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2014 DIGILAW 145 (UTT)

Abdul Sattar v. Sunil Pundeer

2014-03-31

ALOK SINGH

body2014
Judgment : 1. Present petition is filed challenging the judgment and order dated 9.9.2013 passed by the Civil Judge (J.D.), Vikas Nagar Dehradun in Misc. Case No. 24 of 2013 as well as judgment and order dated 13.11.2013 passed by the learned District Judge, Dehradun in Civil Revision No. 169 of 2013. 2. Brief facts of the present case, inter alia, are that Janardan/respondent no. 3, herein, was the earlier owner in possession of the property in question. Janardan/respondent no. 3, herein, allegedly executed an agreement to sell in favour of Abdul Sattar pertaining to the property in question. As per the agreement dated 17.1.1996, last date to execute sale deed in favour of Abdul Sattar was 16.12.1996. Janardan/respondent no. 3, herein, after the last date to execute sale deed i.e. 16.12.1996, on 27.12.1996 executed one sale deed in favour of Randhir Chaddha. Abdul Sattar/Petitioner, herein, thereafter filed suit for specific performance on 30.5.1997 against Janardan only. It is important to mention herein that on 30.5.1997, when suit for specific performance was filed by Abdul Sattar against Janardan, Janardan was not the owner of the property in question since he had already created third party interest in favour of Randhir Chaddha on 27.12.1996 i.e. prior to filing of the suit for specific performance, however, for the reasons best known to Abdul Sattar, Randhir Chaddha was not impleaded as party defendant in as suit for specific performance being O.S. No. 313 of 1997. Since Janardan was having absolutely no interest in the property in question in view of the fact that he had already sold the property in favour of Randhir Chaddha on 27.12.1996, therefore, Janardan opted not to contest the suit for specific performance i.e. O.S. No. 313 of 1997. Meanwhile, Randhir Chaddha, a purchaser from Janardhan, sold the property in question in favour of Sunil Pundeer on 2.11.2004. Suit for specific performance was decreed against Janardan ex parte on 6.3.2010. Pursuant to the ex parte decree, a sale deed was executed by the court on behalf of Janardan in favour of Abdul Sattar on 13.10.2011. Sunil Pundeer having come to know about ex parte decree and ex parte execution, filed an application under Order 9 Rule 13 CPC for setting aside the ex parte judgment and decree dated 6.3.2010. Pursuant to the ex parte decree, a sale deed was executed by the court on behalf of Janardan in favour of Abdul Sattar on 13.10.2011. Sunil Pundeer having come to know about ex parte decree and ex parte execution, filed an application under Order 9 Rule 13 CPC for setting aside the ex parte judgment and decree dated 6.3.2010. It was specifically stated in the application for setting aside ex parte decree that since Janardan was not the owner on the date of filing of the suit for specific performance dated 30.5.1997, in view of the fact that Janardan had already sold the property in favour of Randhir Chaddha on 27.12.1996, therefore, neither Randhir Chaddha had any knowledge about filing and pendency of the suit nor purchaser from Randhir Chaddha i.e. Sunil Pundeer had any occasion to acquire knowledge about the pendency of the suit or ex parte decree passed therein. It was further stated that since Janardan was not having any title or interest in the property in question on the date of filing of the suit for specific performance, therefore, Janardan opted not to contest the suit and had allowed the suit to be decreed ex parte and by the ex parte decree the only aggrieved person is Sunil Pundeer, who had purchased the property from Randhir Chaddha. Learned Trial Court as well as the learned Revisional Court were pleased to set aside the ex parte decree dated 6.3.2010. Feeling aggrieved, Abdul Sattar/original plaintiff has filed the present writ petition invoking Article 226/227 of the Constitution of India. 3. Sunil Pundeer moved an application under Section 144 of CPC for restitution of the possession in view of setting aside of the ex parte judgment and decree. One more development took place. The original plaintiff Abdul Sattar transferred the suit property in favour of Gaurav Singh after the ex parte decree and thereafter Gaurav Singh filed suit for injunction against Sunil Pundeer, wherein application seeking ad interim injunction was rejected. Feeling aggrieved, Gaurav Singh has preferred Appeal from Order No. 78 of 2014. 4. Since present petition and appeal from order are interconnected and decision in the present petition shall affect the merit of the appeal, therefore, with the consent of learned counsel for the parties, present petition and appeal from order are taken up together for hearing and are being disposed of by this common judgment. 5. 4. Since present petition and appeal from order are interconnected and decision in the present petition shall affect the merit of the appeal, therefore, with the consent of learned counsel for the parties, present petition and appeal from order are taken up together for hearing and are being disposed of by this common judgment. 5. I have heard Mr. Arvind Vashisth and Mr. Rajat Mittal, learned counsel for the petitioner/original plaintiff as well as for the appellant and Mr. Neeraj Garg, learned counsel appearing for respondent nos. 1 and 2. 6. Undisputedly, Janardan, the original owner of the property, executed sale deed of the suit property in favour of Randhir Chaddha on 27.12.1996 while suit for specific performance was filed by Abdul Sattar against Mr. Janardan on 30.5.1997 without impleading Randhir Chaddha as party defendant. Since Randhir Chaddha was not party defendant in suit for specific performance being O.S. No. 313 of 1997, therefore, question of application of lis pendence against Randhir Chaddha does not arise at all. In view of the fact that Randhir Chaddha had purchased the property in question prior to the filing of suit for specific performance, therefore, Ranvir Chaddha subsequent purchaser was most necessary party and ought to have been impleaded as one of the party defendant, in my considered opinion suit was bad for non joinder of necessary and proper party i.e. Randhir Chaddha in view of proviso of Order 1 Rule 9 C.P.C. wherein he could have raised plea of bona fide purchaser. 7. Since property in question was purchased by Sunil Pundeer from Randhir Chaddha, who was not party in suit for specific performance, therefore, Sunil Pundeer had acquired title over the property in question. Moreover, neither Sunil Pundeer nor his predecessor in interest Randhir Chaddha were bound by the ex party decree since both of them were not party in suit for specific performance. In view of the above, if ex parte judgment and decree is allowed to stand, ultimately Sunil Pundeer would suffer, therefore, Sunil Pundeer is aggrieved person, consequently, has every right to move an application under Order 9 Rule 13 CPC for setting aside ex parte judgment and decree to avoid any cloud on his title. 8. In view of the above discussion, I do not find any error in the impugned judgments allowing the application setting aside ex parte judgment/decree dated 6.3.2010. 9. 8. In view of the above discussion, I do not find any error in the impugned judgments allowing the application setting aside ex parte judgment/decree dated 6.3.2010. 9. Gaurav Singh has allegedly purchased the property from Abdul Sattar on 26.8.2013 and filed another Suit, O.S. No. 67 of 2013 seeking permanent prohibitory injunction against Sunil Pundeer. In view of the facts as narrated hereinbefore, since Janardan was not the owner after 27.12.1996, in any case, on the date suit for specific performance was filed against Janardan, therefore, sale deed executed by the court on behalf of Janardan pursuant to the ex parte decree in favour of Abdul Sattar does not create any title in favour of Abdul Sattar. Consequently, applying the principle none can transfer the title better then he himself had, no title can be said to have been passed in favour of Abdul Sattar or/ and in favour of Gaurav Singh from Abdul Sattar. Therefore, no prima facie case can be said to have arisen in favour of Gaurav Singh. Consequently, appeal from order fails. 10. There is another aspect of the matter. Since application seeking restitution of possession under Section 144 CPC is pending disposal before the learned Trial Court moved on behalf of Sunil Pundeer, in view of this also no prima facie case and balance of convenience can be said in favour of appellant Gaurav Singh. 11. Consequently, writ petition as well as appeal from order are dismissed. However, learned Trial Court is directed to decide the application moved under Section 144 CPC at the earliest, in any case within 60 days from the date copy of this judgment is placed before the learned Trial Court and learned Trial Court is further directed to decide the suit at its own merit in accordance with law, preferably within next six months. 12. Let a copy of this judgment be kept in all the connected matters.