Orissa High Court
Bijay Ram Dash vs Prafulla Chandra Mohapatra And Others on 8 May, 2024
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 14-May-2024 16:41:23
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 384 OF 2024
(An application under Article 227 of the
Constitution of India)
*****
Bijay Ram Dash
...... Petitioner
-Versus-
Prafulla Chandra Mohapatra and others
....... Opp. Parties
Advocates appeared:
For Petitioner : Ms. Deepali Mahapatra, Advocate
For Opp. Parties : Mr. Ajit Chandra Mohapatra, Advocate
(For Opp. Party Nos.1 to 3)
CORAM :
MR. JUSTICE K.R. MOHAPATRA
------------------------------------------------
Heard and disposed of on 08.05.2024
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JUDGMENT
K.R. Mohapatra, J.
1. This matter is taken up through hybrid mode.
2. Order dated 6th March, 2024 (Annexure-12) passed in T.S. No.442 of 1994(F.D) is under challenge in this CMP, whereby learned 2nd Additional Civil Judge (Senior Division), Cuttack rejected an application filed by the Petitioner under Order I Rule 10(2) CPC to be impleaded as a party to the final decree proceeding.
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3. Ms. Mahapatra, learned counsel for the Petitioner submits that T.S. No.442 of 1994 was filed by one, Smt. Prafullata Mohapatra, the predecessor of Opposite Party Nos.1 to 4 for specific performance of contract against Sri Soubhagya Ranjan Kanungo, the father of Opposite Party Nos.4 to 8. The suit was dismissed. Assailing the same, Smt. Prafullata Mohapatra filed RFA No.58 of 2003, which was decreed on contest vide judgment dated 19th February, 2004 (Annexure-3). Assailing the same, Sri Soubhagya Ranjan Kanungo filed R.S.A. No.183 of 2004. During pendency of the second appeal, said Soubhagya Ranjan Kanungo sold the suit property to the Petitioner by virtue of a Registered Sale Deed. The Petitioner neither have any knowledge of the previous contract for sale nor pending litigations and the decree passed therein. Thus, with a bona fide belief that the land is free from encumbrance, he purchased the property. On purchase, the Petitioner constructed his residential house therein investing the entire retiral dues and is residing therein with his family members till date. In due course, RSA No.183 of 2004 was dismissed vide judgment dated 16th May, 2007 (Annexure-4).
3.1. After disposal of the second appeal, Smt. Prafullata Mohapatra filed final decree proceeding. During pendency of final decree proceeding, the Petitioner filed an application under Order I Rule 10 CPC, which was allowed vide order dated 22nd September, 2008. Assailing the same Smt. CMP No. 384 OF 2024 Page 2 of 13 // 3 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-May-2024 16:41:23 Prafullata Mohapatra preferred W.P.(C) No.15213 of 2008 before this Court, which was allowed vide judgment dated 22nd February, 2016 (Annexure-8) setting aside the order dated 22nd September, 2008 impleading the present Petitioner as party to the final decree proceeding. The Petitioner being aggrieved, filed SLP(C) No.11506 of 2016 before the Hon'ble Supreme Court, which was allowed to be withdrawn vide order dated 29th April, 2016 (Annexure-9). 3.2 Thereafter, the Petitioner filed an application under Order XXI Rule 97 CPC in the final decree proceeding, which was dismissed by learned trial Court. Assailing the same, the Petitioner preferred CMP No.108 of 2018, which was disposed of vide order dated 14th March, 2018 (Annexure-10) granting liberty to the Petitioner to make appropriate application in the Execution Proceeding with an observation that if such an application is filed, it would be decided on its own merit without being influenced by the observation made in the order impugned therein. Accordingly, the Petitioner filed an application under Order I Rule 10(2) CPC to be impleaded as party to the final decree proceeding, which was rejected vide order under Annexure-
12. During pendency of the final decree proceeding, both Smt. Prafullata Mohapatra and Sri Soubhagya Ranjan Kanungo died and their legal heirs have been substituted, as stated above.
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4. Ms. Mahapatra, learned counsel for the Petitioner submits that the Petitioner is a bona fide purchaser and has a subsisting right over the suit property in view of the Registered Sale Deed executed by the recorded tenant, namely, Sri Soubhagya Ranjan Kanungo in his favour. It is her submission that in view of Section 19 (b) of the Specific Relief Act, 1963 (for brevity 'the Act'), no specific performance of a contract may be enforced against him as he has purchased the property in good faith without notice of the original contract. She, therefore, submits that the final decree proceeding in his absence will be an incomplete one and no effective adjudication can be made in the final decree proceeding in his absence. She also relied upon the decision in the case of Smt. Pinky Pradhan -v- Pratap Kishore Das and others, reported in 2016 (II) CLR 978, wherein this Court emphasizing the right of the bona fide purchaser directed to refund the consideration amount in whose favour specific performance was allowed. She also relied upon the case of Sujata Sanzgiry -v- Ankush R. Naik and others, reported in 2005 SCC OnLine Bom 983, wherein at Paragraphs-9 and 10, it is held as under:
"9. Section 19(b) of the Specific Relief Act, 1963 is in same terms as was section 27(b) of the Specific Relief Act, 1877. The word 'transferee' occurring in section 27(b) of the Act of 1877, came up for consideration before the Division Bench of Patna High Court in the case of Loknath Prosad Singh v. Shah Wahib Hussain, AIR 1930 Patna 181. The Division Bench of Patna High Court held thus:CMP No. 384 OF 2024 Page 4 of 13
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10. In the case of Veeramalai Vanniar (died) v. Thadikara Vanniar, AIR 1968 Madras 383, the Division Bench of Madras High Court dealt with the provisions of section 27(b) by observing thus:
"The only question that remains is whether the defendants are entitled to invoke the provisions of section 27(b) of the Specific Relief Act, as persons who have paid money in good faith and without notice of the original contract. It is simply amusing how, on the admitted facts, the learned Subordinate Judge felt that defendants 3 to 5 are transferees for value who have paid their money in good faith and without notice of the plaintiffs agreement of sale. He has not borne in mind the rudiments and the basic principles of law. The general rule is that no person can convey a better title than what he has, except where the statute provides exceptions to the rule like section 27(b) of the Specific Relief Act. If a person, as the owner of the property, has entered into an agreement to sell the property, he cannot thereafter convey the same property to any other person, as after the prior agreement of sale, he cannot be said to be a free owner of the property he can alienate it only subject to the rights created under the prior agreement of sale. Section 27 of the Specific Relief Act is in these terms:--
"27. Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against--
(a) either party thereto: (a) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract."
The plain language of the sub-section (b) shows that the subsequent transferee can retain the benefit of his transfer by purchase which, prima facie, he had no right to get, only after satisfying the two conditions concurrently; (1) he must have paid the full value for which he purchased the property CMP No. 384 OF 2024 Page 5 of 13 // 6 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-May-2024 16:41:23 and (2) he must have paid in good faith and without notice of the prior contract."
5. Ms. Mahapatra, learned counsel for the Petitioner, therefore, submits that Bombay High Court reiterating the principles laid down in Section 19 of the Act (Section 27 of the Act 1877) stating that no relief can be claimed against a bona fide purchaser as a subsequent transferee for value, who has paid the full consideration amount in good faith without notice of the original contract. Thus, in order to protect his possession over the suit property, the Petitioner should be made a party to the final decree proceeding so that he could get an opportunity to establish that he is a bona fide purchaser of the property in question having paid the full consideration amount without having knowledge of the previous contract.
6. Mr. Mohapatra, learned counsel for Opposite Party Nos.1 to 3 vehemently objects to the above. It is his submission that similar nature of application was earlier rejected by learned trial Court and the Petitioner had unsuccessfully challenged the same up to Hon'ble Supreme Court. Thus, a subsequent application of such nature would not be maintainable. He further submits that the liberty granted in CMP No.108 of 2018 is in respect of an execution proceeding. No such execution proceeding has yet been initiated. Thus, the liberty so granted cannot be exercised in a final decree proceeding of the present nature. It is further CMP No. 384 OF 2024 Page 6 of 13 // 7 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-May-2024 16:41:23 submitted that the Petitioner had sufficient knowledge of the original contract, when the sale deed in his favour was executed by the vendor. Although the decree was passed since 2004, the Opposite Party Nos.1 to 3 are yet to enjoy the fruit of the same. He further submits that Section 19 (b) of the Act does not protect the Petitioner in the instant case. The principles laid down in the case law cited have also no application to the instant case. He, therefore, prays for dismissal of the CMP.
7. Heard learned counsel for the parties and perused the documents as well as the case laws placed before this Court.
8. Apparently a decree of specific performance of contract has been granted in favour of the predecessor of Opposite Party Nos.1 to 3, namely, Smt. Prafullata Mohapatra. Both the vendor and vendee of the original contract have died in the meantime and they have been substituted by their legal heirs as stated hereinabove. It appears from the material available on record so also the impugned order that similar nature of application filed by the Petitioner was allowed by learned trial Court vide order dated 22nd September, 2008. The said order was challenged before this Court in W.P.(C) No.15213 of 2008. This Court vide judgment dated 22nd February, 2016 set aside the order passed by learned trial Court in the Final Decree Proceedings. The said order was challenged by the Petitioner in SLP(C) No.11506 of 2016 before Hon'ble Supreme Court.
CMP No. 384 OF 2024 Page 7 of 13// 8 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-May-2024 16:41:23 However, vide order dated 29th April, 2016, the Petitioner was permitted to withdraw the SLP(C). As such order passed by this Court in W.P.(C) No.15213 of 2008 is still in force. No change circumstance has been shown by the Petitioner to move a subsequent application under Order I Rule 10(2) CPC to be impleaded as a party to the final decree proceeding.
9. Ms. Mohapatra, learned counsel for the Petitioner, however, submits that the Petitioner had filed an application under Order XXI Rule 97 CPC, which was rejected by learned trial Court. Assailing the same, the Petitioner preferred CMP No.108 of 2018, which was disposed of by this Court on 14th March, 2018 granting liberty to the Petitioner to make appropriate application in the execution proceeding with a further direction to decide the same on its own merit without being influenced by the observation made in the order impugned therein in the event such an application is filed. Admittedly, no execution case has yet been filed to execute the decree of specific performance of contract. The suit is at the stage of final decree. Thus, the liberty granted by this Court in CMP No.108 of 2018 has no application to the instant application under Order I Rule 10(2) CPC filed in a final decree proceeding.
10. Section 19 of the Act is subject to other provisions of the said chapter of the Act. It provides that "except as otherwise provided by this Chapter, specific performance of a contract may be enforced against....
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(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract......"
10.1 In the instant case, no specific performance is sought against the Petitioner. However, the Petitioner claiming to be a subsequent purchaser filed an application to be impeaded as a party to the Final Decree proceedings. Application filed by the Petitioner under Order I Rule 10(2) CPC has been annexed to the CMP as Annexure-11. In the said application there is no whisper about lack of knowledge of the original contract by the Petitioner. In the said petition, the Petitioner emphasized that prior to the contract for which specific performance has been granted, he had executed a contract with the Defendant (Vendor). It is also not stated in the Petition under Annexure-11 as to when the Petitioner acquired knowledge of the original contract. Admittedly, the Defendant executed the sale deed on 19th July, 2006 in favour of the Petitioner basing upon which he claims to be impleaded as a party to the Final Decree proceedings. At that point of time SA No. 183 of 2004 filed by the Defendant was pending before this Court. Thus, the Petitioner is a lis pendens purchaser of the suit property.
11. In the case of Thomas Press (India) Ltd. -v- Nanak Builders and Investors P. Ltd. and others reported in (2013) 5 SCC 397, it is observed as under;
CMP No. 384 OF 2024 Page 9 of 13// 10 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-May-2024 16:41:23 "25. In Vidur Impex [Vidur Impex and Traders (P) Ltd. v. Tosh Apartments (P) Ltd., (2012) 8 SCC 384 :
(2012) 4 SCC (Civ) 1] the Supreme Court again had the opportunity to consider all the earlier judgments.
The fact of the case was that a suit for specific performance of agreement was filed. The appellants and Bhagwati Developers though total strangers to the agreement, came into picture only when all the respondents entered into a clandestine transaction with the appellants for sale of the property and executed an agreement of sale which was followed by sale deed. Taking note of all the earlier decisions, the Court laid down the broad principles governing the disposal of application for impleadment. Para 41 is worth quoting hereinbelow: (SCC p. 413) "41. Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are:
41.1. The court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the court is necessary for effective and complete adjudication of the issues involved in the suit.
41.2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the court. 41.3. A proper party is a person whose presence would enable the court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.
41.4. If a person is not found to be a proper or necessary party, the court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff. 41.5. In a suit for specific performance, the court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation. 41.6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or CMP No. 384 OF 2024 Page 10 of 13 // 11 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-May-2024 16:41:23 a transaction made by the owner of the suit property in violation of the restraint order passed by the court or the application is unduly delayed then the court will be fully justified in declining the prayer for impleadment."
(emphasis supplied)
12. In the instant case the facts narrated above give a clear picture that the conduct of the Petitioner is not above board.
Further in absence of any pleading to the effect that the Petitioner had no knowledge of the original contract between the Plaintiff and Defendant, Section 19 of the Act has no application to the instant case. The case law in Sujata Sanzgiry (supra) is of no assistance to the Petitioner, as it laid down the principles of Section 19 of the Act. But, as aforesaid, the Petitioner has not made out any case in the petition under Annexure-11 that he didn't have knowledge of the original contract. In that view of the matter, the said ratio is not applicable to the instant case. Further in the case of Smt. Pinky Pradhan (supra), the consideration of the Court was completely different. The consideration in that case was as to whether a relief of refund of money to the Plaintiff in a suit for specific performance of contract can be granted even no relief was sought for in the suit. Thus, the ratio decided therein has no assistance to the Petitioner.
13. Section 28 of the Act deals that rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed. Sub-Section 4 of Section 28 of Act provides that "no separate suit in respect of any relief which may be CMP No. 384 OF 2024 Page 11 of 13 // 12 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-May-2024 16:41:23 claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be."
14. Ms. Mahapatra, learned counsel submits that the Petitioner cannot maintain a separate suit for protection of his right. Unless the Petitioner is impleaded as a party to the suit, he will be remediless. This Court is not in a position to accept such submission of Ms. Mahapatra, learned counsel for the Petitioner for the reason that the Petitioner has already filed two suits, viz, C.S. No.25 of 2008, which has already been dismissed for default and C.S. No.416 of 2008, which is pending for consideration, as submitted by Mr. Mohapatra, learned counsel for Opposite Party Nos.1 to 3. C.S. No.416 of 2008 has been filed for declaration of right, title, interest and for confirmation of possession over the suit property. Further, the vendor of the Petitioner could not have conveyed a better title than he had on the date of execution of the sale deed in favour of the Petitioner. Admittedly a decree of specific performance was staring at the Defendant on the date of execution of the sale deed in favour of the Petitioner. Thus, the Petitioner being a lis pendens purchaser, is governed under Section 52 of the Transfer of Property Act, 1882. He may claim relief against his vendor if law permits, but certainly not against the Plaintiff in the suit for specific performance of contract. Thus, learned trial Court has committed no error in rejecting the petition (Annexure-11) under Order I Rule 10(2) CPC filed by the Petitioner.
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15. In addition to the above, the instant petition filed by the Petitioner under Order I Rule 10(2) CPC is hit by principles of res judicata, as similar such application was rejected earlier, as discussed hereinabove. Law is well settled that principles of res judicaata is applicable to different stages of the same suit or proceeding.
16. Accordingly, the CMP being devoid of any merit stands dismissed.
Urgent certified copy of this judgment be granted on proper application.
(K.R. Mohapatra) Judge Orissa High Court, Cuttack, Dated 8th May, 2024/Madhusmita CMP No. 384 OF 2024 Page 13 of 13