Smt.M.Bharathi vs Smt.Subbamma
2024 Latest Caselaw 4970 AP

Andhra Pradesh High Court - Amravati

Smt.M.Bharathi vs Smt.Subbamma on 2 July, 2024

APHC010642262023
                    IN THE HIGH COURT OF ANDHRA PRADESH
                                  AT AMARAVATI                          [3311]
                           (Special Original Jurisdiction)

                   TUESDAY ,THE SECOND DAY OF JULY
                   TWO THOUSAND AND TWENTY FOUR

                                  PRESENT

            THE HONOURABLE MS JUSTICE B S BHANUMATHI

                   CIVIL REVISION PETITION NO: 3343/2023

Between:

Smt.m.bharathi and Others                                    ...PETITIONER(S)

                                     AND

Smt Subbamma and Others                                   ...RESPONDENT(S)

Counsel for the Petitioner(S):

1. N RANGA REDDY

Counsel for the Respondent(S):

1. SATYANARAYANA NIMMALA

The Court made the following Order:

This revision petition is filed under Article 227 of Constitution of India

against the order dated 04.12.2023 dismissing the I.A.No.38 of 2023 in

O.S.No.12 of 2018 filed by the plaintiffs under Order I, Rule 10 to implead the

2nd respondent as 2nd defendant in the Suit.

02. The suit is filed for specific performance of agreement dated

11.11.2016. Pending the suit, the 1st defendant executed a sale deed in favour

of the 2nd respondent on 22.12.2022. The petitioners stated that the said

registered sale deed was executed to deprive the plaintiffs of their right to get

a sale deed in their favour and its sham and nominal sale deed.

03. The petition was opposed by filing counter of the 1st respondent stating

that the sale deed dated 22.12.2022 was executed by the 1st respondent in

favour of the 2nd respondent as a security only for the loan amount operated

by the 1st respondent and it is not an out and out sale deed as contended by

the plaintiffs and moreover even if the allegation is true, the right of the third

party subject to the result of the suit and the third party need not be impleaded

based on the events happened subsequent to the suit. It is also stated that the

plaintiffs are proxies for Somasekar Reddy, special camp clerk for the

Superintendent of Police, Tirupati, who got filed the suit on a bogus

agreement of sale and the plaintiffs are dragging on the process needlessly.

04. After hearing both the parties, the trial Court dismissed the petition

observing that the proposed party is not a party to the agreement of sale and

has no role to play in the suit relief and moreover even according to the

plaintiffs, the sale deed in favour of the proposed party is only a nominal

document and even if it is a genuine document, the purchaser of the property

under a sale during pendency of the suit is neither a necessary party nor an

appropriate party by virtue of Section 52 of Transfer of Property Act. The trial

Court placed reliance on the decision of the Supreme Court in Kasturi vs.

Iyyamperumal and others1.

2005(3) ALD 83 (SC)

05. Aggrieved by the order this revision petition is filed stating that the trial

Court ought to have seen that the presence of the proposed party is

necessary for adjudication of the suit or else the petitioner will not get

possession of the property and obtain decree in the Suit.

06. In spite of service of notice on the 2nd respondent/proposed 2nd

defendant, no appearance has been made. In fact, the 1st and 2nd respondent

together defended the petition before the trial Court. The learned counsel

appearing for the 1st respondent/1st defendant submitted that the sale between

the 1st and 2nd respondents is only nominal as it was executed as a security

and moreover Section 52 of Transfer of Property Act binds the subsequent

transferee by the decree that may be passed in the suit and as such, the trial

Court rightly dismissed the petition.

07. The learned counsel for the petitioners submitted as in the grounds of

the revision. He further submitted that in a suit for specific performance, the

plaintiff is at liberty to implead a third party transferee/purchaser pendente lite,

and placed reliance on the decision of the Supreme Court in Thomson Press

(India) Ltd., vs. Nanak builders and Investors Private Ltd., and others 2,

wherein at para 55, 56 and 57.3 held as follows:

"55. We are not on virgin ground in so far as that question is concerned. Decisions of this Court have dealt with similar situations and held that a transferee pendete lite can be added as a party to the suit lest the transferee suffers prejudice on account of the transferor losing interest in

(2013) 5 Supreme Court Cases 397

the litigation post transfer. In Khemchand Shanker Choudhary v.

Vishnu Hari Patil3, this Court held that:

"6....the position of a person on whom any interest has devolved on account of a transfer during the pendency of a 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...."

Any such heir, legatee or transferee cannot be turned away when she applies for being added as a party to the suit. The following passage in this regard is apposite: (SCC pp. 20-21, para 6)

"6. 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

35 (1983) 1 SCC 18

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." (emphasis supplied)

56. To the same effect is the decision of this Court in Amit Kumar Shaw v. Farida Khatoon (2005) 11 SCC 403 where this Court held that a transferor pendente lite may not even defend the title properly as he has no interest in the same or collude with the plaintiff in which case the interest of the purchaser pendente lite will be ignored. To avoid such situations the transferee pendente lite can be added as a party defendant to the case provided his interest is substantial and not just peripheral. This is particularly so where the transferee pendente lite acquires interest in the entire estate that forms the subject matter of the dispute. This Court observed: (SCC p.411, para 16)

"16... The doctrine of lis pendens applies only where the lis is pending before a court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the court has a 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. Hence, though the Plaintiff is under no obligation to make a lis pendens transferee a party, under Order 22 Rule 10 an alienee pendente lite may be joined as party. As already noticed, the court has discretion in the matter which must be

judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. 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 proceedings where the transferee pendente lite is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case" (emphasis supplied)

To the same effect is the decision of this Court in Rikhu Dev v. Som Dass4.

57.To sum up:

57.1...57.2...57.3.Since the appellant has purchased the entire estate that forms the subject-matter of the suit, the appellant is entitled to be added as a party-defendant to the suit..."

08. He further relied on the decision of this Court in Manepalli Mohan Rao

vs. Jakkam Sunitha and others 5 , wherein at paras 11 and 12 held as

follows:

"In the judgment of Akula Seshamma vs. P.Eswaraiah 6 cited, this Court held as under:

"The Supreme Court also rules that in a suit for specific performance the question is whether the vendor had executed the document and whether conditions prescribed in the provisions of Specific Relief Act, 1963 have been complied with for granting the relief of specific performance. Though Sri M.P. Chandramouli

37 (1976) 1 SCC 103

(2018) 3 ALD 513

(2001) 2 ALD 608

submits that this judgment s an authority for the proposition that in a suit for specific performance of agreement of sale a third party is not a necessary party, the submission cannot be accepted, for, the Supreme Court did not lay down any such rule. In fact, referring to the earlier judgments in Razia Begum vs. Sahebzadi Anwar Begum7, and Lala Durga Prasad vs. Leila Deep Chand8, as well as Sections 15 and 16 of Specific Relief Act, the Supreme Court categorically observed that based on the fact situation the relief has to be moulded by the Court. The Supreme Court also noticed that in a suit for specific performance, the subsequent purchaser is a necessary party. Therefore, it can be concluded that though a third party who is not at all concerned with the property in question cannot be claimed to be added as a plaintiff or defendant under Order 1, Rule 10(2) CPC. A person having interest in the suit schedule property is a proper and necessary party for effective and complete adjudication of all issues in a suit for specific performance of agreement of sale."

Even in the judgment of Kasturi vs. Iyyamperumal (supra) relied on by learned counsel for the respondents, the Supreme Court held as under:

We may look to this problem from another angle. Section 19 of the Specific Relief Act provides relief against parties and persons claiming under them by subsequent title. Except as otherwise provided by Chapter II, Specific Performance of a Contract may be enforced against:

"19 (a) either party thereto;

b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has

AIR 1958 SC 886

AIR 1954 SC 75

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) when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation;

e) when a promoters of a company have, before its incorporation, entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation, the company:

Provided that the company has accepted the contract and communicated such acceptance to the other party to the contract."

We have carefully considered sub-sections (a) to (e) of Section 19 of the Act. From a careful examination of the aforesaid provisions of clauses (a) to (e) of the Specific Relief Act we are of the view that the persons seeking addition in the suit for specific performance of the contract for sale who were not claiming under the vendor but they were claiming adverse to the title of the vendor do not fall in any of the categories enumerated in sub-sections (a) to (e) of Section 19 of the Specific Relief Act."

09. It is settled proposition of law that plaintiff is the master of choosing the

party against whom the relief is sought. However, Order I, Rule 10 C.P.C. is

an exception. Though a party is bound by the decree if the person expresses

interest in the property pendente lite by virtue of Section 51 of Transfer of

Property Act, the plaintiff in a suit for specific performance is at his liberty to

seek impleadment of the transfer pendente lite to avoid further litigation in the

event of pending a decree in the suit.

10. After elaborate discussion on various decisions, this Court has held a

similar observation vide order dated 20.10.2023 in Civil Revision Petition

No.48 of 2023, wherein at para 24 it is held as follows:

"It is not only the necessary party, but a proper party can also be added as a party to a suit. In any type of case, even when the plaintiff does not wish to implead a party, permitting a party to be impleaded in the suit as defendant is certainly allowed by law as explained in the above noted cases. It is not just that a suit may ultimately end in dismissal, if a necessary party is not added, but unless all necessary facts are pleaded and established, it may not be possible to correctly decide a lis before a Court, because in the absence of a party, be it necessary or proper, no pleading and evidence will be on record."

11. In view thereof the trail Court committed error in dismissing the petition.

Therefore the impugned Order needs to be interfered.

12. In the result, the civil revision petition is allowed by setting aside the

order dated 04.12.2023 in I.A.No.38 of 2023 in O.S.No.12 of 2018 and the

petition therein is allowed. No Costs.

Miscellaneous applications, if any, shall stand closed.

________________________ JUSTICE B.S.BHANUMATHI Date: 02.07.2024.

Note:

Issue CC by 09.07.2024 b/o NSM

THE HON'BLE MS JUSTICE B.S.BHANUMATHI

CIVIL REVISION PETITION No.3343 of 2023

Dt.02.07.2024

CC BY 09.07.2024 b/o NSM