Friday, September 29, 2023

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MODEL ANSWERTPA

LIS PENDENS

Explain the doctrine of lis pendens.

DOCTRINE OF LIS PENDENS
Sec. 52 embodies the doctrine of lis pendens as expressed in the maxim ut lite pendente nibil innoveteur which means nothing new should be introduced in a pending litigation.

โ€˜Lisโ€™ means an action or a suit, ‘pendens’ means continuing or pending and the doctrine of Lis pendens may be defined as โ€œthe jurisdiction, power or control that courts have during the pendency of an action over the property involved therein”.

  

Where a suit is pending is pending between the two parties with respect to an immovable property and one of the parties thereto sells or otherwise transfers the subject matter of litigation then the transferee will be bound by the result of the suit or proceeding whether or not he had notice of the suit or proceeding. This rule is known as rule of lis pendens. This rule affects the purchaser because the law does not allow litigants to give to others during the proceeding any right to the property in dispute.

For instance, X allows Y to stay in his house. Y without the consent of X sells it to Z. X files a suit against Y for reclaiming the possession and a declaration of title. Soon after the institution of the suit, Y delivers the property to Z. X fails to implicate Z as a party. The suit is decided in Xโ€™s favour but if it is binding on only Y then X would have to file fresh suit against Z.

  

The rule of lis pendens is based on the necessity for final adjudication. It aims at the prevention of multiplicity of suits or proceedings. The object of the rule is to protect one of the parties to the litigation against an act of the other.

In the case of Hardev Singh v. Gurmail Singh, (2007) 2 SCR 141, the Supreme Court observed that Section 52 of the Act does not declare a pendente lite transfer by a party to the suit as void or illegal, but only makes the pendente lite purchaser bound by the decision of the pending litigation.

  

Essentials of doctrine of Lis Pendens
1
.For the purpose of section 52, the pendency of a suit or proceeding begins from the date of presentation of the plaint or institution of the proceedings in a court of competent jurisdiction. A suit instituted in a higher court where it should have been instituted in a lower court is a court having no jurisdiction to try the case.

The pendency continues from the time the plaint is presented to the proper court till it is finally disposed of and complete satisfaction or discharge of the decree is either obtained or has become unobtainable because it is time barred.

In the case of Govinda Pillai Gopala Pillai v. Aiyyappan krishnan AIR 1957 Ker 10, where a suit was incorrectly presented in a wrong court and before its presentation in the proper court, the property is transferred, the doctrine of lis pendens would not be applicable.

2.The suit or proceeding must not be collusive. It must be a genuine proceeding. A collusive suit is a sham or pretentious suit.
In the case of Awadesh Prasad v. Belarani, ILR 33 Pat. 389, the court held that the rule of lis pendens does not apply to a collusive suit or a suit in which the decree is obtained by fraud or collusion.

3.The right to an immovable property must be directly and substantially in issue in the suit or proceedings. For example, a suit for pre-emption where shares has not ascertained, as uit for injunction, a suit on mortgage, asuit for partition etc.
Whereas a suit for rent in respect of an agricultural holding is not a suit in respect of immovable property with the result that if during the pendency of such a suit, the tenant transfers the holding, the doctrine of lis pendens would not apply.

4.There must be a transfer of property in dispute by any party to litigation. Parties to the suit includes the plaintiff and the defendant or their representatives on their demise.
In the case of Nallakumara v. Pappayi AIR 1945 Mad 219, the court held that where a legal representatives of a defendant in a pending suit effects a transfer and is subsequently substituted in a place of the defendant after his death, the doctrine of lis pendens would be applicable.

5.The transfer must affect the rights of the other party. The doctrine of lis pendent is not applicable where the rights of the transferor alone are affected and not of other party to the suit.

  

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