Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 129 (PAT)

Kalawati Devi v. Yoganti Devi

2012-01-23

MUNGESHWAR SAHOO

body2012
ORDER 1. I have already heard the learned counsel Mr. Chandrakant on behalf of the petitioners and the learned counsel Mr. Ranjan Kumar Dubey on behalf of the respondents in both the applications. 2. C.WJ.C. No. 12994 of 2011 has been filed by the plaintiffs petitioners against the order dated 5.8.2010 passed by Sub Judge-5th, Siwan in Title Suit No. 165 of 2008, whereby the court below rejected the petition filed by the plaintiffs for adding subsequent purchaser as defendant No.4 in the suit for specific performance of contract. 3. The other C.W.J.C. No. 13934 of 2011 has been filed against the order dated 29.4.2011 passed by the said court rejecting the review application filed by the petitioners for reviewing the order challenged in C.W.J.C. No. 12994 of 2011. In view of the above facts both the writ applications are heard together in admission matter and disposed of by this common order. The result of the writ application arising out of the original order rejecting the application under Order 1 Rule 10 C.P.C. will govern the result of the subsequent writ application. 4. The plaintiffs petitioners filed Title Suit No. 165 of 2005 for specific performance of contract alleging that the suit property belonged to defendant No.1 who entered into agreement to sell the suit property and pursuant to that agreement the plaintiff has already paid Rs.53,500/- to the defendant No.1. For registration of the sale deed both the plaintiffs and defendants went to Registrar office on 8.8.2000 but on that day deed could not be registered. On the next day the defendant refused to come to Registrar office. The plaintiff filed Compulsory Registration Case No. 1 of 2001 and 2 of 2001 in the court of Registrar who after hearing the parties dismissed the case on 9.4.2001. The appeals were filed which were also dismissed. Thereafter the plaintiffs filed the suit for specific performance of contract. 5. The defendants appeared and filed contesting written statement alleging that there was good relation between the parties earlier. The defendant No.1 was hospitalized for her treatment and during that period the plaintiffs obtained signature of the defendant No.1 on some blank paper and prepared forged agreement to sell. Admittedly, during the pendency of the suit the defendant No.1 sold the land to Babu Lal Manjhi on 19.1.2007. The defendant No.1 was hospitalized for her treatment and during that period the plaintiffs obtained signature of the defendant No.1 on some blank paper and prepared forged agreement to sell. Admittedly, during the pendency of the suit the defendant No.1 sold the land to Babu Lal Manjhi on 19.1.2007. Thereafter the application was filed by the plaintiffs for adding Babu Lal Manjhi as defendant No.4 in the suit. By the impugned order the said prayer has been rejected. 6. The learned counsel for the petitioners submitted that in suit for specific performance of contract the subsequent purchaser is necessary party because by execution of the sale deed by the defendant No.1 the title passed to the subsequent purchaser. If he will not be added as party defendant then even if the suit will be decreed the plaintiff will not be able to recover possession of the properties from subsequent purchaser. The learned counsel relied upon (2005) 6 SCC 733 and also (2010) 7 SCC 417 and submitted that so far specific performance case is concerned the Apex Court has held that the purchasers are necessary party. The learned court below without considering the aforesaid settled principles of law rejected the application. 7. On the other hand, the learned counsel appearing on behalf of the respondents submitted that the transfer in favour of the purchaser will always be subject to the result of the suit and, therefore, the purchasers are not necessary party. The learned court below therefore, rightly rejected the application. The learned counsel relied upon the order dated 29.8.2011 passed by a Bench of this Court in C.W.J.C. No. 19215 of 2010 and submitted that it has been held by this Court that subsequent purchaser cannot be added as party defendant. 8. From perusal of the decision of this court relied upon by the defendant is concerned it appears that in that case the purchasers filed the application for being added as party. The plaintiff was objecting their addition as party. This court found that the plaintiff had not prayed for possession of the property. The plaintiffs have pleaded that they were in possession of the property. In the present case, at our hand the fact is otherwise. The plaintiffs have filed this application for adding subsequent purchaser. In the plaint the plaintiffs have prayed for confirmation and/ or for recovery of possession also. 9. The plaintiffs have pleaded that they were in possession of the property. In the present case, at our hand the fact is otherwise. The plaintiffs have filed this application for adding subsequent purchaser. In the plaint the plaintiffs have prayed for confirmation and/ or for recovery of possession also. 9. In the case of Kasturi vs. Iyyamperumal and others (2005) 6 SCC 733 the Apex Court considered the scope addition of party in a suit for specific performance of contract and decided a question as to who is necessary party in suit for specific performance of contract. At paragraph 7, 8, 9, 10 it has been held as follows : “7. In our view, a bare reading of this provision, namely, second part of Order 1 Rule 10 sub rule (2) C.P.C. would clearly show that the necessary parties in a suit for specific performance of a contract for sale are the parties to the contract or if they are dead, their legal representatives as also a person who had purchased the contracted property from the vendor. In equity as well as in law, the contract constitutes rights and also regulate the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with or without notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are- (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party. 8. We may look to this problem from another angle. Section 19 of the Specific Relief Act provides relief against parties and persons claiming under them by subsequent title. Except as otherwise provided by Chapter II, specific performance of a contract may be enforced against : “19. 8. We may look to this problem from another angle. Section 19 of the Specific Relief Act provides relief against parties and persons claiming under them by subsequent title. Except as otherwise provided by Chapter II, specific performance of a contract may be enforced against : “19. (a) either party thereto; (b) any other person claiming him by a title arising subsequently to the contract, except a transferee for value of who has paid his money in good faith and without notice of the original contract; (c) any person claiming under a tile which, through prior to the contract and know to the plaintiff, might have been displayed by the defendant, (d) when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation; (e) when the promoters of a company have, before its incorporation, entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation, the company : Provided that the company has accepted the contract and communicated such acceptance of the other party to the contract.” 9. We have carefully considered sub-sections (a) to (e) of Section 19 of the Act. From a careful examination of the aforesaid provisions of clauses (a) to (e) of the Specific Relief Act we are of the view that the persons seeking addition in the suit for specific performance of the contract for sale who were not claiming under the vendor but they were claiming adverse to the title of the vendor do not fall in any of the categories enumerated in sub-sections (a) to (e) of Section 19 of the Specific Relief Act. 10. That apart, from a plain reading of Section 19 of the Act we are also of the view that this Section is exhaustive on the question as to who are the parties against whom a contract for specific performance may be enforced.” 10. In view of the provisions as contained in section 19(b) of the Specific Relief Act the subsequent transferee is a necessary party as this question that whether the subsequent transferee purchased the property for value and paid the money in good faith and without notice of the original contract is to be decided in his presence. 11. In view of the provisions as contained in section 19(b) of the Specific Relief Act the subsequent transferee is a necessary party as this question that whether the subsequent transferee purchased the property for value and paid the money in good faith and without notice of the original contract is to be decided in his presence. 11. In the case of Mumbai International Airport Pvt. Ltd. vs. Regency Convention Centre and Hotels Pvt. Ltd. and others (2010) 7 SCC 417 the Apex Court considered the earlier decision of the Apex Court and at paragraph 19 referring to the aforesaid decision i.e. (2005) 6 SCC 733 held that the parties to contract which is sought to be enforced or their legal representatives and a transferee of the property which is the subject matter of the contract are necessary parties in suit for specific performance of contract. At paragraph 24.1 the Apex Court in this decision held as follows : “24.1. If a plaintiff makes an application for impleadment a person as a defendant on the ground that he is a necessary party, the court may implead him having regard to the provisions of Rules 9 and 10(2) and Order 1. If the claim against such a person is barred by limitation, it may refuse to add him as a party and even dismiss the suit for non-joinder of a necessary party.” 12. The Apex Court in the case of Kasturi (supra) rejected the application filed by the interveners for being added as party. The fact of that case was different. In that case before the Apex Court the interveners were not the purchaser. They were claiming independent adverse title to the vendor. Here in the present case at our hand, this is not the position. The ratio decedendi settled by the Apex Court in the case of Kasturi (Supra) is that a transferee pendent lite is a necessary party in a suit for specific performance of contract. This decision has again been upheld by the Apex Court in the case of Mumbai International (supra). Here the other aspect of the matter is that the plaintiff is praying for addition of purchaser as party defendant on the ground that the purchasers are necessary party. The learned counsel based his claim on the basis of the aforesaid decisions of the Apex Court. Here the other aspect of the matter is that the plaintiff is praying for addition of purchaser as party defendant on the ground that the purchasers are necessary party. The learned counsel based his claim on the basis of the aforesaid decisions of the Apex Court. It is admitted that the petitioner has sold the properties to the purchaser. I do not understand as to why the defendant is objecting to the addition of the subsequent purchaser as necessary party. It is for the purchaser to have objected. In view of the Apex Court a purchaser is a necessary party. Therefore, the party cannot be added and deleted at the instance of a party defendant. The plaintiff is dominus litis. In such circumstances when it has already been settled by the Apex Court that the purchaser is necessary party in suit for specific performance of contract the learned court below could not have rejected the application of the plaintiff. In my opinion, therefore, the learned court below has not exercised a jurisdiction vested in it by law and thereby occasioned failure of justice. In my opinion, therefore, the impugned order suffers from jurisdictional error and therefore it is liable to be set aside. 13. In the result, these writ applications are allowed. The impugned orders passed in both the applications are set aside. The application filed by the petitioners for impleading the subsequent purchaser as defendant No.4 is allowed.