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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.06.2011
Coram: THE HONOURABLE MR.JUSTICE G. RAJASURIA
S.A.No.495 of 2010 and M.P.No.1 of 2010
V.Damodaran (died)
1. B.Shanmugam
2. Yasothammal
3. M.Moorthy
4. Rajalakshmi
5. M.Anandan
6. M.Ethirajulu
7. Sathiya Ammal
8. Karthikeyan
9. Gajalakshmi
10.Sevanthi
11.Venkatesan .. Defendants/Appellants
vs.
1. Thulasirama Reddy
2. Vanajakshi Ammal
3. P.S.Amarnath
4. P.S.Vidyasagar
5. Rama Devi .. Defendants/Respondents

This Second Appeal is focussed as against the judgment and decree dated 04.03.2010 passed in A.S.No.4 of 2009 on the file of the Subordinate Judges Court, Vaniyambadi, Vellore District, confirming the judgment and decree dated 11.11.2005 in O.S.No.24 of 1996 on the file of the Principal District Munsif Court, Ambur, Vellore District.

For appellants : Mr.T.R.Rajagopalan,Sr.Counsel
for Mr.T.R.Rajaraman
For Respondents : Mr.M.S.Krishnan, Sr.Counsel
for Mr.K.G.Vasudevan

JUDGMENT

This Second appeal is focussed by D5, D10 to D14, and LRs of deceased D4/V.Damodaran animadverting upon the judgment and decree dated 04.03.2010 passed in A.S.No.4 of 2009 by the Subordinate Judges Court, Vaniyambadi, Vellore District, confirming the judgment and decree of the Principal District Munsif Court, Ambur, Vellore District in O.S.No.24 of 1996. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.

2. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus:

(a) The first respondent herein and the deceased Dhanalakshmi Ammal filed the suit seeking the following reliefs as against several defendants, including the appellants herein in this Second Appeal:

“(i) To declare the absolute title of the plaintiffs to the suit property;

(ii) To restrain the defendants by means of permanent injunction in any manner, either by themselves or through their men, agents and representatives or assignees with the plaintiff’s peaceful possession and enjoyment of the suit property and from alienating the suit property or any portion thereof in favour of any one;

(b) alternatively in the event of this Hon’ble Court holding that the defendants are in possession directing the defendants to deliver possession of the property detailed in the schedule hereunder to the plaintiff (Amended as per order in IA No.372/2000 dt.2.3.2001); and
(iii) for costs.”
(extracted as such)

2. Ultimately the trial Court decreed the suit without giving opportunity of adducing evidence by the contesting defendants who are the purchasers pendente lite, as against which appeal was filed for nothing but to be dismissed by the appellate Court.

3. Being aggrieved by and dissatisfied with the same, the defendants/appellants herein filed this Second Appeal on various grounds inter alia to the effect that the Courts below failed to give due opportunity to the appellants/defendants to contest the matter by adducing evidence, even though the original plaintiffs impleaded the appellants herein as defendants in the suit consequent upon the fact of they having purchased the suit property pendente lite.

4. After hearing both sides, I framed the following substantial question of law:
Whether the Courts below were justified in preventing the appellants/defendants who are the pendente lite purchasers of the suit property from contesting the suit on merits, after they having been impleaded as parties at the instance of the plaintiffs themselves and that too after the trial Court having framed issues based on the written statement filed by the appellants/defendants herein?

5. The nitty-gritty and the gist and kernel of the arguments as put forth by the learned Senior Counsel for the respondents/plaintiffs would run thus:

(a) There are catena of decisions of the Hon’ble Apex Court that pendente lite purchasers are having no right to set up any independent case of their own and that they are bound by the ultimate decision.

(b) Simply because the plaintiffs thought fit to implead the purchasers pendente lite for the purpose of avoiding future litigation, that it does not mean that the plaintiffs are estopped from contending that such pendente lite purchasers are having no right to contest the matter and adduce evidence.

(c) Both the Courts below appropriately and appositely, convincingly and correctly rejected the endeavour of the purchasers pendente lite to cross examine the plaintiffs’ witness and to adduce evidence, warranting no interference in the Second Appeal.

6. Per contra, in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the plaintiffs, the learned Senior Counsel for the appellants/defendants herein would advance his arguments, which could tersely and briefly be set out thus:

(a) The plaintiffs voluntarily impleaded the appellants/ defendants on the ground that they pending litigation purchased the suit property and in such a case, it would be too late in the day on their part to veer round and take a plea having a volte face that the appellants/defendants are having no right to contest the matter.

(b) If at all their stand was that the appellants/defendants were having no locus standi to contest the matter, then they should not have even impleaded them as parties.

Accordingly the learned Senior Counsel for the appellants/defendants would pray for setting aside the judgments and decrees of both the Courts below and for remanding the matter back to the trial Court for giving opportunity to the appellants/defendants to cross examine the witnesses on the plaintiffs’ side and also to adduce rebuttal evidence.

7. A re’sume’ of facts which are admitted or atleast undeniable for proper discussion would run thus:
According to the case of the plaintiffs, the suit property which is an immovable property measuring an extent of 1.32 acre was originally purchased by one Jayarama Reddy, the propositus of the plaintiffs in the name of his brother-in-law Chinnamma Reddy purely for the purpose of preventing Jayarama Reddy’s brother from making any claim over the suit property; in stricto sensu the suit property was treated as the property of Jayarama Reddy only; accordingly after the death of Jayarama Reddy, it devolved upon the plaintiffs who on coming to know of the fact that the legal heirs of Chinnamma Reddy were trying to alienate the suit property, filed the suit.

8. Indubitably and indisputably, unarguably and unassailably, the fact remains that during the pendency of the suit the original defendants 1, 2 and 3 without filing written statement, however after litigating in the I.A. left the litigative contest as such and sold the suit property in favour of D4, D5 and D6, who were none but the persons in receipt of pre-suit notice issued by the plaintiffs that they should not purchase the property. The plaintiffs, according to the learned Senior Counsel for the plaintiffs, by way of abundanti cautela added the purchasers pendente lite of the suit properties also as parties so as to avoid future unnecessary prolongation of the litigation and in no way the former recognised in the latter any right to contest the matter on merits.

9. It so happened that after impleadment of the purchasers of the suit property pendente lite, they were allowed to file written statement. Whereupon issues and additional issues were framed. During trial, on the plaintiffs’ side, P.W.1 was examined and Exs.A1 to A58 were marked.

10. At that juncture, the plaintiffs filed I.A.No.503 of 2005 with the prayer to Court, to prevent the newly added defendants i.e., the purchasers pendente lite from cross examining P.W.1 as well as adducing rebuttal evidence and such an application was allowed and ultimately the judgment was passed in favour of the plaintiffs as against which alone appeal was filed for nothing but to be dismissed, paving the way for the filing of this Second Appeal.

11. By way of buttressing and fortifying the contentions on the side of the plaintiffs, the learned Senior Counsel for the plaintiffs cited the following decisions of the Hon’ble Apex Court:

(i) (1997) 5 SCC 476 [Dhanna Singh and others]; an excerpt from it would run thus:
“5. The undisputed fact is that in the plaint the plaintiff respondent had already sought for a relief of injunction of alienation, yet the alienation came to be made. Apart from the doctrine of lis pendens under Section 52 of the T.P.Act, the subsequent purchaser does not get any right to lead to any evidence, as he stepped into the shoes of the first defendant, who had given up the right to lead evidence. In view of these circumstances, he does not get any right to lead any evidence.”

(ii) (2006) 13 SCC 608 [Sanjat Verma v. Manik Roy and others]; an excerpt from it would run thus:
“10. Bibi Zubaida Khatoon case on which learned counsel for the respondents had placed reliance in fact goes against the stand of the respondents. Though a casual reading of para 9 supports the stand taken by the respondents, it is to be noted that the factual position was entirely different. In fact a cross-suit had been filed in the suit in that case. The respondents being transferees pendente lite without leave of the court cannot as of right seek impleadment in the suit which was in the instant case pending for a very long time. In fact in para 10 of the judgment this Court has held that there is absolutely no rule that the transferee pendente lite without leave of the court should in all cases contest the pending suit…..”

12. Whereas, the learned Senior Counsel for the appellants/defendants cited the following decisions in support of his contentions:

(i) AIR 1958 SC 394 [Saila Bala Dassi v. Sm.Nirmala Sundari Dassi and another]; an excerpt from it would run thus:

“9. It remains to consider whether, on the merits, there should be an order in favour of the appellant. Of that, we have no doubt whatsoever. The proceedings in which she seeks to intervene arise in execution of a mortgage decree. She has purchased the properties comprised in the decree for Rs 60,000 under a covenant that they are free from encumbrances. And after her purchase, the first respondent has started proceedings for sale of the properties, nearly 18 years after the decree had been passed. The appellant maintains that the execution proceedings are barred by limitation, and desires to be heard on that question. It is true that P.B. Mukharji, J., has rejected this contention, but a reading of his judgment shows and that is what he himself observes that there are substantial questions of law calling for decision. Even apart from the plea of limitation, there is also a question as to the amount payable in discharge and satisfaction of the decree obtained by the first respondent in Suit No. 158 of 1935. Both the respondents claim that they have settled it at Rs 17,670. But it is stated for the appellant that under the decree which is sought to be executed the amount recoverable for principal and interest will not exceed Rs 6000. In the affidavit of Sanjit Kumar Ghose dated December 20, 1956, filed on behalf of the first respondent, particulars are given as to how the sum of Rs 17,670 was made up. It will be seen therefrom that a sum of Rs 7200 is claimed for interest upto March 8, 1956, calculating it not at the rate provided in the final decree but at the contract rate. Then a sum of Rs 5000 is included as for costs incurred by the mortgagee in suits other than Suit No. 158 of 1935 and in proceedings connected therewith. The appellant contends that the properties in her hands could, under no circumstances, be made liable for this amount. A sum of Rs 1750 is agreed to be paid for costs in the sale reference, in the proceedings before P.B. Mukharji, J., and in Appeal No. 152 of 1955. Asks the appellant, where is the settlement in this, and how can it bind me? It is obvious that there are several substantial questions arising for determination in which the appellant as purchaser of the properties is vitally interested, and indeed is the only person interested. As a purchaser pendente lite, she will be bound by the proceedings taken by the first respondent in execution of her decree, and justice requires that she should be given an opportunity to protect her rights.”

(ii) AIR 1983 SC 124 [Khemchand Shankar Choudhary and another v. Vishnu Hari Patil and others]; an excerpt from it would run thus:
“6. Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in an immovable property which is the subject-matter of a suit from any of the parties to the suit will be bound insofar as that interest is concerned by the proceedings in the suit. Such a transferee is a representative in interest of the party from whom he has acquired that interest. Rule 10 of Order 22 of the Code of Civil Procedure clearly recognises the right of a transferee to be impleaded as a party to the proceedings and to be heard before any order is made. It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard, he has got to be so impleaded and heard. He can also prefer an appeal against an order made in the said proceedings but with the leave of the appellate court where he is not already brought on record. The position of a person on whom any interest has devolved on account of a transfer during the pendency of any suit or a proceeding is somewhat similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding, or an Official Receiver who takes over the assets of such a party on his insolvency. An heir or a legatee or an Official Receiver or a transferee can participate in the execution proceedings even though their names may not have been shown in the decree, preliminary or final. If they apply to the court to be impleaded as parties they cannot be turned out. The Collector who has to effect partition of an estate under Section 54 of the Code of Civil Procedure has no doubt to divide it in accordance with the decree sent to him. But if a party to such a decree dies leaving some heirs about whose interest there is no dispute should he fold up his hands and return the papers to the civil court? He need not do so. He may proceed to allot the share of the deceased party to his heirs. Similarly he may, when there is no dispute, allot the share of a deceased party in favour of his legatees. In the case of insolvency of a party, the Official Receiver may be allotted the share of the insolvent. In the case of transferees pendente lite also, if there is no dispute, the Collector may proceed to make allotment of properties in an equitable manner instead of rejecting their claim for such equitable partition on the ground that they have no locus standi. A transferee from a party of a property which is the subject-matter of partition can exercise all the rights of the transferor. There is no dispute that a party can ask for an equitable partition. A transferee from him, therefore, can also do so. Such a construction of Section 54 of the Code of Civil Procedure advances the cause of justice. Otherwise in every case where a party dies, or where a party is adjudicated as an insolvent or where he transfers some interest in the suit property pendente lite the matter has got to be referred back to the civil court even though there may be no dispute about the succession, devolution or transfer of interest. In any such case where there is no dispute if the Collector makes an equitable partition taking into consideration the interests of all concerned including those on whom any interest in the subject-matter has devolved, he would neither be violating the decree nor transgressing any law. His action would not be ultra vires. On the other hand, it would be in conformity with the intention of the legislature which has placed the work of partition of lands subject to payment of assessment to the Government in his hands to be carried out in accordance with the law (if any) for the time being in force relating to the partition or the separate possession of shares .

(iii) 2004(1) CTC 549 [Raj Kumar v. Sardari Lal and others]; an excerpt from it would run thus:
“10.The law laid down by a four-Judge Bench of this Court in Saila Bala Dassi v. Nirmala Sundari Dassi1 is apt for resolving the issue arising for decision herein. A transferee of property from the defendant during the pendency of the suit sought himself to be brought on record at the stage of appeal. The High Court dismissed the application as it was pressed only by reference to Order 22 Rule 10 CPC and it was conceded by the applicant that, not being a person who had obtained a transfer pending appeal, he was not covered within the scope of Order 22 Rule 10. In an appeal preferred by such transferee, this Court upheld the view of the High Court that a transferee prior to the filing of the appeal could not be brought on record in appeal by reference to Order 22 Rule 10 CPC. However, the Court held that an appeal is a proceeding for the purpose of Section 146 and further, the expression claiming under is wide enough to include cases of devolution and assignment mentioned in Order 22 Rule 10. Whoever is entitled to be but has not been brought on record under Order 22 Rule 10 in a pending suit or proceeding would be entitled to prefer an appeal against the decree or order passed therein if his assignor could have filed such an appeal, there being no prohibition against it in the Code. A person having acquired an interest in suit property during the pendency of the suit and seeking to be brought on record at the stage of the appeal can do so by reference to Section 146 CPC which provision being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. Their Lordships held that being a purchaser pendente lite, a person will be bound by the proceedings taken by the successful party in execution of decree and justice requires that such purchaser should be given an opportunity to protect his rights.

(iv) AIR 2005 SC 2209 [Amit Kumar Shaw and another vs. Farida Khatoon and another]; an excerpt from it would run thus:
“16. 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 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, 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-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case.”

(v) 2007(2) CTC 562 [Sanjay Verma v. Manik Roy and others]; an excerpt from it would run thus:
10. Bibi Zubaida Khatoon case1 on which learned counsel for the respondents had placed reliance in fact goes against the stand of the respondents. Though a casual reading of para 9 supports the stand taken by the respondents, it is to be noted that the factual position was entirely different. In fact a cross-suit had been filed in the suit in that case. The respondents being transferees pendente lite without leave of the court cannot as of right seek impleadment in the suit which was in the instant case pending for a very long time. In fact in para 10 of the judgment this Court has held that there is absolutely no rule that the transferee pendente lite without leave of the court should in all cases contest the pending suit. In Sarvinder Singh v. Dalip Singh2 it was observed in para 6 as follows: (SCC pp.541-42, para 6)

6. Section 52 of the Transfer of Property Act envisages that:

During the pendency in any court having authority within the limits of India … 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 the decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.

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 pendens by operation of Section 52. Under these circumstances, the respondents cannot be considered to be either necessary or proper parties to the suit.

11. In Dhurandhar Prasad Singh v. Jai Prakash University it was noted as follows: (SCC pp.541-42, para 7)
7. Under Rule 10 Order 22 of the Code, when there has been a devolution of interest during the pendency of a suit, the suit may, by leave of the court, be continued by or against persons upon whom such interest has devolved and this entitles the person who has acquired an interest in the subject-matter of the litigation by an assignment or creation or devolution of interest pendente lite or suitor or any other person interested, to apply to the court for leave to continue the suit. But it does not follow that it is obligatory upon them to do so. If a party does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the plaintiff on record, and yet, as pointed out by Their Lordships of the Judicial Committee in Moti Lal v. Karrabuldin he will be bound by the result of the litigation even though he is not represented at the hearing unless it is shown that the litigation was not properly conducted by the original party or he colluded with the adversary. It is also plain that if the person who has acquired an interest by devolution, obtains leave to carry on the suit, the suit in his hands is not a new suit, for, as Lord Kingsdown of the Judicial Committee said in Prannath Roy Chowdry v. Rookea Begum, a cause of action is not prolonged by mere transfer of the title. It is the old suit carried on at his instance and he is bound by all proceedings up to the stage when he obtains leave to carry on the proceedings.

(vi) The decision of this Court was reported in 2011(1) LW 727 [V.L.Dhandapani v. Revathy Ramachandran and others]; an excerpt from it would run thus:
“13. In one line of decisions by the Supreme Court, it has been held that the transferee pendente lite has got substantial interest in the subject matter of the case and hence his presence is necessary and so he has to be impleaded as a party. In another set of decisions by the Apex Court cited on behalf of the 6th respondent it has been held that the transferee pendente lite need not be included as a party to the suit in the absence of leave of the Court for transfer of the property during its pendency and that such purchaser can neither be termed as a necessary party nor proper party. In view of the above said position, I deem it fit to refer the matter to a larger bench for deciding the legal issue to be followed by Courts.
14. The issue to be decided:
“Whether the transferee pendente lite is entitled to be impleaded in the suit?”

15. In view of the above, the registry is directed to place the matter before My Lord, the Honourable the Chief Justice for referring the same to a larger Bench for decision.”

13. A mere poring over and perusal of those judgments would unambiguously and unequivocally highlight and spotlight the fact that no doubt a learned single Judge of this Court at one point of time felt that there are two lines of judgments, one to the effect that a pendente lite purchaser is having a right to get impleaded in the suit and contest the matter on merits and another to the effect that a pendente lite purchaser is alien to the proceedings and he is bound by the decision. This case in view of its peculiar factual scenario has not got itself caught in the cross fire of such conflicting views.

14. Here it is quite obvious and axiomatic that the purchasers never filed any application to get themselves impleaded as parties to the proceedings; whereas, admittedly the plaintiffs took steps to implead them; Of course, according to them even though the appellants/defendants had no legs to stand in the legal proceedings in the suit, yet the plaintiffs wanted to avoid future unnecessary litigation and with that motive such impleadment resulted. However, there is nothing on record to indicate and exemplify that the Court while allowing the I.A. for impleadment passed any order to the effect that the appellants/defendants here, were added in the suit only for the limited purpose of naming them as formal parties so as to avoid future litigation. The plaintiffs wrongly assumed as though the course adopted by them, was the line of least resistance, forgetting for the moment that they cannot approbate and reprobate.

15. Adding fuel to the fire, the trial Court with the connivance of the plaintiffs’ so to say without any objection from the plaintiffs, allowed the written statement to be filed by the appellants/defendants and issues and additional issues were framed by it and the matter was posted for trial. My mind is redolent and reminiscent of the following maxim: Consensus Tollit Errorem The acquiescence of a party who might take advantage of an error obviates its effect and the relevant portion from Broom’s Legal Maxims, Tenth Edition is extracted hereunder for ready reference:

“When applied to the proceedings in an action, waiver may be defined to be the doing something after an irregularity committed, and with a knowledge of such irregularity, where the irregularity might have been corrected before the act was done; and it is essential to distinguish a proceeding which is merely irregular from one which is completely defective and void. In that latter case the proceeding is a nullity, which cannot be waived by any laches or subsequent proceedings of the opposite property.

Where, however, an irregularity has been committed, and where the opposite party knows of the irregularity, it is a fixed rule observed by all the Courts in this country, that he should come in the first instance to avail himself of it, and not allow the other party to proceed to incur expense. “It is not reasonable afterwards to allow the party to complain of that irregularity, of which, if he had availed himself in the first instance, all that expense would have been rendered unnecessary” (e); and therefore, if a party, after any such irregularity has taken place, consents to a proceeding which, by insisting on the irregularity, he might have prevented, he waives all exceptions to the irregularity (f). This is a doctrine long established and well known, and extends so far, that a person may be materially affected in a subsequent criminal prosecution by proceedings to the irregularity of which he has, by his silence, waived objection (g).

It may appear in some measure superfluous to add, that the consent which cures error in legal proceedings, may be implied as well as expressed: for instance– where, at the trial of a cause, a proposal was made by the judge in the presence of the counsel on both sides, who made no objection, that the jury should assess the damages contingently, with leave to the plaintiff to move enter a verdict for the amount found by the jury, it was held that both parties were bound by the proposal, and that the plaintiff’s counsel was not therefore at liberty to move for a new trial on the ground of misdirection (h), for qui tacet consentire videtur (i), the silence of counsel implied their assent to the course adopted by the judge, and “a man who does not speak when he ought shall not be heard when he desires to speak”(k)”

Only at the stage of cross examining P.W.1 the plaintiff got awakened and filed the I.A. so as to prevent the defendants from cross examining P.W.1 and for adducing rebuttal evidence by the newly added parties. No doubt there is no estoppel against law. Not to put too fine a point on it, here the method and manner in which the proceedings went on before the trial Court would pellucidly and palpably make the point clear that the appellants/defendants were added in the suit only for the purpose of giving opportunity to them to litigate on merits.

16. The learned Senior Counsel for the plaintiffs by narrating the relevant facts would submit that absolutely there is no merit in the contentions of the appellants/defendants and that they had no personal knowledge about the benami transaction which emerged between Jayarama Reddy and his brother-in-law Chinnamma Reddy. He would also hasten to add that as of now the appellants/defendants are also having no locus standi to proceed with the matter, because they in turn parted with the entire suit property in favour of various other persons; as such they are having no legal or moral stand to proceed with the matter; if the matter is remanded, then that would amount to prolongation of the litigation. He would also submit that in the long longevity of this litigation, the first respondent/plaintiff has actually become an octogenarian and he has been litigating for three generations without reaping any fruits and as such he would oppose the move for remanding the matter back to the trial Court for giving opportunity to the appellants.

17. I would also like to hark back to the decision of the Madurai Bench of this Court rendered by me on 14.12.2006 in S.A.No.518 of 1996; certain excerpts from it would run thus:
“27. At this juncture, I may proceed to lay down as a general rule that whenever a party after effecting transfer pendente lite simply agrees to the claim of the other side without taking the transferee pendente lite into confidence or making adequate provisions to safeguard the interest of such transferee pendente lite, such act should be termed as only a collusive act.
28. The question may arise as to how the other party to the litigation who was not a party to the transfer pendente lite could be imputed with knowledge and ultimately with collusive state of mind. Normal course of occurrences alone is the sole test. The transferor pendente lite invariably does make the transfer with some specific purposes and more specifically as against the opposite side in the litigation and if such a person all of a sudden turns turtle by having a volte fact and submits to the claim of his enemy in the litigative battle that is the opposite party, naturally the role of the opposite party could rightly be inferred in it and ultimately, bringing about a non-adjudicatory judgment.”

18. Even though the facts and circumstances of that case are different from the factual scenario of this case, yet I had the opportunity of referring to the doctrine of lis pendens and also the duty of the seller of the property pendente lite.

19. The factual circumstances in this case would display and demonstrate that the original defendants did not file any written statement and they did not contest the matter; so to say, after initially contesting the injunction application, they left the matter holus bolus. They did not choose to safeguard the interest of the purchasers pendente lite, namely the appellants herein. It is not a case where the vendor’s pendente lite, contested the matter and that the subsequent purchasers pendente lite are trying to improve upon the case of their vendors by filing additional written statement or by adducing more evidence etc. But this is a singularly singular case in which the plaintiffs themselves added the purchasers pendente lite and allowed them to file written statement and whereupon the issues were framed by the trial Court and only thereafter the plaintiffs did choose to file the said I.A. for preventing the appellants/defendants, so to say the purchasers pendente lite from cross-examining P.W.1 and adducing rebuttal evidence.

20. The decisions of the Hon’be Apex Court reported in 2004 (1) CTC 549 [Raj Kumar v. Sardari Lal and others] and AIR 2005 SC 2209 [Amit Kumar Shaw and another vs. Farida Khatoon and another] supra would, in my considered view, come to the rescue of the appellants herein. The said decisions would unambiguously and unequivocally highlight and spotlight that such purchasers pendente lite are having a right to contest the matter on merits even after getting the ex parte decree and judgment set aside as against their vendor. In fact here the plaintiffs themselves paved the way for the purchasers pendente lite to contest the matter on merits and in such a case I am of the considered view that the decision cited on the side of the plaintiffs would not in any way prevent the appellants/defendants from contesting the matter on merits. The trial Court went off on a tangent and decided the lis, without referring to all the relevant precedents and the factual circumstances; and it simply prevented the defendants from contesting the matter on merits. There is no quick fix and also there are no two ways about it, in disposing the matter without adhering to the maxim “audi alteram partem No man shall be condemned unheard.” No doubt, I am fully aware of the fact that this is a long pending matter and in such a case if the matter is remitted back to the trial Court, it would take further time for the litigation to get concluded. The first appellate Court being the last Court of facts, on considering the facts and circumstances of the case could have given opportunity to cross examine the plaintiffs’ witness and also could have given opportunity to the defendants concerned to adduce evidence, but it failed to do so. Hence, remanding the matter to the first appellate Court which happened to be the last Court of facts would to some extent curtail further time of the litigation and with that intention I would like remand the matter back to the first appellate Court with the following direction:

The first appellate Court shall give due opportunity to the appellants/defendants to cross examine P.W.1 and also give further opportunity to the plaintiffs to adduce additional evidence both oral and documentary, if any. The defendants also shall be given opportunity to adduce oral and documentary evidence. Endeavour shall be taken by the appellate Court to see that the entire process is completed on day to day basis and judgment delivered on merits within a period of two months from the date of receipt of the records.

21. Both parties shall appear before the first appellate Court on 27.06.2011.

22. Wherefore, the substantial question of law is answered to the effect that both the Courts below were not justified in preventing the appellants/defendants from participating in the proceedings and contesting the matter on merits and accordingly the Second Appeal is allowed setting aside the judgments and decrees of both the Courts below and the matter is remitted back to the first appellate Court as set out supra. No costs. Consequently, connected miscellaneous petition is closed.

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