Madras High Court
Yasodha vs V.G.P.Housing (Private Limited) on 17 December, 2013
Author: K.Kalyanasundaram
Bench: K.Kalyanasundaram
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.12.2013 CORAM THE HON'BLE MR JUSTICE K.KALYANASUNDARAM C.R.P.(PD).1507 of 2010 Yasodha ... Petitioner vs. 1.V.G.P.Housing (Private Limited), A company having registered Office, at V.G.P.Square No.6, Dharmaraja Kovil Road, Saidapet Post, Chennai-600 015, rep.by its Managing Director, Thiru G.Santhosam 2.Thiru G.Santhosam 3.V.G.Selvaraj 4.V.G.P.Ravidas 5.V.G.P.Rajadas 6.V.G.P.Babudas 7.R.Nallamuthu 8.Smt.Rajammal 9.Smt.Parimala ... Respondents Civil revision petition preferred under Article 227 of the Constitution of India, against the order dated 9.2.2010 passed by the Sub Judge, Perundurai, in I.A.No.91 of 2009 in O.S.No.127 of 2009. For Petitioner : Mr.S.Mohammed Azaad for M/s.S.T.S.Murthi For Respondents : Mr.K.Balamurali for R1 to R6 for M/s.Shivakumar and Suresh ORDER
This civil revision petition is directed against the order dated 9.2.2010 passed by the Sub Judge, Perundurai, in I.A.No.91 of 2009 in O.S.No.127 of 2009.
2.The petitioner is a third party to the suit in O.S.No.127 of 2009 on the file of Sub Court, Perundurai. The respondents 1 to 6 herein had filed the suit for specific performance of the agreements dated 22.5.2000 and 2.5.2003, against respondents 6 to 9 herein. In the suit, the petitioner filed an application in I.A.No.118 of 2009 for impleading, contending that the third defendant in the suit, namely, Mrs.Parimalam, had executed a settlement deed, dated 15.5.2008, in her favour. So, as per the settlement deed, he became owner of the suit property and she has been in possession and enjoyment of the property as absolute owner. The respondents 1 to 6 herein had filed their counter stating that the settlement deed must be a sham and nominal document and it is hit by lis pendens, so, the petitioner is not a necessary and proper party to the suit. The learned Sub Judge, Perundurai, dismissed the petition. Aggrieved by the said order, the present revision is filed.
3.Heard Mr.S.Mohammed Azaad, learned counsel for the petitioner and Mr.K.Balamurali, learned counsel for R1 to R6.
4.The learned counsel for the petitioner submitted that admittedly the third defendant in the suit, namely, Mrs.Parimalam, was the owner of the property, as per the Will executed by Mrs.Muthayammal, in her favour. Subsequently, the third defendant had executed a registered settlement deed in favour of the petitioner on 15.5.2008 and the same was accepted and acted upon. The learned counsel further argued that as on date, the petitioner has been in possession and enjoyment of the property. So, the petitioner is a proper and necessary party to the suit and even a transferee pendente lite, is a necessary party. The learned counsel has relied on the judgments of the Honourable Apex Court as well as this Court reported in (i)2004(2) SCC 601-Raj Kumar v. Sardari Lal and Others, (ii)(2005)11 SCC 403-Amit Kumar Shaw and another v. Farida Khatoon and another, (iii)2013 (5) SCC 397-Thomson Press(Inia) Limited v. Nanak Builders and Investors Private Limited and Others, (iv)(2011)3 MLJ 251-K.P.Rajendran and another v. N.R.Nachimuthu and Others and (v) (2011) 3 MLJ 452 M.K.M.Mohammed Nazar and Others v. R.A.Venugopal (Died) and Others.
5.Per contra, the learned counsel for the respondents 1 to 6 has submitted that the plaintiffs have not entered into any agreement or contract with the petitioner and the suit is filed only against the parties to the agreement. The petitioner is claiming right only through the third defendant in the suit and the third defendant had already filed her written statement and she was effectively contesting the case. The learned Sub Judge has considered the entire aspect and dismissed the application rightly, which does not warrant interference by this Court.
6.The learned counsel for the respondents relied on the judgments of the Honourable Apex Court reported in (i)CDJ 1994 SC 375-Anil Kumar Singh v. Shivnath Mishra alias Gadasa Guru, (ii) (2005) 6 SCC 733-Kasturi v. Iyyamperumal and Others, (iii)(2008) 13 SCC 658 Bharat Karsondas Thakkar v. Kiran Construction Company and Others and (iv)(2010)7 SCC 417-Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited and others to substantiate his contention that third parties to the agreement for sale are not necessary and proper parties and they cannot be impleaded in a suit for specific performance.
7.In the recent judgment of the Honourable Apex Court reported in 2013 (5) SCC 397-Thomson Press(Inia) Limited v. Nanak Builders and Investors Private Limited and Others, it has been held as follows:
"57.1.The appellant is not a bona fide purchaser and is, therefore, not protected against specific performance of the contract between the plaintiffs and the defendant owners in the suit.
57.2.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.
57.3.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.
57.4.The appellant shall as a result of his addition raise and pursue only such defences as were available and taken by the original defendants and none other."
8.In the judgment in (2005)11 SCC 403-Amit Kumar Shaw and another v. Farida Khatoon and another, the Supreme Court has held has follows:
"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 prendente 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, where 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 22 Rule 10 an alienee pendente lite may be joined as party. As already noticed, the court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The 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 his predecessor-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case."
9.The same view has been taken in the judgment reported in 2004(2) SCC 601-Raj Kumar v. Sardari Lal and Others.
10.In the light of the recent judgment of the Honourable Apex Court, even the pendente lite transferee is entitled to be impleaded as party to the suit filed, for specific performance, by the respondents 1 to 6 herein. Hence, the order passed in I.A.No.91 of 2009 is set aside and the I.A. is allowed.
11.In the result, the civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
Msk 17.12.2013
Index:Yes/No
Internet:Yes/No
To
The Sub Judge, Perundurai.
K.KALYANASUNDARAM,J.
Msk
Pre-delivery order in
C.R.P.PD.No.1507 of 2010
17.12.2013
But in the latest judgment of the Honourable Apex Court in 2013 (5) SCC 397-Thomson Press(Inia) Limited v. Nanak Builders and Investors Private Limited and Others, In view of the subsequent pronouncement of the Honourable Apex Court, the judgments relied on by the learned counsel for the respondents are not applicable.