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1993 DIGILAW 67 (ORI)

MEERA MOHANTY v. GURUPRASAD MOHANTY

1993-02-26

A.K.PADHI

body1993
JUDGMENT : A.K. Padhi, J. - Defendant No. 1 is the Petitioner. The civil revision arises out of a suit for specific performance of contract. 2. In the plaint it has been averred that the Plaintiff had entered into an agreement with Defendant No. 1 and in pursuance of the contract possession had been delivered. As Defendant No. 1 entered into the disputed properties and started construction, there was a proceeding u/s 114, Code of Criminal Procedure which necessitated filing of the suit. The Plaintiff has filed the suit for specific performance of contract and for permanent injunction. 3. During pendency of the suit an application under Order 1 Rule 10 read with Order 6 Rule 17 of the CPC was filed by Plaintiff. In the said application it was averred that subsequent to the agreement for sale Defendant No. 1 had executed seven sale deeds in favour of seven persons on 11.4.1989. As the said persons were subsequent purchasers to the agreement for sale in between the Plaintiff and Defendant No. 1, for the proper and complete adjudication in the suit, the Plaintiff prayed for impleading the purchasers as Defendants and also sought to amend the averments in the plaint and in the prayer. 4. Defendants 1 and 2 filed their objection to the prayer for amendment and addition of parties. It was submitted that if the amendment is allowed, then the nature and scope of the suit shall be enlarged and the subsequent purchasers who could have been impleaded as parties at the time of filing of the suit having not been so impleaded, the court should not allow such amendment. 5. Learned trial court after relying on several decisions of this Court and considering the rival contentions, came to the conclusion that the proposed amendments shall not change the nature and character of the suit. According to the learned trial court, since the proposed Defendants are necessary parties to the suit, they should be added as parties and the proposed amendment ought to be allowed. 6. Learned Counsel for the Petitioner submits that the scope of the original suit, being only for specific performance of contract, was confined to the Plaintiff and Defendant No. 1 who had entered into an agreement with the Plaintiff. By impleading the subsequent purchasers as Defendants 5 to 11 scope of the suit will be enlarged. 6. Learned Counsel for the Petitioner submits that the scope of the original suit, being only for specific performance of contract, was confined to the Plaintiff and Defendant No. 1 who had entered into an agreement with the Plaintiff. By impleading the subsequent purchasers as Defendants 5 to 11 scope of the suit will be enlarged. Subsequent purchasers, being third parties to he agreement between the Plaintiff and Defendant No. 1, should not be allowed to be impleaded and for such contention reliance has been placed to the case of Sadhu Behera and Others Vs. Krishna Chandra Sutar and Another, . Learned counsel for the opp. parties on the other hand contends that the Defendants were sought to be added as necessary parties as they are subsequent purchasers after the agreement for sale was entered into between the Plaintiff and Defendant No. 1, but prior to the filing of the suit. In their absence the suit cannot be finally adjudicated and for this submission reliance is placed on the case of Sri Endowment Trustee Board through the Executive Officer v. Pravat Chandra Chaterjee and Ors. AIR 1991 Mad 209 . In Sri Jagannath Mahaprabhu's case, which is a Full Bench decision, Justice Patnaik (as he then was) speaking for the court has opined that even if a lis pendents transfer is not a necessary party and the Plaintiff can ignore the transfer even if he was notice thereof and a decree or order obtained by him would be binding on the lis pendents transferee, when a motion is made by in Vimala Ammal's case (supra), his Lordship has opined that in a suit for specific performance of sale agreement the subsequent purchaser of the property is a necessary party and unless he is impleaded, the decree cannot be executed against him. Thus, valid title to the suit property would remain with the subsequent purchaser and he cannot be dispossessed pursuant to the said decree. 7. Thus, valid title to the suit property would remain with the subsequent purchaser and he cannot be dispossessed pursuant to the said decree. 7. In the case of Sadhu Behera (supra), the Defendant had filed an application for addition of parties under Order 1, Rule 10, Code of Civil Procedure, to which the Plaintiff is the dominus litis of the suit he has filed and he cannot be forced to add parties against whom he does not want to fight unless it is a compulsion of the rule of law though the right of the Plaintiff is not absolute in all circumstances and is subject to the court's discretion vested under Order 1, Rule 10, Code of Civil Procedure 8. In this case the sale deeds were executed on 11-4-1989 which was after the agreement of sale and before the suit was filed. Therefore, there purchasers are not lis pendens purchasers. Unless the purchasers are not made parties, then there cannot be adjudication in between them and the Plaintiff and the possession cannot be recovered. In that view of the matter, for proper adjudication of all controversies between the parties and to prevent multiplicity of the suit, the transferres of Defendant No. 1 after the agreement was executed should be added as parties. The amendment sought for does not change the nature of the suit. In that view of the matter, I do not find any infirmity in the impugned order. In the result, the Civil Revision is dismissed. In the circumstances of the case, there shall be no order as to costs. Final Result : Dismissed