Gujarat High Court
Amad Noormamad Madakia vs Ghanchi Ismail Hasan Madakia on 10 October, 2023
NEUTRAL CITATION
C/SCA/9767/2008 CAV JUDGMENT DATED: 10/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9767 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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AMAD NOORMAMAD MADAKIA & 11 other(s)
Versus
GHANCHI ISMAIL HASAN MADAKIA & 9 other(s)
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Appearance:
for the Petitioner(s) No. 1.1,1.2,1.3,3.1,3.2,3.3,3.4,3.5
(MR SURESHM SHAH)(805) for the Petitioner(s) No. 1,10,11,2,3,4,6,8,9
DELETED for the Petitioner(s) No. 12,5,7
MR MEHUL S SHAH(772) for the Petitioner(s) No. 1,10,11,2,3,4,6,8,9
MR SP MAJMUDAR(3456) for the Respondent(s) No. 10
NOTICE SERVED for the Respondent(s) No.
1,2,3,4,5,6,7,8,9.1,9.2,9.3,9.4,9.5
UNSERVED EXPIRED (N) for the Respondent(s) No. 9
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 10/10/2023
CAV JUDGMENT
Rule. Learned Advocate Mr.S P Majmudar appearing for Page 1 of 23 Downloaded on : Tue Oct 10 20:49:44 IST 2023 NEUTRAL CITATION C/SCA/9767/2008 CAV JUDGMENT DATED: 10/10/2023 undefined the contesting respondent waives service of notice of rule. This petition under Article 227 of the Constitution of India is directed against the order dated 21/06/2008 passed below Exhibit-24 in Special Civil Suit No.32 of 2008 by the learned 3 rd Additional Senior Civil Judge, Jamnagar; whereby the application filed by the plaintiff to join subsequent purchaser Shri Bhavesh Arshibhai Kandoriya as defendant no.10 in the suit has been rejected inter alia on the ground that the plaintiff has not registered notice of suit as per amendment in Section 52 of the Transfer of Property Act 1882 (for short the "Act") applicable to the State of Gujarat and State of Maharashtra as to attract the principle of lis pendens.
2. Necessary facts for adjudication this petition can be summarized thus:
2.1 The petitioner-plaintiff filed suit being Special Civil Suit No.32 of 2008 for partition and separate possession against several defendants before the learned Principal Senior Civil Judge, Jamnagar in respect of the land being Revenue Survey No.1092 1-08-25 hectare (in short "subject matter"). Plaintiff moved an application below Exhibit-24 in the suit under O.6 R.17 read with O.1 R.10 of the Code of Civil Procedure (for short the CPC) to join the subsequent purchaser of the suit property.
In the said application, it is stated that plaintiff has filed the suit on 24/03/2008; defendant no.1, 3, 5 and 7 who are living at the given address have evaded the service of the process and on 29/03/2008 and 31/03/2008, defendant nos.1 to 7 have filed reply declaring that they have sold the subject matter by way of Page 2 of 23 Downloaded on : Tue Oct 10 20:49:44 IST 2023 NEUTRAL CITATION C/SCA/9767/2008 CAV JUDGMENT DATED: 10/10/2023 undefined registered sale-deed to said Bhavesh Arshibhai Kandoriya. Upon such contention, petitioner filed application at Exhibit-24 seeking amendment in the pleading and the relief claimed in the suit and also to join the subsequent purchaser Bhavesh Arshibhai Kandoriya as defendant no.10 which came to be rejected by the learned Court below observing that it is mandatory to register notice of the suit under Section 52 of the Transfer of Property Act as applicable in the State of Gujarat. It is further observed by the learned Court below that in absence of lis pendens slated under Section 52 of the Act, applicable in State of Gujarat, the purchaser is bonafide purchaser and therefore he is not required to be joined as party defendant in the suit. Accordingly, rejected the application at Exh.24 which order is impugned in the petition.
2.2 This Court (Coram: Akil Kureshi, J.) vide order dated 30/09/2008 allowed this petition and ordered to join the subsequent purchaser as party defendant in the suit observing that the issue of bonafide nature of transaction involved in the sale of portion of the suit land cannot be decided at this juncture while deciding application Exhibit-24. It is a premature decision and as such for the purpose of avoiding the multiplicity of proceedings allowed the petition and further granted relief as prayed for in application at Exhibit-24. The relevant observations and finding arrived by this Court in paragraph 4 to 7 reads thus:
"4. In my view, learned Judge committed serious error in not accepting application exh.24, particularly on the ground mentioned in the impugned order. It was premature to hold that the purchase was Page 3 of 23 Downloaded on : Tue Oct 10 20:49:44 IST 2023 NEUTRAL CITATION C/SCA/9767/2008 CAV JUDGMENT DATED: 10/10/2023 undefined bona fide. Such conclusion could have been reached only after a fair trial. In any case, I find that the plaintiffs who wanted to bring additional averments and new developments on record, in facts of the present case, could not have been prevented from doing so. Disallowing amendment would only lead to multiplicity of the proceedings. There was also no allegation that amendment was sought belatedly or that the plaintiffs sought such an amendment at a late stage in the suit.
5. Under the circumstances, I find that impugned order is required to be set aside.
6. Contention of the Counsel for the respondent No.10 that granting of amendment would change the very nature of suit cannot be accepted. All that the plaintiffs wanted to do was to bring within the suit, transaction which took place during the pendency of the proceedings. Whether they succeed in establishing before the Court that such transaction was fraudulently or not is a different matter altogether and it is neither possible not proper on my part to express any opinion in this regard.
7. Counsel for respondent No.10 placed reliance on the decision in case of Sarvinder Singh v. Dalip Singh and others reported in (1996)5 Supreme Court Cases 539. It was however, a case wherein purchaser of the property during the pendency of the suit desired to be joined as a co-defendant in the pending suit between the members of the family. It was in this context that the Apex Court referring to the provisions of contained in Section 52 of the Transfer of Property Act opined that alienation without authority from the Court would be hit by doctrine of lis pendens by operation of Section 52 of the Transfer of Property Act and therefore, the purchasers cannot be considered to be either necessary or proper parties to the suit.
8. In the present case, the situation is where the plaintiffs wish to join Page 4 of 23 Downloaded on : Tue Oct 10 20:49:44 IST 2023 NEUTRAL CITATION C/SCA/9767/2008 CAV JUDGMENT DATED: 10/10/2023 undefined purchaser of the property as a co-defendant. In the same amendment, plaintiffs have also prayed for declaration that the transfer is null and void."
2.3 Aggrieved by the aforesaid order, the the proposed party approached the Hon'ble Apex Court by preferring Civil Appeal No.8687 of 2012 (Arising out of SLP (C) No.30105 of 2008) and the Hon'ble Apex Court vide order dated 03/12/2012 observed that the learned Single Judge of this Court did not notice the amendment in the Section 52 of the Transfer of Property Act, 1882 by Bombay Act No.4 of 1939 as applicable to the State of Gujarat and therefore the Hon'ble Apex Court while setting aside the order of the learned Single Judge remitted back matter to the High Court for fresh disposal. Relevant observations of the order reads thus:
"Leave granted.
Respondent Nos. 1 to 12 (the name of respondent Ho.12 was deleted from the array of parties vide order dated 31.10.2011) filed Special Civil Suit No.32/2008 in the Court of Senior Civil Judge, Jamnagar (for short, the trial Court') for partition of the suit property and for grant of a declaration that they are entitled to half share in the land marked A in the plaint Schedule.
During the pendency of the suit, respondent Nos.1 to 12 filed an application for amendment of the plaint and for impleadment of the appellant as party by alleging that defendant Nos. 1 to 8 had sold the suit property to him by registered sale deed dated 31.3.2008.
The trial Court dismissed the application by observing that the sale transaction was bona fide and the purchase was not a necessary party. The learned Single Judge reversed the order of the trial Court by observing that the conclusion recorded by that Court on the issue Page 5 of 23 Downloaded on : Tue Oct 10 20:49:44 IST 2023 NEUTRAL CITATION C/SCA/9767/2008 CAV JUDGMENT DATED: 10/10/2023 undefined of bona fide nature of the transaction involving sale of a portion of the suit land was pre-mature and rejection of the application for amendment and impledment of the appellant would only lead to multiplicity of the proceedings We have heard learned counsel for the parties and perused the record. In our view, the impugned order is liable to be set aside the sole ground that while deciding the Special civil Application, the learned Single Judge did not notice the amendment made in Section 52 of the Transfer of Property Act, 1882 by Bombay Act No.4 of 1939, as applicable to the State of Gujarat.
In the result, the appeal is allowed, the impugned order is set aside and the matter is remitted to the High Court for fresh disposal of the Special Civil Application after considering the effect of the amendment made in the 1882 by Bombay Act No.4 of 1939."
2.4 In background of the above facts, present matter is heard again.
3. Heard learned Advocate Mr.Vishal C Mehta for the petitioners and learned Advocate Mr.S P Majmudar for respondent no.10-proposed party.
4. Learned Advocate Mr.Mehta for the petitioner has taken this Court though the facts stated herein above and would submit that in view of the principle of lis pendens, the transaction made subsequent to filing of the suit without permission of the Court would be subject to outcome of the suit. He would submit that defendant of the suit in haste and hurry having noticed filing of the suit have executed the registered sale-deed in favour of the proposed party. This transaction is Page 6 of 23 Downloaded on : Tue Oct 10 20:49:44 IST 2023 NEUTRAL CITATION C/SCA/9767/2008 CAV JUDGMENT DATED: 10/10/2023 undefined carried by defendants with a view to eye-wash the plaintiff's suit. He would further submit that amendment in Section 52 of the Act applicable to the State of Gujarat would not make it compulsory that notice of every suit is required to be registered and only upon such a notice of lis pendens can be pressed into service. He would further submit principle of lis pendens has been elaborately discussed in various pronouncements however he would press into service the decision in the case of Thomson Press (India) Limited vs. Nanak Builders & Investors Private Limited [2013 SCC 5 397] more particularly, paragraph 52 to 58 which reads thus.
"52. There is, therefore, little room for any doubt that the transfer of the suit property pendete lite is not void ab initio and that the purchaser of any such property takes the bargain subject to the rights of the plaintiff in the pending suit. Although the above decisions do not deal with a fact situation where the sale deed is executed in breach of an injunction issued by a competent Court, we do not see any reason why the breach of any such injunction should render the transfer whether by way of an absolute sale or otherwise ineffective. The party committing the breach may doubtless incur the liability to be punished for the breach committed by it but the sale by itself may remain valid as between the parties to the transaction subject only to any directions which the competent Court may issue in the suit against the vendor.
53. The third dimension which arises for consideration is about the right of a transferee pendete lite to seek addition as a party defendant to the suit under Order I, Rule 10 CPC. I have no hesitation in concurring with the view that no one other than parties to an agreement to sell is a necessary and proper party to a suit. The decisions of this Court have elaborated that aspect sufficiently making any further elucidation unnecessary. The High Court has understood and applied the legal propositions correctly while dismissing the Page 7 of 23 Downloaded on : Tue Oct 10 20:49:44 IST 2023 NEUTRAL CITATION C/SCA/9767/2008 CAV JUDGMENT DATED: 10/10/2023 undefined application of the appellant under Order I, Rule 10 CPC. What must all the same be addressed is whether the prayer made by the appellant could be allowed under Order XXII Rule 10 of the CPC, which is as under:
"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 attachment to the benefit of sub-rule (1)."
54. A simple reading of the above provision would show that in cases of 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. What has troubled us is whether independent of Order I Rule 10 CPC the prayer for addition made by the appellant could be considered in the light of the above provisions and, if so, whether the appellant could be added as a party-defendant to the suit. Our answer is in the affirmative. It is true that the application which the appellant made was only under Order I Rule 10 CPC but the enabling provision of Order XXII Rule 10 CPC could always be invoked if the fact situation so demanded. It was in any case not urged by counsel for the respondents that Order XXII Rule 10 could not be called in aid with a view to justifying addition of the appellant as a party- defendant. Such being the position all that is required to be examined is whether a transferee pendete lite could in a suit for specific performance be added as a party defendant and, if so, on what terms.
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55. We are not on virgin ground in so far as that question is concerned. Decisions of this Court have dealt with similar situations and held that a transferee pendete lite can be added as a party to the suit lest the transferee suffered prejudice on account of the transferor losing interest in the litigation post transfer. In Khemchand Shanker Choudhary v. Vishnu Hari Patil (1983) 1 SCC 18, this Court held that the position of a person on whom any interest has devolved on account of a transfer during the pendency of a suit or a proceeding is somewhat similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding. Any such heir, legatee or transferee cannot be turned away when she applies for being added as a party to the suit. The following passage in this regard is apposite:
"6... Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in an immovable property which is the subject matter of a suit from any of the parties to the suit will be bound in so far as that interest is concerned by the proceedings in the suit. Such a transferee is a representative in interest of the party from whom he has acquired that interest. Rule 10 of Order 22 of the Code of Civil Procedure clearly recognises the right of a transferee to be impleaded as a party to the proceedings and to be heard before any order is made. It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard, he has got to be so impleaded and heard. He can also prefer an appeal against an order made in the said proceedings but with the leave of the appellate court where he is not already brought on record. The position of a person on whom any interest has devolved on account of a transfer during the pendency of any suit or a proceeding is somewhat similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding, or an official receiver who takes over the assets of Page 9 of 23 Downloaded on : Tue Oct 10 20:49:44 IST 2023 NEUTRAL CITATION C/SCA/9767/2008 CAV JUDGMENT DATED: 10/10/2023 undefined such a party on his insolvency. An heir or a legatee or an official receiver or a transferee can participate in the execution proceedings even though their names may not have been shown in the decree, preliminary or final. If they apply to the court to be impleaded as parties they cannot be turned out."
(emphasis supplied)
56. To the same effect is the decision of this Court in Amit Kumar Shaw v.Farida Khatoon (2005) 11 SCC 403 where this Court held that a transferor pendente lite may not even defend the title properly as he has no interest in the same or collude with the plaintiff in which case the interest of the purchaser pendente lite will be ignored. To avoid such situations the transferee pendente lite can be added as a party defendant to the case provided his interest is substantial and not just peripheral. This is particularly so where the transferee pendente lite acquires interest in the entire estate that forms the subject matter of the dispute. This Court observed:
"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, 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 Page 10 of 23 Downloaded on : Tue Oct 10 20:49:44 IST 2023 NEUTRAL CITATION C/SCA/9767/2008 CAV JUDGMENT DATED: 10/10/2023 undefined interests. 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"
57. To the same effect is the decision of this Court in Rikhu Dev, Chela Bawa Harjug Dass v. Som Dass (deceased) through his Chela Shiama Dass, (1976) 1 SCC 103.
58. To sum up:
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 owner defendants in the suit.
(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.
(4) The appellant shall as a result of his addition raise and pursue only such defenses as were available and taken by the original defendants and none other."
4.1 Learned Advocate Mr.Mehta for the petitioner would further submit that issue of bonafide purchaser cannot be decided at the time of joining the party. He would further submit that principle of lis pendens envisaged in Section 52 of the Act lays down that transferee pendente lite of an interest in an Page 11 of 23 Downloaded on : Tue Oct 10 20:49:44 IST 2023 NEUTRAL CITATION C/SCA/9767/2008 CAV JUDGMENT DATED: 10/10/2023 undefined immovable property which is the subject matter of a suit would be bound by the decree. He would further submit that in order to protect the interest of the plaintiff and in order to avoid further transaction of the property, the proposed party was necessary party and is bound by principle of lis pendens when he has purchased the subject matter of suit land pending the suit proceedings. He would further submit that amendment in Section 52 of the Act applicable to State of Gujarat and State of Maharashtra would not make any further change. It gives one more option to the plaintiff to register notice of the suit before the Sub-Registrar Office under Section 18 of the Registration Act. He would further submit that if the notice of suit is not registered, it would not negate the applicability of Section 52 of the Act.
4.2 Learned Advocate Mr.Mehta for the petitioner has also referred to the decision in case of Vidur Impex And Traders Pvt Ltd. vs. Tosh Apartments Private Limited [2012 SCC 8 384] more particularly paragraph 36 to contend that by this judgment the Hon'ble Apex court has summarized the principle of governing the disposal of the application for impleadment of the party which reads thus:
"36. Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are:
1. The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the Page 12 of 23 Downloaded on : Tue Oct 10 20:49:44 IST 2023 NEUTRAL CITATION C/SCA/9767/2008 CAV JUDGMENT DATED: 10/10/2023 undefined Court is necessary for effective and complete adjudication of the issues involved in the suit.
2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the Court.
3. A proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.
4. If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff.
5. In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation.
6. 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."
4.3 Learned Advocate Mr.Mehta for the petitioner also relied upon the decision in case of Sumtibhai vs. Paras Finance Co. Rg. Partnership Firm Beawer (Raj) through Smt. Mankanwar W.o. Parasmal Chordia (Dead) [2007 (10) SCC 82] more particularly paragraph 14 thereof which reads thus:
"14. In view of the aforesaid decisions we are of the opinion that Page 13 of 23 Downloaded on : Tue Oct 10 20:49:44 IST 2023 NEUTRAL CITATION C/SCA/9767/2008 CAV JUDGMENT DATED: 10/10/2023 undefined Kasturis 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. In our opinion, if C can show a fair semblance of title or interest he can certainly file an application for impleadment. 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. Clearly, such a view cannot be countenanced."
4.4 Upon above submissions, learned Advocate Mr.Mehta for the petitioner would submit that even if we notice the effect of amendment in Section 52 of the Act applicable to the State of Gujarat as well as State of Maharashtra, the principle of lis pendens squarely governs and even in absence of registration of notice of the suit the subsequent purchaser cannot escape from the operation of principle of lis pendens. He would further submit that in order to protect the interest of the plaintiff and to avoid the multiplicity of the proceedings the proposed purchaser could be termed as necessary party to the suit and to give true and legal effect of cause of action against proposed party the amendment in pleadings is also necessary. Upon above submissions, he would submit to allow this petition; to quash and set aside the impugned order and to allow the application at Exhibit-24.
5. On the other hand, learned Advocate Mr.S P Majmudar appearing for the proposed party submits that the amendment in Section 52 of the Act applicable to the State of Gujarat and State Page 14 of 23 Downloaded on : Tue Oct 10 20:49:44 IST 2023 NEUTRAL CITATION C/SCA/9767/2008 CAV JUDGMENT DATED: 10/10/2023 undefined of Maharashtra makes it mandatory to register notice of the suit under Section 18 of the Registration Act before the Sub-Registrar so as claim the operation principle of lis pendens. He would further submit that in absence of the registration of notice of the suit as envisaged under Section 52 of the Act applicable to the State of Gujarat, subsequent purchaser who has purchased the subject matter pending the suit can legitimately claim that he is bonafide purchaser and he is not bound by the pendency of the suit proceedings. He would further submit that this principle is succinctly dealt with by this court in the case of Dipakbhai Manilal Patel & Anr. vs. State of Gujarat & Anr. AIR 2007 - Gujarat-1. Thus, while supporting the impugned order, he would submit that the learned Court below has not committed any error much less error of understanding provisions of law and therefore he prays to dismiss the petition.
6. Having heard the learned Advocates appearing for both the sides and paying thoughts to the order passed by the Hon'ble Apex Court, while remitting back the matter the Hon'ble Apex Court observed that learned Single Judge of this Court (Coram:
Akil Kureshi, J.) did not notice effect of the amendment in the Section 52 of the Transfer of Property Act, 1882 by Bombay Act No.4 of 1939 as applicable to the State of Gujarat.
7. Following State amendment is made in Section 52 of the Transfer of Property Act in State of Maharashtra.
"In its application to the pre-Reorganization State of Bombay-
(1) the Transfer of Property and the Indian Registration (Bombay Amendment) Act, 1939 (Bom. XIV of 1939) shall apply Page 15 of 23 Downloaded on : Tue Oct 10 20:49:44 IST 2023 NEUTRAL CITATION C/SCA/9767/2008 CAV JUDGMENT DATED: 10/10/2023 undefined to notices in respect of suits or proceedings which retain to immoveable properties situate wholly or partly in the Greater Bombay with effect from such date as may be directed by the State Government in this behalf by notification in the Official Gazette Provided that the State Government may by similar notification direct that the provisions of the said Act shall apply to such notices relating to immoveable properties situate wholly or partly in such other area as may be specified in the said notification.
(2) section 52 shall be renumbered as sub-section (1) of that section, and
(i) in sub-section (1) so renumbered after the word "question", the word and figures "if a notice of the pendency of such suit or proceeding is registered under section 18 of the Indian Registration Act. 1908", and after the word "property" where it occurs for the second time the words "after the notice is so registered," shall be inserted; and
(ii) after the said sub-section (1) so renumbered the following shall be inserted, namely -
"(2) Every notice of pendency of a suit or a proceeding referred to in sub-section (1) shall contain the following particulars, namely:-
(a) the name and address of the owner of immoveable property or other person whose right to the immoveable property is in question:
(b) the description of the immoveable property the right to which is in question:
(c) the Court in which the suit or proceeding is pending:
(d) the nature and title of the suit or proceeding; and
(e) the date on which the suit or proceeding was instituted." and 3 (15-6-1939)."Page 16 of 23 Downloaded on : Tue Oct 10 20:49:44 IST 2023
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8. In view of amendment in Section 52, in State of Gujarat, principles of lis pendens would apply if notice of the suit in which any right to immovable property is directly and specifically in question is registered under Section 18 of the Registration Act. What is to be registered is also clearly mentioned in the provision of law. It appears that by the amendment in Section 52 the legislature has intended to restrict the operation of principle of lis pendens as far as it applicable to the State of Maharashtra and after re-organization of State also into the State of Gujarat considering the sufficient understanding of the importance of the registration in the particular area. In other words, it appears that the legislature believed that there is sufficient awareness regarding importance of the registration in the State of Maharashtra and now after re-organization of the State in State of Gujarat also and therefore limits the operation and applicability of Section 52 of the Transfer of Property Act and doctrine of lis pendens to the extent where the notice of suit is registered under Section 18 of the Registration Act. The term "if notice of the pendency of the suit or proceeding is registered under Section 18 of the Act, all the property in question after the notice is registered cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to effect the right of the any other party thereto for any decree or order" in Section 52, amended by Bombay Act No.4 of 1939 makes it abundantly clear that registration of the notice of suit is necessary to claim the principle of lis pendens as far as State of Gujarat is concerned.
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9. This Court in the case of Premchand J. Panchal v Shahjahabanu Liyakatkhan Pathan & Ors. [2011 (2) GLR 1121] examined the effect of amendment in Section 52 of the Act applicable to the State of Gujarat. Finding and observations in paragraph 22 to 29 are relevant which reads thus:
"22. A useful reference can be made to the Transfer of Property (Bombay Provision for Uniformity and Amendment) Act, 1959 where it has been provided, "AND WHEREAS it is expedient to provide for uniformity in the provisions of the Transfer of Property Act, 1882 (IV of 1882) in its application to the entire State of Bombay and to repeal the Acts mentioned in the preceding paragraph." Clause 3 of the said Act provide, "Extension of certain provisions of Bom. XIV of 1939 to rest of State."
23. This would, therefore, imply that the provisions of the T.P. Act read with the Indian Registration Act are applicable in the State of Gujarat as it was forming part of the erstwhile State of Bombay at the relevant time in 1959.
24. Moreover, the Transfer of Property and the Indian Registration (Bombay Amendment) Act, 1939 has reference to the necessity for registration as it has been stated in the Object, "Section 52 of the Transfer of Property Act, 1882, provides that during the pendency in a Court of a suit and proceeding in which a right to immovable property is in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other parties thereto. There is no provision, however, in that Act providing for compulsory registration or giving notice of the pending suit or action by the party claiming benefit under this Page 18 of 23 Downloaded on : Tue Oct 10 20:49:44 IST 2023 NEUTRAL CITATION C/SCA/9767/2008 CAV JUDGMENT DATED: 10/10/2023 undefined section. The result is that many bona fide purchasers for valuable consideration suffer loss for want of notice that the properties purchased by them had been included in a pending action. The Bill is intended to supplement the provisions of section 52 and make the registration of lis pendens a condition precedent to the operation of the provisions thereof. It is intended that the law should in the first instance extend to the City of Bombay only. The amendment of the Registration Act is only consequential."
25. Therefore, in light of these provisions, the submissions made by learned counsel Mr. Shah based on sec. 52 of the T.P. Act cannot be accepted. As discussed above, there is no dispute with regard to the provisions of sec. 52 which bars transaction of property during the pendency of the litigation. At the same time, in order to avoid any hardship, subsequent state amendments as discussed hereinabove have been made obliging the issuance of notice and registration thereof under the Registration Act. Though the submissions have been made by learned counsel Mr. Shah that there is no such notification by which it can be said such amendment is applicable to the facts of the case and it was confined to a particular area in the erstwhile Bombay State cannot be accepted in light of the discussion made hereinabove.
26. It is also required to be noted at this stage that in a judgment in the case of Dipakbhai Manilal Patel & anr. (supra), this Court had an occasion to deal with similar issue with regard to registration and notice and the applicability of the State Amendment to the T.P. Act to the State of Gujarat and in Para 5 it has been specifically observed, "if the notice of lis pendens is registered under the Registration Act and as per the provisions of the amendment, the notice of pendency of the suit should contain all the details as per subsec. (2) of the Amendment in Sec. 52 which is applicable to the State of Gujarat. The essential purpose of the aforesaid Page 19 of 23 Downloaded on : Tue Oct 10 20:49:44 IST 2023 NEUTRAL CITATION C/SCA/9767/2008 CAV JUDGMENT DATED: 10/10/2023 undefined amendment is to see that any person who may be interested to purchase the property when undertakes the title search of the property with the Sub-Registrar, the person concerned would be put to the notice that a particular suit is pending before the competent Court and therefore he may not be misguided or if with conscious knowledge the person concerned has purchased the property, the purchaser may not be in a position to contend that he was not aware about the pendency of the litigation, and consequently, the suit may not be frustrated or the principles of lis pendens can have its full effect as per the provisions of Transfer of Property Act."
27. It is required to be also noted that the Hon'ble Apex Court in the case of Anand Nivas Private Ltd. (supra) referred to and relied upon by learned counsel Mr. Shah, there is a discussion on this aspect in Para 39 with regard to Transfer of Property (Bombay Provision for Uniformity and Amendment) Act, 1959, wherein the applicability of the Act in order to maintain uniformity has been considered and it has been observed that notwithstanding the formation of the new State, the territorial extent of laws previously in operation would continue to apply for the purpose of uniformity.
28. It is also required to be mentioned that as per the General Clauses Act, 1884, the laws, rules, regulations in force applicable to the State of Bombay will continue to have its application to the said areas which were forming part of the State of Bombay at the relevant time even after the formation of the State of Gujarat.
29. The reliance placed by learned counsel Mr. Shah on the judgment in the case of Anand Nivas Private Ltd. (supra) with specific observation referring to the fact that in that litigation the property was in Ahmedabad and it was held that the amendment would not have any application as the notification has not been issued is required to be considered in light of the fact about the subsequent Page 20 of 23 Downloaded on : Tue Oct 10 20:49:44 IST 2023 NEUTRAL CITATION C/SCA/9767/2008 CAV JUDGMENT DATED: 10/10/2023 undefined development. The judgment of the Hon'ble Apex Court in the case of Anand Nivas Private Ltd. (supra) relates to the transaction which had taken place much prior thereto, whereas in the facts of the present case, the transaction had taken place subsequently. At the same time, there is no notification brought on record by either side with regard to the applicability of the amendment in the State."
10. In view of the above, it is clear that if notice of lis pendens and the suit is registered under Section 18 of the Registration Act, containing all the details as stated in sub-section (2) of Section 52 of the Act applicable to the State of Gujarat then only, principle of lis pendens would be attracted. Essentially, purpose of such amendment in Section 52 of the Act applicable to the State of Gujarat is to see that person who is interested to purchase the immovable property when search for the title of the immovable property with the suit register, he may know the pendency of the suit or proceeding related to such immovable property. It is unique provision reflecting feature that purchaser may not be misguided or may purchase the immovable property with conscious knowledge that the civil suit is pending before the competent Civil Court regarding the immovable property which he is intending to purchase. In this situation, he cannot claim that he is bona-fide purchaser.
11. Insofar as the provisions of joining the party pending the suit governed by O.1 R.10 of the CPC or seeking amendment in pleading under O.6 R.17 of the CPC are concerned, they are independent provision. Registration of notice of the suit for claiming the application of principle of lis pendens as stated herein above is necessary in the State of Gujarat; in absence Page 21 of 23 Downloaded on : Tue Oct 10 20:49:44 IST 2023 NEUTRAL CITATION C/SCA/9767/2008 CAV JUDGMENT DATED: 10/10/2023 undefined thereof the plaintiff cannot ask that transaction as pendent lite the suit is subservient to judgment and decree; but question would arise that whether non-applicability of principle of lis pendens would anyway affect the right of the plaintiff to join the third party in the suit under O.1 R.10 of the CPC feeling that presence of the party is necessary to adjudicate the dispute effectively. Non-registration of the notice of the suit as provided in Section 52 applicable to the State of Gujarat would not deter the Court from exercising power under O.1 R.10 of CPC feeling that presence of the party is necessary for the expedient decision of the suit. Amendment in the pleading has different fabric and connotations and it can be decided on its own merits. It can be decided independently on merits and contentions raised before the Court.
12. What appears on plain reading of the application at Exh.24 filed in the suit in question, the petitioner claimed combined relief under O.1 R.10 along with O.6 R.17 of the CPC. Relief under O.1 R.10 and O.6 R.17 of CPC are based on different cause and different contentions. Combined application was not maintainable. Thus, the case is required to be remanded back to the Court below for fresh consideration.
13. For the foregoing reasons and finding, the petition is allowed; the impugned order is quashed and set aside. Matter is remanded back to the Court below. It would be open for the petitioner to prefer two separate application for claiming relief under O.1 R.10 and O.6 R.17 of the CPC which shall be heard and decided strictly in accordance with the law and independent Page 22 of 23 Downloaded on : Tue Oct 10 20:49:44 IST 2023 NEUTRAL CITATION C/SCA/9767/2008 CAV JUDGMENT DATED: 10/10/2023 undefined of its merits uninfluenced by any of the observations made herein above. Rule is made absolute to the above extent.
(J. C. DOSHI,J) sompura Page 23 of 23 Downloaded on : Tue Oct 10 20:49:44 IST 2023