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2013 DIGILAW 599 (KAR)

T. S. Mahadevaiah v. S. V. Nagaraju

2013-05-30

A.N.VENUGOPALA GOWDA

body2013
ORDER A.N. VENUGOPALA GOWDA, J. 1. Respondent No. 1 has filed O.S. No. 2329 of 2002 against respondent no. 2, in the City Civil Court, Bangalore, for passing of a decree for specific performance of an agreement of sale dated 17.12.1998 in respect of the plaint schedule property and for grant of consequential reliefs. For convenience, the parties would be referred to in this order, as per their rank in the suit. 2. It is the case of the plaintiff that the defendant executed an agreement of sale on 17.12.1998, agreeing to sell the suit property for a total sale consideration of Rs. 1,78,000/- and received a sum of Rs. 1,00,000/- on the same day and delivered vacant possession of the suit property in part performance of contract and agreed to complete the sale transaction within a period of three months. Alleging that the defendant did not come forward to complete the sale transaction, two notices were sent on 27.06.2000 and 03.10.2000 demanding compliance and there being no compliance, suit was instituted on 06.04.2002, for granting of the said reliefs. Defendant filed written statement dated 09.09.2005 and has inter alia contended that the plaintiff was not ready and willing to perform his part of contract and that the sale agreement was cancelled and that the suit is not maintainable and it is also barred by limitation. 3. The petitioner herein filed an I.A. No. 4 on 20.02.2007, under Order 1, Rule 10(2) CPC, to permit him to come on record as a necessary party, on the ground that he purchased the suit property from the defendant under a registered sale deed dated 17.12.2006 and that he is a bona fide purchaser for valuable consideration. The plaintiff having filed statement of objections on 22.07.2007 to I.A. No. 4, the Trial Judge passed an order of rejection, by observing that the principle of 'pendente lite' applies to the case, as has been held by the Apex Court in the case of Sanjay Verma vs. Manik Roy, AIR 2007 SC 1332 : 2007 (2) KCCR SN 41 (SC). Assailing the said order, the applicant in I.A. No. 4 has filed this writ petition. 4. Assailing the said order, the applicant in I.A. No. 4 has filed this writ petition. 4. At the stage of preliminary hearing, since learned Counsel for the petitioner relied on the decision of Smt. Saila Bala Dassi vs. Smt. Nirmala Sundari Dassi & another, AIR 1958 SC 394 , a learned Single Judge, in the light of the two judgments of the Hon'ble Supreme Court, referred to above, by an order dated 19.02.2008, referred this, writ petition, in exercise of the power conferred under S.9 of the Karnataka High Court Act, 1961 to the Division Bench. The Division Bench by an order dated 03.04.2008 admitted the writ petition for consideration in detail in the light of the decision in the case of Smt. Saila Bala Dassi (supra). However, on 11.01.2013, the Division Bench ordered thus: "3. We do not think that in the instant case, any issue or question has arisen necessitating a reference to the Division Bench under Section 9 of the Act. It was for the learned Single Judge to have decided on the applicability of the judgments of the Supreme Court rather than referring the matter to the Division Bench. Hence, the reference is returned to the learned Single Judge having the roster to decide the matter in accordance with law." 5. Learned Advocate for the petitioner contended that the impugned order is wholly erroneous and is contrary to the principles governing the provision under Order 1, Rule 10(2) CPC. He submitted that the petitioner was not aware of the alleged sale agreement executed by the defendant in favour of the plaintiff and also the pendency of the suit till the date of filing I.A. 4. He submitted that the petitioner is a bona fide purchaser of the property for valuable consideration and is entitled to contest the suit, else, his right in the suit property will get jeoparadised. Learned Counsel further submitted that the judicial discretion conferred on the Court under Order 1, Rule 10(2) CPC has not been lawfully exercised by the Trial Judge and the impugned order being vitiated, warrants interference and that the petitioner is entitled to relief in view of the statement of law in the case of Smt. Saila Bala Dassi, which decision is by a Larger Bench and is the binding precedent. 6. Per contra, learned Advocate for the 1st respondent contended that there is collusion between the respondent no. 6. Per contra, learned Advocate for the 1st respondent contended that there is collusion between the respondent no. 2 and the petitioner, who is not a bona fide purchaser. He submitted that after filing of the suit, the plaintiff has put up a sign board in the suit property with regard to property being subject matter of litigation and warned the general public and hence, the petitioner cannot claim to be a bona fide purchaser. He submitted the defendant being aware of filing of the suit, would not have alienated the property during the pendency of the suit and that the statement of law in the decision in the case of Sanjay Verma (supra), squarely applies and hence, the Trial Court was justified in rejecting I.A No. 4. 7. Perused the writ record. The point for consideration is, whether the learned Trial Judge is justified in ordering rejection of I.A. No. 4? 8. Apex Court, in the case of A. Nawab John & others vs. V.N. Subramaniyam, (2012) 7 SCC 738 , having noticed the decision in the case of Sanjay Verma (supra) and while considering the scope of S.52 of Transfer of Property Act and the questions (i) whether a 'pendente lite' purchaser is entitled to be impleaded as a party to the suit? (ii) Once impleaded what are all grounds to contest the suit? after referring to the decisions in the cases of (i) Smt. Saila Bala Dassi and (ii) Amit Kumar Shaw and Another vs. Farida Khatoon and Another, (2005) 11 SCC 403 , has held as follows:– "22. The preponderance of opinion of this Court is that a pendente lite purchaser's application for impleadment should normally be allowed or considered liberally". (Emphasis supplied by me) At this stage itself, it has to be stated that the learned Trial Judge has not considered I.A. No. 4 by keeping in view the relevant-factors. I.A. No. 4 was rejected by merely stating that the decision in the case of Sanjay Verma (supra) squarely applies. 9. In the case of Vidur Impex & Traders Private Limited and Others vs. Tosh Apartments Private Limited and Others, (2012) 8 SCC 384 , Apex Court, after survey of the earlier decisions and finding that though there is apparent conflict made in some of the judgments, has laid down the broad principles which govern disposal of an application filed for impleadment. The principles which have been laid down in the cases relating to grant of specific performance are the following:– "41.5 In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation. 41.6 However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the Court or the application is unduly delayed then the Court will be fully justified in declining the prayer for impleadment." (Italicized by me for emphasis) 10. In the instant case, there is no order of temporary injunction restraining the defendant from alienating the suit property. Sale in favour of the petitioner is not in violation of any restraint order passed by the Court. Further, after filing of the suit, the plaintiff has not even taken out a paper publication with regard to institution of the suit and warning the general public, not to enter into any transaction in respect of suit property with the defendant. Whether the plaintiff has put up sign board in the suit property or not, in the absence of any credible materials, atleast in the form of a counter affidavit of plaintiff or the affidavit/s of the neighbours, the mere say of the plaintiff cannot be accepted. There is no delay and laches on the part of the applicant in filing I.A. No. 4. The applicant's conduct has not been shown to be contumacious. Taking into consideration the said factors, rejection of I.A. No. 4 is illegal. The Trial Court has not gone into the question as to whether the petitioner is a bona fide purchaser for value or whether he had sufficient notice or knowledge of the agreement of sale dated 17.12.1998 between the plaintiff and the defendant and the filing and pendency of the suit, prior to the sale of property on 17.12.2006. A decree for specific performance can be enforced against any person claiming under the vendor-defendant, subsequent to the suit transaction. In the circumstances of the case, the petitioner being a necessary and proper party to the suit, I.A. No. 4 ought to have been allowed. The impugned order being perverse is unsustainable. A decree for specific performance can be enforced against any person claiming under the vendor-defendant, subsequent to the suit transaction. In the circumstances of the case, the petitioner being a necessary and proper party to the suit, I.A. No. 4 ought to have been allowed. The impugned order being perverse is unsustainable. In the result, the writ petition is allowed and the impugned order is quashed. I.A. No. 4 filed in the suit is hereby allowed. Consequently, the petitioner be impleaded as defendant no. 2 in the suit within six weeks period. The petitioner shall pursue the defence as put forth in the written statement dated 09.09.2005 filed by the original defendant. The Trial Court is directed to decide the suit with expedition and before the closure of Courts for Summer Vacation 2014. No costs.