A court may allow the addition of a party to a suit under Order 22 Rule 10 of the Code of Civil Procedure, even if the alienation of the suit property took place during the pendency of the suit, if the alienation does not affect the rights of the other party under any decree which may be passed in the suit.

Heard the learned advocates for both the sides.

2. Challenge is to the Order No.26 dated May 7, 2013 passed by the learned Civil Judge (Junior Division), Ghatal in Title Suit No.89 of 2010 thereby rejecting an application for addition of party filed by a third party.

3. Upon hearing the learned Counsel for the parties and on perusal of the materials on record, I find that the plaintiff/opposite party no.1 herein instituted the aforesaid suit for declaration of title and permanent injunction in respect of the suit property described in schedule ‘Ka’ & ‘Kha’ property against the opposite party nos.2 to 4.

4. In that suit the third party, i.e., the petitioner herein has contended that the petitioner, by a deed of sale dated February 7, 2011 had purchased a portion of the ‘Ka’ schedule property from the plaintiff himself and as such, he has prayed for addition as a plaintiff of the suit.

5. Mr. Jayanta Kr. Das, learned Advocate for the petitioner assailing the impugned order has contended that impugned order suffers from material irregularity in view of the fact the applicant is in possession of the suit property and the original plaintiff is no more interested in proceeding with the suit.

6. The learned Counsel for the plaintiff has no objection if the applicant/petitioner herein is added as party as prayed for. The other opposite parties have contended that this application should be rejected in that view of the fact that, the said purchase had taken place during the pendency of the suit and so the sale is hit by Section 52 of the Transfer of Property Act.

7. In the instant suit, there is no order of injunction and as such there is no bar to sell the suit property. If the petitioner had acquired any interest in a portion of the suit property for any reason, his prayer should be considered accordingly to see if he is a necessary party or a proper property keeping in view the logic of Section 52 of the Transfer of Property Act.

8. Section 52 of the Transfer of Property Act prohibits transfer of the property in suit under certain terms and conditions as indicated therein. Such terms and conditions are based on justice, equity and good conscience. Actually by the transfer, the plaintiff is the affected person who has no objection against allowing the application.

9. The theory of ‘lis pendens’ has been clearly explained in the case of Sanjay Verma v. Manik Roy & others reported in (2006) 13 SCC 608 and the relevant Paragraph No.12 is set out below:-

“The principles specified in Section 52 of the TP Act are in accordance with equity, good conscience or justice because they rest upon an equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. A transferee pendente lite is bound by the decree just as much as he was a party to the suit. The principle of lis pendens embodied in Section 52 of the TP Act being a principle of public policy, no question of good faith or bana fide arises. The principle underlying Section 52 is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject-matter of the suit. The section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the court.”

10. Under Order 22 Rule 10 of the C.P.C., with leave of the Court, on 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. So, the application for addition of party could well be considered as one for leave of the Court.

11. Accordingly, the learned Trial Judge, in my view, has failed to address th