Bombay High Court
Subhash S/O Manikrao Bhosale And ... vs Prabhakar S/O Vyankatesh Kango ... on 28 September, 2012
Bench: Prasanna B. Varale
Common Judgment 1 WP Nos.2945/11 & 2946/11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.2945 OF 2011
Petitioners : 1] Shri Subhash S/o. Manikrao Bhosale,
Aged 77 years, Occupation: Service,
R/o. 77, Shankar Nagar, Nagpur.
2] Sau.Sheela alias Simntini W/o.Narendra Deshmukh
ig Aged 67 years, Occupation: Household,
R/o. Shivaji Nagar, Nagpur.
3] Shri Ravindra S/o. Manikrao Bhosale,
Aged 65 years, Occupation: Business.
4] Shri Arvind S/o. Manikrao Bhosale,
Aged about 62 years, Occupation: Business.
5] Shri Pramod alias Manohar S/o. Manikrao Bhosale
Aged 67 years, Occupation: Business.
All R/o. 77, Shankar Nagar, Nagpur.
... VERSUS ...
Respondents : 1] Shri Prabhakar S/o. Vyankatesh Kango,
Aged 50 years, Occupation : Service,
R/o. Dhantoli, Nagpur (Deceased LR on record
defendant no.2b).
2] Smt. Tarabai W/o. Keshorao Vyawahare,
Aged 55 years, Occupation : Household,
R/o. Dhantoli Nagpur (Deceased LR on record
defendant no.2b).
2a] Shri Keshavrao Ramrao Vyawhare,
Aged Major, Occupation : Retired (Deceased LR of
1 to 2 already on record as defendant no.2b)
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Common Judgment 2 WP Nos.2945/11 & 2946/11
(brought on record by order dated 01/02/2002
below exhibit 167)
2b] Shri Mohan Keshavrao Vyawhare,
Aged Major, Occupation : Service.
All R/o. Balraj Road, Gurudev Coaching Classes,
Near Tiwari Building, 2nd Lane Dhantoli, Nagpur.
3] Shri Anil Prabhakar Kulkarni,
ig Aged about 50 years, Occupation : Business,
R/o. 3, Sai Mangal Apartment, Mahatma Nagar,
Nashik.(defendant no.3 added by Order dated
17/07/1985 vide below Exhibit 28)
4] Shri Madanmohan S/o. Tolaram Daga,
Aged about 57 years, Occupation : Business,
R/o. 12 A, Dandige Layout, Shankar Nagar,
Nagpur.
5] Shri Jugal S/o. Khemchand Agrawal,
Aged about 44 years, Occupation : Business,
R/o. 468, Gokulpeth, Nagpur - 440 010.
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Mrs. Neeta Jog, Counsel for the Petitioners.
None for Respondent Nos.2, 2a, 2b & 3.
Mr.H.R. Gadhia h/f Mr. A.M. Ghare, Counsel for Respondent No.4.
None for Respondent No.5 though served.
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AND
WRIT PETITION NO.2946 OF 2011
Petitioners : 1] Shri Subhash S/o. Manikrao Bhosale,
Aged 77 years, Occupation: Service,
R/o. 77, Shankar Nagar, Nagpur.
2] Sau.Sheela alias Simntini W/o.Narendra Deshmukh
Aged 67 years, Occupation: Household,
R/o. Shivaji Nagar, Nagpur.
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Common Judgment 3 WP Nos.2945/11 & 2946/11
3] Shri Ravindra S/o. Manikrao Bhosale,
Aged 65 years, Occupation: Business.
4] Shri Arvind S/o. Manikrao Bhosale,
Aged about 62 years, Occupation: Business.
5] Shri Pramod alias Manohar S/o. Manikrao Bhosale
Aged 67 years, Occupation: Business.
All R/o. 77, Shankar Nagar, Nagpur.
ig ... VERSUS ...
Respondents : 1] Shri Prabhakar S/o. Vyankatesh Kango,
Aged 50 years, Occupation : Service,
R/o. Dhantoli, Nagpur (Deceased LR on record
defendant no.2b).
2] Smt. Tarabai W/o. Keshorao Vyawahare,
Aged 55 years, Occupation : Household,
R/o. Dhantoli Nagpur (Deceased LR on record
defendant no.2b).
2a] Shri Keshavrao Ramrao Vyawhare,
Aged Major, Occupation : Retired (Deceased LR of
1 to 2 already on record as defendant no.2b)
(brought on record by order dated 01/02/2002
below exhibit 167)
2b] Shri Mohan Keshavrao Vyawhare,
Aged Major, Occupation : Service.
All R/o. Balraj Road, Gurudev Coaching Classes,
Near Tiwari Building, 2nd Lane Dhantoli, Nagpur.
3] Shri Anil Prabhakar Kulkarni,
Aged about 50 years, Occupation : Business,
R/o. 3, Sai Mangal Apartment, Mahatma Nagar,
Nashik.(defendant no.3 added by Order dated
17/07/1985 vide below Exhibit 28)
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Common Judgment 4 WP Nos.2945/11 & 2946/11
4] Shri Jugal S/o. Khemchand Agrawal,
Aged about 44 years, Occupation : Business,
R/o. 468, Gokulpeth, Nagpur - 440 010.
5] Shri Madanmohan S/o. Tolaram Daga,
Aged about 57 years, Occupation : Business,
R/o. 12 A, Dandige Layout, Shankar Nagar,
Nagpur.
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Mrs. Neeta Jog, Counsel for the Petitioners.
None for Respondent Nos.2, 2a, 2b & 3.
Mr. R.M. Sharma, Counsel for Respondent No.4
Mr.H.R. Gadhia h/f Mr. A.M. Ghare, Counsel for Respondent No.5.
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C ORAM
: PRASANNA B. VARALE, J.
DATE : 28 th
SEPTEMBER,
2012.
ORAL JUDGMENT :-
01] Rule. Rule made returnable forthwith. The petitions are
heard finally at the stage of admission with the consent of learned Counsel
for the parties.
02] In both the petitions the orders passed by the learned 10th Joint
Civil Judge, Junior Division, Nagpur, dated 31/03/2011 are challenged
thereby allowing the applications filed by the applicants-interveners in
R.C.S. No.495/2001 and as such both the petitions are heard and decided
together.
Common Judgment 5 WP Nos.2945/11 & 2946/11
03] The brief facts of the petitions can be summarized as follows :
The petitioners have filed R.C.S. No.495/2001 against
defendants viz. (1) Prabhakar S/o. Vyankatesh Kango, (2) Smt. Tarabai
W/o. Keshorao Vyawahare and (3) Anil S/o. Prabhakar Kulkarni, for
declaration, specific performance of contract and permanent injunction.
Respondent-Madanmohan Tolaram Daga filed an application under Order I
Rule 10 read with Section 151 of the Code of Civil Procedure for addition of
party and prayed for intervention in the suit. It is the case of respondent-
Madanmohan Daga that defendant no.3 (respondent no.3 herein) had
acquired transferable and heritable leasehold right in respect of suit
property from other defendants by virtue of registered Deed of Sale dated
04/02/1983 and during the pendency of the proceeding, he entered into an
Agreement of Sale dated 11/07/2003 for valuable consideration of
Rs.6,00,000/-. It is the further case of respondent-Madanmohan Daga that
the defendant no.3, who was residing at Nashik, through his Power of
Attorney complected all the legal formalities and was under legal obligation
to execute the Deed of Sale, but defendant no.3 started avoiding the
execution of Deed of Sale and as such the applicant-intervener left with no
choice but to file civil suit bearing Special Civil Suit No.271/2006 against
Common Judgment 6 WP Nos.2945/11 & 2946/11
defendant no.3 for specific performance of contract dated 11/07/2003. It
is the further case of respondent-Madanmohan Daga that defendant no.3
had concealed the facts of pendency of R.C.S. No.495/2001 and in view of
two parallel proceedings, there is a likelihood of passing two conflicting
decrees as such he prayed for intervention in the suit.
The application filed by respondent-Madanmohan Daga was
opposed by the petitioners-plaintiffs.
Perusal of the say to the application shows that the petitioners
opposed the application on the ground that the applicant-intervener had
not placed any material in support of his contention in the application. It is
further stated in the say that the Sale-Deed between Tarabai Vyawahare and
Anil Kulkarni itself is void and does not pass any title in favour of Anil
Kulkarni and, therefore, the question of transfer of title by Anil Kumar to
other person does not arise.
Perusal of the application filed by respondent-Jugal
Khemchand Agrawal, which is placed on record in Writ Petition No.
2946/2011 as Annexure-A, shows that defendant no.3-Anil Kulkarni had
executed registered Sale-Deed dated 24/09/2009 and the applicant-
intervener-Jugal Agrawal purchased the suit property from defendant no.3
Common Judgment 7 WP Nos.2945/11 & 2946/11
for total consideration of Rs.21,00,000/-. It is the case of respondent-Jugal
Agrawal that he has completed all the formalities by making payment of
outstanding municipal taxes, processing the mutation application in getting
his name mutated with Nagpur Improvement Trust and as such he has
become the owner of the suit property, and if any order is passed in the said
civil suit, the same would adversely affect him. It is further stated by
respondent-Jugal Agrawal in his application that the defendant no.3, from
whom he had purchased the property, had concealed the fact of pendency
of the suit and on receiving the knowledge of pendency of the suit and after
making detail enquiry, he filed application for intervention.
The petitioners had filed say opposing the intervention
application of respondent-Jugal Agrawal by raising a ground on the
principle of lis pendens. It is submitted in the say by the petitioners that the
applicant-intervener was aware of the possession and the application by
respondent-Jugal Agrawal filed in connivance with defendant no.3.
04] Heard learned Counsel for the respective parties at length.
05] Learned Counsel Mrs. Jog for the petitioners vehemently
submitted that the respondents i.e. the applicants-interveners, are not the
Common Judgment 8 WP Nos.2945/11 & 2946/11
necessary parties. She further submitted that the Sale-Deed executed
between Tarabai Vyawahare and Anil Kulkarni itself is void and the same is
challenged in R.C.S. No.495/2001. She further submitted that the
applications seeking intervention by respondents at a belated stage i.e.
nearly after four years, are after thought attempts for prolonging the trial in
connivance with defendant no.3. She, by raising a ground on the principle
of lis pendens, submitted that the orders impugned in the petitions are
unsustainable. She, in support of her submission, placed heavy reliance on
the judgments of the Apex Court in the matter of Kasturi vs.
Iyyamperumal and others , reported in (2005) 6 Supreme Court Cases
733 and Guruswamy Nadar vs. P. Lakshmi Ammal (Dead) through L.Rs.
and others, reported in (2008) 5 Supreme Court Cases 796. She further
submitted that defendant no.3-Anil Kulkarni, who is impleaded as party-
defendant no.3 in R.C.S. No.495/2001, was aware of the pendency of the
proceedings, and in spite of knowledge of the fact that the proceedings are
pending before the Civil Court, defendant no.3 sold property to various
persons and, therefore, the act of defendant no.3 of selling the property
during the pendency of the proceedings to umpteen number of purchasers
and creating adversary rights in those purchasers, for which the petitioners
are not responsible. She further submitted that if the decree is passed in
Common Judgment 9 WP Nos.2945/11 & 2946/11
the proceeding i.e. R.C.S. No.495/2001, the same would be binding on all
subsequent purchasers. She further submitted that the proceedings bearing
R.C.S. No.495/2001 is as good as at close and it is an attempt of defendant
no.3 with connivance of respondent nos.4 & 5 to prolong the proceedings
thereby causing a serious prejudice to the petitioners-plaintiffs. She in her
submission referred to Section 52 of the Transfer of Property Act, 1882 and
Section 19 of the Specific Relief Act, 1963.
06] Per contra, learned Counsel Mr. Gadhia, holding for learned
Counsel Mr. A.M. Ghare for respondent-Madanmohan Daga and learned
Counsel Mr. Sharma for respondent-Jugal Agrawal supported the order
impugned in the petitions. Learned Counsel, appearing for the respective
respondents, submitted that the respondents-interveners were not aware of
the proceedings i.e. R.C.S. No.495/2001.
Learned Counsel Mr. Gadhia submitted that respondent-
Madanmohan Daga entered into Agreement to Sale with defendant no.3
dated 11/07/2003 and entire payment of consideration i.e. of
Rs.6,00,000/- has already been made. Mr. Gadhia further submitted that
respondent-Madanmohan Daga has complied with all the legal formalities
through his registered Power of Attorney.
Common Judgment 10 WP Nos.2945/11 & 2946/11
Learned Counsel Mr. Sharma submitted that respondent-Jugal
Agrawal had purchased the suit property by registered sale-deed. Mr.
Sharma further submitted that valuable right is created in favour of
respondent-Jugal Agrawal in the suit property by way of registered Sale-
Deed and any order passed in the proceedings i.e. R.C.S. No.495/2001,
would affect adversely to the right of respondent-Jugal Agrawal.
Learned Counsel Mr. Gadhia and learned Counsel Mr. Sharma
submitted that in view of two parallel proceedings, the respondents-
interveners approached the Court by seeking their intervention with bona
fide intention to avoid multiplicity of proceedings.
Learned Counsel Mr. Sharma placed heavy reliance on the
latest judgment of the Apex Court reported in (2012) 7 SCC 738 in the
matter of A. Nawab John and others vs. V.N. Subramaniyam.
07] As learned Counsel Mrs. Jog for the petitioners vehemently
submitted that in view of the judgments of the Apex Court reported in the
cases of Kasturi vs. Iyyamperumal and others and Guruswamy Nadar vs.
P. Lakshmi Ammal and others, respondent nos.4 & 5 are not the necessary
parties. It will be useful to refer the judgments of the Apex Court. The
Common Judgment 11 WP Nos.2945/11 & 2946/11
Apex Court in the matter of Kasturi vs. Iyyamperumal and others, held
thus :
"The question of jurisdiction of the court to invoke Order 1
Rule 10 CPC to add a party who is not made a party in the suit
by the plaintiff shall not arise unless a party proposed to be
added has direct and legal interest in the controversy involved in
the suit. A person is legally interested in the answers to the
controversies only if he can satisfy the court that it may lead to a
result that will affect him legally. A bare reading of Order 1 Rule
10(2) CPC would clearly show that the necessary parties in a suit
for specific performance of a 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 of the contract, but a person who claims
adversely to the claim of a vendor is, however, not a necessary
party. Two tests are to be satisfied for determining the question
who is a necessary party. Tests are - (1) there must be a right to
some relief against such party in respect of the controversies
involved in the proceedings; (2) no effective decree can be passed
in the absence of such party. In a suit for specific performance
the first test can be formulated in the following manner, that is,
to determine whether a party is a necessary party there must be a
Common Judgment 12 WP Nos.2945/11 & 2946/11
right to the same relief against the party claiming to be a
necessary party, relating to the same subject-matter involved in
the proceedings for specific performance of contract for sale.
Suit for specific performance of contract - Proper party
thereto - Who is - Held, is a party whose presence is necessary to
adjudicate the controversies involved in the suit - Hence, parties
claiming independent title and possession adverse to title of
vendor, and not on basis of the contract, are not proper parties,
for if such parties are impleaded scope of the suit for specific
performance shall be enlarged to a suit for title and possession,
which is impermissible. A third party or stranger to the contract
cannot be added in a suit for specific performance merely in order
to find out who is in possession of the contracted property or to
avoid multiplicity of suits."
08] Learned Counsel Mrs. Jog by placing heavy reliance on these
judgments, submitted that respondents-interveners are stranger and only
on the ground to avoid multiplicity of litigation, their applications ought
not to have been allowed. She also placed heavy reliance on the judgment
of the Apex Court in the matter of Guruswamy Nadar vs. P. Lakshmi
Ammal and others.
09] There cannot be any dispute on the proposition laid down by
the Apex Court. In my opinion, the judgment of the Apex Court with the
Common Judgment 13 WP Nos.2945/11 & 2946/11
proposition laid down in the matters of Kasturi vs. Iyyamperumal and
others and Guruswamy Nadar vs. P. Lakshmi Ammal and others, cannot
be read as it is tried to be submitted by learned Counsel Mrs. Jog. The
Apex Court makes it clear thus :
"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 vendor is, however,
not a necessary party. Tests are - (1) there must be a right to
some relief against such party in respect of the controversies
involved in the proceedings; (2) no effective decree can be passed
in the absence of such party."
10] By careful reading the tests as laid down by the Apex Court
and applying these tests to the present matter, it is clear that respondents
i.e. the applicants-interveners, have purchased the property and their claim
is not adversely to the claim of vendor. It is also clear that as respondents-
interveners have purchased the property by way of Agreement to Sale and
by way of registered Sale-Deed respectively, right is created in their favour
relating to the same subject matter involved in the proceedings for specific
performance of contract for sale.
11] Learned Counsel Mr. Sharma for respondent-Jugal Agrawal
submitted that the judgment of the Apex Court in the matter of Kasturi vs.
Common Judgment 14 WP Nos.2945/11 & 2946/11
Iyyamperumal and others is not applicable to the present case in its strict
sense, as before the Apex Court the matter was relating to suit for specific
performance of contract. Mr. Sharma submitted that R.C.S. No.495/2001
filed by the petitioners-plaintiffs is not only for specific performance of
contract but it is for seeking relief of declaration, specific performance of
contract and permanent injunction against the defendants. Mr. Sharma,
placed heavy reliance on the latest judgment of the Apex Court in the
matter of A. Nawab John and others vs. V.N. Subramaniyam in reply to
the ground raised by learned Counsel for the petitioners-plaintiffs on the
principle of transfer pendente lite under Section 52 of the Transfer of
Property Act, 1882. Mr. Sharma submitted that the Apex Court while
considering the divergence of opinion in respect of the issue, whether a
pendente lite purchaser is entitled as a matter of right to get impleaded in
the suit, observed thus :
18. It is settled legal position that the effect of Section
52 is not to render transfers effected during the pendency of a suit
by a party to the suit void; but only to render such transfers
subservient to the rights of the parties to such suit, as may be,
eventually, determined in the suit. In other words, the transfer
remains valid subject, of course, to the result of the suit. The
pendente lite purchaser would be entitled to or suffer the same
Common Judgment 15 WP Nos.2945/11 & 2946/11
legal rights and obligations of his vendor as may be eventually
determined by the court.
'12. ... The mere pendency of a suit does not prevent
one of the parties from dealing with the property
constituting the subject-matter of the suit. The section only
postulates a condition that the alienation will in no
manner affect the rights of the other party under any
decree which may be passed in the suit unless the property
was alienated with the permission of the Court (Sanjay
Verma vs. Manik Roy, (2006) 13 SCC 608, Para 12).'
19. Such being the scope of Section 52, two questions
arise; whether a pendente lite purchaser; (1) is entitled to be
impleaded as a party to the suit?; (2) once impleaded what are
the grounds on which he is entitled to contest the suit?
20. This Court on more than one occasion held that
when a pendente lite purchaser seeks to implead himself as a
party-defendant to the sit, such application should be liberally
considered. This Court also held in Saila Bala Dassi vs. Nirmala
Sundari Dassi (AIR 1958 SC 394) that, "justice requires", a
pendente lite purchaser "should be given an opportunity to
protect his rights".
21. There is some divergence of opinion regarding the
question, whether a pendente lite purchaser is entitled, as a
matter of right, to get impleaded in the suit, this Court in Amit
Common Judgment 16 WP Nos.2945/11 & 2946/11
Kumar Shaw vs. Farida Khatoon (2005) 11 SCC 403.
"16... 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 list 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 interest. 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 his predecessor-in-interest is made a party to the
litigation; he is entitled to be heard in the matter on the
merits of the case." (emphasis supplied)
Common Judgment 17 WP Nos.2945/11 & 2946/11
22. The preponderance of opinion of this Court is that a
pendente lite purchaser's application for impleadment should
normally be allowed or "considered liberally".
12] In view of the above referred observations of the Apex Court, I
am unable to accept the submission of learned Counsel Mrs. Jog for the
petitioners. No fault can be found with the findings of the learned 10th
Joint Civil Judge, Junior Division, Nagpur that the interveners' interest is
connected with the suit property and the applicants-interveners are
required to be added as defendants in the suit for passing proper decree
and to avoid multiplicity of proceedings. For the above mentioned reasons,
in my opinion, the petitions are devoid of merits and deserve to be
dismissed.
The petitions are dismissed accordingly. Rule stands
discharged with no order as to costs.
JUDGE
At this stage, learned Counsel Mrs. Jog for the petitioners
submits that the petitioners were protected by interim order passed by this
Court on 29th June, 2011 and prays for stay to the judgment and order of
this Court passed today.
Common Judgment 18 WP Nos.2945/11 & 2946/11
At the request of learned Counsel Mrs. Jog, stay is granted to
the effect and operation of the judgment and order, dated 28/09/2012, for
a period of three weeks only.
JUDGE
*waghmare
