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2009 DIGILAW 490 (PNJ)

Anuraj v. Sheel Buildcon Private Ltd.

2009-03-17

S.D.ANAND

body2009
Judgment S.D.Anand, J. 1. This order shall dispose of Civil Revisions (No. 3561 of 2008 filed by the petitioner-plaintiff against the order dated 14. 5.2008 vide which a plea filed by the defendant-respondent no.1 under Order 9 Rule 13 came to be granted by the learned Trial Court and No. 3560 of 2008 against the order dated 14.5.2008 vide which the learned Trial Court allowed a plea filed by M/s Buzz Hotels Private Limited (hereinafter referred to as 169 >the subsequent vendee 170 >) under Order 1 Rule 10, Order 22 Rule 10, Order 9 Rule 13 read with Sections 146 and 151 C.P.C.for its impleadment as a party). 2. I shall first proceed to deal with the Civil Revision No. 3561 of 2008. 3. The grievance of the petitioner, in the petition before this Court, is that the impugned order dated 14.5.2008 passed by the learned Trial Court invalidly allowed a plea under Order 9 Rule 13 C.P.C. filed by the defendant-respondent No.1. 4. The plaintiff-petitioner filed a suit for possession, by way of specific performance, of the land under reference on the plea that defendant-respondent no.2 had agreed to sell that land to him, vide agreement dated 24.6.2004 and, in terms thereof, sale deed was to be executed by or on 25.3.2005. However, before that date could approach, defendant no.2 sold that very land to defendant-respondent no.1, vide sale deed dated 8.12.2004, for a fictitious consideration. Both the defendantsrespondents had been proceeded exparte in the suit which came to be decreed, vide judgment and decree dated 5.8.2006. On a plea filed by the plaintiff-petitioner, for the execution of the decree, the Court appointed a Local Commissioner who executed sale deed in favour of the former. A mutation on the basis thereof also came to be sanctioned. It was thereafter only that the defendant-respondent no.1 filed a plea under Order 9 Rule 13 C.P.C. to obtain the setting aside of the exparte decree dated 5.8.2006. A mutation on the basis thereof also came to be sanctioned. It was thereafter only that the defendant-respondent no.1 filed a plea under Order 9 Rule 13 C.P.C. to obtain the setting aside of the exparte decree dated 5.8.2006. The plea, raised in the course thereof, was that he was a bonafide purchaser of the land in suit for consideration, that he had not been served for appearance at the trial, that he never evaded service and that effecting of substituted service by means of publication of a court notice in a newspaper was insignificant as that particular newspaper had no circulation in the area where office of the defendant respondent no.1 is located. 5. In an act of resistance, the plaintiff-petitioner raised a plea that the impugned exparte order had been validly granted after defendantrespondent no.1 refrained from entering appearance inspite of the publication of a Court notice in a newspaper as a substituted service. It is also the allegation that defendant-respondent no.1 had, invalidly further sold the land in question to M/s Buzz Hotels Private Ltd. which (act) was in violation of the order dated 1.10.2005 which restrained alienation of the land in question. 6. The learned Trial Court held that no proper notice had been proved to have been served upon the defendant-respondent no.1. In order to draw sustenance for the view aforementioned, it relied upon the fact that the summons had not been properly addressed to the defendant respondent no.1 (In the summons, the name of defendant-respondent No.1 was given as M/s Seil Builders Private Limited. As against it, the correct name of the firm is M/s Sheel Buildcon Private Limited.). The learned counsel for the plaintiff-petitioner argued that the impugned order (qua substituted service) came to be granted on a fanciful conception of facts. In support of the view advocated, the learned counsel invited attention of this Court to the fact that, in the sale deed and also in the mutation proceedings, the firm had been described as and not. The plea raised thereby is that it was illogical for the Process Server to record that the firm did not exist in that premises whereas, infact, that very firm was functioning at that address itself. 7. The plea raised thereby is that it was illogical for the Process Server to record that the firm did not exist in that premises whereas, infact, that very firm was functioning at that address itself. 7. Learned counsel for the defendant-respondent no.1 countered the plea by arguing that, in the absence of a categorical finding by the learned Trial Court that the concerned defendant had evaded service , the effect of substituted service could not have been ordered. In support thereof, the attention of this Court was invited to the fact that the learned Trial Court in the impugned order no where recorded its own satisfaction to the effect that the service upon him could not be effected through ordinary process (order dated 10.5.2005 which was shown at the time of arguments before this Court). 8. It is apparent from the record that the learned Trial Court did not frame an issue on the point of sufficiency or otherwise of the grounds for setting aside of the impugned exparte judgment and decree. There was certainly a controversy between the parties about very relevant factual averments having a bearing on the controversy under consideration. In the context, a reference may be made to controversy about the way the defendant-respondent no.1 was described in the summons by the learned Trial Court. The parties were also not one on the point about when and how exactly defendant-respondent no.1 became cognizant of grant of the exparte decree. It would have been fair for the learned Trial Court to frame an issue on the relevant point and, then, afford an opportunity to the parties to adduce evidence in support of their respective pleas at the trial. The Court ought to have taken into consideration the fact that it did not indeed record the appropriate satisfaction while ordering the effecting of substituted service. One can have serious reservation about the level of circulation of the local newspaper which, though approved by this Court for purpose of publication of Court notices, do surface only when there is a Court notice for being published and, in any case, the circulation figures of such like vernacular newspaper are not very flattering. The things would, however, have been entirely different if the Court notice was published in a National newspaper or a regional newspaper of proven wide circulation in the area concerned. 9. The things would, however, have been entirely different if the Court notice was published in a National newspaper or a regional newspaper of proven wide circulation in the area concerned. 9. In the light of foregoing discussion, the petition shall stand allowed. The impugned order dated 14.5.2008 shall stand set aside. The matter shall be listed before the learned Trial Court on 26.3.2009 whereafter it shall proceed further, in the light of the observations made by this Court, in accordance with law. I shall now proceed to deal with the Civil Revision No. 2560 of 2008. 10. It is apparent from the record that the subsequent vendee purchased the land in suit from the initial vendee vide sale deed dated 13.1.2006 and a mutation came to be sanctioned on the basis thereof. The predecessor-in-interest of subsequent vendee had, in turn, made the purchase of that land from M/s Sheel Buildcom Private Limited, vide registered sale deed dated 16.11.2008 and a mutation had been sanctioned on the basis thereof as well. On point of fact, M/s Sheel Buildcon had, in turn, purchased that land from Dungar son of Lal Singh, vide registered sale deed dated 8.12.2004 and mutation had been sanctioned on the basis thereof. That purchase had been made during the pendency of the suit which had been filed by Anuraj-plaintiff-petitioner against the vendor Dungar for the specific performance of the impugned agreement. That suit came to be decreed exparte, vide judgment and decree dated 5.8.2006. The subsequent vendee filed the allowed plea under Order 1 Rule 10 C.P.C. on an averment that it had purchased the land under reference and had thereby become a party interested in the outcome of the trial. Though the learned Trial Court noticed in the impugned order itself that the subsequent vendee had also filed an independent suit for a declaration that it was a bonafide purchaser (for value of the land) under reference, it allowed the plea under Order 1 Rule 10 CPC as well. 11. The essential grievance of the plaintiff-petitioner is that the learned Trial Court could not have validly allowed the plea under Order 1 Rule 10 C.P.C. in view of the fact that the subsequent vendee, on its own showing, had already filed an independent suit for the above mentioned declaration. 11. The essential grievance of the plaintiff-petitioner is that the learned Trial Court could not have validly allowed the plea under Order 1 Rule 10 C.P.C. in view of the fact that the subsequent vendee, on its own showing, had already filed an independent suit for the above mentioned declaration. It was also argued that the purchase made by subsequent vendee being in violation of the stay order granted by the Court, the subsequent vendee could not claim entitlement to contest the suit and it had to necessarily be governed by the fate of the litigation vis-a-vis its predecessors-in-interest. 12. Learned counsel for the subsequent vendee resisted the plea and argued that a party is entitled to have simultaneous recourse to the various remedies available to it. 13. The petition deserves allowance. Even when more than one recourse is available to a party, the resort can be had to only one remedy at a time. A party cannot have simultaneous resort to all the alternative remedies available to it. In view of the conceded position that the subsequent vendee had already filed a suit for a declaration that it is a bonafide purchaser and for value and without notice it could not have validly applied for the leave of the Court to be impleaded as a party in terms of the provisions of Order 1 Rule 10 C.P.C. etc. It is particularly so when it is apparent from the record that the purchase had been made by the subsequent vendee during the pendency of the litigation and in violation of the stay order granted by the Court restraining alienation of the land in question. 14. The petition shall stand allowed. The impugned order dated 14.5.2008 shall stand set aside. The plea under Order 1 Rule 10 C.P.C. filed by the subsequent vendee shall stand rejected.