# Smt. Kusum Srivastav v. Smt. Rekha Jiwaani & Ors

- **Citation:** (2014) 2 ILRA 919
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-08-08
- **Case number:** Misc. Single No. 57 of 2014
- **Bench:** Ram Surat Ram (Maurya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kusum-srivastav-v-smt-rekha-jiwaani-ors-43034
- **Pages:** 7

## Headnote

Procedure Code-Order-I,
Rule-10
readwith
Section
146-Impleadment
application-during
pendency
of
suitsubject of dispute alienated to third
person-objection that such transfer hit by
provisions of Section 52 of Transfer of
property Act-applicant neither necessary
nor proper party-held-during consideration
of application u/s 146-necessary or proper
party consideration not required-nor such
transfer termed as void in view of Sarla
Bala Dassi case-if the person sought to be
impleaded
being
legal
representativesufficient for impleadment.

Held: Para-13
Thus in view of judgment of Supreme
Court in Jayaram Mudaliar's case (supra)
that purpose of Section 52 of the
Transfer of Property Act is not to defeat
any just and equitable claim but only to
subject them to the authority of the
Court which is dealing with the property
to which claims are put forward and such
a transfer is not void and in view of
judgment of Supreme Court in Saila Bala
Dassi's case (supra) holding that the
object of Section 146 is to facilitate the
exercise of rights by persons in whom
they come to be vested by devolution or
assignment, and being a beneficent
provision should be construed liberally
and so as to advance justice and not in a
restricted or technical sense, the orders
of Courts below allowing application of
respondent-9
for
impleadment
as
defendant in the suit do not suffer from
any illegality.

Case Law discussed:
AIR 1935 Oudh 486; AIR 1981 SC 981; AIR
2007 SC 1332; (2012) 2 SCC 628; AIR 2012
SC 2925; 2008 (26) LCD 422 (DB); 2013 (8)
ADJ 492; (1972) 2 SCC 200; AIR 2007 SC
1058; (2010) 14 SCC 317; AIR 2013 SC 2389;
AIR 1958 SC 394; (2001) 6 SCC 534; AIR 2005
SC 2209; AIR 2013 SC 2389.

## Text

2 All]. Smt. Kusum Srivastav Vs. Smt. Rekha Jiwaani & Ors.
919
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.08.2014

BEFORE
THE HON'BLE RAM SURAT RAM
(MAURYA), J.

Misc. Single No. 57 of 2014

Smt. Kusum Srivastav ...Petitioner
Versus
Smt. Rekha Jiwaani & Ors. .Respondents

Counsel for the Petitioner:
Sri Santosh Kumar Mehrotra, Sri Ishwar
Dutt Shukla

Counsel for the Respondents:
Sri Manish Kumar, Sri R.K. Srivastava

Civil
Procedure Code-Order-I,
Rule-10
readwith
Section
146-Impleadment
application-during
pendency
of
suitsubject of dispute alienated to third
person-objection that such transfer hit by
provisions of Section 52 of Transfer of
property Act-applicant neither necessary
nor proper party-held-during consideration
of application u/s 146-necessary or proper
party consideration not required-nor such
transfer termed as void in view of Sarla
Bala Dassi case-if the person sought to be
impleaded
being
legal
representativesufficient for impleadment.

Held: Para-13
Thus in view of judgment of Supreme
Court in Jayaram Mudaliar's case (supra)
that purpose of Section 52 of the
Transfer of Property Act is not to defeat
any just and equitable claim but only to
subject them to the authority of the
Court which is dealing with the property
to which claims are put forward and such
a transfer is not void and in view of
judgment of Supreme Court in Saila Bala
Dassi's case (supra) holding that the
object of Section 146 is to facilitate the
exercise of rights by persons in whom
they come to be vested by devolution or
assignment, and being a beneficent
provision should be construed liberally
and so as to advance justice and not in a
restricted or technical sense, the orders
of Courts below allowing application of
respondent-9
for
impleadment
as
defendant in the suit do not suffer from
any illegality.

Case Law discussed:
AIR 1935 Oudh 486; AIR 1981 SC 981; AIR
2007 SC 1332; (2012) 2 SCC 628; AIR 2012
SC 2925; 2008 (26) LCD 422 (DB); 2013 (8)
ADJ 492; (1972) 2 SCC 200; AIR 2007 SC
1058; (2010) 14 SCC 317; AIR 2013 SC 2389;
AIR 1958 SC 394; (2001) 6 SCC 534; AIR 2005
SC 2209; AIR 2013 SC 2389.

(Delivered by Hon'ble Ram Surat Ram
(Maurya), J.)

1. Heard Sri S. K. Mehrotra, for the
petitioner and Sri R.K. Srivastav, for
respondent-9.

2. The writ petition has been filed
against the orders of Civil Judge (Senior
Division), Court No. 15, Faizabad dated
17.12.2013, allowing the application of
respondent-9 for his impleadment as
defendant in O.S. No. 392 of 2009 filed
by the petitioner and District Judge,
Faizabad dated 17.12.2013, dismissing
the revision of the petitioner, from
aforesaid order.

3. Smt. Kusum Srivastav (the
petitioner) filed a suit (registered as O.S.
No. 392 of 2009), for declaration of her
title over house No. 3/1/170, situated at
mohalla Rikabganj, Faizabad and for
permanent injunction, restraining Smt.
Rekha Jiwaani and others (respondents-1
to 8) from interfering in her possession
over the aforesaid house. It is alleged by
the petitioner that after service of
summons, the defendants appeared before
Trial Court and filed written statement.
920 INDIAN LAW REPORTS ALLAHABAD SERIES
Thereafter, issues have been framed. In
the meantime, the petitioner filed an
application for amendment of the plaint as
such evidence was not started.

4. During pendency of the suit Rajiv
Kumar, Ashish Kumar, Vishnu Kumar
and Smt. Kishori Srivastav for herself and
for Anil Kumar through his general power
of attorney, (respondents-4 to 7) executed
a sale deed dated 20.03.2013 in respect of
northern half portion of the house in
dispute in favour of Mohd. Zia-ur-rahman
(respondent-9). Respondent-9 filed an
application (73-C) for his impleadment in
the suit as the defendant. The petitioner
filed an objection in the impleadment
application and stated that defendants-4 to
8 had nothing to do with house in dispute.
On the basis of sale deed executed by
defendants-4 to 8, Mohd. Zia-ur-rahman
has neither become owner nor was given
possession over the house in dispute.
Defendants-4 to 8 did not take leave of
the Court for executing sale deed dated
20.03.2013 in favour of respondent-9 as
such he has no legal right for being
impleaded as the defendant in the suit. He
is neither necessary nor proper party as
such the impleadment application was
liable to be rejected.

5. Trial Court after hearing the
parties, by order dated 20.09.2013 held
that Mohd. Zia-ur-rahman purchased the
house in dispute from defendants-4 to 8
through sale deed dated 20.03.2013, as
such he is necessary party in the suit.
Evidence in the suit has not started as
such his impleadment will not cause any
prejudice to the plaintiff. On these
findings impleadment application was
allowed. The petitioner filed a revision
(registered as Civil Revision No. 126 of
2013) from the aforesaid order. The
revision was heard by District Judge,
Faizabad, who by order dated 17.12.2013,
held that as on the basis of sale deed dated
20.09.2013 interest in the property in
dispute has been created in favour of
Mohd. Zia-ur-rahman as such he is
entitled to contest the suit. Order of the
trial court does not suffer from any
illegality. On these findings, the revision
was dismissed. Hence this writ petition
has been filed.

6. The counsel for the petitioner
submitted that Section 52 of Transfer of
Property Act, 1882 operates as an
injunction and restrains the litigants of
pending litigation from transferring the
subject matter of suit. Any transfer of
subject matter of suit without leave of the
Court is void. On its basis, transferee
pendete-lite has no right to be impleaded
in the suit. Section 52 is based upon
public policy to save time of Court and
unnecessary harassment of the parties as
there may several transfers one after
others. The plaintiff is a dominus litis and
is not obliged to implead transferee
pendete-lite in the suit. The impleadment
application has been illegally allowed. He
relied upon the judgment of Chief Court
Oudh, in Jai Indra Bahadur Singh Vs.
Deputy Commissioner, AIR 1935 Oudh
486, in which during pendency of suit,
Deputy Commissioner was appointed as
the manager of the subject matter of the
suit under U.P. Court of Ward Act. The
Court
rejected
his
application
for
impleadment in the suit under Order 22
Rule 10 C.P.C. Judgment of Supreme
Court in Dev Raj Dogra Vs. Gyan Chand
Jain, AIR 1981 SC 981, in which it has
been held that subject matter of the suit
cannot be transferred so as to affect the
right of other party except under the
authority of the Court and Section 52 of
2 All]. Smt. Kusum Srivastav Vs. Smt. Rekha Jiwaani & Ors.
921
Transfer of Property Act, 1882 imposes a
prohibition on transfer. Sanjay Verma Vs.
Manik Roy, AIR 2007 SC 1332, in which
it has been held that it would, therefore,
be clear that the defendants in the suit
were prohibited by operation of Section
52 to deal with the property and could not
transfer or otherwise deal with it in any
way affecting the rights of the appellant
except with the order or authority of the
court. Admittedly, the authority or order
of the court had not been obtained for
alienation of those properties. Therefore,
the alienation obviously would be hit by
the doctrine of lis pendence by operation
of Section 52. Under these circumstances,
the respondents cannot be considered to
be either necessary or proper parties to the
suit." Jagan Singh Vs. Dhanwanti, (2012)
2 SCC 628, in which it has been held that
it would plainly be impossible that any
action or suit could be brought to a
successful
termination
if
alienations
pendente-lite were permitted to prevail.
The Explanation to this section lays down
that the pendency of a suit or a proceeding
shall be deemed to continue until the suit
or a proceeding is disposed 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. Vidur Implex &
Traders (P) Ltd. Vs. Tosh Apartments (P)
Ltd., AIR 2012 SC 2925, in which it has
been held that the agreements for sale and
the
sale
deeds
were
executed
by
respondent 2 in favour of the appellants in
a clandestine manner and in violation of
the injunction granted by the High Court.
Therefore, it cannot be said that any valid
title or interest has been acquired by the
appellants because they are claiming right
on the basis of transactions made in
defiance of the restraint order passed by the
High Court. Therefore, their presence is
neither required to decide the controversy
involved in the suit filed by respondent 1
nor required to pass an effective decree.
Division Bench Judgment of this Court in
Shahzad Ahmad Khan Vs. Mohd. Ahmad,
2008 (26) LCD 422 (DB), in which it has
been held that in view of Section 52 of
Transfer of Property Act, 1882, no valid
transfer can be made during pendency of the
suit without leave of the Court and such a
transferee is neither proper nor necessary
party and cannot be impleaded and Shyoraj
Singh Vs. Jahir Ahmad, 2013 (8) ADJ 492,
in which it has been held that sale deed
executed during pendency of the suit is
void.

7. I have considered the arguments
of the counsel for the parties and
examined
the
record.
In
order
to
appreciate arguments of the parties,
relevant
provisions
of
Transfer
of
Property Act, 1882 and Civil Procedure
Code, 1908 are quoted below:-

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 proceeding
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.
922 INDIAN LAW REPORTS ALLAHABAD SERIES

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 disposed 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.

146.
Proceedings
by
or
against
representatives.-- Save as otherwise provided
by this Code or by any law for the time being
in force, where any proceeding may be taken
or application made by or against any person,
then the proceeding may be taken or the
application may be made by or against any
person claiming under him.

Order I Rule 10. Suit in name of
wrong plaintiff.-- (1) ..........

(2) Court may strike out or add
parties.--The Court may at any stage of
the proceedings, either upon or without
the application of either party, and on
such terms as may appear to the Court to
be just, order that the name of any party
improperly joined, whether as plaintiff or
defendant, be struck out, and that the
name of any person who ought to have
been joined, whether as plaintiff or
defendant, or whose presence before the
Court may be necessary in order to enable
the Court effectually and completely to
adjudicate upon and settle all the
questions involved in the suit, be added.

Order 22 Rule 10. Procedure in case
of assignment before final order in suit.--
(1) In other cases of an assignment,
creation or devolution of any interest
during the pendency of a suit, the suit
may, by leave of the Court, be continued
by or against the person to or upon whom
such interest has come or devolved.

8. Section 52 of Transfer of Property
Act, 1882 safeguard the right of the
litigant
from
pendete-lite
transfer.
However it does not impose a complete
prohibition of the transfer of subject
matter of the suit as the Court is given
jurisdiction to grant leave to transfer. The
Court has been empowered to have the
control over the subject matter of the suit
so that decree obtained by successful
party would not be defeated by pendentelit transfer. In Dev Raj Dogra's case
(supra), relied upon by the counsel for the
petitioner, it has been held that subject
matter of the suit cannot be transferred so
as to affect the right of other party except
under the authority of the Court. In this
case Supreme Court has nowhere held
that such a sale deed is void. The issue in
this respect came for consideration before
a bench of three Hon'ble Judges of
Supreme Court in Jayaram Mudaliar v.
Ayyaswami, (1972) 2 SCC 200, in which
it was held that expositions of the doctrine
of lis pendence indicate that the need for
it arises from the very nature of the
jurisdiction of Courts and their control
over the subject-matter of litigation so
that parties litigating before it may not
remove any part of the subject-matter
outside the power of the court to deal with
it and thus make the proceedings
infructuous. The purpose of Section 52 of
the Transfer of Property Act is not to
defeat any just and equitable claim but
only to subject them to the authority of
the Court which is dealing with the
property to which claims are put forward.
2 All]. Smt. Kusum Srivastav Vs. Smt. Rekha Jiwaani & Ors.
923
Supreme Court again in Hardev Singh v.
Gurmail Singh, AIR 2007 SC 1058, held
that Section 52 of the Transfer of Property
Act, 1882 merely prohibits a transfer. It
does not state that the same would result
in an illegality. Only the purchaser during
the pendency of a suit would be bound by
the
result
of
the
litigation.
The
transaction, therefore, was not rendered
void and/or of no effect. Same view has
been taken in T.G. Ashok Kumar Vs.
Govind Ammal, (2010) 14 SCC 317 and
Thomson Press (India) Ltd. Vs. Nanak
Builders & Investors (P) Ltd., AIR 2013
SC 2389. In view of authoritative
pronouncements
of
Supreme
Court,
contrary view taken by High Court are not
good law and have no binding effect.

9. A Bench of four Hon'ble Judges
of Supreme Court in Saila Bala Dassi v.
Nirmala Sundari Dassi, AIR 1958 SC 394
held that Section 146 was introduced for
the first time in the Civil Procedure Code,
1908 with the object of facilitating the
exercise of rights by persons in whom
they come to be vested by devolution or
assignment, and being a beneficent
provision should be construed liberally
and so as to advance justice and not in a
restricted or technical sense. The right to
file an appeal must therefore be held to
carry with it the right to continue an
appeal which had been filed by the person
under whom the applicant claims, and the
petition of the appellant to be brought on
record as an appellant in Appeal No. 152
of 1955 must be held to be maintainable
under Section 146.

10. Supreme Court in Dhurandhar
Prasad Singh v. Jai Prakash University,
(2001) 6 SCC 534, held that the plain
language of Order 22 Rule 10 C.P.C. does
not suggest that leave can be sought by
that person alone upon whom the interest
has devolved. It simply says that the suit
may be continued by the person upon
whom such an interest has devolved and
this applies in a case where the interest of
the plaintiff has devolved. Likewise, in a
case where interest of the defendant has
devolved, the suit may be continued against
such a person upon whom interest has
devolved, but in either eventuality, for
continuance of the suit against the persons
upon whom the interest has devolved during
the pendency of the suit, leave of the court
has to be obtained. If it is laid down that
leave can be obtained by that person alone
upon whom interest of a party to the suit has
devolved during its pendency, then there
may be preposterous results as such a party
might not be knowing about the litigation
and consequently not feasible for him to
apply for leave and if a duty is cast upon
him then in such an eventuality he would be
bound by the decree even in cases of failure
to apply for leave. As a rule of prudence,
initial duty lies upon the plaintiff to apply
for leave in case the factum of devolution
was within his knowledge or with due
diligence could have been known by him.
The person upon whom the interest has
devolved may also apply for such a leave
so that his interest may be properly
represented as the original party, if it
ceased to have an interest in the subjectmatter of dispute by virtue of devolution
of interest upon another person, may not
take interest therein, in ordinary course,
which is but natural, or by colluding with
the other side. If the submission of Shri
Mishra is accepted, a party upon whom
interest has devolved, upon his failure to
apply for leave, would be deprived from
challenging correctness of the decree by
filing a properly constituted suit on the
ground that the original party having lost
interest in the subject of dispute, did not
924 INDIAN LAW REPORTS ALLAHABAD SERIES
properly prosecute or defend the litigation
or, in doing so, colluded with the
adversary. Similar view are taken by
Supreme Court in Raj Kumar Vs. Sardari
Lal, (2004) 2 SCC 601.

11. Supreme Court in Amit Kumar
Shaw v. Farida Khatoon, AIR 2005 SC
2209, held that a transferee pendente lite to
the extent he has acquired interest from the
defendant is vitally interested in the
litigation, where 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 22
Rule 10 an alienee pendente lite may be
joined as party. As already noticed, the
court has discretion in the matter which
must be judicially exercised and an alienee
would ordinarily be joined as a party to
enable him to protect his interests. The court
has held that a transferee pendente lite of an
interest in immovable property is a
representative-in-interest of the party from
whom he has acquired that interest. He is
entitled to be impleaded in the suit or other
proceedings where his predecessor-ininterest is made a party to the litigation; he
is entitled to be heard in the matter on the
merits of the case. This judgment has again
been followed in Thomson Press (India)
Ltd. Vs. Nanak Builders & Investors (P)
Ltd., AIR 2013 SC 2389.

12. So far as the provisions of Order 1
Rule 10 (2) C.P.C. on one hand and Section
146 and Order 22 Rule 10 C.P.C. on the
other hand are concerned, there is a basic
difference between two provisions. While
deciding an application under Order 1 Rule
10 (2) C.P.C., the Court is required to
record a finding that person sought to be
impleaded as party in the suit is either
necessary or proper party. While Section
146 and Order 22 Rule 10 C.P.C. confers
right upon the legal representative of a party
to the suit to be impleaded with the leave of
the Court and continue the litigation. While
deciding an application under Section 146
and Order 22 Rule 10 C.P.C., the Court is
not require to go in the controversy as to
whether person sought to be impleaded as
party in the suit is either necessary or proper
party. If the person sought to be impleaed as
party is legal representative of a party to the
suit, it is sufficient for the Court to order
impleadment/substitution of such person.
Thus the case law relied upon by the
counsel for the petitioners under Order 1
Rule 10 C.P.C. has no application.

13. Thus in view of judgment of
Supreme Court in Jayaram Mudaliar's case
(supra) that purpose of Section 52 of the
Transfer of Property Act is not to defeat
any just and equitable claim but only to
subject them to the authority of the Court
which is dealing with the property to
which claims are put forward and such a
transfer is not void and in view of
judgment of Supreme Court in Saila Bala
Dassi's case (supra) holding that the object
of Section 146 is to facilitate the exercise
of rights by persons in whom they come to
be vested by devolution or assignment, and
being a beneficent provision should be
construed liberally and so as to advance
justice and not in a restricted or technical
sense, the orders of Courts below allowing
application
of
respondent-9
for
impleadment as defendant in the suit do
not suffer from any illegality.

14. In view of the aforesaid
discussions, the writ petition has no merit
and is dismissed.
--------
2 All]. Shiv Lal Sonker Inre 552(S/S) 93 Vs. State of U.P.
925
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.08.2014

BEFORE
THE HON'BLE RAJIV SHARMA, J.
THE HON'BLE MAHENDRA DAYAL, J.

Special Appeal No. 185 of 2004

Shiv Lal Sonker Inre552 (S/S) 93. Appellant
Versus
State of U.P. . ..Respondent

Counsel for the Appellant:
Sri Vidhu B. Kalia

Counsel for the Respondents:
C.S.C., Smt. T. Somvanshi

U.P.
Police
Regulation-Regulation
490dismissal on involvement of marpit under
influence of liquor with police officer-without
investigation without giving opportunity to
cross-examine-without following procedure
of Rules-enquiry concluded which held
vitiated dismissal-order considering long
period of harassment-and improper enquiryreinstated
with
50%
of
salary-period
consumed in litigation shall be treated in
service.

Held: Para-21
Taking the holistic view of the matter,
we have no hesitation in saying that the
inquiry has been conducted in utter
disregard to the principles of natural
justice. Since the impugned order has
been passed on the basis of the inquiry
report, which suffers from procedural
illegality and violative of principles of
natural justice, it vitiates the order of
punishment.

Case Law discussed:
AIR 1961 SC 751; (1986) 3 SCC 229; [2003]
(21) LCD 610; JT 2008 (9) 205; [(2010) 2
SCC 722]; AIR 1968 SC 158; 1995(Supp) 3
SCC 212; (2010) 10 SCC 539.

(Delivered by Hon'ble Rajiv Sharma, J.)

1. Heard learned counsel for the
appellant, Shri S.K. Kalia, learned Senior
Advocate, assisted by Shri Ankit Pandey
and learned Additional Chief Standing
Counsel.

2. This Special Appeal has been
preferred against the judgment and order
dated 22.3.2002, passed in Writ Petition
No. 552 (SS) of 1993 and the judgment
and order dated 22.4.2004, passed in
Review Petition No.72 o 2002. By the
judgment and order dated 22.3.2002, the
learned Single Judge dismissed the writ
petition preferred by the appellant against
the order of dismissal. Thereafter the
petitioner filed a Review Petition, which
was also dismissed by the judgment and
order dated 22.4.2004.

3. Bereft of unnecessary details, in
short the facts of the case are that the
appellant while working as constable and
posted at Police Station Khairabad, District
Sitapur, was subjected to disciplinary
proceedings. The disciplinary proceedings
ultimately culminated in passing an order of
dismissal, which was assailed in the writ
petition on the ground that the disciplinary
proceedings were not only conducted in
blatant disregard of the principles of natural
justice but relevant documents such as copy
of the Medical Report, copy of the enquiry
report etcetra which were utilized against
him in the enquiry, were never supplied to
him. It has also been contended that in
disciplinary proceedings he was not only
denied the opportunity to cross examine the
Station Officer but provisions of Paras 486
and 490 of the Police Regulations were also
not followed, causing serious prejudice.

4. Learned counsel for the appellant
has contended that it is the case of the
respondents that the appellant misbehaved