Madras High Court
Balakrishnan vs Shanmugadurai
Author: R.Subbiah
Bench: R.Subbiah, T.Krishnavalli
O.S.A.Nos.418, 420 and 421 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on : 30.09.2019
Judgment Delivered on : 25.10.2019
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBBIAH
AND
THE HONOURABLE MRS.JUSTICE T.KRISHNAVALLI
O.S.A.Nos.418, 420 and 421 of 2018
and
C.M.P.Nos.18946, 19042 and 19036 of 2018
Balakrishnan .. Appellant in all O.S.As.
Versus
1. Shanmugadurai
2. V.Umpapathy
3. Park Town Benefit Fund Ltd.,
Rep. by its Managing Director,
No.995-P, Second Avenue,
Anna Nagar, Chennai-40.
4. Vamana Auctioneers,
Office at O.S.Building, Room No.137,
First Floor, New No.1, (Old No.17),
Ekambarakumar Guru Street,
Chennai-600 003.
.. Respondents in O.S.A.Nos.418 and 420 of 2018
Umapathy .. Respondent in O.S.A.No.421 of 2018
Page No.1/41
http://www.judis.nic.in
O.S.A.Nos.418, 420 and 421 of 2018
Original Side Appeal (OSA).No.418 of 2018 filed under Clause 15 of the Letters
Patent read with Order XXXVI Rule 9 of the Madras High Court Original Side Rules,
against the fair and executable order dated 13.07.2016 in Application No.910 of 2016
in C.S.No.624 of 2005 on the file of this Court.
Original Side Appeal (OSA).No.420 of 2018 filed under Clause 15 of the Letters
Patent, read with Order XXXVI Rule 9 of the Madras High Court Original Side Rules,
against the fair and executable order dated 13.07.2016 in Application No.911 of 2016
in C.S.No.624 of 2005 on the file of this Court.
Original Side Appeal (OSA).No.421 of 2018 filed under Clause 15 of the Letters
Patent, read with Order XXXVI Rule 9 of the Madras High Court Original Side Rules,
against the fair and executable order dated 13.07.2016 in Application No.2693 of
2011 in C.S.No.624 of 2005 on the file of this Court.
For appellant : M/s.Vijaya Kumari Natarajan for Mr.S.Natarajan in all O.S.As.
For respondents : Mr.C.Mani Shankar, Senior Counsel for M/s.Y.Kavitha for R-1 in
O.S.A.Nos.418 and 420 of 2018
Mr.R.Syed Mustafa for R-2 in O.S.A.No.418 and 420 of 2018
and for respondent in O.S.A.No.421 of 2018
COMMON JUDGMENT
R.SUBBIAH, J All the three appeals have been filed as against the order dated 13.07.2016 passed by the learned Single Judge of this Court in allowing the applications, namely, A.Nos.910 and 911 of 2016 in C.S.No.624 of 2005 and A.No.2693 of 2011 in Page No.2/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 C.S.No.624 of 2005, respectively.
2. While A.No.2693 of 2011 was filed by the first defendant in C.S.No.624 of 2005 for condoning the delay of 675 days in filing the application to set aside the ex- parte judgment and decree dated 15.06.2010 in C.S.No.624 of 2005, the other two applications in A.Nos.910 and 911 of 2016 were respectively filed by third party to set aside the ex-parte decree dated 15.06.2010 in C.S.No.624 of 2005 decreeing the suit in favour of the plaintiff and to implead the third party- Shanmugadurai as fourth defendant in the said suit.
3. For the purpose of convenience, the parties will be hereinafter referred to as per their ranking in the suit in C.S.No.624 of 2005, as plaintiff and defendants.
4. The appellant/plaintiff filed the said suit in C.S.No.624 of 2005 as against the defendants 1 to 3 for the relief of specific performance.
5. Brief facts of the case leading to the filing of the above said three applications, are as follows:
(a) From 20.01.1979, the plaintiff-Balakrishnan was residing in the suit property as a tenant. Originally, there was a sale agreement between the plaintiff Page No.3/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 and the first defendant on 08.10.1999. As per the said agreement of sale, the first defendant-Umapathy agreed to sell 1220 Sq.Ft. out of total extent of 1 ground and 909 Sq.Ft. for sale consideration of Rs.16 lakhs. The plaintiff has paid the advance amount of Rs.4,01,000/-. The first defendant undertook to produce the original documents, but till March 2001, the documents were not produced.
(b) The first defendant had suppressed the factum of execution of two simple mortgages executed by him in favour of the second defendant-Park Town Benefit Fund Limited in respect of the entire property. Though the plaintiff informed the first defendant that he was ready with the money to complete the sale transaction, the first defendant was evading to produce the title deeds.
(c) While so, the first defendant informed the plaintiff during March 2001 that he could not produce the original title deeds for verification of title by the plaintiff's advocate, since the said title deeds had been offered as security for the mortgage loan availed before the second defendant. Therefore, the first defendant, along with his father M.Vedachalam and his mother Premavathy, approached the plaintiff during March 2001, offering to sell the entire property for a consideration of Rs.33 lakhs and that he would redeem the mortgages over the suit property executed by the first defendant in favour of the second defendant and entrust the title deeds to the plaintiff for proceeding further in completion of the sale transaction.
(d) The first defendant informed the plaintiff that the amounts paid under the Page No.4/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 sale agreement, dated 08.10.1999 could be treated as advance for the sale consideration of the second sale agreement. The first defendant entered into second sale agreement with the plaintiff on 21.03.2001 in respect of the entire property and the said agreement was attested by the first defendant's father Vedachalam and mother Premavathy, agreeing to sell the suit property for a consideration of Rs.33 lakhs to the plaintiff. Thus, the first agreement of sale, dated 08.10.1999 got merged with the second agreement of sale, dated 21.03.2001. After the sale agreement, the plaintiff is residing as purchaser of the property. At the request of the first defendant, the plaintiff paid a sum of Rs.1,25,000/- to the second defendant-Park Town Benefit Fund Limited on various dates, which was to be adjusted towards sale consideration. It was promised by the first defendant that he would release the title deed(s) by discharging the mortgage loan executed in favour of the second defendant, after getting waiver of penal interest and interest/tax.
(e) While so, on 08.04.2002, the second defendant brought the property for public auction through the third defendant-M/s.Vamana Auctioneers. In order to prevent the purchase of the property by any third party, the plaintiff himself participated through his wife and bade for Rs.16,30,000/- and paid Rs.4 lakhs. The first defendant filed redemption suit C.S.No.241 of 2002 on 17.04.2002 in respect of two mortgages, and in the said C.S.No.241 of 2002, prayer was also made for declaration that the sale by public auction by the second defendant-Park Town Page No.5/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 Benefit Fund Ltd., was invalid and for injunction restraining the second defendant from confirming the sale. In such a situation, in the said C.S.No.241 of 2002, on 19.04.2002, the first defendant obtained interim injunction in respect of the confirmation of sale.
(f) The first defendant has so far received a sum of Rs.25,03,024/- pursuant to the sale agreement, dated 21.03.2001, from and out of the sale consideration of Rs.33 lakhs, which was also acknowledged on 22.08.2004 and therefore, the first defendant is bound to execute the sale deed in respect of the suit property in favour of the plaintiff, after receiving the balance sale consideration of Rs.7,96,976/-. On 23.05.2005, the plaintiff sent a Telegram notice for execution of sale deed, but there was no reply from the first defendant. Hence, the plaintiff filed the present suit in C.S.No.624 of 2005 on 19.07.2005. Along with the present suit, the plaintiff also filed an application for interim injunction in O.A.No.702 of 2005 restraining the defendants 1 and 2 from alienating and encumbering the suit property to third parties excepting the plaintiff. After notice, on 21.07.2005, this Court granted interim injunction on condition that the plaintiff shall deposit a sum of Rs.7,96,976/- into this Court within a period of one week. On 25.07.2005, the copy of the order of interim injunction was sent to the Sub-Registrar, Anna Nagar, Chennai, which was received by the Sub- Registrar on 27.07.2005. On 26.07.2005, the amount of Rs.7,96,976/- was also deposited by Challan in No.21594. When the present suit is pending and when the Page No.6/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 order of interim injunction was also in force, the first defendant, without the knowledge of the plaintiff, redeemed two mortgages from the second defendant-Park Town Benefit Fund Limited on 21.02.2007 in respect of the suit property and on the same day, he had also executed the sale deed in favour of Shanmugadurai (proposed fourth defendant/subsequent purchaser). This sale by the first defendant in favour of the said Shanmugadurai, who is the first respondent in these appeals, during the pendency of the suit, was not known to the plaintiff.
(g) While so, from 18.03.2009, on various dates, C.S.No.241 of 2002 filed by the first defendant for redemption of mortgage(s) and C.S.No.624 of 2005 filed by the plaintiff herein for specific performance, were listed for final hearing. Though the first defendant had entered appearance, neither he nor his counsel appeared before the Court. On 23.06.2009, C.S.No.241 of 2002 filed by the first defendant was dismissed for default. In C.S.No.624 of 2005, the first defendant was set ex-parte. Thereafter, the plaintiff filed proof affidavit and he was also examined, and documents were marked and arguments were advanced. On 15.06.2010, C.S.No.624 of 2005 filed by the plaintiff was decreed ex-parte, directing the first defendant to execute the sale deed within a period of two months from 15.06.2010, failing which, it was observed by the learned Single Judge that the plaintiff is entitled to get the sale deed executed by this Court and the first defendant was also directed to pay the costs of the suit. Since the first defendant has not come forward to execute the sale Page No.7/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 deed, notice for execution of the sale deed was sent on 28.10.2010 and it was received by the first defendant on 01.11.2010. Even at this point of time also, the first defendant had not revealed the subsequent sale deed executed in favour of the third party-Shanmugaudrai during the pendency of the present suit. In February 2011, an Execution Petition was filed by the plaintiff, in which, after service of notice, a direction was issued to execute the sale deed, which was executed on 30.10.2011 and the E.P. was also closed on 02.11.2011.
(h) In the above situation, the first defendant has filed A.No.2693 of 2011 in C.S.No.624 of 2005 to condone the delay of 675 days in filing the application to set aside the ex-parte judgment and decree dated 15.06.2010 passed in C.S.No.624 of 2005. Thereafter, A.No.2693 of 2011 was not pursued for nearly five years. While so, pending the present suit, the subsequent purchaser, namely Shanmugadurai filed A.No.910 of 2016 respectively seeking to set aside the ex-parte decree dated 15.06.2010 passed in C.S.No.624 of 2005 decreeing the suit in favour of the plaintiff and also filed A.No.911 of 2016 to implead himself as fourth defendant in C.S.No.624 of 2005.
(i) All the above three applications in A.Nos.2693 of 2011, 910 and 911 of 2016, came up before the learned Single Judge and the same were allowed by the impugned order dated 13.07.2016, against which, the present respective O.S.As. have been filed as stated supra.
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6. The learned counsel for the appellant/plaintiff submitted that A.No.2693 of 2011 in C.S.No.624 of 2005 filed to condone the delay of 675 days in filing application to set aside the ex-parte decree, is supported by two affidavits. The first affidavit filed in the year 2011, along with the application states that the first defendant had filed written statement and the reason for non-appearance in the suit is non-communication by his erstwhile counsel. To this application, counter was filed by the appellant/plaintiff in December 2011. But the first defendant has not moved the said A.No.2693 of 2011 for about five years. Thereafter, after five years, in February 2016, the first defendant filed additional affidavit in support of his condone delay application, in which, the reason stated is that he did not receive the suit notice and that he was unaware of the suit, as also the injunction order granted by this Court in O.A.No.702 of 2005. In the said affidavit, the first defendant had admitted the second sale agreement, dated 21.03.2001. In the counter affidavit filed to the said A.No.2693 of 2011, by the appellant/plaintiff, it was stated that the first defendant had entered appearance in the suit and he was well aware of the injunction granted in the suit not to alienate the suit property. Inspite of the knowledge about the injunction, he mala-fidely transferred the property to third party. In fact, after framing of issues in the suit, the suit was in the list on 18.03.2009, 30.03.2009, 12.04.2009 and also on various other dates till 15.06.2010. Page No.9/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 The first defendant had not chosen to contest the suit. After ex-parte decree was passed in the suit, E.P. No. 409 of 2011 was filed by the plaintiff, in which also, he did not appear. On 06.04.2011, a direction was issued to execute the sale deed by the learned Master and the sale deed was also executed by the Assistant Registrar of this Court on 31.10.2011 and it was also registered. Afterwards, the said E.P. was also closed on 02.11.2011. The plaintiff thereafter had developed the property and raised new constructions and is also running his business there. He had accrued right and interest over the suit property, and hence, inspite of the objection raised by the appellant/plaintiff, the allowing of the said three applications by the learned Single Judge prejudices the plaintiff's right. Hence, the learned counsel for the appellant/plaintiff submitted that absolutely, no proper reason is stated by the first defendant to condone the said delay of 675 days in filing the application to set aside the ex-parte decree, dated 15.06.2010, and despite the same, the learned Single Judge had allowed the application in A.No.2693 of 2011 in C.S.No.624 of 2005.
7. It is further submitted by the learned counsel for the appellant/plaintiff that the contradictory statement made by the first defendant in his two affidavits, i.e. in the original affidavit filed in the year 2011 and in the additional affidavit filed in the year 2016, itself, would show that the first defendant had not approached this Court with clean hands. The learned Single Judge has not at all considered the reasons Page No.10/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 stated by the first defendant while condoning the said delay of 675 days and allowing the application in A.No.2693 of 2011 in C.S.No.624 of 2005, which had caused injustice to the plaintiff.
8. So far as A.Nos.910 and 911 of 2016 in C.S.No.624 of 2005 filed by the subsequent purchaser/third party/proposed fourth defendant, are concerned, it is stated by the learned counsel for the appellant/plaintiff that there was no decree as against the subsequent purchaser, but he has alleged that he is the bona-fide purchaser for valuable consideration and the question of impleading him in the suit, does not arise, as there is no suit pending, as the same was decreed ex-parte even as early as on 15.06.2010 itself. After passing of a decree in the suit, there is no question of entertaining any third party application for impleadment and also for setting aside of the ex-parte decree dated 15.06.2010 passed in C.S.No.624 of 2005 at the instance of such a third party. Moreover, the prayer in the present suit is only to enforce the sale agreement between the appellant/plaintiff and the second respondent/first defendant. Further, while the injunction order not to alienate the suit property, was in force, the third party/subsequent purchaser/proposed fourth defendant has purchased the suit property and therefore, he has no locus-standi to file A.Nos.910 and 911 of 2016 in C.S.No.624 of 2005. The transfer of property in favour of the subsequent purchaser is therefore hit by the principle of Lis-Pendens. Page No.11/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 The third party was very well aware and had the knowledge of possession of the property by the plaintiff and the same is even admitted by him. The subsequent purchaser/third party/proposed fourth defendant is not a bona-fide purchaser without notice. At no point of time, the subsequent purchaser tried to evict the plaintiff, nor did he collect any rent from him .
9. The learned counsel for the appellant/plaintiff further submitted that the third party admitted about the possession of the plaintiff in the suit property at the time of execution of his sale deed. The first defendant, who entered appearance in the suit, after injunction order is passed, deliberately executed the sale deed in favour of the third party, only, to defeat the rights of the plaintiff with mala-fide intention, and hence, the third party is not a bona-fide purchaser without notice. Further, the prayer in C.S.No.624 of 2005 is with regard to the enforcement of the sale agreement between the plaintiff and the first defendant and there is no prayer as against the third party. The plaintiff is the dominus-litis in his suit and he cannot be forced to act against his will, unless there is compulsion of law. It is further submitted by the learned counsel for the appellant/plaintiff that the third party, who is the subsequent purchaser, is a stranger to the contract in the specific performance suit and impleading him in the suit, will change the entire character of the suit. Page No.12/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018
10. In the above context, the learned counsel for the appellant/plaintiff invited the attention of this Court to Section 3 of the Transfer of Property Act, relating to "interpretation clause", which states that, "In this Act, unless there is something repugnant in the subject or context, --- " 'a person is said to have notice' of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it." Further, Explanation-II to Section 3 of the Transfer of Property Act, states that, "any person acquiring any immoveable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof". Thus, according to the learned counsel for the appellant/plaintiff, the third party is colluding with the first defendant, wilfully and deliberately, by purchasing the suit property in violation of the order of this Court. The third party knew fully well about the status of the plaintiff at the time of his alleged purchase and if at all the third party/subsequent purchaser has got any right or remedy, it is only as against the first defendant, and not the plaintiff.
11. The learned counsel for the appellant/plaintiff also relied on Section 52 of the Transfer of Property Act with regard to the transfer of a property pending suit relating thereto, which states as follows:
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http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 "Section 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."
12. In order to fortify his submission that purity of Court proceedings cannot be permitted to be sullied by party relying upon false affidavits and unhealthy practice of filing of false affidavit, which should be strongly discouraged, the learned counsel for the appellant/plaintiff relied on a decision of the Supreme Court reported in 2016 (3) SCC 70 = 2016 (1) CTC 555 (SC) (Sciemed Overseas Inc. Vs. BOC India Limited).
13. The learned counsel for the appellant/plaintiff also submitted that any act done in violation of Court order, has no effect, as, in this case, there is violation of the Court order, inasmuch as pending the injunction order, the property in question was purchased by the third party by executing a sale deed in his favour. In this context, the learned counsel relied on a decision of a Full Bench of this Court reported in AIR 1975 Madras 270 (Century Flour Mills Ltd. Vs. S.Suppiah and others). Page No.14/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018
14. The learned counsel for the appellant/plaintiff further contended that the act done in violation of order of stay or injunction, can be undone and the parties could be put back to the same position as they stood immediately prior to such order of stay or injunction. In support of the same, he relied on a decision reported in 2017 (1) SCC 599 (Ghanshyam Sarda Vs. J.K.Jute Mills Co. Ltd). For the proposition that sale in violation of Court order, has to be set aside, the learned counsel for the appellant/plaintiff relied on a decision of the Supreme Court reported in 2017 (1) SCC 622 (Robust Hotels (P) Ltd. Vs. Eih Ltd).
15. Also, the learned counsel for the appellant/plaintiff submitted that the transfer of property during the pendency of the suit, is hit by the Doctrine of Lis- Pendens, and to substantiate the same, he laid his hand to the decision of the Supreme Court reported in 1996 (5) SCC 539 (Sarvinder Singh Vs. Dalip Singh).
16. The learned counsel for the appellant also stated that if the subsequent purchaser is already aware of the plaintiff being in possession of the suit property as a tenant, he ought to have made enquiry at the time of purchase of the suit property. In the absence of the same, he cannot be construed as a bona-fide purchaser. To substantiate this contention, the learned counsel relied on a decision Page No.15/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 of the Supreme Court reported in AIR 2001 SC 1658 = 2000 (6) SCC 402 (R.K.Mohammed Ubaidullah and others Vs. Hajee C.Abdul Wahab (D) by L.Rs. and others).
17. The learned counsel for the appellant/plaintiff further submitted that the subsequent transferee, even though obtained transfer without notice of the original contractor, cannot set up against the plaintiff/contractor, any right, as it would defeat the rule of Lis-Pendens, which is frowned upon the public policy.
18. Therefore, the learned counsel for the appellant/plaintiff submitted that Section 52 of the Transfer of Property Act is not subject to Section 19 (b) of the Specific Relief Act, and to substantiate the same, he relied on a decision of a Full Bench of the Allahabad High Court reported in AIR 1978 Allahabad 318 (Lucknow Bench) (Ram Peary Vs. Gauri).
19. With regard to the right of a third party in a suit for specific performance, the learned counsel for the appellant/plaintiff submitted that in a suit for specific performance of a contract for sale, the "lis" between the vendor and purchaser only shall be gone into and it is not open to the Court to decide as to whether the third party had acquired any title or possession. In support of this contention, he relied on Page No.16/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 the following judgments:
(a) AIR 2005 SC 2813 = 2005 (6) SCC 733 (Kasturi Vs. Iyyamperumal and others);
(b) 2010 (3) LW 67 (Madras High Court) (Krishnan VS. P.Palanisamsy and four others), and
(c) 2017 (1) MWN (Civil) 647 (Madras High Court) (Bagyalakshmi Vs. Kanagaraj).
20. The learned counsel for the appellant/plaintiff further contended that application for impleadment of a third party/purchaser is to be rejected, as the same would be in violation of the Court order, as held by the Supreme Court in the decision reported in 2012 (8) SCC 384 (Vidur Impex and Traders Private Limited Vs. Tosh Apartments Private Limited). This decision has been followed by this Court in the case of Lagrave Jayaseeli Vs. Trinite Modestine (deceased), reported in 2018 (3) MWN (Civil) 307.
21. The learned counsel for the appellant/plaintiff further relied on a decision reported in 2019 (10) SCALE 49 = 2019 SCC Online SC 912 (Gurmit Singh Bhatia Vs. Kiran Kant Robinson and others), and contended that with regard to the claim of third party seeking right to be added as party in a suit for specific performance, it Page No.17/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 was held by the Apex Court in this decision, by following the decision of the Supreme Court reported in AIR 2005 SC 2813 (cited supra), that when no relief had been claimed by the third party against the plaintiff, the plaintiff could not be compelled to implead a person in the suit for specific performance, against his wish and against whom no relief had been claimed in the plaint. The plaintiff is the dominus-litis in the suit filed by him and he cannot be forced to add parties against whom he does not want to fight, unless there is compulsion of the rule of law.
22. The learned counsel for the appellant/plaintiff in a nut-shell contended that all along the plaintiff had been possession of the suit property, and even at the time of alleged sale to the third party/subsequent purchaser, the plaintiff was in possession of the suit property. Therefore, it is strange to contend that the third party, who is residing in the same city, had no knowledge of the sale or agreement between the plaintiff and the first defendant. Further, the first defendant is taking contradictory stands in his two affidavits filed in support of his application to condone the delay. The third party/subsequent purchaser/proposed fourth defendant, after disposal of the suit, has no locus-standi to file the application to set aside the ex- parte decree and also to file impleading petition. On paying the whole sale consideration, the plaintiff has also improved the property by constructing building in the property and is in possession for a long time. Hence, according to the learned Page No.18/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 counsel for the appellant/plaintiff, the plaintiff has got vested right and the balance of convenience is also in his favour. Moreover, allowing the applications filed by the first defendant and the third party, would be against the settled principles of law and also equity. Thus, for the above reasons and the decisions so relied on by the learned counsel for the appellant/plaintiff, he prayed to set aside the impugned order passed by the learned Single Judge, dated 13.07.2016.
23. Countering the above submissions, the learned counsel appearing for the second respondent/first defendant submitted that the second respondent/D1, who is the erstwhile owner of the suit property, entered into a sale agreement with the appellant/plaintiff, for a sale consideration of Rs.16 lakhs to sell 1220 Sq.Ft. out of total extent of 1 ground and 909 Sq.Ft. (suit property). In this regard, on a perusal of the sale agreement, dated 08.10.1999, it could be inferred that the time period of six months had been struck down in pen and it was done only with an ulterior motive to arrest the delay, and hence, the suit is barred by limitation. Though the agreement for sale dated 08.10.1999 is admitted, the second respondent/erstwhile owner is not admitting the endorsement made in the agreement for sale and the endorsement made in the agreement for sale dated 08.10.1999 shows as if the appellant/plaintiff has made last payment on 17.08.2004 for Rs.1,000/-. The Page No.19/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 second respondent is disputing such payment and also the endorsement so made, as it was a forged agreement entered into, in order to arrest the period of limitation. Moreover, the second respondent-D1 had earlier filed C.S.No.241 of 2002 for redemption of mortgage(s) from the third respondent-second defendant-Park Town Benefit Fund Limited and obtained interim injunction in his favour as against the third respondent-Park Town Benefit Fund Limited. In any case, the appellant- plaintiff himself has not performed his part of the contract, as he had not paid the entire amount of Rs.16 lakhs.
24. The learned counsel appearing for the second respondent/first defendant further submitted that the learned Single Judge, while passing the ex- parte decree in the suit for specific performance, failed to consider as to whether any case is made out for grant of the discretionary relief of specific performance and also as to whether the appellant/ plaintiff has shown any readiness or willingness. Further, the appellant/plaintiff has not come to Court with clean hands and had colluded with the third respondent-Park Town Benefit Fund Limited, to grab the property from the first defendant. The plaintiff had fabricated the document(s) and made an entry on 17.08.2004 as if the second respondent has received Rs.1,000/-. The learned Single Judge has erroneously granted the Page No.20/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 relief of specific performance, although sufficient documentary proof had not been filed to prove that the plaintiff was ready and willing to perform his part of the contract. When all the parties have alleged fraud, collusion, forgery and misrepresentation, it is a matter to be gone into in trial in order to render justice to all the parties in the suit. Thus, the learned counsel appearing for the second respondent/D1 sought for sustaining the impugned order passed by the learned Single Judge.
25. The learned Senior Counsel appearing for the first respondent/subsequent purchaser/third party, submitted that the first respondent came to know that the second respondent/V.Umapathy (first defendant), who is the absolute owner of the suit property, was intending to sell the suit property. Therefore, he approached the second respondent for purchasing the suit property. When the first respondent/subsequent purchaser applied for Encumbrance Certificate (EC) with the Sub-Registrar's Office, it was clear that the EC reflected only the two mortgage loans with the third respondent-Park Town Benefit Fund Limited. Neither the alleged agreement for sale between the plaintiff and the second respondent/D1, dated 21.03.2001, nor the order of injunction granted by this Court in C.S.No.624 of 2005, dated 21.07.2005 were reflected in the EC. This shows that the first respondent/ subsequent purchaser/third party had taken all steps to show that any prudent Page No.21/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 purchaser would take and there was no lapse or lack of bona-fides on his part, when he entered into the sale agreement with the second respondent/first defendant (D1).
26. The learned Senior Counsel appearing for the first respondent further contended that as the property was under mortgage, the first respondent/subsequent purchaser and the second respondent/D1 together approached the third respondent-Park Town Benefit Fund Limited on 21.02.2007 and the first respondent/subsequent purchaser paid the amount towards the mortgages in lieu of sale consideration and obtained Discharge Certificate in respect of the suit property. On the same day, the sale deed between the first respondent and the second respondent was registered and the balance sale consideration was paid to the second respondent-Vendor/D1. Thus, the first respondent is a bona-fide purchaser of the property for a valuable consideration without notice or knowledge of the alleged agreement of sale between the plaintiff and the second respondent/D1. The first respondent/subsequent purchaser came to know of the ex-parte decree dated 15.06.2010 passed in C.S.No.624 of 2005 through his vendor, the second respondent/D1, and hence, he immediately filed A.No.911 of 2016 in C.S.No.624 of 2005 to implead himself in the said suit and A.No.910 of 2016 in C.S.No.624 of 2005 to set aside the ex-parte decree passed in the said suit in C.S.No.624 of 2005, both of which were allowed by the learned Single Judge by the order dated 13.07.2016, Page No.22/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 which is impugned in these appeals. The second respondent/erstwhile owner/D1 has also filed A.No.2693 of 2011 in C.S.No.624 of 2005 to set aside the ex-parte decree with a delay of 675 in filing the same. In view of the orders passed in A.Nos.910 and 911 of 2016, the application in A.No.2693 of 2011 filed by the second respondent- Umapathy (D1) was also allowed, and thus, the first respondent/subsequent purchaser has shown his bona-fides from the very inception.
27. The learned Senior Counsel appearing for the first respondent also stated that if at all the plaintiff had paid the entire auction money to the third respondent- Park Town Benefit Fund Limited, they would have got a sale deed in the year 2002 itself and got possession of the original title deeds. The plaintiff, by virtue of the alleged sale agreement, could have cleared the dues of the third respondent-Park Town Benefit Fund Limited any time before the auction. On the other hand, the first respondent/subsequent purchaser dutifully cleared the mortgage(s) to the third respondent-Park Town Benefit Fund Ltd., as any honest and prudent purchaser would do, and obtained a Discharge Certificate for the same. The Encumbrance Certificate also reflects the name of the first respondent/subsequent purchaser/third party. If at all the plaintiff had discharged the mortgage amount, the third respondent-Park Town Benefit Fund Limited would have naturally granted the Discharge Certificate in his name. In the absence of the same, the amount stated to Page No.23/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 have been paid by the plaintiff is only a make-belief-affair, which in any case is to be decided at the trial. Therefore, the first respondent's prompt action in redeeming the property and the action taken by the third respondent-Park Town Benefit Fund Limited (D2) in discharging the mortgages in the name of the first respondent, shows the bona-fide conduct of the first respondent.
28. The learned Senior Counsel appearing for the first respondent-subsequent purchaser also submitted that the question that arises before this Court is as to whether the "transferee pendente-lite" is entitled to be impleaded in the suit. Section 52 of the Transfer of Property Act does not render transfers affected during the pendency of the suit as void and mere pendency of the suit does not prevent one of the parties from dealing with the property, which is the subject matter of the suit. In the light of the same, a "transferee pendente-lite" can be impleaded as a party to the suit. In this regard, the learned Senior Counsel appearing for the first respondent relied on a decision of a Division Bench of this Court reported in 2014 (3) LW 769 (V.L.Dhandapani Vs. Revathy Ramachandran and others), wherein it was held that considering the scope of Section 52 of the Transfer of Property Act, the Doctrine of Lis-pendens does not indeed annul the conveyance or the transfer, but merely makes it subservient to the rights of the parties to a litigation. Page No.24/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018
29. The learned Senior Counsel appearing for the first respondent also relied on a decision of the Supreme Court reported in 1999 (2) SCC 577 (Savitri Devi Vs. District Judge), wherein it has been held by the Apex Court that the application for impleadment in the suit filed by the bona-fide transferee for value in good faith, would have to be decided first before it can be held that the sale in their favour created no interest in the property. This has to be decided by the Court either in the suit or in the application filed by the subsequent purchaser for impleadment in the suit, otherwise, it will lead to multiplicity of proceedings. Hence, it cannot be said that the "bona-fide transferees" are neither necessary nor proper parties to the suit.
30. The learned Senior Counsel appearing for the first respondent/subsequent purchaser further submitted that when once the first respondent enters into a registered sale deed with the second respondent-vendor/D1, though he is aware of the alleged erstwhile sale agreement with the plaintiff, he also knows that the agreement is totally illegal and unenforceable and his rights will become subservient/ subject to the rights to be established by the plaintiff. The first respondent/ subsequent purchaser effectively stepped into the shoes of the vendor/second respondent/D1 and as held by a Division Bench of this Court in the case of M.M.S.Investments and others Vs. V.Veerappan and eight others, reported in 2000 (2) LW 15, he takes the risk of purchasing the property and can also assail the Page No.25/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 legality of the prior sale agreement. In other words, it is held that a transaction, which is hit by the Doctrine of Lis-pendens, does not become void, but is made only subject to the rights to be declared under the decree.
31. The learned Senior Counsel appearing for the first respondent/subsequent purchaser also relied on a decision of the Supreme Court reported in 2013 (5) SCC 397 (Thomson Press (India) Limited Vs. Nanak Builders and Investors Pvt. Ltd.), wherein it has been held that the "Doctrine of Lis-Pendens" is based on the ground that it is necessary for administration of justice that the decision of a Court in a suit should be binding not only on the litigating parties, but also on those who derive the "title pendente-lite". Further, Section 52 of the Transfer of Property Act does not annul the conveyance or transfer, but only render it subservient to the rights of the parties to a litigation. It is also held by the Apex Court in that decision that Section 19(b) of the Specific Relief Act makes it clear that a suit for specific performance cannot be enforced against a person, who is a transferee from the vendor for a valuable consideration and without notice of the original contract, which is sought to be enforced in the suit. The party committing breach of injunction may incur the liability to be punished for such breach, but the sale by itself, may remain valid as between parties to the transaction, subject only to any directions to be issued in the suit against the vendor. Thus, the Apex Court in that decision observed that the Page No.26/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 "transferee pendente-lite" is entitled to be impleaded in the suit and be heard in the matter on the merits of the case.
32. The learned Senior Counsel appearing for the first respondent/subsequent purchaser also submitted that the impugned order of the learned Single Judge is a well-reasoned order. In view of the lack of bona-fides on the part of the plaintiff in trying to usurp a valuable property, coupled with the fact that the first respondent was a bona-fide purchaser of the property for value without notice, the order passed by the learned Single Judge may be confirmed by this Court. The learned Senior Counsel also stated that if an opportunity of hearing is granted, it will not only benefit all the parties, but also assist the Court in arriving at a just decision in the suit and hence, no prejudice would be caused to the appellant/plaintiff, especially when he knew the prior sale of the first respondent/subsequent purchaser and did not take any steps to implead him. Thus, in consideration of the bona-fides and prima-facie case put forth by the first respondent, the order impleading the first respondent may be upheld by this Court, so that his rights and interest over the suit property may be adjudicated with due consideration as to the evidence and arguments let in support of the same. Thus, the learned Senior Counsel appearing for the first respondent/subsequent purchaser prayed to uphold the impugned order passed by the learned Single Judge are reiterated hereunder. Page No.27/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018
33. Though very many contentions have been raised by either side, we refrain from repeating the facts any further, but only the facts which are germane for our consideration.
34. Upon hearing both sides and on a consideration of the evidence on record, the following questions arise for consideration and if these questions are answered, it is suffice to dispose of the present appeals in probing the correctness or the veracity of the impugned order passed by the learned Single Judge:
(i) Whether the learned single Judge is right in allowing the application filed by the first defendant to condone the delay of 675 days in filing the application to set aside the ex-parte decree dated 15.06.2010 passed in C.S.No.624 of 2005 ?
(ii) Whether the order passed by the learned Single Judge in A.Nos.910 and 911 of 2016 and A.No.2693 of 2011, by setting aside the ex-parte decree and ordering impleadment of the subsequent purchaser, is sustainable in law ?
35. It is seen that the appellant/plaintiff has filed C.S.No.624 of 2005 for the following reliefs:
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(a) to direct the first defendant to execute a sale deed in favour of the plaintiff in respect of the building - land and premises, comprised in Plot No.3217, Door No.90, A-Block, Anna Nagar, Chennai-600 102, after receiving the balance sale consideration of Rs.7,96,976/- and after discharging the mortgage loan within the time to be stipulated by this Court and on default, it would be committed by the first defendant to execute the sale deed, as may be directed by this Court and direct an Officer of this Court to execute the sale deed.
(b) for permanent injunction restraining the defendants 1 and 2 from alienating the suit property to any other person except the plaintiff, and
(c) to direct the first defendant to pay costs.
36. The above said suit in C.S.No.624 of 2005 was decreed ex-parte on 15.06.2010. Pending this suit, the appellant/plaintiff has also obtained an order of interim injunction in O.A.No.702 of 2005 on 21.07.2005 restraining the defendants from alienating/encumbering the suit property. To execute the decree granted in the suit, subsequently, E.P.No.409 of 2011 in C.S.No.624 of 2005 was also filed by the plaintiff-decree holder before this Court, in which the first defendant-/second respondent herein (Umapathy) did not appear. While so, on 06.04.2011, the learned Master passed an order in the Execution Petition, directing the Registry to execute the sale deed, which was also executed by the Assistant Registrar of this Court on 31.10.2011 in favour of the plaintiff and it was also registered in the Registrar Office Page No.29/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 of Anna Nagar, Chennai. Pursuant to the execution of the sale deed, the Execution Petition was closed on 02.11.2011. Thereafter, the first defendant had filed an application in A.No.2693 of 2011 in C.S.No.624 of 2005 to set aside the ex-parte decree dated 15.06.2010 passed in the said C.S.No.624 of 2005, but with a delay of 675 days. In the said A.No.2693 of 2011 in C.S.No.624 of 2005, two affidavits were filed by him and the first affidavit was filed by D1 along with the application in April 2011, stating that the first defendant has filed the written statement and the reason for non-appearance in the suit is due to lack of communication by his erstwhile counsel and counter was also filed to the said application by the appellant/plaintiff. However, without pursuing the said A.No2693 of 2011 for five years, in February 2016, the first defendant has filed additional affidavit stating that he had not received the suit notice at all and he was unaware of the suit, as also the interim injunction granted in O.A.No.702 of 2005 in C.S.No.624 of 2005. In the first affidavit filed in April 2011, the first defendant has stated as follows:
"3. I submit that in the above suit, I had filed my written statement stating the collusive act of the respondent/plaintiff and the 2nd defendant Park Town Benefit Fund Ltd. I submit that written statement filed by me in the above suit may kindly be read as part hereof. I submit that the 1st defendant at no point of time was ready to get the sale executed and after several years have filed the above suit only with an intention to grab the property by abusing the process of court."
"4. I submit that in respect of the same suit property I had filed another suit in C.S.No.241 of 2002 on the file of this Hon'ble Court seeking for redemption of mortgage and to declare the consequential auction proceedings initiated for the sale of suit property as illegal and for permanent injunction restraining the defendants therein from in any way confirming the sale. I Page No.30/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 submit that in the said suit C.S.No.241/2002, in O.A.No.241/2002, this Hon'ble Court was pleased to grant an order of interim injunction restraining the defendants therein from in any way confirming the alleged public sale in favour of this respondent/plaintiff's wife and further I was directed to pay a sum of Rs.50,000/- to the credit of the suit. I submit that I had complied with the condition and the injunction was pending till said suit C.S.No.241 of 2002 was dismissed for default."
"6. I submit that the because of my non-appearance, the suit came to be decreed exaparte with a direction for execution of sale in respect of the respondent herein. I submit that reason for my non appearance before the Hon'ble Court is only because of non-communication from my erstwhile counsel. I submit that I was told by my erstwhile counsel that the suits of the year 2002 will take years for trial and I was told to meet him on his information about the listing of case for trial. I submit that believing his words I kept quiet for his information. I submit that I was served with a counsel's notice about the exparte decree passed in the suit and I immediately rushed to my erstwhile counsel and informed him about the exparte decree, for that he said he had left the case unnoticed in the cause list, when it was listed and assured that he would take steps to set aside the same. I submit that even after my continuous persuasion nothing preceded, resulting in the dispute between me and my erstwhile counsel and finally I got change of vakalath from him and instructed the present counsel on record to take appropriate steps."
37. But in the additional affidavit filed by the first defendant in A.No.2693 of 2011 in C.S.No.624 of 2005, dated 22.02.2016, it was stated by him as follows:
"5. The Plaintiff is a tenant of the 1st Defendant and initially entered into a agreement for sale deed 08.10.1999 for a sale consideration of Rs.16,00,000/-. On 21.03.2011, he has entered into an Agreement for Sale with me for purchase of the suit property for a consideration of Rs.33,00,000/- (Rupees Thirty Three Lakhs Only). Although he initially paid a sum of Rs.4,00,000/- (Rupees Four Lakhs only) as advance, thereafter he did not show any interest in performing his part of the contract and the suit is barred by limitation since the agreement for sale for the suit property has been entered as early as 1999 itself. Therefore, the Agreement for Sale stands cancelled and the Page No.31/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 advance amount is forfeited in my favour. Thereafter, he has colluded with the 2nd and 3rd Defendants and purchased the suit property through the auction sale on 08.04.2002 in the name of his wife for a meagre sum of Rs.16,30,000/- ...."
"9. I respectfully submit that I did not receive any notice in the above suit and I dispute my signature in the acknowledgement card. I was unaware that the above suit has been filed by the Plaintiff. I also submit that the Plaintiff has marked Exhibit P-8, which is an undertaking given by me to execute the Sale Deed in his favour after withdrawing the suit C.S.No.241 of 2002. This Defendant dispute Exhibit P-8 as no such undertaking was given by myself to the Plaintiff. This document has been forged by the Plaintiff and he has mislead this Hon'ble Court. This Defendant is also unaware of the interim injunction granted in OA.702 of 2005. It is submitted that if my Application to set aside the ex-parte decree is not allowed, I will be put to grave prejudice since it is a clear case of collusion between the Plaintiff and 2nd and 3rd Defendants and he has also filed forged documents and mislead this Hon'ble Court."
38. On a perusal of the above extracted portions of the affidavit/additional affidavit filed by the first defendant, it would show that the first defendant had made contradictory statements in his affidavits. In the additional affidavit, dated 22.02.2016, the first defendant had admitted the second agreement dated 21.03.2001. Though he had stated in the additional affidavit that he has not received the suit notice from Court, on a perusal of the original/first affidavit, filed during April 2011 it was stated that he had entered appearance and was also aware of the interim injunction granted by this Court, as is evident from his first affidavit.
39. Thus, it is clear that inspite of the order of interim injunction in the connected suit in C.S.No.624 of 2005, the first defendant has mala-fidely transferred Page No.32/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 the suit property to the third party/subsequent purchaser/proposed fourth defendant. After framing of issues, the present suit in C.S.No.624 of 2005 was posted on several dates in the list and finally, the suit was decreed ex-parte on 15.06.2010. After passing of the decree, the first defendant has chosen to file application to set aside the ex-parte decree with a delay of 675 days, i.e. one year and 310 days. In the affidavit(s) filed in support of A.No.2693 of 2011 in C.S.No.624 of 2005, he has not given any valid reason to condone the inordinate/huge delay of 675 days and made contradictory statement in the additional affidavit filed in 2016 from that of the original affidavit filed in 2011, as observed above. It is well settled that while considering an application for condonation of delay, the length of delay is not a criteria, but the reasons given thereof would alone stand. Further, the application for condonation of delay has to be liberally construed so as to enable the litigant to get an opportunity to put-forth his defence. However, if the delay is not properly explained and there is no bona-fides in the person who approaches the Court with an application for delay, such application has to be rejected summarily. This was the view taken by the Supreme Court in the case of N.Balakrishnan Vs. M.Krishnamoorthy, reported in 1998 (7) SCC 123.
40. In the present case, even after filing of the condone delay application in A.No.2693 of 2011 in C.S.No.624 of 2005, the first defendant has not chosen to Page No.33/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 pursue the said application so as to get the ex-parte decree set aside and was not pursuing the matter for five years. However, only in 2016, he has filed additional affidavit in A.No.2693 of 2011 in C.S.No.624 of 2005. The reasons assigned by the first defendant in his two affidavits stated above, are not sufficient enough to condone the huge delay of 675 days. The reasons assigned for condonation of delay, in our opinion, lacks credibility and exposes the intention of the first defendant to circumvent the legal process.
41. In support of the contention regarding the delay in filing the petition to set aside the ex-parte and its ramifications and repercussions, the learned counsel for the appellant/plaintiff relied on the decision of the Supreme Court reported in 2011 (4) SCC 363 (Lanka Venkatesdwarlu Vs. State of A.P) to contend that once valuable right has accrued in favour of one party, as a result of failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away the right on mere asking of the applicant, particularly, when the delay is directly a result of negligence, default or inaction on that party and that justice must be done to both parties equally. In the present case, as observed above, there is lack of bona-fides on the part of the first defendant in swiftly bringing the application for condonation of delay for hearing. Rather, the first defendant, merely filed the application in the year 2011 and after five years, in the year 2016, Page No.34/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 he attempted to bring it for hearing before this Court by filing another affidavit in the year 2016, which is contrary to the original affidavit filed in the year 2011.
42. Moreover, with regard to showing sufficient cause for condoning the delay in filing the petition to set aside the ex-parte, learned counsel for the appellant/plaintiff relied on a decision of the Supreme Court reported in 2013 (14) SCC 81 (Baswaraj Vs. Land Acquisition Officer) and substantiated his submission that sufficient cause cannot be liberally interpreted, if negligence, inaction or lack of bona-fides is attributed to the party and even though limitation may harshly affect the rights of a party, but it has to be applied with all rigour when prescribed by a statute and the Courts have no choice but to give effect to the same. In this case, we find that there is no sufficient cause shown by the first defendant to condone the delay of 675 days in filing the application to set aside the exparte decree.
43. As far as the lack of bona-fides on the part of the first defendant while coming forward with the petition to condone the delay in filing the application to set aside the ex-parte decree, learned counsel for the appellant/plaintiff submitted that the same does not deserve liberal approach, in support of which, he relied on a decision of a Division Bench of this Court reported in 2003 (1) LW 585 (Sundar Gnanaoliu Vs. Rajendran Gnanavolivu). Applying the ratio laid down by the Apex Page No.35/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 Court/this Court in the above decisions and also considering the conduct of the first defendant as well as the reasons assigned by him in his two affidavits (one in 2011 and another in 2016), it is to be inferred that the first defendant had given vague and bald reasons, which are not sufficient to condone the huge delay of 675 days in filing the application to set aside the ex-parte decree. Therefore, the impugned order passed by the learned Single Judge is liable to be set aside. Accordingly, the same is set aside and A.No.2693 of 2011 filed by the first defendant shall stand dismissed and O.S.A.No.421 of 2018 is allowed. No costs.
44. With regard to the applications filed by the subsequent purchaser/third party/proposed D4 in A.Nos.910 and 911 of 2016 in C.S.No.624 of 2005, respectively to set aside the ex-parte decree dated 15.06.2010 passed in C.S.No.624 of 2005 and to implead himself as proposed fourth defendant in C.S.No.624 of 2005, from the materials available on record, we find that the plaintiff is already a tenant in the suit property under the first defendant even before filing of the suit. The first defendant has entered into two sale agreements with the plaintiff, one dated 08.10.1999 pertaining to 1200 Sq.Ft. and the other dated 21.03.2001 relating to entire extent of the suit property, i.e. 1 ground and 909 Sq.Ft. According to the plaintiff, at the request of the first defendant, he paid a sum of Rs.1,25,000/- to the second defendant on various dates and after passing of ex-parte decree in C.S.No.624 of Page No.36/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 2005, he paid the balance sale consideration. When the interim injunction in C.S.No.624 of 2005 was in force, the third party/proposed fourth defendant (D4) had purchased the property in question from the first defendant, and the said third party is unaware of the interim injunction order passed in the present suit in C.S.No.624 of 2005. Though the property was sought to be purchased on 21.02.2007 by way of execution of sale deed with the third party, the said third party had chosen to file applications to set aside the ex-parte decree dated 15.06.2010 and to implead him as a party-defendant only in 2016 in A.Nos.910 and 911 of 2016, i.e. after a period of nearly six years.
45. Now, it is the contention of the subsequent purchaser/third party/ proposed D4 that he has no knowledge of the sale agreement(s) between the plaintiff and the first defendant. It is really strange and surprising to contend that the subsequent purchaser who is resident of the same City (Chennai), has not visited the property even once, after purchase of the property from the first defendant, that too after paying the sale consideration of Rs.50 lakhs. Such conduct of the third party/subsequent purchaser is suspicious and the same cannot be accepted.
46. In the above scenario, it is useful to refer the judgment of the Supreme Court reported in 2019 (10) SCALE 49 = 2019 SCC Online SC 912 (Gurmit Singh Page No.37/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 Bhatia Vs. Kiran Kant Robinson and others), wherein the Apex Court observed that the plaintiff(s) cannot be forced to add party against whom he does not want to fight and the plaintiff(s) could not be compelled to implead a person in the suit for specific performance against his wish and with respect to a person against whom no relief had been claimed by him. As the facts of the present case are similar to the one in the said decision of the Supreme Court reported in 2019 (10) SCALE 49 (cited supra), the same is squarely applicable to the case on hand. The plaintiff is the dominus-litis of the suit filed by him and he cannot be forced to add party against his will, unless there is compulsion of law. Moreover, in a suit for specific performance of a contract of sale, the "lis" between the vendor and purchaser only shall be gone into and it is not open to the Court to decide as to whether the third party had acquired any title or possession. Therefore, we are of the opinion that from the conduct of the subsequent purchaser, as well as following the judgments relied on by the learned counsel for the appellant/plaintiff as discussed above, absolutely, we find that there is no need to entertain the application filed by the subsequent purchaser in seeking to set aside the ex-parte decree as well as to implead the subsequent purchaser as a party-defendant. Accordingly, A.Nos.910 and 911 of 2016 in C.S.No.624 of 2005 shall stand dismissed and resultantly, O.S.A.No.418 and 420 of 2018 are allowed.
47. The very purpose of Section 52 of the Transfer of Property Act about the Page No.38/41 http://www.judis.nic.in O.S.A.Nos.418, 420 and 421 of 2018 transfer of a property pending the suit, is not subject to Section 19(b) of the Specific Relief Act, which deals about the relief against the parties and the persons claiming any subsequent title by them, and hence, the subsequent purchaser, pendente-lite, has to work out his remedy only with his vendor/first defendant.
48. In the light of the above view taken by this Court, it is not necessary for this Court to delve into the other decisions of Courts relied on by the learned counsel appearing for the parties.
49. For the reasons stated above, the impugned order passed by the learned Single Judge in all the three applications are liable to be set aside. Accordingly, the same are set aside. All the three O.S.As. are allowed. No costs. Consequently, C.M.Ps. are closed.
(R.P.S.J) (T.K.J)
25.10.2019
Index: Yes
Speaking Order : Yes
cs
To
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O.S.A.Nos.418, 420 and 421 of 2018
The Sub-Assistant Registrar,
Original Side,
High Court, Madras.
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O.S.A.Nos.418, 420 and 421 of 2018
R.SUBBIAH, J
and
T.KRISHNAVALLI, J
cs
Judgment in
O.S.A.Nos.418, 420 and 421 of 2018
25.10.2019
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