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Madhya Pradesh High Court · body

2020 DIGILAW 669 (MP)

Dharmendra Raghuwanshi v. Radha Goyal

2020-06-05

VANDANA KASREKAR

body2020
ORDER : 1. The petitioner has filed the present petition under Article 227 of the Constitution of India challenging the order dated 30/09/2019(Annexure-P/1), passed by the 1st Additional Judge to the Court of 1st Civil Judge, Class-I, Dhar In Civil Suit No.59-A/2018 thereby, rejecting the application preferred by the petitioner under Order 1 Rule 10 of Civil Procedure Code. 2. Brief facts of the case are that the respondent Nos.1 and 2 /plaintiffs have filed a civil suit against the respondent No.3(defendant no.1) for specific performance of contract and incidental relief in respect of the suit land bearing Survey No.471/1/2 area 0.565 hectare situated at Village Dedla, Tehsil and District Dhar. 3. The aforesaid suit has been filed on 14/05/2018 for specific performance of an alleged agreement dated 15/09/2016. During the pendency of the aforesaid suit, the respondent No.3 executed a registered sale deed dated 8/07/2019 in favour of the petitioner herein in respect of the suit land on the basis of which the possession of the suit land has also been handed over to the petitioner herein. The petitioner has purchased the suit land upon payment of entire sale consideration and the petitioner is bona-fide purchaser of the suit land without notice of either the previous agreement between the plaintiffs and defendant no.1 or the pendency of the said civil suit. 4. On the basis of the aforesaid sale deed, the petitioner applied for mutation before the revenue authorities and during the course of mutation proceedings, an objection was raised by the plaintiffs in respect of mutation on the ground of pendency of the present suit for specific performance of contract, whereupon for the first time the petitioner got knowledge in respect of pendency of the present suit. The petitioner, thereupon, filed an application before the trial Court under Order 1 Rule 10 read with Section 151 of C.P.C. for impleading the petitioner as defendant in the suit, so as to properly defend the suit and to avoid any prejudice to his rights on account of any collusion between the parties to the suit. The respondents had opposed the application preferred by the petitioner. Thereafter, the learned trial Court after hearing the arguments on the application filed by the petitioner under Order 1 Rule 10 has dismissed the same vide order dated 30/09/2019. Being aggrieved by that order, the petitioner has filed the present petition. 5. The respondents had opposed the application preferred by the petitioner. Thereafter, the learned trial Court after hearing the arguments on the application filed by the petitioner under Order 1 Rule 10 has dismissed the same vide order dated 30/09/2019. Being aggrieved by that order, the petitioner has filed the present petition. 5. Learned counsel for the petitioner submits that the Court below has passed the impugned order by misinterpreting the provisions of Section 52 of the Transfer of Property Act, 1882. The impugned order has been passed by the trial Court without considering that the petitioner was a bona-fide purchaser of the suit land and without knowledge or notice of the present suit and in such circumstances, the impleadment of the petitioner as a defendant in the suit was necessary for avoiding any complications and for preventing multiplicity of litigation. From perusal of the impugned order, it reveals that while considering the application, the trial Court has virtually held the said sale deed to be null and void and, thus, committed a grave jurisdictional infirmity. The Court below has failed to consider that the impleadment of petitioner was necessary as he is a proper and necessary party. 6. Learned counsel for the petitioner further submits that the petitioner is a bona-fide purchaser of the suit land for valuable consideration, without notice of the pending litigation. It is submitted that as the defendant No.1 has sold the suit land to the petitioner rafter receiving the entire sale consideration, therefore, the defendant No.1 may not diligently contest the suit or may even collude with the plaintiffs. Both the aforesaid eventualities shall result in grave prejudice and injury to the petitioner. To avoid the possibility of the aforesaid situation and to protect the interest of the petitioner, it is in the interest of justice to implead the petitioner as a defendant in the suit in view of the provisions of Order 22 Rule 10 of C.P.C. 7. It is submitted that the illegal effect of sale of the suit property during the pendency of suit land impleadment of the pendente lite purchaser has been considered by the Hon'ble Apex Court in the case of Thomson Press (India) Ltd. Vs. Nanak Builders reported in A.I.R. 2013 SC 2389. It is submitted that the illegal effect of sale of the suit property during the pendency of suit land impleadment of the pendente lite purchaser has been considered by the Hon'ble Apex Court in the case of Thomson Press (India) Ltd. Vs. Nanak Builders reported in A.I.R. 2013 SC 2389. The Hon'ble Apex Court, upon conspectus of the provisions of Section 52 of the Transfer of Property Act as also the previous case law, has laid down the law in Para 24 and 58(2) & 3 of the aforesaid judgment, in following words :- 24. It is well settled that the doctrine of its pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a court in a suit should be binding not only on the litigating patties but on those who derived title pendente lite. The provision of this section does not indeed annul the conveyance or the transfer not otherwise, but to render it subservient to the rights of the parties to a litigation. 58(2) The transfer in favour of the appellant pendente lite is effective in transferring title to the appellant, but such title shall remain subservient to the rights of the plaintiff in the suit and subject to any direction which the Court may eventually pass therein. (3) Since the appellant has purchased the entire estate that forms the subject matter of the suit, the appellant is entitled to be added as a party defendant to the suit. 8. It is submitted that the judgment of the Hon'ble Apex Court in the case of the Gurmit Singh Bhatia Vs. Kiran Kant Robinson reported in AIR 2019 SC 3577 is distinguishable on facts for the reason that in the aforesaid case, the sale deed was executed by the defendant in breach of an order of temporary injunction whereas, in the present case no order of temporary injunction has been passed by the trial Court. 9. Kiran Kant Robinson reported in AIR 2019 SC 3577 is distinguishable on facts for the reason that in the aforesaid case, the sale deed was executed by the defendant in breach of an order of temporary injunction whereas, in the present case no order of temporary injunction has been passed by the trial Court. 9. It is respectfully submitted that as the decision reported in AIR 2019 SC 3577 has been passed by a Bench comprising two Hon'ble Judges without considering or explaining the prior decision reported in AIR 2013 SC 2389 which was passed by a Bench of equal strength, therefore, in view of the law laid down by the Hon'ble Full Bench of this Hon'ble Court, the earlier decision reported in AIR 2013 SC 2389 would be binding as precedent. 10. It is submitted that the decision of the Hon'ble Apex Court in the case of Gurmit Bhatia (supra) is based on the decision of the Hon'ble Apex Court in the case of Kasturi Vs. Iyyamperumal reported in AIR 2005 SC 2813 . in which the Hon'ble Apex Court has considered the issue regarding impleadment of a third party in a suit for specific performance of contract whose claim was based on independent title and possession of the suit property. This would be evident from the question formulated by the Hon'ble Apex Court in the aforesaid judgment in its opening paragraph, which reads as under :- The only question that needs to be decided in this case is whether in a suit for specific performance of contract for sale of a property instituted by a purchaser against the vendor, a stranger or a third party to the contract, claiming to have an independent title and possession over the contracted property, is entitled to be added as a party/defendant in the said suit. 11. Subsequently, in the case of Sumtibai Vs. Paras Finance reported in AIR 2007 SC 3166 , the Hon'ble Apex Court has distinguished the law laid down in the case of Kasturi supra V in Para 14 (at page 3169) as under :- 14. in view of the aforesaid decisions, we are of the opinion that Kasturi's case (supra) is clearly distinguishable. Paras Finance reported in AIR 2007 SC 3166 , the Hon'ble Apex Court has distinguished the law laid down in the case of Kasturi supra V in Para 14 (at page 3169) as under :- 14. in view of the aforesaid decisions, we are of the opinion that Kasturi's case (supra) is clearly distinguishable. In our opinion, it cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in that suit. 12. It is submitted that the law laid down by the Hon'ble Apex Court in the case of Sumti Bai (supra) and Thomsan Press (supra) has been followed by this Hon'ble Court in the case of Tilak Sahari Grih Nirman Sanstha Vs. Aqeel Ahmed & Others reported in 2019 (4) JLJ 622 and the prayer for impleadement made by the petitioner therein has been allowed, holding thus in Para 26 and 38 :- 26. Thus, in view of the discussion made hereinabove and the view of different courts taken note of, it is clear that whether an intervener is to be included as a party or not depends upon the fact that whether his non-joinder would affect his rights. If that is so then his presence is necessary. 38. In view of the discussion made hereinabove and the view expressed by this Court taking note of several decisions of the Supreme Court as well as the High Court, it is apparent that it is a fit case in which this Court can interfere as the Court below has not considered the material aspect of the matter and has exceeded its jurisdiction rejecting the application of the petitioner to implead him as a party. 13. It is further submitted that in the present case, the petitioner is not claiming independent title to the suit land and, in point of fact, his prayer for impleadment is based on the sale deed which has been executed by the defendant No.1 in his favour during the pendency of the suit. The impleadment of the petitioner as a defendant would neither change the nature of the suit in any manner nor would result in any prejudice to the plaintiffs. In view of the above facts and submissions he, therefore, submits that the present miscellaneous petition be allowed. 14. The impleadment of the petitioner as a defendant would neither change the nature of the suit in any manner nor would result in any prejudice to the plaintiffs. In view of the above facts and submissions he, therefore, submits that the present miscellaneous petition be allowed. 14. Counsel for the respondents has opposed the contentions raised by the learned counsel for the petitioner and submits that the application filed by the petitioner ought not to be entertained at all, since it is an abuse of process of Court and the law. Apart from that, the respondent also states that no other parties can be introduced in a suit for specific performance; only a necessary and proper party can be impleaded. He further submits that the petitioner is totally misconceived and only to delay the trial of the suit, the petition has been filed and, hence, he prays to dismiss the application as well as the petition. He has also filed synopsis of judgment cited on behalf of respondent Nos.1 and 2(original Plaintiff) in support his submissions in the case of Gurmit Singh Bhatia (supra). Bharat Karsondas Thakkar Vs. Kiran Construction Co. & Ors. SCC Civil Appeal 2573/2008 decided on 9th April, 2008 Bagyalakshmi Vs. Kanagaraj [2017 SCC Online Mad. 4148(2017) 1 MWN (Civil) 647] and Manikandan & Ors. Vs. Ismail & Ors. 2013 SCC Online Mad. 3230 (Relevant paras No.9 and 10). 15. Heard learned counsel for the parties and perused the record. 16. In view of the aforesaid decisions, I am of the opinion that it cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in that suit. In my opinion, if C can show a fair semblance of title or interest he can certainly file an application for impleadement. To take a contrary view would lead to multiplicity of proceedings because then C will have to wait until a decree is passed against B, and then file a suit for cancellation of the decree on the ground that A had no title in the property in dispute. Cleary, such view cannot be countenanced. To take a contrary view would lead to multiplicity of proceedings because then C will have to wait until a decree is passed against B, and then file a suit for cancellation of the decree on the ground that A had no title in the property in dispute. Cleary, such view cannot be countenanced. Even otherwise, here in this case, as per the discussion made hereinabove the fate of the suit would directly affect the right of the petitioner, therefore, he should be allowed to be added as a party. 17. So far as judgment cited by the learned counsel for the petitioner in the case of Gurmit Singh Bhatia(supra) is concerned, it has already been stated that the judgment would not be applicable in view the of the law laid down by the Full Bench of the judgment passed by this Court in the case of Jabalpur Bus Operators Association and others Vs. State of M.P. & Another reported in AIR 2003 M.P. 81 . 18. Thus, in view of the discussion made hereinabove and the view expressed by this Court taking note of several decisions of the Supreme Court as well as the High Court, it is apparent that it is a fit case in which this Court can interfere as the court below has not considered the material aspect of the matter and has exceeded its jurisdiction rejecting the application of the petitioner to implead him as a party. However, considering the order passed by the Court below, if finding given by the Court is perverse and not in accordance with law, this Court has every right under the supervisory jurisdiction to interfere in the matter. 19. In view of the above, it is clear that the cases, on which the respondents have placed reliance, have no application considering the facts and circumstances of the present case. 20. Resultantly, the petition is allowed. The order impugned dated 30/09/2019 is set aside. The application submitted by the petitioner for impleadment is, accordingly allowed.