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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.855 OF 2016
1. Vinod s/o Radheshyam Dubey
aged about 56 years,
Occupation : Business/Agriculturist,
R/o Pratap Nagar, Nagpur
2. Virendra s/o Matabadal Tiwari,
Aged about 61 years,
Occupation : Business/Agriculturist,
R/o 21, SBI Colony, Shankar Nagar Road,
Amravti.
3. Lupesh s/o Chakradhar Meshram,
Aged about 61 years,
Occupation : Business/Agriculturist,
R/o Deshpande Layout, Nagpur.
4. Karan s/o Vinod Dubey,
Aged about 36 years,
Occupation : Business/Agriculturist,
R/o Pratap Nagar, Nagpur. ... Petitioners
-vs-
1. Rajubai wd/o Vijay Meshram
Aged about 51 years,
R/o Imamwada Murthy Karkhana,
Nagpur.
2. Sugandhabai wd/o Prabhakar Dupare,
Aged about 72 years.
3. Amit s/o Prabhakar Dupare,
Aged about 31 years.
Nos.2 and 3 R/o Camp No.12,
C.T.O. Road, Bairagad, Bhopal (M.P.)
4. Kamlabai d/o Shamrao Dupare,
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Aged about major, R/o Wanadongari,
Tahsil Hingna, District Nagpur.
5. Manohar Bhonguji @ Wangnuji Meshram,
Aged about major, R/o Sindewahi,
Tahsil Sindewahi, Dist. Chandrapur.
6. Shammi s/o Tanuji Meshram,
Aged about major, R/o Sindewahi,
Tahsil Sindewahi, Dist. Chandrapur.
7. Malan wd/o Haridas Dupare,
Aged about 71 years
8. Pramod s/o Haridas Dupare,
Aged about 37 years
9. Vikas s/o Haridas Dupare,
Aged about 31 years
10. Ganesh s/o Haridas Dupare,
Aged about 33 years,
Nos.7 to 10 R/o Santra Market,
Nagpur.
11. Sudhabai w/o Manohar Meshram,
Aged about major,
12. Mandabai w/o Shankar Meshram
Aged about major,
Nos.11 & 12 R/o Sindewahi,
Tahsil Sindewahi, Dist. Chandrapur.
13. Kundabai w/o Siddhartha Patil,
Aged about major, R/o Dhammadeep Nagar,
Binaki Mangalwari, Nagpur.
14. Shankar s/o Bhonguji @ Wangnuji Meshram,
Aged about 56 years,
15. Kausalyabai w/o Waman Khobragade,
Aged about 61 years
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16. Vimalabai w/o Dattuji Bhoyar,
aged 48 years, Nos.14,15 and 16
R/o Sindewahi,
Tahsil Sindewahi, Dist. Chandrapur.
17. Mangala w/o Dnyaneshwar @ Dyandeo Barsagade,
aged about 51 years, R/o Vivekanand Nagar,
Gadchiroli.
18. Meena w/o Vinod Chauhan,
Aged about 48 years, R/o Dighori, Nagpur.
19. Sangita w/o Prakash Dongare,
Aged about 46 years, R/o Kewada,
Tq. Chimur, Dist. Chandrapur.
20. Sheelabai Rajendra Naidu,
Aged about 46 years, R/o Dighori,
Nagpur.
21. Ravi Sopan Ramteke,
Aged about 44 years, R/o Imamwada,
Nagpur.
22. Wasudeo Chattumal Jhamnani,
R/o 6th Floor, Indranil Alto Apartment,
Jawaharlal Darda Marg, Rahate Colony,
Nagpur.
23. Ghanshyam Marotrao Choudhari,
Aged about 54 years, R/o Swatambhari,
Shankar Nagar, Nagpur.
24. Pandurang Daulatrao Mate,
Aged about 61 years,
R/o Wanadongari, Tah. Hingna,
Dist. Nagpur. ... Respondents.
Shri M. G. Bhangde, Senior Advocate with Shri R. M. Bhangde, Advocate for petitioners.
Shri P. Sahare, Advocate for respondent Nos.1, 3 to 21. ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:02:19 :::
WP-855-16 4/11 Shri A. G. Gharote, Advocate for respondent No.22.
ARGUMENTS WERE HEARD ON : November 29, 2017.
JUDGMENT PRONOUNCED ON : December 19, 2017.
Judgment :
Rule.
Heard finally with consent of learned counsel for the parties. The order dated 22/01/2016 passed by the trial Court below Exhibit-104 in Spl. Civil Suit No.619/2009 rejecting the application filed by the petitioners herein under provisions of Order I Rule 10 read with Order XXII Rule 10 of the Code of Civil Procedure, 1908 (for short, the Code) is under challenge.
2. The facts which are relevant for deciding the writ petition are that the respondent Nos.1 to 21 are the original plaintiffs who have filed Spl. Civil Suit No.610/2009 seeking a declaration that the sale deed dated 27/07/2001 standing in favour of respondent No.22 herein was null and void. Further relief sought was for restraining the defendants from disturbing the possession of the plaintiffs along with other ancillary reliefs. During pendency of that suit it is the case of the petitioners herein that the plaintiff Nos.5 and 14 to 17 had executed a registered agreement to sell their respective shares in favour of petitioner No.1 on 23/12/2007. Similar agreement has been executed by plaintiff Nos.11 to 13 in favour of petitioner ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:02:19 ::: WP-855-16 5/11 No.4. Plaintiff No.6 has executed a registered sale deed dated 30/12/2010 with regard to his share in the property in favour of petitioner No.1 and another. Plaintiff Nos.7 and 10 along with plaintiff Nos.9 and 18 have executed sale deed dated 05/02/2011 in favour of petitioner Nos.1 and petitioner No.3. On this basis the petitioners moved an application below Exhibit-104 for being impleaded as plaintiffs in the suit. The original plaintiffs did not object to the same. The defendant No.1 objected to that application on the ground that the transferees pendente lite were not bonafide purchasers. By the impugned order this application has been rejected.
3. Shri M. G. Bhangde, learned Senior Counsel for the petitioners submitted that at the stage when an application seeking impleadment on the ground that the applicants had acquired title pendente lite was under consideration it was not necessary to adjudicate the validity of their transactions. The rights of the respective plaintiffs having been transferred in favour of the applicants, their application ought to have been allowed. Relying upon judgment in Amit Kumar Shaw and anr. vs. Farida Khatoon and anr. (2005) 11 SCC 403. It was submitted that no detailed inquiry at the stage of granting relief under provisions of Order XXII Rule 10 of the Code was required to be conducted. Ordinarily such leave has to be granted as the transferee pendente lite was bound by the final decree that would be passed in the proceedings. The plaintiffs having consented to grant ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:02:19 ::: WP-855-16 6/11 of such leave the trial Court ought to have allowed the application. Reference to earlier proceedings in W.P.No.539/2014 decided earlier was not material as that adjudication was prior to filing of the suit. The learned Senior Counsel also placed reliance on the decisions in Thomson Press (India) Limited vs. Nanak Builders and Investors Private Limited and others. (2013) 5 SCC 397 and Chandra Bai (Dead) Thr. Legal Representatives vs. Khandalwal Vipra Vidyalaya Samiti and ors. (2016) 12 SCC 534.
4. Shri A. G. Gharote, learned counsel for respondent No.22- defendant No.1 opposed the aforesaid submissions. According to him the original plaintiffs had moved an application for grant of temporary injunction which came to be granted on 15/07/2010. Despite that some of the plaintiffs created third party rights thereof. The petitioners were not bonafide purchasers having purchased the properties during pendency of the litigation and in breach of the order of temporary injunction. The petitioner No.1 infact had been appointed as Power of Attorney by various plaintiffs and he had also filed his affidavit in lieu of evidence. In this background it was submitted that the trial Court rightly rejected the application moved by the petitioners. There was also considerable delay in moving this application below Exhibit-104 considering the fact that the interest was claimed to have been created in the year 2010 and 2011. It was further ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:02:19 ::: WP-855-16 7/11 submitted that legal rights of the applicants as transferees pendente lite could not be decided in these proceedings. Hence as the petitioners were neither necessary parties nor proper parties, the application was rightly rejected. The learned counsel in support of his submissions placed reliance on the decisions in Kasturi vs. Iyyamperumal and ors. (2005) 6 SCC 733, Mumbai International Airport Pvt. Ltd. vs. Regency Convention Centre and Hotels Pvt. Ltd. and ors. AIR 2010 SC 3109, Life Insurance Corporation of India vs. Sanjeev Builders Pvt. Ltd. and ors. 2017 SCC Online SC 1256 and the judgment of Delhi High Court in S. N. Arora vs. Brokers & Brokers Pvt. Ltd. 2010(118) DRJ 631.
Learned counsel representing the original plaintiffs supported the submissions made on behalf of the petitioners.
5. I have heard the learned counsel for the parties at length and I have perused the impugned order. The application moved by the petitioner was under provisions of Order I Rule 10 read with Order XXII Rule 10 of the Code. In Amitkumar Shaw and others (supra) the Honourable Supreme Court while considering the provisions of Order I Rule 10 and Order XXII Rule 10 of the Code in paragraphs 12 and 14 has observed thus :
" 12. Under Order 22 Rule 10, no detailed inquiry at the stage of granting leave is contemplated. The court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit by or against the person on whom the interest has devolved by ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:02:19 ::: WP-855-16 8/11 assignment or devolution. The question about the existence and validity of the assignment or devolution can be considered at the final hearing of the proceedings. The court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit.
14. An alienee pendente lite is bound by the final decree that may be passed in the suit. Such an alineee can be brouhgt on record both under this rule as also under Order 1 Rule 10. Since under the doctrine of lis pendens as decree passed in the suit during the pendency of which a transfer is made binds the transferee, his application to be brought on record should ordinarily be allowed."
6. From the aforesaid it could be seen that with regard to transferee pendente lite he is bound by the decree that may be passed in the suit. As such decree binds the transferee, his application to be brought on record should ordinarily be allowed. If the facts of the present case are considered in the aforesaid legal backdrop it can be seen that the plaintiff had sought cancellation of sale deed dated 27/07/2001 that was standing in favour of defendant No.1. During pendency of these proceedings the plaintiffs sold part of the suit property in favour of the petitioners herein. The question as regards the validity of those transactions by virtue of which the petitioners claim to have acquired title is not required to be examined at this stage. Same can be taken into consideration subsequently as and when the occasion arises. Similarly as held in Chandrabai (supra) the aspect of delay in seeking leave for being added as the party is not the material consideration ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:02:19 ::: WP-855-16 9/11 in the backdrop that the suit is not one for specific performance. In Thomson Press (India) Ltd. (supra) despite finding that the appellant therein was not a bonafide purchaser he was permitted to be added as a party defendant to the suit.
7. The trial Court while considering the application below Exhibit- 104 gave importance to the fact that third party rights were created despite the order of injunction operating therein. Similarly it also found that as the dispute with regard to title was pending in the suit, the transfer by the plaintiffs were not justified. It further concluded that there was no proper title with the plaintiffs to transfer the same to the petitioners herein. In the light of aforesaid law, I find that the trial Court was not justified in rejecting the application below Exhibit-104. The legal effect of alienating the part of the property despite the order of injunction is an independent matter. Similarly it is not proper at this stage to comment on the validity of the title of the respective parties. It is the subject matter of adjudication. The application therefore has been rejected on a wrong premise of law causing prejudice to the petitioners. If they as transferees pendente lite are not permitted to contest the proceedings, legal prejudice is likely to cause. The error deserves to be rectified at this stage itself. Hence a case for interference under Article 227 of the Constitution of India has been made out.
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8. The decisions relied upon by the learned counsel for respondent No.22 are clearly distinguishable. In Life Insurance Corporation of India (supra), suit for specific performance was filed in the year 1986. After about twenty seven years leave was sought under provisions of Order XXII Rule 10 of the Code for impleadment on the basis of assignment of rights. In the light of the fact that the suit was for specific performance, valuable right of defence had accrued in favour of the contesting party. It was observed that in a suit for specific performance, application for impleadment must be filed within reasonable time. The present proceedings arise out of suit for declaration in respect of sale deed dated 27/07/2001 and not out of a suit for specific performance. In Kasturi (supra) the distinction between a necessary party and a proper party was adjudicated. As the petitioners claim to have acquired title pendente lite, they would be entitled to be added as plaintiffs as prayed by them. In Mumbai International Airport Pvt. Ltd. (supra) a person likely to secure right or interest in the suit property after the suit is decided was held to be neither a necessary party or a proper party. Such is not the case in hand. Similarly the decision in S. N. Arora (supra) is also distinguishable on facts.
9. In view of aforesaid discussion, the following order is passed :
i) The order dated 22/01/2016 passed below Exhibit-104 in Spl.
Civil Suit No.619/2009 is quashed and set aside.
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WP-855-16 11/11 ii) Application below Exhibit-104 is allowed in terms of its prayer. iii) It is clarified that observations made in this order are only for
deciding the writ petition. The suit shall be decided on its own merits.
iv) Rule is made absolute in aforesaid terms with no order as to costs.
10. At this stage, learned counsel for the respondent No.22 prays that the effect of this order be stayed for a period of four weeks.
This request is opposed by the learned counsel for the petitioners. Considering the fact that interim order was operating during pendency of the writ petition, the effect of this order is stayed for a period of four weeks from today.
JUDGE Asmita ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 02:02:19 :::