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2018 DIGILAW 3194 (MAD)

Lagrave Jayaseeli v. Trinite Modestine (deceased)

2018-09-25

P.T.ASHA

body2018
JUDGMENT : 1. The above Civil Miscellaneous Petitions have been filed to condone the delay of 909 days, to set aside the abatement caused due to the death of the sole appellant, on 13.01.2010 and to bring on record the petitioners as the representatives in interest of the deceased sole appellant Lagrave Jayaseeli. The applications have been filed invoking the provisions of Order XXII Rule 10 C.P.C on the ground that they have purchased portions of the suit property pending the proceedings from the deceased sole appellant. Contentions of the Petitioners: 2. In the affidavit filed in support of the petition, the petitioners would contend that it was only during the 1st week of October 2012, that they had come to know that the above Second Appeal had been dismissed as abated on 29.09.2011. They would also contend that it was only on account of the collusion between the respondents and the deceased appellant that the matter was allowed to be dismissed for default. 3. They would further contend that the deceased appellant had sold the entire suit property to more than hundred persons including the petitioners herein and that they have been in possession of their respective portions ever since 1993. They have also contended that in view of the provisions of Order XXII Rule 10 of the C.P.C, there is a devolution of interest in their favour and they would step into the shoes of the deceased appellant and are therefore entitled to continue the legal proceedings. They would also submit that they were unaware about the proceedings pending before this Court and therefore there was delay in bringing them on record. Objections of the Respondents:- 4. The respondents have filed an elaborate counter affidavit wherein they have raised the following objections to the instant petition:- (a) That the sale in favour of the petitioners by the deceased appellant was in contravention of the statement that she had made to this Court in C.M.P No.7677 of 1990 in SA.No.219 of 1990, which was the original round of litigation prior to the remand. (b) Such a statement had been made despite the fact that in the affidavit which was filed by the respondents for injunction, they had categorically stated that the deceased appellant was forming a layout of house sites in the suit property for selling it to the third parties. (b) Such a statement had been made despite the fact that in the affidavit which was filed by the respondents for injunction, they had categorically stated that the deceased appellant was forming a layout of house sites in the suit property for selling it to the third parties. (c) The deceased plaintiff had issued a public notice way back on 16.04.1990, informing the general public that the property does not belong to the deceased appellant. (d) After the remand when the present Second Appeal was pending, the deceased appellant had taken out an application in C.M.P.No.1338 of 2003 for staying all further proceedings in the suit O.S.No.1324 of 1986 and in the affidavit dated 22.01.2003, she has stated that she is in possession of the property and the respondents were attempting to evict her out. Even at this stage, the deceased appellant had not brought to the notice of the Court the various alienations that she had done contrary to the assurance given by her, in her counter affidavit in C.M.P.No.7677 of 1990 in Second Appeal No.219 of 1990. (e) The petitioners have moved this petition only after the respondents had moved execution proceedings in respect of the suit property though they were aware of the proceeding even on the date of their purchase. (f) The petitioners are owners of only, an extent of 13,800 sq.ft out of a larger extent of 1,84,000 sq.ft. (g) The petitioners were aware of the proceedings even when they purchased the property since the sale deed under which they had purchased the property contained details about the Second Appeal. (h) That despite being aware of the pendency of the Second Appeal no steps whatsoever had been taken by the petitioners to implead themselves in the proceedings earlier. (i) Since the petitioners have only purchased a very small portion of the entire suit property, they cannot seek to be impleaded on the basis that there is devolution of interest in their favour and they have stepped into the shoes of the deceased appellant. 5. (i) Since the petitioners have only purchased a very small portion of the entire suit property, they cannot seek to be impleaded on the basis that there is devolution of interest in their favour and they have stepped into the shoes of the deceased appellant. 5. Before proceeding to extract the submissions on either side and discussing the issue on hand, namely whether the petitioners can step into the shoes of the deceased sole appellant invoking the provisions of Order XXII Rule 10 of C.P.C, when they do not represent the interest in the entire property and when the Application is highly belated nearly 20 years after their purchase, it is necessary to briefly extract the dates and events preceeding the filing of these petitions. Chronology of the Dates and Events:- Sl. No. Dates Events 1. 1967 The plaintiff in the suit O.S.No.355 of 1985 on the file of the Principal Sub Court, Pondicherry, had given a sum of Rs.9,000/- to the deceased appellant, who is none other than his maternal Aunt to purchase an immovable property. 2. 29.06.1967 The deceased appellant entered into a sale agreement for purchasing the suit property for a total sale consideration of Rs.14,000/-, an initial advance of Rs.4,000/- was paid by her on behalf of the deceased plaintiff. 3. 07.04.1969 A sale deed was executed in the name of the plaintiff for a total consideration of Rs.14,000/-. 4. 1970 This sale was challenged in O.S.No.28 of 1970 and the suit was partly decreed by the Trial Court and affirmed in the first appeal but ultimately was dismissed by the Hon'ble High Court in S.A.No.1653 of 1981, thereby affirming the sale in favour of the plaintiff. 5. 02.05.1985 The legal notice was issued by the plaintiff, Trinite Modestine to the deceased appellant to deliver the property as she had started asserting ownership rights over the property. 6. 20.05.1985 The sole appellant sends a reply refuting the claim of the plaintiff. 7. 03.07.1985 O.S.No.355 of 1985 was filed by the plaintiff on the file of the Principal Sub Court, Pondicherry, to declare that he is the absolute owner of the suit property and to direct the appellant to hand over vacant possession of the property. 8. 6. 20.05.1985 The sole appellant sends a reply refuting the claim of the plaintiff. 7. 03.07.1985 O.S.No.355 of 1985 was filed by the plaintiff on the file of the Principal Sub Court, Pondicherry, to declare that he is the absolute owner of the suit property and to direct the appellant to hand over vacant possession of the property. 8. 06.11.1985 The deceased appellant filed a written statement, wherein she admits receipt of Rs.14,000/- from the plaintiff for the purchase but however contending that this sum of Rs.14,000/- was repaid by her through her brother. 9. 1986 The suit was transferred to the 3rd Additional District Munsif, Pondicherry and re-numbered as O.S.No.1324 of 1986. 10. 05.09.1988 O.S.No.1324 of 1986 was dismissed on the ground that the suit is not maintainable in view of the Benami transaction (Prohibition Act). 11. 1989 A.S.No.47 of 1989 was filed by the plaintiff. 12. 30.10.1989 The Appeal was dismissed on the very same ground. 13. 1990 Second Appeal No.219 of 1990 was filed by the plaintiff before this Court and admitted. 14. 19.04.1990 CMP.No.2708 of 1990 filed by the plaintiff to continue the receiver appointed to the suit property was dismissed. 15. 29.06.1990 CMP.No.7677 of 1990 filed by the plaintiff in SA.No.219 of 1990 for an injunction restraining the respondent deceased appellant from alienating the suit property was dismissed on account of the statement made by the deceased appellant that she had no intentions to form layouts and sell the property. 16. 1990 – 1993 The properties have been purchased by the petitioners herein and the sale deed contains a recital to the effect that the Second Appeal had been dismissed in favour of the deceased appellant by this Court on 19.04.1990. This is blatantly wrong since on 19.04.1990 it was only C.M.P.No.2708 of 1990 for continuing the Receiver that had been dismissed. 17. 06.07.2001 Second Appeal No.219 of 1990 was allowed by this Hon’ble Court stating that the Benami Prohibition Act, is only prospective in nature and the case was remanded to the Trial Court for fresh trial on merits. 18. 28.02.2002 The suit is decreed in favour of the plaintiff. 19. 27.09.2002 A.S.No.45 of 2002 filed by the deceased appellant was dismissed. 20. 2003 Second Appeal No.138 of 2003 was filed by the deceased appellant. 21. 18.06.2004 The plaintiff died and legal heirs were brought on record. 22. 13.01.2010 The sole appellant died. 23. 18. 28.02.2002 The suit is decreed in favour of the plaintiff. 19. 27.09.2002 A.S.No.45 of 2002 filed by the deceased appellant was dismissed. 20. 2003 Second Appeal No.138 of 2003 was filed by the deceased appellant. 21. 18.06.2004 The plaintiff died and legal heirs were brought on record. 22. 13.01.2010 The sole appellant died. 23. 12.09.2011 Memo was filed on behalf of the respondents informing the death of the appellant. 24. 29.11.2011 The Second Appeal was dismissed as abated calculating the period for bringing on record the legal representatives of the deceased appellant from the date of the information. 25. 08.10.2012 The impugned applications have been filed. Submissions of the Parties:- 6. Mrs. Chitra Sampath, learned Senior Counsel appearing on behalf of Mr. P. Valliappan, learned counsel for the petitioners would submit that the petitioners are assignees from the deceased appellant and as soon as they became aware of the Second Appeal being dismissed as abated, they have taken steps to move the present application. She further argued that under the provisions of Order XXII Rule 10 of the C.P.C, the petitioners were entitled to continue the suit, since they have to protect their interest in the suit property. She would also contend that the petitioners are not attempting to put forward a new case, but were only intending to continue from where their vendor had left and therefore, no prejudice is going to be caused to the respondents. She would submit the following judgments in support of her case:- - R. Chandrasekar and others Vs. Easwari @ K. Rajeshwari and others reported in [2018 (2) MWN (Civil) 720] - Thomson Press (India) Ltd Vs. Nanak Builders and Investors P. Ltd. And Ors. reported in [ AIR 2013 SC 2389 ] - Sri Jagannath Mahaprabhu Vs. Pravat Chandra Chatterjee and others, reported in [AIR 1992 ORISSA 47]. 7. Mr. G. Masilamani, learned Senior Counsel appearing on behalf of M/s. G.M. Mani Associates, counsel for R4 to R8 would contend that the petitioners cannot be permitted to continue the lis since they are pendente lite purchasers who have purchased the property being fully aware about the pendency of the appeal and were therefore not bonafide purchasers for value. 7. Mr. G. Masilamani, learned Senior Counsel appearing on behalf of M/s. G.M. Mani Associates, counsel for R4 to R8 would contend that the petitioners cannot be permitted to continue the lis since they are pendente lite purchasers who have purchased the property being fully aware about the pendency of the appeal and were therefore not bonafide purchasers for value. The learned Senior Counsel would further argue that even as early as on the date of their sale deed, the petitioners had been put on notice about the Second Appeal as there is a reference to an order dated 19.04.1990 in Second Appeal No.219 of 1990, in and by which the deceased appellant had become the owner of the property. He would contend that if the petitioners were genuine buyers, they would have immediately inspected the records relating to the Second Appeal and confirmed the actual status of the proceedings. He would state that they have colluded with the deceased appellant to purchase the property. This has taken place after the deceased appellant had filed a false counter affidavit in C.M.P.No.7677 of 1990 stating that she did not intend to convert the property into house sites. The sale in favour of the petitioners happened within a few months thereof. This clearly indicates that on the date of the filing of the counter affidavit itself the negotiations for the sale should have been under way. He would also contend that when the stay petition was moved in the present Second Appeal, the deceased appellant in the affidavit dated 22.01.2003, filed in support of the C.M.P.No.1338 of 2003 in Second Appeal No.138 of 2003 has submitted that she was in possession and enjoyment of the entire suit property, totally suppressing the various sales effected by her including those in favour of the petitioners herein. 8. The learned Senior Counsel would further argue that the application is hopelessly delayed and further the petitioners have not chosen to seek leave to continue the Second Appeal as contemplated under the provisions of Order XXII Rule 10 of C.P.C but have sought to be directly impleaded as appellants in the place of the deceased appellant. In support of the submissions, the learned Senior Counsel would rely upon the following judgments:- - Sanjay Verma Vs. Manik Roy and others reported in [2006 (13) SCC 608] - Vidhur Impex & Traders (p) Ltd Vs. In support of the submissions, the learned Senior Counsel would rely upon the following judgments:- - Sanjay Verma Vs. Manik Roy and others reported in [2006 (13) SCC 608] - Vidhur Impex & Traders (p) Ltd Vs. Tosh Apartments (P) Ltd reported in [ 2012 (8) SCC 384 ] Discussion:- 9. Heard both sides and perused the material documents. Before considering the issue on hand, it is necessary to extract the provisions of the Order XXII Rule 10 of C.P.C:- “10. Procedure in case of assignment before final order in suit. – (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. (2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachments to the benefit of sub-rule(1).” 10. A perusal of this provision of law, therefore indicates that any assignment, creation or devolution of an interest in a third party during the pendency of the suit gives a right to such persons on whom this interest has devolved to seek the leave of the court to continue the suit. This is in stark contrast to the provisions of Order I Rule 10. Under the provisions of Order I Rule 10 of C.P.C, the Court can suo moto or on application of either party add or strike of the names of persons either as a plaintiff or defendant who in the opinion of the Court is necessary or unnecessary to enable the Court to effectually and completely adjudicate upon and settle the issues involved in the suit. The contrast between the two provisions is that in an application under Order 1 Rule 10 C.P.C, the Court would strike of or add parties only if the Court is of the opinion that such parties are proper and necessary for the adjudication. Whereas, the provisions of the Order XXII Rule 10 gives the person a right upon a transfer of interest in their favour to seek leave of the Court to continue the provision. Whereas, the provisions of the Order XXII Rule 10 gives the person a right upon a transfer of interest in their favour to seek leave of the Court to continue the provision. However the Courts while considering such applications has to judiciously exercise its jurisdiction taking into account the bonafides of the parties, their conduct and whether the said application is an attempt to legalise a fraudulent transfer. 11. In the instant case, from the chronology of the dates and events narrated above it is quite obvious that the petitioners herein have been aware of the proceedings right from the year 1991 and have deliberately kept away from the proceedings. The transfer in favour of the petitioners smacks of fraud since the deceased appellant had prevailed upon this court not to grant an order of injunction against her by stating on oath that she does not intend to create a layout of house sites or sell the suit property. 12. However from the subsequent events it can be inferred that even when the statement was made to this Court, all arrangements to sell the property had been set in motion. The deceased appellant by subterfuge has ensured that this Court would not pass an order of interim injunction thereby, restraining her from alienating the property. This in hindsight may also have been given to avoid orders of contempt being passed against her at a later point for violating the orders of injunction if an order of injunction had been granted. It appears that on the date when such submission has been made, in reality the deceased appellant had already taken steps to bring in third party interest in the suit property. The petitioners have even as early as in the year 1991 come to know about the earlier Second Appeal and if the purchase is a bonafide one, the petitioners would have found out the actual details of the Second Appeal and could have then itself taken steps to get impleaded in the proceedings. The transfer appears clandestine since neither the deceased appellant nor the purchasers inform the Court that they have purchased the property at any point of time between 1992 to 2012. 13. On the contrary, in the affidavit filed in support of the stay petition in the present Second Appeal i.e., C.M.P.No.1338 of 2003. The transfer appears clandestine since neither the deceased appellant nor the purchasers inform the Court that they have purchased the property at any point of time between 1992 to 2012. 13. On the contrary, in the affidavit filed in support of the stay petition in the present Second Appeal i.e., C.M.P.No.1338 of 2003. The deceased appellant has stated as follows:- “I submit that I am in the possession of the property and the respondent is now trying to evict me out of the property. I submit if the judgment and decree in A.S.No.45 of 2002 is not stayed, I will be put to irreparable loss and hardship.” 14. There appears to be a deliberate attempt to keep the alienations away from the notice of this Court. The petitioners have not contended that they were not aware of the proceedings and that they have all of a sudden come to know of the proceedings. A perusal of the affidavit filed in support of the instant petitions would clearly indicate that they were aware of the pendency of the proceedings. In paragraph No.6 of the affidavit, they would state as follows : “We purchased portions of the suit property, when the suit had been dismissed, prior to the order of remand passed by this Hon'ble Court.” Therefore, the conduct of the petitioners and the deceased appellant appears to be suspect. The above facts are being narrated only to highlight the conduct of the parties, since Order XXII Rule 10 casts a duty upon the Court to consider as to whether the person seeking to get himself or herself impleaded has come to Court with clean hands. Legal Pronouncements:- 15. In the case of Surjit Singh Vs. Harbans Singh reported in A.I.R. 1996 SC 135, the Honourable Supreme Court was called upon to consider the correctness of the order of the Trial Court, Appellate Court and the High Court in allowing an Application filed by an Assignee from one of the parties to the suit for partition to implead him as a party to the proceeding under Order XXII Rule 10 of C.P.C. In that case, a preliminary decree had been passed and there was an interim order of the Trial Court restraining all parties from alienating or otherwise transferring in any manner any part of the property involved in the suit. Despite this restraint order, the Applicant had purchased the property. Despite this restraint order, the Applicant had purchased the property. The Trial Court, the Additional District Judge and the High court allowed the impleadment. However the Honourable Supreme Court upset these orders and refused the impleadment. The basis on which the Honourable Supreme Court had arrived at this decision was that if an alienation in defiance of the restraint orders of the Court were let go it would defeat the ends of justice. 16.1. In the case on hand though there is no interim order there is an affirmation on oath by the deceased appellant that she does not intend to alienate the property by forming house sites and believing this statement made on oath and recording the same, this Court had dismissed the injunction application filed by the deceased Plaintiff. This affidavit was filed in an interlocutory proceeding in S.A.No.219 of 1990 and the sale deed in favour of the petitioners refers to this Second Appeal. 16.2. The judgment in Surjit Singh case was quoted with approval in a subsequent judgment of the Honourable Supreme Court in the case of Thomson Press (India) Ltd Vs. Nanak Builder and Investors Pvt. Ltd. and Ors. reported in A.I.R. 2013 SC 2389 where the Honourable Apex Court observed as follows : “While referring Surjit Singh's case ( AIR 1996 SC 135 ) this court noticed that in that case there was no dispute that the assignors and the assignees had knowledge of the order of injunction passed by the Court. On those facts, this Court held that the deed of assignment was not capable of conveying any right to the assignee and the order of impleadment of the assignees as parties was unsustainable.” However in the Thomson Press Case, the Honourable Supreme Court allowed the impleadment as the suit in question was a suit for Specific Performance and in view of the bar imposed in Section 19(b) of the Specific Relief Act which makes it clear that a suit for specific performance cannot be enforced against a person who is a transferee from the vendor for valuable consideration and without notice of the original contract which is sought to be enforced in the suit. 16.3. The Honourable Supreme Court in yet another of its judgment in the case of Vidhur Impex and Traders Pvt Ltd and Ors. Vs. 16.3. The Honourable Supreme Court in yet another of its judgment in the case of Vidhur Impex and Traders Pvt Ltd and Ors. Vs. Tosh Apartments Pvt. Ltd. reported in 2012 (8) SCC 384 , while dealing with an impleadment application of a pendente lite purchaser in violation of the injunction order in a suit for specific performance, laid down the broad principles governing the disposal of such applications and had explained the expressions “necessary party” and “proper party”. The applicants therein had after about 11 years of the execution of agreement of sale in their favour filed an application under Order I Rule 10(2) of C.P.C to implead themselves as defendants in the suit. They had pleaded that by virtue of the agreements of sale and the sale deeds executed in their favour they have become the absolute owners of the property and pleaded that since they had acquired a right pending the suit they have acquired a right to contest the suit. After analysing the various judgment of the Honourable Supreme Court on this issue, the Bench proceeded to frame broad guidelines for the disposal of Applications for impleadment and finally observed as follows: “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”. Ultimately, the Applications for impleadment were rejected. Unfortunately, the judgment in Vidhur Impex case supra was not brought to the notice of the Division Bench of this Court in the judgement in R. Chandrasekhar and Ors Vs. Easwari @ K. Rajeshwari and Ors. reported in 2018 (2) MWN (Civil) 720. The Bench had however observed that though under the provisions of Order XXII Rule 10 C.P.C, the discretion to allow an Application for continuation of a suit, by or against a party, on who such interest has devolved, vests in the Court, the Court is required to exercise its discretion judiciously. 17. reported in 2018 (2) MWN (Civil) 720. The Bench had however observed that though under the provisions of Order XXII Rule 10 C.P.C, the discretion to allow an Application for continuation of a suit, by or against a party, on who such interest has devolved, vests in the Court, the Court is required to exercise its discretion judiciously. 17. The narration of the chronology of the dates and events in Paragraph No.5 supra the fact that the sale deed in favour of the petitioners executed as early as in the year 1990 and the deceased appellant preventing the Court from passing an order of interim injunction on a false undertaking would clearly prove the petitioners and their vendor are guilty of a contumacious and clandestine conduct which disentitles them to be impleaded in the place of the deceased appellant. If the transaction was a bonafide transaction, the petitioners would not have waited for 22 years to get impleaded. Further, the petitioners are purchasers of only a small extent of the larger extent of the suit property. 18. In the light of the judgments of the Honourable Supreme Court in Surjit Singh's case and Vidhur Impex case, the other judgments cited on the side of the petitioners will not advance their case. In the result, these Civil Miscellaneous Petitions are dismissed.