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2018 DIGILAW 2675 (JHR)

Subhendu Basu son of late Rati Nath Basu v. Sumitra Singh wife of late Sachidanand Singh

2018-12-06

SHREE CHANDRASHEKHAR

body2018
JUDGMENT : The petitioners have filed an affidavit showing compliance of the order dated 29.10.2018. 2. The petitioners, who are plaintiffs in Title Suit No.64 of 2002, are aggrieved of order dated 16.02.2018 by which the application under Order I Rule 10(2) CPC for impleadment of the respondent nos.7 to 10 has been allowed. 3. Mr. R.R. Tiwary, the learned counsel for the respondent nos.7 to 10 submits that by virtue of the agreement to sale dated 04.10.2010 these respondents have acquired a valuable interest in the suit schedule properties and while so, their presence in the suit is necessary. 4. Title Suit No.64 of 2002 has been instituted for specific performance of the agreement to sale dated 10.09.2001 and for a decree directing the defendants to execute a sale-deed in favour of the plaintiffs in respect of the suit land. During pendency of the suit, the plaintiffs filed an application under Order XXXIX Rule 1 and 2 CPC in which an interim order was passed on 07.05.2002. The defendant no.2 filed his written-statement on 16.01.2004 and on 28.07.2011 an application under Order I Rule 10(2) CPC was filed for impleadment of the present respondent nos.7 to 10; it was pressed on 11.01.2018 and both sides were heard on 20.01.2018. This application has been allowed by the impugned order dated 16.02.2018. 5. It is pleaded that the respondent nos. 7 to 10 have instituted Title Suit No.36 of 2011 for specific performance of the agreement to sale dated 04.10.2010. In this suit the present petitioners, who are the plaintiffs in Title Suit No.64 of 2002, have been added as defendants. It is stated that Title Suit No.36 of 2011 is in its final stage. Claiming that they have acquired a valuable right in the suit property by virtue of the agreement to sale dated 04.10.2010, the respondent nos. In this suit the present petitioners, who are the plaintiffs in Title Suit No.64 of 2002, have been added as defendants. It is stated that Title Suit No.36 of 2011 is in its final stage. Claiming that they have acquired a valuable right in the suit property by virtue of the agreement to sale dated 04.10.2010, the respondent nos. 7 to 10 have filed an application in Title Suit No.64 of 2002 for their addition as party-defendants, on the following allegations : “That since, both the plaintiffs and the defendants of the present suit after filing of the said Title Suit No.36/11 by the petitioners, they i.e. plaintiffs Subendu Basu and others plaintiffs on the one hand and the defendants Surjit Singh and others on the other hand, have connived with each other and the petitioners strongly apprehend that the said faul game being played by the plaintiffs and the defendants Surjit Singh and others may their faul game succeed by compromising the present suit as per their choice and convenience and in that case the interest of the petitioners in the suit land, shall be seriously prejudiced ad hence it is desirable and expedient in the interest of justice that the presence of the petitioners in the suit has become necessary and thus to safe guard and protect the legal interest of the petitioners in the said land they are filing the present petition for their needful.” 6. Under Order-I Rule 10(2) CPC the Court may at any stage of the proceeding, either suo-motu or upon an application of a party, struck out the name of any party who has been improperly joined and any person who ought to have been joined may be added in the suit. This power under Order-I Rule 10(2) CPC is grounded on justice, equity and good conscience and therefore the powers under Order-I Rule 10(2) CPC must be exercised to protect the bona-fide litigants and only if the court comes to a conclusion that to enable the court to adjudicate upon and settle all the questions involved in the suit effectually and completely a party needs to be added, the application under Order-I Rule 10(2) CPC can be allowed. In a suit for specific performance of an agreement to sale, the issue involved would be whether the agreement between the parties is valid and whether the defendant has right, title and interest over the property in respect of which the agreement to sale has been executed in favour of the plaintiff. About ten years after execution of the agreement to sale in favour of the petitioners, an agreement to sale was executed on 04.10.2010 by the defendant no.2 in favour of the respondent nos.7 to 10. The subsequent transaction with the respondent nos.7 to 10 by virtue of agreement to sale dated 04.10.2010, thus, would not be a ground to implead these respondents in Title Suit No.64 of 2002. The respondent nos.7 to 10 are strangers to the agreement to sale dated 04.10.2010 and they are not those who can challenge the validity of the agreement to sale dated 10.09.2001 rather, it is the petitioners who can raise a plea on validity of the agreement to sale dated 04.l0.2010 which has been executed in favour of the respondent nos.7 to 10. Therefore, the fact that in Title Suit No.36 of 2011, which has been instituted by these respondents, the plaintiffs of Title Suit No.64 of 2002 have been impleaded as party-defendants cannot be a ground to implead the respondent nos.7 to 10 in the present suit. Whether the respondent nos.7 to 10 are the bona-fide purchasers or not, that they can establish in Title Suit No.36 of 2011, however, on such a claim their impleadment in Title Suit No.64 of 2002 cannot be permitted. 7. Technically, the respondent nos.7 to 10 are the transferee pendente-lite and therefore they cannot claim their impleadment in the suit as a matter of right. In “Marirudraiah & Ors. vs. B. Sarojamma & Ors.” reported in (2009) 12 SCC 710 , a Constitution Bench of the Hon’ble Supreme Court has observed that courts are not supposed to encourage pendente-lite transactions and regularizing their conduct by showing equity in their favour. More than one and half century ago, in “Bellamy vs. Sabine” 1957 [(1857) DeG and J 566: 44 ER p842] it was observed in the context of the doctrine of lis-pendence, thus : “41. …. ‘… that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendentelite were permitted to prevail. …. ‘… that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendentelite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant’s alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceeding.’ ” 8. The application for joinder of a transferee pendente-lite in a suit may be allowed, but then he must prima-facie disclose that he has substantial interest involved in the suit. In “Amit Kumar Shaw & Anr. vs. Farida Khatoon & Anr.” reported in (2005) 11 SCC 403 , it has been held that a transferee pendente-lite cannot claim his addition in the pending suit as of right, though the Court has a discretion to make him a party; he can be added as a proper party only if his interest in the subject-matter of the suit is substantial and not just peripheral [para-16]. By virtue of an agreement to sale, the respondent nos.7 to 10 cannot claim a substantial interest in the suit property; after all it is just an agreement to sale (Section 54 of the Transfer of Property Act). With such a right flowing to them from the agreement to sale dated 04.10.2010, the respondent nos.7 to 10 cannot insist that they are necessary or proper party in Title Suit No.64 of 2002. As regards the allegation of collusion between the plaintiffs and the defendant no.2 in Title Suit No.64 of 2002, all that is required to be indicated that it is just a speculation by the respondent nos.7 to 10 or at best their apprehension. But then, on such speculation or apprehension they cannot be impleaded in the suit [refer, “Razia Begum vs. Sahebzadi Anwar Begum & Ors.” reported in AIR 1958 SC 886 (para 23)], particularly when they have failed to show that their interest in the suit is substantial. Validity of the agreement to sale dated 04.10.2010 executed in their favour is not an issue in Title Suit No.64 of 2002 and the respondent nos.7 to 10 cannot challenge the validity of the agreement to sale dated 10.09.2001. 9. Validity of the agreement to sale dated 04.10.2010 executed in their favour is not an issue in Title Suit No.64 of 2002 and the respondent nos.7 to 10 cannot challenge the validity of the agreement to sale dated 10.09.2001. 9. The trial Judge by a cryptic order, ignoring the aforesaid aspects of the matter, has allowed the application under Order I Rule 10(2) CPC for addition of the respondent nos.7 to 10 in Title Suit No.64 of 2002. Evidently, the trial Judge has committed serious error in law. Viewed thus, it is found that the impugned order dated 16.02.2018 suffers from serious infirmity in law and, accordingly, it is set-aside. 10. The writ petition stands allowed.