Court No. - 37

Case :- MATTERS UNDER ARTICLE 227 No. - 557 of 2023

Petitioner :- Ayyub And 7 Others

Respondent :- Smt. Razia Begum And 26 Others

Counsel for Petitioner :- Dinesh Mishra,Ashish Mishra

Counsel for Respondent :- Pradeep Kumar Rai

Hon'ble Ajit Kumar,J.

Heard Sri Dinesh Mishra, learned counsel for the petitioner and Sri Pradeep Kumar

Rai, learned counsel for the contesting respondents.

By means of this petition filed under Article 227 of the Constitution of India, the

petitioners who are defendants in the suit being O.S. No.73 of 2009 seeking relief

in the nature of cancellation of saledeed are aggrieved against the order passed by

the trial court and affirmed in revision whereby the amendment application filed

by the plaintiff in the suit has been allowed in respect of relief clause and also

impleading subsequent assignees of the original defendants in the suit. Next

grievance raised by the petitioner is that principle of lis pendens takes of any

transfer pendente lite and therefore it was not necessary to implead the subsequent

purchaser of the property as defendants in the suit so also to seek amendment in the

relief clause.

Learned counsel for the defendants-respondents however, does not dispute at this

stage that the opposite parties who have sought impleadment are now required to be

impleaded in the suit, have purchased the property. It is true that principle of law of

lis pendens takes care of the subsequent creation of rights by any transfer in respect

of the suit property but in the peculiar facts and circumstances of this case when

suit for cancellation of saledeed was itself instituted in 2009 and the defendants

immediately rushed to sell of the property to the third party and amendment

application accordingly, was moved in the year 2010 itself, it cannot be said that

the amendment application was under any circumstances hit by proviso to Order VI

Rule 17 of the CPC.

Learned counsel for the contesting respondents, per contra, argues that the newly

impleaded respondents who are the subsequent purchasers are necessary parties in

such suit because the decree as a matter of fact cannot be executed effectively if the

subsequent purchasers are not arrayed as a party in the suit and subsequent sale

deed is also not challenged.

In the case of Manoj Kumar Parshar and another vs. State of U.P. and 2 others

decided by this Court on 19.3.2021 in Matter Under Article 227 No. 2029 of 2020

vide paragraph 10, the Court referred a judgment of the Supreme Court (Thomson

Press (India) Limited versus Nanak Builders and Investors Private Limited and

others 2013 (5) SCC 397) and finally held that in order to avoid any situation

where plaintiff and defendant-transferer may collude and subsequent purchaser

may not defend his interest being not party to such suit. Such subsequent transferee

pendente lite always be impleaded as defendants. Paragraph 10 of the judgment is

reproduced hereunder:

" 10. In the case of Thomson Press (India) Limited versus Nanak Builders and Investors Private

Limited and others 2013 (5) SCC 397, the Supreme Court was considering an appeal arising out

of a suit for specific performance of prior agreement to sell filed by the buyer against the original

owner/transferor/seller pendente lite. In Paragraph 26 to 29 of the said judgment, the Supreme

Court after referring to Section 52 of the Transfer of Property Act, observed that transfer during

pendency of suit does not automatically render such transfer void. The provisions of the Section

only render such transfers subservient to the rights of the parties to a litigation. The transferees

acquiring any immovable property during litigation over it, are held to be bound, by application

of the doctrine of lis pendens and by the decree passed in the suit even though they may not have

been impleaded in it. "The whole object of the doctrine of lis pendens is to subject parties to the

litigation, as well as others who seek to acquire rights in immo