (Paras 1-10)
B) Transfer of Property - Lis Pendens - Section 52, Transfer of Property Act, 1882 - The doctrine of lis pendens does not prohibit a purchaser pendente lite from being impleaded in the suit; it only ensures that the purchaser is bound by the outcome. The court held that the appellate bench's reasoning that impleadment would defeat the purpose of lis pendens was incorrect. (Paras 5-10)
Issue of Consideration
Whether a purchaser of suit property during pendency of litigation is entitled to be impleaded as a party in the suit under Order 1 Rule 10 CPC, and whether the principle of lis pendens under Section 52 of the Transfer of Property Act, 1882 bars such impleadment.
Final Decision
The High Court allowed the writ petition, set aside the impugned order of the appellate bench dated 21 October 2016, and restored the trial court's order dated 25 August 2009 allowing the impleadment of the petitioner as a defendant in the eviction suit.
Law Points
- Lis pendens
- Impleadment
- Transfer of Property Act Section 52
- CPC Order 1 Rule 10
- Right of purchaser pendente lite
Case Details
Writ Petition No. 2446 of 2017
Mr. Vijay Thorat, Senior Counsel with Mrs. Ranjana Parikh with Mr. Naresh Rathani for the Petitioners; Mr. S.M. Gorwadkar, Senior Counsel i/b. Mr. Pritesh Vyas for Respondent No.1
M/s. Kishinchand Chellaram & Anr.
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Nature of Litigation
Civil writ petition under Article 227 of the Constitution challenging an appellate order of the Small Causes Court that set aside the trial court's order allowing impleadment of the petitioner in an eviction suit.
Remedy Sought
The petitioner sought to be impleaded as a defendant in the eviction suit to protect her interest as a purchaser of the suit property during the pendency of the suit.
Filing Reason
The petitioner purchased the suit flat from the tenant during the pendency of the eviction suit and sought impleadment to safeguard her rights.
Previous Decisions
The trial court allowed the impleadment application on 25 August 2009. The appellate bench of the Small Causes Court set aside that order on 21 October 2016.
Issues
Whether a purchaser of suit property during pendency of litigation is entitled to be impleaded as a party under Order 1 Rule 10 CPC?
Whether the principle of lis pendens under Section 52 of the Transfer of Property Act, 1882 bars such impleadment?
Submissions/Arguments
Petitioner argued that as a purchaser pendente lite, she has a right to be heard to protect her interest, and the doctrine of lis pendens does not bar impleadment.
Respondent No.1 argued that impleadment would defeat the purpose of lis pendens and that the petitioner is bound by the decree without being a party.
Ratio Decidendi
The doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882 does not prohibit a purchaser pendente lite from being impleaded in the suit; it only binds the purchaser by the final decree. A purchaser has a right to be heard to protect his or her interest, and impleadment under Order 1 Rule 10 CPC is permissible to enable effective participation.
Judgment Excerpts
The learned trial judge of the Small Causes Court at Mumbai by an order dated 25 August 2009 allowed an application (Eviction Notice) filed by the petitioner seeking a relief to implead her as a defendant in a Suit (RAE Suit No.743/2805 of 1982 Eviction Suit) instituted by respondent No.1 landlord (plaintiff).
The appellate bench of the Small Causes Court by the impugned order dated 21 October 2016 has set aside the order of the learned trial judge in a Revision Application filed by respondent No.1.
Procedural History
The eviction suit was filed in 1982. On 28 September 2006, the petitioner filed an application under Order 1 Rule 10 CPC for impleadment. The trial court allowed it on 25 August 2009. Respondent No.1 filed a revision application, which was allowed by the appellate bench on 21 October 2016, setting aside the trial court's order. The petitioner then filed the present writ petition under Article 227 of the Constitution.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 1 Rule 10
- Transfer of Property Act, 1882: Section 52
- Constitution of India: Article 227
