Himachal Pradesh High Court
Raja Ashok Pal Sen vs Smt. Raj Kumari Indira Mahindra And ... on 3 January, 2018
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
OMPs No. 24 & 217 of 2015
in Civil Suit No. 4 of 2007
Date of order: 03.01.2018
Raja Ashok Pal Sen ...Plaintiff.
Versus
Smt. Raj Kumari Indira Mahindra and others ...Defendants.
Coram The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? Yes For the plaintiff: Mr. Ajay Kumar, Senior Advocate, with Mr. Dheeraj K. Vashisth, Advocate.
For the defendants: Ms. Seema K. Guleria, Advocate, for defendants No. 1 and 2.
Mr. Rakesh Dogra, Advocate, for defendant No. 3.
Mr. G.R. Palsra, Advocate, for defendants No. 4 and 9 to 11 and for applicant in OMP No. 217 of 2015.
Mr. Surinder Saklani, Advocate, for defendants No. 5 to 8.
::: Downloaded on - 04/01/2018 23:09:02 :::HCHP 2Ms. Bhavna Dutta & Mr. Sandeep Dutta, Advocates, for applicants in OMP No. 24 of 2015.
.
Vivek Singh Thakur, Judge. (Oral) During pendency of the present suit filed by the plaintiff seeking decree of declaration in his favour, two applications being OMPs No. 24 and 217 of 2015 have been r to filed wherein applicants are claiming their entitlement for impleading them as defendants in the suit for entering into two different agreements to sell executed by defendants No. 1 and 9 in favour of applicant(s) in OMPs No. 24 and 217 of 2015, respectively.
2. Both these applications are being disposed of by this common order as common question of facts and law is involved in these applications.
3. In order to determine both these applications, it is necessary to give a brief resume of the case herein.
4. In the present suit, plaintiff and defendant No. 1 are real brother and sister, defendant No. 2 is son of defendant No. 1 and defendant No. 3 was Special Power of ::: Downloaded on - 04/01/2018 23:09:02 :::HCHP 3 Attorney of defendant No. 1, who has executed sale deeds of the suit property in favour of defendants No. 4 to 11.
.
5. Plaintiff has filed this suit claiming that defendant No. 1 had relinquished her share in the suit property, inherited by her after the death of their parents, in favour of the plaintiff and the said relinquishment was in lieu of surrender of ownership right by the plaintiff in favour of defendant No. 2 (son of defendant No. 1) in the property situated at Panji, Goa, pursuant to deed of family settlement executed on 10th November, 2000, and, thus, seeking declaration to the effect that plaintiff is absolute owner of the suit property and that cancellation of mutation No. 146, dated 18th August, 2000, vide order, dated 31st August, 2005, wherein relinquishment of share in favour of plaintiff by defendant No. 1 was attested, is illegal and wrong and that sales/transfers made in favour of defendants No. 4 to 11 with respect to the suit property are illegal, null and void and not binding on the plaintiff. He has also sought decree for preemption of the suit property.
::: Downloaded on - 04/01/2018 23:09:02 :::HCHP 46. Earlier, joint written statement was filed on behalf of defendants No. 1 and 3 on the affidavit of .
defendant No. 3 claiming that defendant No. 1 was within her rights to dispose of the property falling in her share in accordance with law. However, in the meanwhile, plaintiff was permitted to amend the plaint and amended plaint was filed on 14th June, 2008, whereafter defendant No. 1 filed a separate written statement disowning the sales/transfers made by defendant No. 3 in favour of defendants No. 4 to 11, claiming that she, i.e. defendant No. 1, appeared to have been defrauded by the plaintiff on account of the fact that her signatures seem to have been obtained on certain documents on account of her blind faith and confidence in the plaintiff being her elder brother and also that defendant No. 3 was appointed as General Power of Attorney by her on persuasion of plaintiff as she was unable to visit the suit property frequently due to medical reasons and defendant No. 3 was confident and consequentially well known to the plaintiff and late wife of plaintiff, Mrs. Kiran Kumari.
::: Downloaded on - 04/01/2018 23:09:02 :::HCHP 5However, selling of part of property of defendant No. 3 has been admitted but it is claimed that sale deed, dated 24th .
April, 2008 was executed by defendant No 3 by concealing the material facts as she (defendant No. 1) never intended to sell the heritage temple and the said sale deed was executed without her knowledge and after knowing about the said sale deed through newspapers, she immediately objected it with revenue authorities and froze and rendered her General Power of Attorney inoperative, which was executed by her in favour of defendant No. 3 and cancelled the said General Power of Attorney in accordance with law as defendant No. 3 had not only misused the General Power of Attorney but had also caused irreparable loss to her by selling the property never intended to be sold by her.
Further that she has not received any consideration for the said sale deed.
7. OMP No. 24 of 2015 has been filed under Order 1 Rule 10 of the Code of Civil Procedure (for short "CPC") by the applicants, namely Shri Dinesh Kumar, Sh. Vishal ::: Downloaded on - 04/01/2018 23:09:02 :::HCHP 6 Chaddha and Shri Madho Prasad, for impleading them in the main suit as additional defendants claiming them .
necessary party for effective and complete adjudication of suit on the ground that they, alongwith one Shri Anil Sharma, through their Special Power of Attorney Shri Madho Prasad, had entered into an agreement to sell with defendant No. 1Smt. Raj Kumari Indira Mahindra executed on 17th May, 2014 with respect to suit property.
8. OMP No. 217 of 2015 has been filed under Order 1 Rule 10 CPC by one Shri Subhash Thakur for impleading him as codefendant in the suit on the ground that during pendency of the civil suit, defendant No. 9 Shri Khub Ram has entered into an agreement to sell, dated 4 th July, 2015 with respect to Khub Ram's share to the extent of 1946.76 sq. mtrs. for a consideration of ₹ 50,00,000/, which stands paid to defendant No. 9 and as the agreement to sell will depend upon the outcome of this civil suit, he is a necessary party to be impleaded as defendant in the suit for proper and effective adjudication of the suit.
::: Downloaded on - 04/01/2018 23:09:02 :::HCHP 79. Earlier, these applications were filed under Order 1 Rule 10 CPC read with Section 151 CPC and were .
allowed on 18th November, 2015 after converting the same into applications under Order 22 Rule 10 CPC. The said order, dated 18th November, 2015, was assailed in LPAs No. 204 and 205 of 2015, preferred by the plaintiff, which were decided on 21st March, 2016 whereby after setting aside order, dated 18th November, 2015, impugned in the LPAs, the applications were ordered to be restored to its original number with a direction to decide these applications under Order 1 Rule 10 CPC afresh after hearing the parties.
10. Thereafter, applicant(s) had filed application(s), being OMP No. 291 of 2016 and 230 of 2016, seeking amendment in the title clause of this application(s) to the following effect:
"Application under Order 1 Rule 10 of the Code of Civil Procedure read with Section 151 of CPC alongwith Order 22 Rule 10 CPC to implead applicants as additional defendants (codefendants) in the suit."::: Downloaded on - 04/01/2018 23:09:02 :::HCHP 8
11. The said amendment was allowed and now these applications are to be decided accordingly.
.
12. The application, OMP No. 24 of 2015, is being contested by the plaintiff on the ground that the agreement(s) to sell, entered into by defendant No. 1 with the applicants and one Shri Anil Kumar, was executed during the pendency of the suit violating the interim order whereby defendants were restrained from alienating or encumbering the suit property and for the said violation, the plaintiff has initiated action against defendant No. 1 under Order 39 Rule 2A CPC. Further that the agreement does not create any interest in the property in favour of the applicants.
13. The application, OMP No. 217 of 2015, is being contested by the plaintiff on the ground that any agreement of sale has never been entered into between the applicant and defendant No. 9 and the alleged agreement of sale appears to have been entered into to set up false and frivolous claim to the suit property. Further that the ::: Downloaded on - 04/01/2018 23:09:02 :::HCHP 9 plaintiff has initiated action against defendant No. 9 and the said Shri Subhash Thakur under Order 39 Rule 2A CPC for .
violating the interim order whereby defendants were restrained from alienating or encumbering the suit property and that the alleged agreement does not create any interest in the property in favour of the applicant.
14. Defendant No. 1, by filing application(s), had prayed for considering the reply(ies) filed to the unamended application(s) as reply to the amended application(s).
However, as per record, reply by defendant No. 1 has been filed only to OMP No. 24 of 2015 and there is no reply of defendant No. 1 to OMP No. 217 of 2015. In any case, agreement to sell, on the basis of which application in OMP No. 217 of 2015 is claiming his right for impleadment, is not between the said applicant and defendant No. 1, but has been executed by defendant No. 9 Khub Ram. The said defendant has also not filed reply to the said application, rather, applicantSubhash Thakur has preferred his ::: Downloaded on - 04/01/2018 23:09:02 :::HCHP 10 application through the counsel Mr. G.R. Palsra, who is also representing defendant No. 9.
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15. Defendant No. 1, in reply to OMP No. 24 of 2015, has opposed the impleadment of applicants in the said application as defendants by stating that the agreement to sell does not confer any title on the applicants and the said agreement is subject to outcome of present civil suit and in case outcome of the civil suit goes against the applicants, then they will have right to receive the payment made by them. Further, in case decision goes in favour of defendant No. 1, applicants will have right to file suit for specific performance in case she (defendant No. 1) does not comply with agreement to sell. It has specifically been stated in the reply that before finalization of present suit, the applicants have no right in the suit property as the right of the applicants in the agreement to sell is already subject to outcome of the civil suit, as has been mentioned clearly in clause 7 of the said agreement.
::: Downloaded on - 04/01/2018 23:09:02 :::HCHP 1116. I have given consideration to the arguments addressed by the learned counsel appearing on behalf of the .
respective parties and have also gone through the record.
17. Civil Suit was filed in the year 2007. Last order directing parties to maintain status quo with respect to nature and possession as well as alienation of the suit of 2010 on 30th July, 2010.
r to property till disposal of the suit was passed in OMP No. 13
18. Agreements to sell, on the basis of which applicants in the applications are claiming their right for impleadment, have been placed on record with the respective applications. Agreement between defendant No. 1 and applicants in OMP No. 24 of 2015 was executed on 17th May, 2014, and agreement, subject matter of OMP No. 217 of 2015 was executed on 4th July, 2015.
19. In agreement executed by defendant No. 1 in favour of the applicants in OMP No. 24 of 2015, it has specifically been mentioned as under:
"WHEREAS NOW the first party and second party who have knowledge of Civil ::: Downloaded on - 04/01/2018 23:09:02 :::HCHP 12 Suit No. 4 of 2007 and Civil Suit No. 38 of 2009 have entered into agreement to sell and THEREOF THE AGREEMENT .
WITNESS that:
xxx xxx xxx
4. That the second parties have further agreed that their rights will be subject to final outcome of Civil Suit No. 4 of 2007 and Civil Suit No. 38 of 2009 (New case no. 7 of 2013) pending in Additional District Judge (II), Mandi, H.P. and will bear the expenses of litigation of the aforesaid suits.
5. That the second parties have knowledge of the Civil Suit No. 4 of 2007 pending before Hon'ble High court of H.P. and Civil Suit No. 38 of 2009 (New Case No. 7 of 2013) title as "Indira Mahindra Vs. Devendar Jamwal & others" pending in the Court of Ld. Additional District Judge (II), Mandi, H.P. and contents thereof and have further agreed that in the event of said suits being decided against First Party, the Second Parties will not claim refund of any amount paid as consideration in any form and the same shall stands forfeited to and in favour of the First Party.
6. ... ... ...
7. That the sale will be completed within 1 month from the date of final outcome of Civil Suit No. 4 of 2007 and in case the sale deed is not executed within stipulated period the FIRST PARTY will forfeit the consideration amount."::: Downloaded on - 04/01/2018 23:09:02 :::HCHP 13
20. In the agreement executed by defendant No. 9, .
subject matter of OMP No. 217 of 2015, in clause 4, it has been mentioned as under:
"4. That the first party will execute and registered Sale Deed in favour of the second party after the decision of Civil Suit No. 4 of 2007 titled as Raja Ashok Pal Sen Versus Smt. Indra Mahendra and others pending disposal before the Hon'ble High Court of Himachal Pradesh."
21. The agreements in question have been executed during the existence and operation of interim order directing the parties to maintain status quo not only with respect to nature and possession but also qua alienation of the suit property till disposal of the suit. Further, in these agreements, pendency of the present civil suit has been clearly mentioned and acknowledged by the applicants with specific clauses that these agreements are subject to final decision of the main civil suit.
22. An agreement to sell only gives right to buyer to enforce his legal right for execution of sale deed, but subject to the conditions agreed upon between the parties. In ::: Downloaded on - 04/01/2018 23:09:02 :::HCHP 14 present case, in both the agreements, there is a specific condition that sale deeds shall be executed only after final .
decision of Civil Suit No. 4 of 2007, i.e. the present suit.
Applicants are not transferees. Their status is not of buyers but of prospective buyers. The title of the property in question has not been transferred yet.
23. It would be relevant to reproduce the provisions of Order 1 Rule 10 CPC, Order 22 Rule 10 CPC and Sections 52 and 54 of the Transfer of Property Act as under:
" ORDER I PARTIES TO SUITS ............
10. Suit in name of wrong plaintiff. (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted thought a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
(2) Court may strike out or add parties. The Court may at any stage of the proceedings, either upon or without ::: Downloaded on - 04/01/2018 23:09:02 :::HCHP 15 the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party .
improperly joined, whether as plaintiff or defendant, be struck out, and that the name, of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
(4) Where defendant added, plaint to be amended. Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.
(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.
ORDER XXII
DEATH, MARRIAGE AND
INSOLVENCY OF PARTIES
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16
..................
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 attachment to the benefit of subrule (1).
Sections 52 & 54 of The Transfer of Property Act
52. Transfer of property pending suit relating thereto. During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immoveable property is directly and specifically 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 party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
Explanation. For the purposes of this section, the pendency of a suit or ::: Downloaded on - 04/01/2018 23:09:02 :::HCHP 17 proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a .
Court of competent jurisdiction; and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.
xxx xxx xxx
54. "Sale" defined. "Sale" is a transfer of ownership in exchange for a price paid or promised or partpaid and part promised.
Sale how made. Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale. A contract for the sale of immoveable property is a contract ::: Downloaded on - 04/01/2018 23:09:02 :::HCHP 18 that a sale of such property shall take place on terms settled between the parties.
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It does not, of itself, create any interest in or charge on such property."
24. Reliance has been placed by the applicants upon judgment rendered by the Full Bench of Orissa High Court in case titled as Sri Jagannath Mahaprabhu versus Pravat Chandra Chatterjee and others, reported in AIR 1992 Orissa 47, wherein, keeping in view the fact that transferee is vitally interested in the litigation, it was held that Court, in its discretion, can implead him as a proper party under Order 22 Rule 10 (1) CPC. It has specifically been held in this judgment that plaintiff is not bound to make transferee a party but the Court has discretion in the matter which must be exercised and an alienee would ordinarily be joined as a party to enable him to protect his interest. It is further been held that assuming that alienee/transferee is not a proper party, he may be impleaded as an assignee under the provisions of Order 22 Rule 10 (1) CPC and even if an application has been filed ::: Downloaded on - 04/01/2018 23:09:02 :::HCHP 19 under Order 1 Rule 10 CPC, labelling of the application being misconceived, the Court should ignore the labelling of .
the application as one under Order 1 Rule 10 CPC and treat the same as one filed under Order 22 Rule 10 (1) CPC, if the ingredients thereof are satisfied.
25. Applicants have also relied upon judgment passed by the Gujarat High Court in the case titled as Patel Chaturbhai Shambhudas and another versus State of Gujarat and another, reported in AIR 1996 Gujarat 40, but the ratio of law laid down in the said judgment is not applicable to the present case as in the said case, plaintiffs had filed a suit for declaration against the State claiming ownership and possession of the suit land. During the pendency of the said suit, an application was filed by the applicant therein to implead him as a defendant by claiming his ownership and possession on account of existence of Samadhis of his ancestors, where members of his community were visiting for sevapuja and worship. This ::: Downloaded on - 04/01/2018 23:09:02 :::HCHP 20 case is distinguishable on facts which are not similar to the case in hand.
.
26. Even, in this judgment, it has been held that ordinarily, Court should not direct the plaintiff to join a third party in exercise of its power under Order 1 Rule 10 (2) CPC against the will of the plaintiff, compelling him to file a suit against such third party and to amend the plaint. Only in exceptional cases, where addition of new defendant is found absolutely required to enable the Court to effectively and completely adjudicate upon the matter in controversy between the parties, a person be added as defendant even against the opposition of the plaintiff.
27. Ratio of law laid down by the High Court of Rajasthan in the case titled as Baijnath and another versus Smt. Ganga Devi and another, reported in AIR 1998 Rajasthan 125, relied upon by the applicants, is also not applicable to the present case, as in the said case, applicant, who was seeking impleadment as a party, was daughter of deceased defendant and was not impleaded as a ::: Downloaded on - 04/01/2018 23:09:02 :::HCHP 21 party despite the fact that being daughter of deceased defendant, she was having a right in the property in dispute .
and was a necessary party to the suit. It was not a case of transfer, assignment, creation or devolution of interest by the defendant by executing any agreement to sell in favour of the third party.
28. Similarly, judgment of the High Court of Karnataka delivered in case titled as Munivenkatamma and others versus Ramaiah, reported in AIR 2001 Karnataka 292, relied upon by the applicants, is also distinguishable on facts as in the said case, there was a dispute with respect to entitlement to a share in the compensation on the basis of title in the property, wherein the applicants had sought their impleadment as parties alleging that they had also got title over the land in dispute as the land was granted to their elder brother, who was claiming exclusive right in the property, in the capacity of head of the joint family. It was not a case wherein during pendency of the suit, property in dispute was alienated or ::: Downloaded on - 04/01/2018 23:09:02 :::HCHP 22 proposed to be alienated by an agreement like agreement to sell.
.
29. Pronouncement of the apex Court in case titled as Razia Begum versus Sahebzadi Anwar Begum and others, reported in AIR 1958 Supreme Court 886, relied upon by the applicants, is also of no help to them as in the r to said case, plaintiff had filed a suit for declaration against defendant claiming the status of his wife and her entitlement to receive 'KharchePandan' on the basis of such status, wherein applicant and her minor son had filed an application claiming to be lawful and legally wedded wife and son of defendant, whereas the defendant had conceded entire claim of the plaintiff for the declaration sought by her. In those peculiar facts and circumstances, the applicants were permitted to be added as defendants.
30. Applicants have also relied upon pronouncement of the apex Court in Thomson Press (India) Limited versus Nanak Builders and Investors Private Limited and others, reported in (2013) 5 Supreme Court Cases ::: Downloaded on - 04/01/2018 23:09:02 :::HCHP 23 397, wherein it has been held that transferee/purchaser pendente lite may be impleaded in pending suit for specific .
performance of prior agreement to sell/contract for sale filed by buyer against original owner/transferor/seller pendente lite. Further, after considering judgments in Khemchand Shankar Choudhari versus Vishnu Hari Patil, reported r to in (1983) 1 Supreme Court Cases 18, and Amit Kumar Shaw versus Farida Khatoon, reported in (2005) 11 Supreme Court Cases 403, it has been held that purchaser/transferee of entire estate, subject matter of the suit, is entitled to be added as a partydefendant to the suit for specific performance filed against the original owner/ transferor/seller.
31. The present suit is not a suit for specific performance but a suit for declaration of title on the basis of alleged relinquishment of share of defendant No. 1 in favour of the plaintiff. Further, in present case, transfer in favour of applicants is yet to have taken place on execution of sale deeds, which, as per terms and conditions of the agreements ::: Downloaded on - 04/01/2018 23:09:02 :::HCHP 24 to sell, are yet to be executed after final decision of the civil suit. Therefore, at this stage, it cannot be said that the .
applicants, being transferees, have become title holder in the suit property. Viewed thus, ratio laid down in this judgment is not applicable to the case in hand.
32. Plaintiff has relied upon pronouncement of the apex Court in case titled as Anokhe Lal versus Radhamohan Bansal and others, reported in AIR 1997 Supreme Court 257, wherein it has been held that where impleading third party involves de novo trial, such impleadment normally should not be allowed. In this case, applicants were directed to be impleaded in a revision pending in the High Court despite the fact that suit was not pending when the said revision was taken up for hearing. It has been observed in this judgment that in such eventuality, the revision should only have been dismissed as infructuous.
However, in principle, it has been held that the Court should have been very circumspect in dealing with an application of a third party seeking leave to become party in the suit when ::: Downloaded on - 04/01/2018 23:09:02 :::HCHP 25 the plaintiff, who is the dominus litis of the suit, is in opposition to it.
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33. Defendant No. 1 has relied upon judgment pronounced by the Full Bench of Punjab High Court in the case titled as Santa Singh Gopal Singh and others versus Rajinder Singh Bur Singh and others, reported r to in AIR 1965 Punjab 415 Full Bench, wherein, discussing the doctrine of lis pendens, it has been held that the principle, being that pendente lite neither party to the litigation can alienate the property in dispute so as to affect his opponent, is based not on the doctrine of notice but of expediency and the effect of maxim is not to annul the conveyance but only to render it subservient to the rights of the parties to the litigation.
34. Learned counsel for defendant No. 1 has also referred to para 41 of the said judgment wherein Justice Dua, despite having dissent with the majority judgment, has reiterated doctrine of lis pendens in different manner, but to the similar effect stating that the true foundation of lis ::: Downloaded on - 04/01/2018 23:09:02 :::HCHP 26 pendens embodied in Section 52 of the Transfer of Property Act appears to be public policy and necessity, and this .
doctrine holds mainly to prevent circumvention of Court's judgments by disposition of or dealing with the property in controversy, and if circumvention were permissible, a person would hardly enforce his legal rights through Court action.
35. Defendant No. 1 has also relied upon another pronouncement of Punjab and Haryana High Court in the case titled as Sardar Hari Bachan Singh versus Major S. Har Bhajan Singh and another, reported in AIR 1975 Punjab & Haryana 205, wherein, relying upon the judgment passed in Santa Singh Gopal Singh's case (supra), the same principle has been reiterated.
36. It emerges from provisions of law and established law of land that doctrine of lis pendens embodied in Section 52 of the Transfer of Property Act is intended to strike at attempts by parties to the litigation to circumvent the jurisdiction of a Court, in which the dispute of rights or interest in immovable property is pending, by dealing, that ::: Downloaded on - 04/01/2018 23:09:02 :::HCHP 27 may remove the subject matter of litigation from the ambit of the power of the Court to decide a pending dispute, or .
which may frustrate its decree. The rule is not based on doctrine of notice, but on expediency, i.e. the necessity of final adjudication. For applicability of this doctrine, it is immaterial whether the alienee pendente lite had, or had not, notice of pending proceedings. In the principle of lis pendens, being a principle of public policy, no question of good faith or bona fide arises.
37. In present case, transfer is not complete yet and as such, applicants cannot be termed as transferees. The applicants have only entered into agreements to sell in which specific conditions have been agreed upon between the parties that sale deeds in pursuance to these agreements shall be executed only after the decision of present suit.
Even a transferee pendente lite is considered to be a representative in interest of the transferor who is a party to the suit and is also a person bound by decree, even if he was not made a party in the suit. This condition is in ::: Downloaded on - 04/01/2018 23:09:02 :::HCHP 28 consonance with doctrine of lis pendens but does not entitle applicants to become party to suit only on the basis of it .
claiming that by virtue of this, interest in suit property has devolved upon applicants.
38. It is also canvassed on behalf of the plaintiff that for execution of agreements to sell during the pendency of suit after injunction order against any kind of alienation, proceedings under Order 39 Rule 2A CPC have also been initiated against defendants No. 1 and 9 wherein these defendants have taken defence that agreements to sell is not a transfer but an agreement for transfer after final adjudication of the case. This factual aspect has not been disputed.
39. Placing of Rule 10 in Order 22 CPC itself is self explanatory about scope and purpose of this Rule. Order 22 CPC deals with substitution of original parties on account of change in status of the parties, like, on account of death, marriage and insolvency etc. Rule 10 in this Order deals with procedure in similar situation in case of assignment, ::: Downloaded on - 04/01/2018 23:09:03 :::HCHP 29 creation or devolution of interest before final decision in the suit where a third person enters into shoes of either plaintiff .
or defendant and has become capable to sue or to be sued in the lis. Right of a person to become a party in a suit in case of assignment, creation or devolution of any interest during the pendency of a suit under this Rule is to be considered
40. to keeping in view the framework and scope of Order 22 CPC.
Further, Order 22 Rule 10 CPC does not confer any right upon a person to become a party on account of assignment, creation or devolution of any interest automatically. Rather, the language of this Rule provides that suit 'may' (not 'shall') be continued by or against the person to or upon whom such interest has come or devolved, that too, 'by leave of the Court'. Therefore, Court, in the given circumstances, may or may not permit such assignee or interested person to become a party to the suit depending upon nature and manner of assignment, creation or devolution of interest to or upon a person sought to be impleaded and keeping in view doctrine of lis pendens, such ::: Downloaded on - 04/01/2018 23:09:03 :::HCHP 30 assignment, creation or devolution of interest must not be purely self invited, that too, having knowledge of pendency .
of suit. This Rule is meant, definitely, for bona fide assignment, creation or devolution of interest which certainly should be inevitable for transferee.
41. This Rule empowers the Court to replace the plaintiff or defendant to avoid the multiplicity of the litigation but definitely, it cannot be made a tool to multiply claims or compel the plaintiff to amend its suit time and again where defendant may, so as to frustrate the claim of plaintiff, keep on assigning, creating or devolving interest on third parties, who are not having any interest in the suit property at the time of filing of the suit.
42. Provisions of Order 22 Rule 10 CPC can be invoked in a situation where the assignment, creation or devolution of any interest in suit property is not designed to frustrate the claim of either party and further, where the original suit cannot be effectually and completely adjudicated in absence of such person having interest in the ::: Downloaded on - 04/01/2018 23:09:03 :::HCHP 31 suit property. Order 22 Rule 10 CPC cannot be used as substitution of Order 1 Rule 10 CPC but to supplement it.
.
Provisions of Order 22 Rule 10 CPC are to be read in conjunction with provisions of Order 1 rule 10 (2) CPC, which empower the Court to strike out or to add any party as necessary in order to enable the Court to adjudicate upon the suit.
r to effectually and completely to settle all questions involved in
43. I am unable to agree with the proposition propounded by applicants that a person, not found to be a necessary party under Order 1 Rule 10 CPC, can be impleaded as a party by invoking the provisions of Order 22 Rule 10 (1) CPC, for the reason that Order Rule 10 CPC empowers the Court to add or delete parties to the lis whereas Order 22 Rule 10 CPC provides procedure for substitution of parties (plaintiff or defendant) in case of assignment before final order in the suit providing that in cases of assignment, creation of devolution of any interest during the pendency of a suit, suit may be continued by or ::: Downloaded on - 04/01/2018 23:09:03 :::HCHP 32 against the person to or upon whom such interest has come or devolved. It does not give right to a person to or upon .
whom such interest of defendant has come or devolved to become a party even if his presence is not necessary for purpose of final adjudication of suit. It provides a procedure for continuation of suit and certainly continuation of a suit means right to the plaintiff to continue a suit against the person and not a right to such interested person to become a party in the suit.
44. Any right to become a party to the suit is certainly to be governed by the provisions of Order 1 Rule 10 CPC. It is also clear from the provisions of Order 22 Rule 10 CPC wherein it has been provided that suit 'may' be continued and that too, 'by leave of the Court', which indicates that such interested person has no right to claim for his addition/substitution as a party either as a plaintiff or defendant as a matter of right. There is another aspect of the issue that provisions of Order 22 Rule 10 CPC can also not have an overriding effect on the doctrine of lis pendens, ::: Downloaded on - 04/01/2018 23:09:03 :::HCHP 33 as provided in Section 52 of the Transfer of Property Act.
These provisions only enable the Court to deal with such a .
situation where it 'may' have become necessary to add such interested person as a party for effective and efficacious adjudication of the suit.
45. Applicants are not transferees. It is clear from the provisions contained in Section 54 of the Transfer of Property Act, as reproduced hereinabove, that a contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties and it does not, of itself, create any interest in or charge on such property. Even, had they been transferees, they would have been bound by the decree passed in main suit on the basis of doctrine of lis pendens, more particularly, when there are specific conditions in their agreements to sell that these agreements shall be enforceable only after final adjudication of present suit.
46. The issue involved in present suit is as to whether plaintiff has become owner of the share of ::: Downloaded on - 04/01/2018 23:09:03 :::HCHP 34 defendant No. 1, inherited by her after death of their parents, on account of relinquishment of rights in the .
property by her in favour of plaintiff and if so, it's effect on sale deeds, executed prior to filing of suit, in favour of defendants No. 4 to 9 by defendant No. 3 being Power of Attorney of defendant No. 1. Defendant No. 1 has refuted
47. to any such relinquishment as claimed by the plaintiff.
Applicants, who are claiming their interest in the suit property on the basis of agreements to sell, can enforce these agreements to sell against defendants No. 1 and 9, only after their title is determined finally in the suit. For the said purpose, defendants are the best persons to defend the suit and to prove the title on the suit property. Even if the applicants are to be permitted to become codefendants in present suit, their right flowing from the agreements to sell is not to be adjudicated and cannot be executed in present suit as it would be a claim against a codefendant and in case their agreements to sell are permitted to be made subject matter of the present suit, plaintiff would be ::: Downloaded on - 04/01/2018 23:09:03 :::HCHP 35 unnecessarily compelled to assail the agreements to sell entered upon between the applicants and defendants No. 1 .
& 9, in execution of which he has no role. Rather, it might be an attempt on the part of defendants to enter into such agreements and to create a mess so as to prolong the present suit for indefinite period frustrating the claim of plaintiff.
'X' cannot be compelled to file a complaint to adjudicate cause or future dispute between 'Y' and 'Z'.
48. The apex Court, in Thomson Press (India) Limited's case (supra), had permitted a transferee to be added as a party on the ground that the original defendant might have lost interest to defend the suit on account of transfer of his interest to third party and to protect the interest of third party, the transferee was permitted to be added as a party so as to enter into the shoes of defendant to defend the suit on merits.
49. In present case, as discussed hereinabove, applicants are not transferees and there is no allegation of the applicants that defendants are not conducting the case ::: Downloaded on - 04/01/2018 23:09:03 :::HCHP 36 effectively so as to frustrate the agreements to sell entered by the said defendants with them. Rather, defendant No. 9 .
and applicants in OMP No. 217 of 2015, who are claiming their right on the basis of agreement to sell entered into with defendant No. 9, are being represented by the same Advocate. Applicants in OMP No. 24 of 2015 have also not alleged any laxity on the part of defendant No. 1 in contesting the suit. In absence of any such plea and genuine proof, it cannot be inferred in the vacuum that original defendants have lost interest in defending the suit.
50. Terms and conditions of agreements to sell, basis for the applications seeking impleadment of applicants as defendants, establish that these applicants are having full faith in original defendants No. 1 and 9 as they, as claimed in the agreements, have paid entire sale consideration to these defendants without waiting for final adjudication of the suit, that too, without having any term and condition with regard to refund of such sale consideration even in case of defeat of the defendants in the suit. Rather, in ::: Downloaded on - 04/01/2018 23:09:03 :::HCHP 37 agreement, subject matter in OMP No. 24 of 2015, entire sale consideration has been agreed to be forfeited in favour .
of defendant No. 1 in eventuality of defeat of the said defendant in the suit. It reflects the high degree of faith and confidence deposed by the applicants in defendants No. 1 and 9. Therefore, plea of the applicants based on the pronouncement of Thomson Press (India) Limited's case (supra) is also not sustainable.
51. So far as multiplicity of litigation is concerned, keeping in view the nature and claim of the suit, this plea is also not available to the applicants. Applicants are deriving their rights from agreements to sell, execution of which has not been denied by defendants No. 1 and 9, rather, despite having a specific clause in the agreement to sell with regard to forfeiture of sale consideration, defendant No.1, in its reply to the application (OMP No. 24 of 2015) has stated that in case of her defeat in the suit, the applicants shall be entitled to refund of the amount paid in agreement to sell.
::: Downloaded on - 04/01/2018 23:09:03 :::HCHP 3852. Applicants in OMP No. 24 of 2015 have claimed that it has come to their knowledge that the parties to the .
suit are reselling the suit property to some third person and, thus, they have filed the said application. Even if the apprehension of the applicants is treated to be true, it does not give any right to the applicants to become a party in the present suit for their claim against codefendant in a suit filed by someone else. For this purpose, the applicants will have appropriate remedy somewhere else and not in this suit.
53. There cannot be a suit within suit between co defendants in a suit filed by plaintiff against one of the defendants. Applicants have no direct right or conflict of interest with the plaintiff. Conflict, if any, may arise between defendants No. 1 and 9 with the applicants after adjudication of the present suit either for specific performance of agreements to sell or for refund of consideration amount. It is not a case where the applicants have been taken by a surprise qua the pendency of the suit ::: Downloaded on - 04/01/2018 23:09:03 :::HCHP 39 or disputed title of defendants No. 1 and 9. As evident from terms and conditions of the agreements, the applicants were .
very much aware about the pendency of the suit and to the best of their prudence, claimed to have paid entire consideration and have agreed to be bound by the final decision of the suit.
54. In case the applicants are permitted to become defendants, they would have only limited right to defend the suit on the basis of defence available to defendants No. 1 and 9 and they can be permitted to lead evidence only on the issues already framed on the basis of claim and counter claim of plaintiff and original defendants. They cannot be permitted to lead evidence qua the agreements executed inter se the defendants during pendency of the suit. It would be absurd proposition if applicants are allowed to file written statement introducing their dispute in the suit with other defendants in a suit of plaintiff inter se original defendants, that too, on account of agreements executed between applicants and defendants after having knowledge ::: Downloaded on - 04/01/2018 23:09:03 :::HCHP 40 of pendency of suit which cannot be permitted. Therefore, impleadment of applicants as defendants is not warranted .
as in any case, even if applicants are permitted to become a party by entering into the shoes of original defendants, they will be having limited rights to contest the suit on the stand already taken by original defendants. Where there is no allegation against the original defendant with regard to contesting the suit effectively or any material on record reflecting loss of interest of the original defendant in contesting the suit, it would be not only against the interest of justice but also resulting into multiplicity of the parties unnecessarily causing inordinate delay in adjudication of the suit.
55. In view of above discussion, applicants are not necessary parties to be impleaded as defendants to adjudicate upon the suit effectually and completely, rather, their impleadment will hamper the proceedings of present suit.
::: Downloaded on - 04/01/2018 23:09:03 :::HCHP 4156. Status of applicants does not warrant invoking of Order 22 Rule 10 CPC for arraying them as defendants and .
continue the suit against them as, at present, they are not having any right in the suit property for which suit may have been permitted to be continued by the plaintiff, against them after substituting defendants No. 1 and 9.
57. The combined reading of Order 1 rule 10 CPC, Order 22 rule 10 CPC and the rule embodied in Section 52 of the Transfer of Property Act, I find that the applicants are neither entitled to nor required to be permitted to contest the claim as codefendants in present suit. Hence, both the applications are dismissed.
(Vivek Singh Thakur) Judge January 03, 2018 ( rajni ) ::: Downloaded on - 04/01/2018 23:09:03 :::HCHP