Case Summary
| Citation | Dalip Kaur v. Jeewan RamAIR 1996 P & H 158 |
| Keywords | sec 52 tpa, lis pendens, property |
| Facts | Lachhman had filed a suit for possession by way of pre-emption of a land that was sold to respondent. The lower court granted a decree for pre-emption and in pursuance of it, he took the possession of the property. An appeal filed by the opposite party in the High Court was dismissed. Lachhman second appeal was filed to the Supreme Court, which was again dismissed. Thereafter, he filed a special leave petition under 136 of the Constitution of India. Not only was the leave was granted, but the appeal was also accepted by the Supreme Court. During this period, Lachhman sold the property to appellant, who raised an objection that a decree of restitution could not be invoked against him. |
| Issues | Whether the proceedings in a civil appeal before the Supreme Court in pursuance of the grant of special leave under 136 of the Constitution of India are a continuation of proceedings in the original suit, and if the principle of lis pendens applies to such proceedings? |
| Contentions | |
| Law Points | It is held that proceedings before the Supreme Court are a continuation of those in the original suit and that the principle of lis pendens as well as restitution shall apply to the proceedings. The mere fact that the leave to appeal has to be obtained under the Constitution does not mean that the doctrine of lis pendens would not apply or that the decree holder shall not be entitled to the restoration of possession. The court held that as the matter was decided in favour of the other party by the Supreme Court; they were entitled to a decree of restitution of possession and a sale pending disposal of the case before the Supreme Court was definitely hit by the rule of lis pendens. |
| Judgement | Appeal dismissed by helding that this case is hit by lis pendens. |
| Ratio Decidendi & Case Authority |
Full Case Details
JAWAHAR LAL GUPTA J. – Are the proceedings in a civil appeal before the Supreme Court in
pursuance to the grant of special leave under Art. 136 of the Constitution of India not a continuation
of the proceedings in the original suit and is the principle of lis pendens not applicable to such
proceedings? This is the short question that arises in this second appeal.
3. Lachhman respondent No. 24 filed a suit for possession by way of pre-emption of the land
measuring 9 kanals 9 Marlas which had been sold to respondents 1 to 5 (original vendees). A part of
this land had been sold by respondents 1 to 5 to respondents 6 to 21. The suit for possession by preemption was decreed by the trial Court on August 22, 1983. In pursuance to this decree, Lachhman
took possession of the suit land on October 6, 1983. The appeal filed by respondents 1 to 5 was
dismissed by the learned District Judge on March 18, 1985. The second appeal to this Court was
dismissed on September 26, 1985. Thereafter, respondents 1 to 5 filed a special leave petition under
Art. 136 of the Constitution of India. Leave was granted. The appeal of respondents 1 to 5 was
accepted vide order, dated October 5, 1989. Accordingly, the suit filed by Lachhman was dismissed.
Thereafter, the original vendees and respondents 6 to 21 filed an application under S. 144, Code of
Civil Procedure for restitution of possession.
4. The appellants along with respondents 22 and 23 filed objections alleging that they had
purchased the suit land from Lachhman. Being bonafide purchasers for consideration, the petition
under S. 144 of the Code was not competent. Respondents 1 to 21 filed reply to the objections and
pleaded that the matter was governed by the principle of lis pendens. The learned trial Court framed
the following issues:
1) Whether the objections are maintainable as alleged in the objection petition? OPP
2) Relief.
5. Vide Judgment dated February 23, 1994, the learned trial Court rejected the objections. On
appeal the order of the trial Court having been affirmed, the objectors have filed the present second
appeal.
6. The sole contention raised by Mr. J.R. Mittal, learned counsel for the appellants is that the
principle of lis pendens does not apply to the proceedings in the appeal before their Lordships of the
Supreme Court. He has placed firm reliance on the decision of this Court in Mewa Singh v. Jagir
Singh [AIR 1971 P & H 244]. The claim made on behalf of the appellants has been controverted by
the learned counsel for respondents 1 to 21.
7. Firstly, it deserves notice that the Supreme Court is at the head of the ‘pyramid’ of the judicial
system in this country. It exercises original and appellate jurisdiction. It has the power to pass such
decree or make such order as is necessary for doing complete justice in any cause or matter – and any
decree so passed or order so made shall be enforceable throughout the territory of India. The law
declared by the Supreme Court is binding on all Courts within the territory of India. Under Art. 136 of
the Constitution of India, the Supreme Court has the discretion to grant special leave to appeal from
any judgment, decree, determination, sentence or order in any cause or matter passed or made by any
Court or Tribunal” in the territory of India. Their Lordships can even interfere with an interlocutory
order. The powers conferred on the Court under the Constitution are very wide. This power has been
invoked and exercised not only in case where substantial questions of law are involved but even in
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those where the High Court has come to a wrong conclusion from the evidence. The court has
interfered with the orders passed by the High Court in Second Appeals or Revision Petitions. In the
present case, the decree which had been passed by the trial court and affirmed by the lower appellate
Court as well as this Court in Second Appeal, was reversed by their Lordships. The decree having
been reversed, the parties were clearly entitled to restitution of possession. The mere fact that the
present appellants were not a party before the Supreme Court, is of no consequence as their interests
were duly represented by their vendor who was admittedly a party. Still further, there appears to be no
warrant for the view that the proceedings are not a continuation of the original suit. The mere fact that
the leave to appeal has to be obtained under the Constitution does not mean that the doctrine of lis
pendens would not apply or that the decree holder shall not be entitled to the restoration of possession.
8. As for decision in Mewa Singh case [AIR 1971 P & H 244], it deserves mention that in this
case the dispute was not decided on merits but in terms of the compromise arrived at between the
parties. It was further found that the appellants had recognised the fact “that they were not entitled to
get back the possession of that land from Purshottam Das Rattan as he was not a party to the appeal
and in his absence it could not be held that the gift in his favour was fictitious… For these reasons, the
appellants cannot now seek the assistance of the Court to get possession of 30 Bighas of land from
“Purshottam Das Rattan”. It is no doubt true that his Lordship was pleased to observe that Article 136
of the Constitution is an extraordinary remedy and is not in the ordinary line of appeal. However, it
was also observed that “there is no doubt that the transferee during the pendency of a suit or other
proceedings is bound by the result thereof but that principle cannot be made applicable to the facts of
this case in view of the insertion of Clause (iv) in paragraph 10 of the petition of compromise and then
its deletion, which were conscious acts and amounted to not disturbing the rights of Purshottam Das
Rattan. It was, thus, clearly a case on its own facts. However, the principle that the transferee during
the pendency of the proceedings is bound by the result was recognised. This is precisely what has
happened in the present case.
9. In view of the above, the question posed at the outset is answered in the negative. It is held that
proceedings before the Supreme Court are a continuation of those in the original suit and that the
principle of lis pendens as well as restitution shall apply to the proceedings. Accordingly, it is held
that there is no merit in this appeal. It is dismissed.
