C.R.No.63 of 2006 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.R.No.63 of 2006
Date of Decision : 16.11.2009
Smt. Manju Goenka and another ...Petitioners
Versus
Rajesh Kumar and another ...Respondents
CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Atul Lakhanpal, Sr. Advocate, with
M/s Hari Om Attri and R.S.Chahal, Advocates,
for the petitioners.
Mr. R.S.Mittal, Sr. Advocate, with
Mr. Atul Gaur, Advocate,
for the respondents.
HEMANT GUPTA, J.
Challenge in the present revision petition is to the order passed
by the learned trial Court on 21.11.2005, whereby an application filed by
the petitioners under Order 1 Rule 10 CPC, was dismissed.
Plaintiff-respondent Nos.1 and 2 filed a suit for specific
performance of an agreement to sell dated 25.9.1989 allegedly executed
by the eight legal representatives of deceased Chandgi Ram in respect of
land measuring 48 Kanals 10 Marlas. The suit was filed on 27.10.1995.
Before the filing of the suit, six legal representatives of the
deceased Chandgi Ram have executed sale deed in respect of their 3/4th
share i.e. 36 Kanals 7½ Marlas on 15.6.1995 in favour of the plaintiffs.
The suit for specific performance was filed in respect of remaining share
C.R.No.63 of 2006 2
of two legal representatives of deceased Chandgi Ram i.e. 1/4th of the
total share.
When the case was fixed for evidence of the plaintiffs, when
the petitioners moved an application for their impleadment as defendants
on the allegations that they have purchased the suit property vide
registered sale deed dated 9.9.2004 in pursuance of the agreements to sell
dated 8.6.1989 and 20.3.1991. The said application has been declined by
the learned trial Court, when it held to the following effect :
“…The applicants have alleged to have purchased the land vide
registered sale deed bearing No.7033 dated 9.9.2004 in
pursuant to the agreements dated 8.6.1989 and 20.3.1991,
whereas the agreement regarding the instant suit for specific
performance was allegedly executed on 25.9.1989. In other
words, the agreement dated 25.9.1989 was executed in between
agreements 8.6.1989 and 20.3.1991. No explanation has been
furnished regarding the sale deed dated 9.9.2004 as to how the
delay of more than 15 years was caused. Therefore, the action
of alienation cannot be held as bona fide. Even otherwise, as
per the rulings cited as Kehar Singh Vs. Punjab Kaur and
others, SLJ 88, 291 (supra), the question of purchase being
bona fide is immaterial and further as is held in Bibi Zubaida
Khatoon Vs. Nabi hassan Saheb and another AIR 2004(SC)
173 (supra), such persons cannot be impleaded as party,
therefore, the application in hand being devoid of merit is
dismissed.”
Learned counsel for the petitioners has vehemently argued that
C.R.No.63 of 2006 3the petitioners are not to raise a plea that they are bona fide purchasers for
value and consideration as they are the purchasers of the property after
filing of the suit and that sale in their favour is hit by doctrine of lis
pendens. But it is contended that in terms of Section 19 of the Specific
Relief Act, 1963 (for short ‘the Act’), the petitioners have acquired title by
virtue of registered sale deed on the basis of prior agreement to sell,
therefore, the petitioners are necessary party as assignees of the original
vendors. It is contended that none of the judgments referred to by the
learned trial Court is to the effect that such a vendee in a suit for specific
performance cannot be impleaded. He has relied upon Anup Singh Vs.
Smt. Chander Kanta Pruthi 1998(1) P.L.R. 818, Ram Sarup Vs.
Raminder Singh 2004(2) P.L.R. 247, Amit Kumar Shaw & Another Vs.
Farida Khatoon and Another, AIR 2005 (SC) 2209.
Section 19 of the Specific Relief Act, 1963 (for short ‘the Act’)
reads as under ;
“19. Relief against parties and persons claiming under
them by subsequent title — Except as otherwise provided by
this Chapter, specific performance of a contract may be
enforced against –(a) either party thereto;
(b) any other person claiming under him by a title
arising subsequently to the contract, except a
transferee for value who has paid his money in good
faith and without notice of the original contract;(c) any person claiming under a title which, though
prior to the contract and known to the plaintiff, might
have been displaced by the defendant;(d) x x x (e) x x x" C.R.No.63 of 2006 4On the other hand, learned counsel for the respondents has
relied upon Section 15 of the Act to contend that in a suit for specific
performance of an agreement to sell, the parties to the agreement alone
are necessary parties. The petitioners are the strangers to the agreement
to sell dated 25.9.1989, therefore, cannot be impleaded as the defendants
in the suit for specific performance filed by the plaintiffs. Reliance was
placed upon Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb and
another AIR 2004 Supreme Court 173, Bharat Karsondas Thakkar Vs.
M/s Kiran Construction Co. & Others AIR 2008 SC 2134, Ramesh
Chandra Pattnaik Vs. Pushpendra Kumari and others (2008) 10 SCC
708 and Saudagar Singh Vs. Harnek Singh and others 1989 PLJ 374
(P&H).
I have heard learned counsel for the parties at some length and
is of the opinion that the order passed by the learned trial Court suffers
from patent illegality or irregularity. The plaintiffs have not led any
evidence, when an application for impleadment was filed by the present
petitioners. During the course of arguments, learned counsel for the
respondents has pointed out that the plaintiffs are still leading their
evidence. Undisputedly, the sale in favour of the petitioners is after the
filing of the suit and, therefore, hit by doctrine of lis pendens. Since, the
vendors have sold their property in favour of the petitioners, the said
defendants-original vendors have no subsisting interest in defending the
suit for specific performance. Having purchased the property during the
pendency of the suit, the right of the petitioners are not worse than the
rights of their vendors. The petitioners are entitled to defend the suit on
the same pleas as were raised by their vendors or the pleas, which
C.R.No.63 of 2006 5are/were available to the vendors. But any plea, which is peculiar to the
petitioners being purchasers pendente lite cannot be permitted to be
raised by the petitioners.
Under Section 19(b) of the Act, the decree of specific
performance is enforceable against any person claiming title under any
party to the agreement subsequent to the contract. Therefore, the decree
for specific performance can be granted in favour of the plaintiffs and
against the petitioners in terms of clause (b) of the Act. In fact, such
decree alone is the appropriate decree, which can be granted in favour of
the plaintiffs on proof of the facts alleged by them. The sale in favour of
the petitioners though not binding on the plaintiffs, is binding on the
vendors. Only a transferee, who has paid his consideration and without
notice of the original contract can avoid the decree for specific
performance in terms of clause (b) of Section 19 of the Act. The said
plea is not available to the petitioners as they are purchasers during the
pendency of the suit. Thus, in terms of Section 19 of the Act, an effective
enforceable decree can appropriately be granted in the presence of the
petitioners rather than in their absence.
In Durga Prasad and another Vs. Deep Chand and others
AIR 1954 Supreme Court 75, the Court has considered the nature of
decree required to be granted in a suit for specific performance of the
contract when the vendor has transferred his interest in the suit property.
The Court has considered three forms of decree. (i) To declare the
subsequent purchase void as against the prior transferee and direct
conveyance by the vendor alone; (ii) Both vendor and vendee should
join; and (iii) execution of the conveyance by the subsequent purchaser
C.R.No.63 of 2006 6
alone. The Court negated first and third option and held that proper form
of the decree is to direct specific performance of the contract by directing
the subsequent transferee to join in the conveyance. It was held to the
following effect :
“42. In our opinion, the proper form of decree is to direct
specific performance of the contract between the vendor and the
plaintiff and direct the subsequent transferee to join in the
conveyance so as to pass on the title which resides in him to the
plaintiff. He does not join in any special convenants made
between the plaintiff and his vendor, all he does is to pass on
his title to the plaintiff.”
The judgments referred to by the learned counsel for the
respondents are clearly distinguishable and are not applicable to the facts
of the present case. In Bibi Zubaida Khatoon’s case (supra), the Court
has held that the transferee pendente lite should ordinarily be joined as a
party to enable him to protect his interest. In the aforesaid case,
pendency of the suit for a long time was the reason given by the trial
Court to reject the application for impleadment. However, in the present
case, though the suit is pending since the year 1995, but the plaintiffs
have not started their evidence even in the year 2005, when the impugned
order was passed. Therefore, the oridinary rule as mentioned in the
aforesaid judgment is to implead the transferee pendente lite. The
relevant extract from the aforesaid judgment reads as under :
“It is not disputed that the present petitioner purchased the
property during pendency of the suit and without seeking leave
of the Court as required by S. 52 of the Transfer of Property
Act. The petitioner being a transferee pendente lite without
leave of the Court cannot, as of right, seek impleadment as a
party in the suits which are long pending since 1983. It is true
C.R.No.63 of 2006 7that when the application for joinder based on transfer
pendente lite is made, the transferee should ordinarily be
joined as party to enable him to protect his interest. But in
instant case, the trial Court has assigned cogent reasons for
rejecting such joinder stating that the suit is long pending since
1983 and prima facie the action of the alienation does not
appear to be bona fide. The trial Court saw an attempt on the
part of the petitioner to complicate and delay the pending
suits.”(emphasis supplied..)In Bharat Karsondas Thakkar’s case (supra), the applicant
sought the impleadment on the basis of an agreement to sell alone. It was
found that on the basis of a separate agreement to sell, the right with the
applicant, is to seek specific performance of the said agreement. It was
found that the claim of the applicant neither falls within Sections 15 or 19
of the Act. In Ramesh Chandra Pattnaik’s case (supra) again, the
applicant has sought impleadment on the basis of an agreement to sell.
The Court has found that the right of such an applicant is to seek specific
performance of the agreement. Similar is the judgment in Saudagar
Singh’s case (supra), who has also sought impleadment on the basis of
agreement to sell.
On the other hand, in Amit Kumar Shaw’s case (supra), the
question which arose for consideration was whether an application for
substitution by a subsequent transferee can be rejected on the combined
reading of Order 1 Rule 10, Order XXII Rule 10 of the Code of Civil
Procedure and Section 52 of the Transfer of Property Act, 1882. It was
held to the following effect :
“12. Under Order XXII Rule 10, no detailed inquiry at the
stage of granting leave is contemplated. The Court has only to
C.R.No.63 of 2006 8be prima facie satisfied for exercising its discretion in granting
leave for continuing the suit by or against the person on whom
the interest has devolved by assignment or devolution. The
question about the existence and validity of the assignment or
devolution can be considered at the final hearing of the
proceedings. The Court has only to be prima facie satisfied for
exercising its discretion in granting leave for continuing the
suit.
13. In this connection, the provisions of Section 52 of the
Transfer of Property Act, 1882 which has been extracted above
may be noted.
14. An alienee pendente lite is bound by the final decree that
may be passed in the suit. Such an alienee can be brought on
record both under this rule as also under Order 1 Rule 10.
Since under the doctrine of lis pendens a decree passed in the
suit during the pendency of which a transfer is made binds the
transferee, his application to be brought on record should
ordinarily be allowed.
15. xxx xxx xxx
16. The doctrine of lis pendens applies only where the lis is
pending before a Court. Further pending the suit, the transferee
is not entitled as of right to be made a party to the suit, though
the Court has a discretion to make him a party. But the
transferee pendente lite can be added as a proper party if his
interest in the subject matter of the suit is substantial and not
just peripheral. A transferee pendente lite to the extent he has
acquired interest from the defendant is vitally interested in the
litigation, whether the transfer is of the entire interest of the
defendant; the latter having no more interest in the property
may not properly defend the suit. He may collude with the
plaintiff. Hence, though the plaintiff is under no obligation to
make a lis pendens transferee a party; under Order XXII Rule
10 an alienee pendente lite may be joined as party. As already
noticed, the Court has discretion in the matter which must be
C.R.No.63 of 2006 9judicially exercised and an alienee would ordinarily be joined
as a party to enable him to protect his interest. The Court has
held that a transferee pendente lite of an interest in immovable
property is a representative-in-interest of the party from whom
he has acquired that interest. He is entitled to be impleaded in
the suit or other proceedings where the transferee pendente lite
is made a party to the litigation; he is entitled to be heard in the
matter on the merits of the case.”
The question, whether the transferee pendente lite can be
impleaded as the party-defendant has been considered by the Division
Bench of Andhra Pradesh High Court in a judgment reported as Chappidi
subbareddy (died) and others Vs. Chappidi Narapureddy and others
2006 (2) Civil Court Cases 659. After considering all the judgments
including Saila Bala Vs. Nirmala Sundari, AIR 1958 SC 394 and Amit
Kumar Shaw’s case (supra), the Court found that the following aspects
need to be considered before impleading transferee pendente lite :
“Firstly, for the purpose of impleading a transferee pendente
lite, the facts and circumstances should be gone into and basing
on the necessary facts, the court can permit such a party to
come on record, either under Order 1 Rule 10 C.P.C. or under
Order 22 Rule 10 C.P.C., as a general principle;
Secondly, a transferee pendente lite is not entitled to come on
record as a matter of right;
Thirdly, there is no absolute rule that such a transferee
pendente lite, with the leave of the Court should, in all cases,
be allowed to come on record as a party; (Emphasis added)
Fourthly, the impleadment of a transferee pendente lite would
depend upon the nature of the suit and appreciation of the
material available on record;
Fifthly, where a transferee pendente lite does not ask for leave
and come on record that would obviously be at his peril, and
C.R.No.63 of 2006 10the suit may be improperly conducted by the plaintiff on
record;
Sixthly, merely because such transferee pendente lite does not
come on record, the concept of his (transferee pendente lite)
not being bound by the judgment does not arise and
consequently he would be bound by the result of the litigation,
though he remains unrepresented;
Seventhly, the sale transaction pendente lite is hit by the
provisions of Section 52 of the Transfer of Property Act; and
Eighthly, a transferee pendente lite, being an assignee of
interest in the property, as envisaged under Order 22, Rule 10
C.P.C., can seek leave of the Court to come on record on his
own or at the instance of either party to the suit.”
I entirely endorse the principles culled down by the Division
bench of Andhra Pradesh High Court. A transferee pendente lite can be
permitted to come on record with the permission of the Court. Such
transferee can seek leave of the Court to come on record on his own or at
the instance of either party to the suit. Since, in the present case, the
transferee has sought impleadment to defend his interest in the suit
property, therefore, such transferee is entitled to be impleaded as the
party-defendant.
In view of the aforesaid judgment of the Hon’ble Supreme
Court and also the judgments of this Court in Anup Singh’ s and Ram
Sarup’s cases (supra), I am of the opinion that the order passed by the
learned trial Court is not sustainable. The learned trial Court has
declined the application on the ground that how the sale deed has been
executed after delay of 15 years and, therefore, action of alienation
cannot be held to be bona fide. Such finding could be returned by the
learned trial Court only after opportunity to lead evidence is granted to
C.R.No.63 of 2006 11
the parties. Such opportunity of evidence could be granted only if the
petitioners are impleaded as a party. Therefore, the finding of lack of
bona fide without giving any opportunity of proof of such fact is clearly
erroneous and cannot be sustained in law.
Consequently, the impugned order passed by the learned trial
Court is set aside. The petitioners are ordered to be impleaded as
assignees of the vendors in terms of Order 22 Rule 10 CPC. The
petitioners shall be entitled to continue with the suit on the grounds,
which are/were available to their vendors. However, the petitioners shall
not be entitled to raise any plea on the basis of their independent interest
as the transfer in their favour is during the pendency of the civil suit and
hit by doctrine of lis pendens.
Civil revision is allowed in above terms.
Parties to appear before the learned trial Court on 18.12.2009
for further proceedings.
16.11.2009 (HEMANT GUPTA) Vimal JUDGE