Orissa High Court
Sasmita Nayak vs Anita Pattnaik And Others .... Opp. ... on 3 October, 2024
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 04-Oct-2024 13:45:44
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 492 of 2020
(An application under Article 227 of the Constitution of India)
*****
Sasmita Nayak .... Petitioner
-versus-
Anita Pattnaik and others .... Opp. Parties
For Petitioner : Mr. Hrudananda Mohapatra, Advocate
For Opposite Parties: Mr. Soumya Mishra, Advocate
CORAM:
MR. JUSTICE K.R. MOHAPATRA
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Date of Judgment 03.10.2024
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JUDGMENT
1. This matter is taken up through hybrid mode.
2. Order dated 18th March, 2020 (Annexure-5) passed in CS No.86 of 2014 is under challenge in this CMP, whereby learned Additional Civil Judge (Senior Division), Dhenkanal rejected an application filed by the Plaintiff/Petitioner under Order 1 Rule 10 CPC read with Order VI Rule 17 CPC filed with a prayer to implead the lis pendens purchasers as parties to the suit.
3. Short narration of facts necessary for proper adjudication of this case is that the Petitioner as Plaintiff filed the suit for specific performance of agreement for sale dated 10 th August, 2005 entered with the Defendant through his Power of Attorney.
CMP No.492 of 2020 Page 1 of 21 Signature Not Verified Digitally SignedSigned by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 04-Oct-2024 13:45:44 // 2 // It is alleged in the plaint that pursuant to the agreement for sale, the Petitioner paid a sum of Rs.20.00 lakh out of total consideration amount of Rs.30,50,000/- to the Power of Attorney of the Defendant. Accordingly, possession of the suit land was delivered to the Plaintiff. But before execution of the sale deed, the Power of Attorney of the Defendant died on 2nd February, 2006. Thus, the Plaintiff approached the Defendant to execute the sale deed on receipt of balance consideration of Rs.10,50,000/- to which the Defendant turned a deaf ear. During pendency of the suit, Defendant alienated the suit land to different purchasers for which the Plaintiff filed an application to implead the lis pendens purchasers as Defendants and to make necessary amendment in the plaint. The said application was rejected vide order under Annexure-5. Hence, this CMP has been filed. The Defendant raised objection stating that the purchasers are no way connected with the agreement for sale, which is put to specific performance in the suit.
3.1 During pendency of the suit, Defendant died and his legal heirs, namely, Opposite Parties were substituted. During pendency of the suit, Plaintiff filed an application under Order XXXIX Rules 1 and 2 read with Section 151 CPC praying, inter alia, to restrain the Defendant from alienating the suit property. Although initially an order of status quo was passed by learned trial Court but subsequently vide order dated 1st November, 2014, application for temporary injunction was rejected. Assailing the same, Plaintiff filed FAO No.755 of 2014, which was also CMP No.492 of 2020 Page 2 of 21 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 04-Oct-2024 13:45:44 // 3 // dismissed vide order dated 21st April, 2017 with an observation that any alienation of the suit property that may take place during pendency of the suit that may be governed under the principles of lis pendens.
3.2 The Defendant had also filed an application under Order VII Rule 11 CPC praying, inter alia, to reject the plaint, which was dismissed by learned trial Court. Assailing the same, the Defendant preferred CRP No.38 of 2014 before this Court, wherein, both the parties were directed to maintain status quo in respect of the suit property. But subsequently, this Court dismissed the CRP No.38 of 2014 vide order dated 21st April, 2017.
4. Mr. Mohapatra, learned counsel for the Petitioner submitted that during continuance of the order of status quo, the Defendant executed eleven numbers of registered sale deeds alienating the suit property. Thus, the Plaintiff filed the above captioned petition for impletion of those lis pendens purchasers as parties to the suit. Opposite Parties filed objection to the said petition stating that subsequent purchasers became rightful owner of respective portions of the suit property purchased by them by virtue of the registered sale deeds executed in their favour and they mutated their names in the revenue records. If the lis pendens purchasers are impleaded as parties the scope of the suit will be expanded from a suit for specific performance to a suit for title. It was also stated in their objection that since this Court while disposing of the FAO No.755 of 2014 observed that any CMP No.492 of 2020 Page 3 of 21 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 04-Oct-2024 13:45:44 // 4 // alienation of the suit property that may take place during pendency of the suit that would be governed by the principles of lis pendens, a petition for impletion of parties should not be entertained and prayed for dismissal of the application.
4.1 Learned trial Court dismissed the petition vide order under Annexure-5 holding that the lis pendens purchasers are neither necessary nor proper parties to the suit as they were not concerned with the present suit filed for specific performance of agreement for sale. Learned trial Court, while adjudicating the petition, relied upon the ratio in the case of Kasturi Vs. Iyyamperumal and others, reported in AIR 2005 SC 2813 and also observation made by this Court while disposing of FAO No.755 of 2014 vide order dated 21st April, 2017. Mr. Mohapatra, learned counsel relied upon the case of Robin Ramji Bhai Patel Vs. Anandibai Rama @ Rajaram Pawar and others, reported in, reported in (2018) 15 SCC 614, wherein, Hon'ble Supreme Court applying the principles of dominus litis at para-8, held as under:-
"8. In the aforesaid context, this Court also considered the provisions of Order I Rule 10 CPC and in paragraph 7 it expressed its view that the relevant provisions show that the necessary parties in a suit for specific performance of a contract for sale are not only parties to the contract or their legal representatives but also a person who had purchased the contracted property from the vendor. It was further elaborated that: Kasturi case (supra) "in equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with or without notice of the contract, but a person who claims adversely to the claim of a CMP No.492 of 2020 Page 4 of 21 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 04-Oct-2024 13:45:44 // 5 // vendor is, however, not a necessary party. From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party."
4.2 Thus, when the Plaintiff wants to implead certain persons as Defendants on the ground that they may be adversely affected by the outcome of the suit then the interest of justice requires allowing such prayer for impletion so that the persons likely to be affected may be aware of the proceedings and may take appropriate defence as suitable to their vendors. Mr. Mohapatra, learned counsel also made an endeavour to persuade the Court that the ratio in the case of Gurmit Singh Bhatia Vs. Kiran Kant Robinson and others, reported in (2020) 13 SCC 773, has no application to this case, as it is held therein that a stranger cannot be impleaded as a party to the suit against the wish of the Plaintiff in a suit for specific performance of contract for sale. But in the instant case, the Plaintiff herself seeks to implead the lis pendens purchasers as parties to the suit. Mr. Mohapatra, learned counsel also referring to the decision in the case of Thomson Press (India) Ltd vs Nanak Builders and Investors Private Limited and others, reported in (2013) 5 SCC 397 submitted that although learned counsel for the Opposite Parties relied upon the said caselaw, but the ratio decided therein supports the case of the Petitioner. In the said case, Hon'ble Supreme Court relying upon the case of Khemchand Shankar Choudhari and another Vs. Vishnu Hari Patil and others, reported in (1983) 1 SCC 18 held that the position of a person on whom any interest has devolved on account of a transfer during the pendency of any suit or a proceeding is somewhat similar to the CMP No.492 of 2020 Page 5 of 21 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 04-Oct-2024 13:45:44 // 6 // position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding, or an official receiver who takes over the assets of such a party on his insolvency. An heir or a legatee or an official receiver or a transferee can participate in the execution proceedings even though his name may not have been shown in the decree, preliminary or final. Mr. Mohapatra also referred to para-6 of Khemchand Shankar Choudhari (supra), which reads as under:-
"Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in an immovable property which is the subject matter of a suit from any of the parties to the suit will be bound in so far as that interest is concerned by the proceedings in the suit. Such a transferee is a representative in interest of the party from whom he has acquired that interest. Rule 10 of Order 22 of the Code of Civil Procedure clearly recognises the right of a transferee to be impleaded as a party to the proceedings and to be heard before any order is made. It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard, he has got to be so impleaded and heard. He can also prefer an appeal against an order made in the said proceedings but with the leave of the appellate court where he is not already brought on record. The position of a person on whom any interest has devolved on account of a transfer during the pendency of any suit or a proceeding is somewhat similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding, or an official receiver who takes over the assets of such a party on his insolvency. An heir or a legatee or an official receiver or a transferee can participate in the execution proceedings even though their names may not have been shown in the decree, preliminary or final. If they apply to the court to be impleaded as parties they cannot be turned out."
He also referred to the case of Amit Kumar Shaw and another Vs. Farida Khatoon and another, reported in (2005) 11 SCC CMP No.492 of 2020 Page 6 of 21 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 04-Oct-2024 13:45:44 // 7 // 403, wherein, Hon'ble Supreme Court held that the doctrine of lis pendens applies only where the lis is pending before a Court. Further, in a pending suit, the transferee is not entitled as of right to be made a party to the suit, though the Court has discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the Defendant is vitally interested in the litigation, where the transfer is of the entire interest of the Defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Thus, when the Plaintiff is under no obligation to make a lis pendens transferee a party under Order XXII Rule 10 CPC, an alienee pendente lite may be joined as party. However, power of the Court to add a party to the proceeding cannot be dependent solely on the question whether he has interest in the suit property or not. The question is whether right of a person may be affected, if he is not added as a party. Such right, however, will include necessarily an enforceable legal right. The Court has held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceeding where his predecessor- in-interest is made a party to the litigation and to be heard in the matter on the merits of the case. An alienee pendente lite is bound by the final decree that may be passed in the suit. Such an alienee can be brought on record both under Order XXII Rule 10 CMP No.492 of 2020 Page 7 of 21 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 04-Oct-2024 13:45:44 // 8 // CPC and also under Order 1 Rule 10 CPC. Since under the doctrine of lis pendens a decree passed in the suit during the pendency of which a transfer is made, binds the transferee, his application to bring him on record should ordinarily be allowed. He also relied upon the case of Shri Rikhu Dev, Chela Bawa Harjug Dass vs Som Dass (Deceased) through his Chela Shiam Dass, reported in AIR 1975 SC 2159 and submitted that a lis pendens purchaser being an assignee of the Defendant vendor is entitled to be impleaded as a party. These material aspects were lost sight of by the learned trial Court while adjudicating the matter. Hence, he prays for setting aside the impugned order and to implead the lis pendens purchasers/transferees as parties to the suit.
5. Mr. Mishra, learned counsel for the Defendants/Opposite Parties submitted that the legal issue that requires adjudication in the instant case is whether the lis pendens purchasers/transferees in the instant case should be impleaded as parties to the suit or not. It was his submission that admittedly the alienations were made by the original Defendant during pendency of the suit. During pendency of the suit, original Defendant died and his legal heirs have already been substituted and are contesting the suit as Defendants. They filed objection to the petition under Order VI Rule 17 read with Order I Rule 10 CPC stating that the lis pendens transferees are neither necessary nor proper parties to the suit. Their interest in the suit properties is governed under the CMP No.492 of 2020 Page 8 of 21 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 04-Oct-2024 13:45:44 // 9 // principles of lis pendens enumerated under Section 52 of the Transfer of Property Act, 1882.
5.1 It is well-settled position of law that none other than the parties to the agreement for sale is necessary and/or proper party to a suit for specific performance of contract. Two tests laid down by Hon'ble Supreme Court to determine whether or not a party/person is a necessary party, which are as follows:-
i) There must be a right of some relief
against such party in respect of the
controversies involved in the proceeding;
ii) no effective decree can be passed in
absence of such party;
He also referred to the Section 19 (b) of the Specific Relief Act, 1963, which stipulates as under:-
19. Relief against parties and persons claiming under them by subsequent title.--Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against--
(a) xx xx xx;
(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;
xx xx xx"
He, therefore, submits that specific performance of contract may be enforced against the parties to the contract and the persons mentioned in Clause (b) of Section 19 of the Specific Relief Act, which makes it clear that a specific performance cannot be enforced against a parson who is a subsequent transferee for the CMP No.492 of 2020 Page 9 of 21 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 04-Oct-2024 13:45:44 // 10 // vendor for a valuable consideration without notice to the original contract which sought to be enforced in the suit. It was thus submitted that the lis pendens transferees are not necessary parties to the suit as no relief is claimed against them and an effective decree can be passed in their absence. It was also submitted that at para-11 of the Kasturi (supra) a 'necessary party' has been elaborated and it is held that lis pendens alienees cannot be said to be necessary at all in a suit for specific performance of contract. Elaborating status of transferee pendent lite, Mr. Mishra, learned counsel stressed upon the scope of Section 52 of the Transfer of Property Act. It was his submission that the doctrine of lis pendens is based on the ground that is necessary for administration of justice, i.e., when the decision of a Court should be binding not only on the litigating parties but also those who had derived right as to the immovable property during pendency of the suit or proceedings under the provisions under Section 52 of the Transfer of Property Act. It does not annul said conveyance or the transfer or otherwise, but renders it subservient to right of a party or the litigant from whom he derived the right. In the instant case, alienation of the suit property having been undertaken by the original Defendant during pendency of the suit, the same is governed under the principles of Section 52 of the Transfer of Property Act thereby rendering right of the transferees pendente lite subservient to the right of the Defendant in the suit. Since the lis pendens transferees purchased the contracted property for a value, the provision of Clause (b) under Section 19 of the Specific Relief CMP No.492 of 2020 Page 10 of 21 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 04-Oct-2024 13:45:44 // 11 // Act, would have no application to them, meaning thereby that in the event, the Plaintiff's suit for specific performance is decreed, the original contract is ipso facto enforceable against the transferees pendente lite in view of provisions under Section 52 of the Transfer of Property Act. Thus, it was submitted that the entire exercise to bring the transferees pendente lite on record for the purpose of enforcement of the contract is a futile and meaningless exercise at the instance of the Plaintiff. As such, they are also not proper parties to the suit.
5.2 It was further submitted that Plaintiff sought for impletion of the transferees pendente lite heavily relying upon the principles of dominus litis submitting that since the Plaintiff seeks addition of the transferees pendente lite, learned Court should not have denied the same. The principles enumerated in Robin Ramjibhai Patel (supra) although relate to impletion of pendente lite purchasers in a suit for specific performance of contract, but in the said case, the Plaintiff was not in possession and there were materials on record to demonstrate that the transferees pendente lite were repeatedly changing the nature and character of the property. Therefore, Hon'ble Supreme Court thought it apposite to allow impletion of lis pendens purchasers as parties to the suit. In the instant case, the Plaintiff claims to be in possession of the suit property pursuant to the agreement for sale and no allegation of threat to her possession is made in the plaint by the lis pendens purchasers. As such, the principle laid down therein is not applicable to the case at hand. It is also CMP No.492 of 2020 Page 11 of 21 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 04-Oct-2024 13:45:44 // 12 // submitted that the principles of dominus litis cannot be allowed to be overstretched in the present case more particularly when their absence will not prevent the learned trial Court in passing an effective decree. Further, no prayer in the suit is required to be made to declare the subsequent sale deeds executed by the original Defendant in favour of the lis pendens purchasers as valid and illegal. In support of his submission, he relied upon the case of Thomson Press (India) Limited (supra), wherein, the principles for impletion of lis pendens purchasers as parties to the suit has been discussed. He also relied upon the case of Prasanna Kumar Mohapatra Vs. Gokuli Bhoi and others, reported in 2024 (II) OLR 399, wherein, this Court discussed the scope of Section 28 (3) (b) of the Specific Relief Act and held that an application for delivery of possession in a suit for specific performance of contract would necessarily be filed in the same suit, as after passing of the decree of specific performance, the Court does not cease to have jurisdiction to give delivery of possession to the Plaintiff/DHr. Mr. Mishra, learned counsel also placed reliance upon the case of Yogesh Goyanka Vs. Govind and others, reported in 2024 SCC OnLine SC 1692, wherein, it is held that merely because alienation was made during pendency of a suit or proceeding, it does not automatically render such alienation, as null and void. It merely renders the right arising out of such transfer subservient to the right of the parties to the pending litigation and subject to direction, if any, of that Court. As such, the presence of lis pendens purchasers is not at all necessary for just adjudication of the suit. On the CMP No.492 of 2020 Page 12 of 21 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 04-Oct-2024 13:45:44 // 13 // other hand, there is every likelihood that it may enlarge the scope of the suit by converting a suit for specific performance to a suit for declaration, which is not permissible in the eye of law. He, therefore, submitted that learned trial Court has committed no error in dismissing the petition filed under Order VI Rule 17 read with Order I Rule 10 CPC. As such, the CMP being devoid of any merit is liable to be dismissed.
6. Heard learned counsel for the parties. Perused the record and the case laws cited. From the case record, it is apparent that the Plaintiff filed an application under Order VI rule 17 read with Order I Rule 10 CPC (Annexure-3) to amend the plaint as well as to implead eleven lis pendens purchasers as parties to the suit alleging that the Defendant (owner of the suit property) executed eleven sale deeds in favour of those persons in respect of different parcels of the suit property on payment of consideration. The Plaintiff in unequivocal terms admitted that the persons sought to be impleaded are lis pendens transferees in respect of the property for which the contract for sale was executed by the original Defendant in her favour. Suit for specific performance of such agreement for sale has been filed against the Defendant (and after his death, the legal heirs). It is alleged by the Plaintiff that in the event the suit is decreed in her favour, right of the parties sought to be impleaded are likely to be affected. Thus, the question that arises for consideration in this CMP is "whether in the fact and circumstances of the case of the present suit for specific performance of contract against the Defendant, the lis CMP No.492 of 2020 Page 13 of 21 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 04-Oct-2024 13:45:44 // 14 // pendens transferees should be impleaded as parties and foundational pleading thereof should be incorporated in the plaint by way of amendment?' Lengthy arguments, as stated above, were made by learned counsel for the parties in support of their respective cases.
7. Kasturi (supra) discussing second part of Order I Rule 10 (2) CPC observes that necessary parties in a suit for specific performance of contract for sale are the parties to the contract or if they are dead, their legal representatives as also a person who had purchased the contracted property from the vendor. In equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with or without notice to the contract, but a person who claims adversely to the claim of the vendor is, however, not a necessary party. Thus, it is clear that two tests are to be satisfied for determining the question as to who is a necessary party. Those tests are reproduced hereunder:-
i) There must be a right of some relief against such party in respect of the controversies involved in the proceeding;
ii) No effective decree can be passed in absence of such party;
8. Section 19 of the Specific Relief Act provides relief against the parties and persons claiming under them by subsequent title in a suit for specific performance of contract. The provision makes it clear that except otherwise provided in CMP No.492 of 2020 Page 14 of 21 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 04-Oct-2024 13:45:44 // 15 // Chapter-II, specific performance for a contract may be enforced against.--
"a) either of the parties thereto;
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;
c) any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant;
d) xx xx xx
e) xx xx xx"
On the aforesaid premises, Hon'ble Supreme Court proceeded to test/determine whether a subsequent purchaser is a necessary party or not. Discussing different case laws, the Hon'ble Supreme Court in para-12 of Kasturi (supra) came to hold that necessary parties are those persons in whose absence no decree can be passed by the Court or that there must be right of some relief against some parties in respect of the controversy involved in the proceedings and proper parties are those whose presence before the Court would be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such person.
9. In the light of the aforesaid discussions, it can be safely concluded that the parties sought to be impleaded in the present suit are not necessary parties as no relief is claimed against them CMP No.492 of 2020 Page 15 of 21 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 04-Oct-2024 13:45:44 // 16 // in the suit and a decree for specific performance may be passed in their absence. Hence, question remains as to whether they are proper parties to the suit or not? Discussing the scope of Order I Rule 10 (2) CPC, Hon'ble Supreme Court in Kasturi (supra) held that the term 'all questions involved in the suit' clearly meant that controversy raised as between the parties to the litigation must be gone into only, that is to say, controversies with regard to right which is set up and relief claimed on one side and denied on the other and not other controversies which may arise between the Plaintiff and the Defendants inter se or questions between the parties to the suit and a third party. Thus, the Hon'ble Supreme Court opined that a Court cannot allow adjudication of collateral matters so as to convert a suit for specific performance of contract for sale into a complicated suit for title between the plaintiff/appellant in one hand and defendant/respondents on the other, as it would totally dilute the scope of the suit for specific performance of contract for sale.
10. From the above discussions, it is clear that the right of a third party over the suit property cannot be decided in a suit for specific performance of contract for sale, as essentially the Plaintiff in such a suit claims performance of the contract entered into between two parties for sale. Sub-section (a) and (b) of Section 19 of the Specific Relief Act, however, makes it more specific that specific performance of a contract may be enforced against either of the parties to the contract or any other person under them by a title arising subsequently to the contract except a transferee, for value, CMP No.492 of 2020 Page 16 of 21 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 04-Oct-2024 13:45:44 // 17 // who has paid his money in good faith and without notice to the original contract. Thus, it is clear that specific performance cannot be claimed against a third party who purchased the land from any of the parties to the original contract for value in good faith and without notice to the original contract. In the instant case, no such pleading is sought to be incorporated by way of amendment while seeking for impletion of the third parties.
11. The circumstance is different when a property of a previous contract is purchased by a third party before filing of suit for specific performance of contract. It will be certainly governed under the principles laid down under Section 19 of the Specific Relief Act. But in the instant case, the parties sought to be impleaded are lis pendens purchasers and thus they are governed under the principles enumerated under Section 52 of the Transfer of Property Act. In absence of any pleading in terms of Section 19(b) of the Specific Relief Act, a contract is enforceable against them, as it is claimed that they have purchased the property from the original Defendant during pendency of the suit. In such a case, their impletion as parties is neither necessary nor proper. They are neither necessary nor proper parties to the suit. In that view of the matter, the ratio in the case of Thomson Press (India) Limited (supra) is squarely applicable to the instant case.
12. Mr. Mohapatra, learned counsel for the for the Petitioner placed reliance on the observation made by Hon'ble Sri Thakur, J, while concurring the majority view that 'no one other than CMP No.492 of 2020 Page 17 of 21 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 04-Oct-2024 13:45:44 // 18 // parties to the agreement for sale is a necessary or property party to a suit.' While concurring the view, Hon'ble Mr. Thakur, J relied upon the ratio of Khemchand Shankar Choudhari (supra), which was verily relied upon by Mr. Mohapatra, learned counsel for the Petitioner, which has taken note of the provision under Order XXII Rule 10 CPC to bring legal representatives and assignees etc on record. Order XXII Rule 10 CPC operates in a different field unlike a suit for specific performance of contract. There is no doubt that possession of a person on whom any interest has devolved on account of transfer during pendency of a suit or a proceeding is some what similar in position as heir or legatee of a party, who died during pendency of a suit or proceeding or an official receiver, who takes over all assets of such a party on his insolvency. In the instant case, the legal heirs of original Defendant have already been substituted and are defending the suit. They also objected to the impletion of the subsequent purchasers as parties to the suit. Further, the Plaintiff claims that she is in possession over the suit property pursuant to the unregistered deed of agreement for sale. Thus, the question of impletion of lis pendens purchasers as parties, as heirs or legatee of the vendor does not arise at all. It is also not the case of the Plaintiff who seeks amendment and impletion of parties that the Defendants (legal heirs of the original Defendant) may no longer take interest in the property or may not properly defend the suit, which has been emphasised by Hon'ble Mr. Thakur, J in Khemchand Shankar Choudhari (supra). Thus, the contention of Mr. Mohapatra, learned counsel for the Plaintiff/Petitioner on CMP No.492 of 2020 Page 18 of 21 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 04-Oct-2024 13:45:44 // 19 // that count cannot be accepted. There cannot be any quarrel on the settled position that the sale deeds executed by the original Defendant in favour of the lis Pendens purchasers sought to be impleaded are not void ab initio, as Section 52 of the Transfer of Property Act renders the right of the transferee pendente lite subservient to the right of the parties in the suit. Thus, in the event of a specific performance is granted in favour of the Plaintiff, it can be enforced against the transferee pendente lite. Thus, the exercise of amending the plaint and impleading the lis pendens transferees as parties to the suit will serve no purpose for enforcement of the contract against the Defendants. Rather it will lengthen the journey of the litigation and may enlarge the scope of the suit from specific performance of a contract for sale to a suit for declaration, which is not permissible in the eyes of law.
13. The principles of dominus litis shall not apply to the instant case in view of the scope of Order I Rule 10 (2) CPC, which in clear terms provides that the Court may in its discretion at any stage of the suit or proceedings either upon or without application of either party and on such terms as may appear to the Court just, any party improperly joined whether as Plaintiff or Defendant, be struck out and that any person who ought to have joined whether as Plaintiff or Defendant or whose presence before the Court 'may be necessary in order to enable the Court effectually and completely adjudicate upon and settle all questions involved in the suit' be added. Thus, it is crystal clear that the Court may in its discretion add any of the parties, whose presence CMP No.492 of 2020 Page 19 of 21 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 04-Oct-2024 13:45:44 // 20 // is necessary to completely and effectively adjudicate upon and settle all the questions involved in the suit. In the instant case, the question is with regard to specific performance of contract for sale. Admittedly, the parties sought to be impleaded are not parties to such contract. Thus, their presence is not at all necessary to completely and effectually adjudicate all questions involved in the suit. As such, the doctrine of dominus litis takes back seat in view of the exhaustive provisions under Sub-rule (2) of Order 1 Rule 10 CPC. Thus, the principles decided in Robin Ramjibhai Patel (supra) as relied upon by Mr. Mohapatra, learned counsel for the Petitioner, is of no assistance to him. Moreover, in the said case, the Plaintiff was not in possession whereas in the instant case, the Plaintiff claims to have taken over possession pursuant to un- registered agreement for sale executed between the Plaintiff and the original Defendant.
14. In view of the discussions made above, prayer to declare the sale deeds executed by the original Defendant during pendency of the suit in favour of the parties sought to be impleaded, is not at all necessary. On a close reading of the order under Annexure-5, it appears that learned trial Court has exercised its discretion in refusing the prayer for amendment as well as impletion of parties judiciously and diligently. Thus, the same warrants no interference.
15. Accordingly, the CMP being devoid of any merit stands dismissed, but in the facts and circumstances, there shall be no order as to costs.
CMP No.492 of 2020 Page 20 of 21 Signature Not Verified Digitally SignedSigned by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 04-Oct-2024 13:45:44 // 21 //
16. Interim order dated 1st December, 2020 passed in IA No.480 of 2020 stands vacated.
17. Record in disposed of FAO No.755 of 2014 brought for reference be sent concerned Section forthwith.
Issue urgent certified copy of the judgment on proper application.
(K.R. Mohapatra) Judge High Court of Orissa, Cuttack Dated the 3rd day of October, 2024/s.s.satapathy CMP No.492 of 2020 Page 21 of 21