Shri Sudhir S/O Suresh Chourasiya vs Smt. Vandana Ramchandra Ambilkar ...
2016 Latest Caselaw 7002 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            : NAGPUR BENCH : NAGPUR.




                                                     
                            WRIT  PETITION  NO.  1878  OF  2015

    Shri Sudhir s/o Suresh Chourasiya




                                                    
    Aged about 47 years, Occupation Business,
    R/o 217, Nandanwan Colony, 
    Nagpur.                                                          ... Petitioner

           // VERSUS //




                                            
    (1) Smt. Vandana Ramchandra Ambilkar,
                                 
          Aged about 34 years, Occupation Household, 
          R/o 50, Gitanagar, Doye Layout, 
          Zingabai Takli, Nagpur. 
                                
    (2) Smt. Meera wd/o Urkuda Khandale, 
          Aged about 57 years, Occupation Household, 
      

    (3) Shri Bhimrao s/o Urkuda Khandale, 
          Aged about 40 years, Occupation Cultivator, 
   



    (4) Shri Arjun s/o Urkuda Khandale 
          Aged about 30 years, Occupation Cultivator,
          Nos. 2 to 4 R/o Gujari Chowk,





          Juni Mangalwari, Nagpur. 
     




    (5) Shri Ajit s/o Chandrikaprasad Mishra,
          Aged about 25 years, Occupation Business, 

    (6) Shri Brijkishor Triyugiprasad Dwivedi,





          Aged about 30 years, Occupation Business
          Nos. 5 & 6 R/o Mangaldip Colony, 
          Netaji Nagar, Nagpur. 

    (7) Shri Shyamkumar S/o Chandulal Sugandh,
          Aged about 54 years, Occupation Business, 
          Agriculturist, R/o 106/A-2, Queta Colony, 
          Lakadgunj, Nagpur -8.                                    ... Respondents




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    -------------------------------------------------------------------------------------------------
    Shri K. B. Ambilwade, Advocate for the petitioner




                                                                 
    Shri P. J. Khumkar, Advocate for the respondent nos. 1 to 4
    Shri A. N. Ansari, Advocate appearing on behalf of Shri H. D. Dangre, 
    Advocate for the respondent no. 7
    None for the respondent nos. 5 and 6 




                                                                
    -------------------------------------------------------------------------------------------------
                                                 CORAM :  PRASANNA B. VARALE, J.

                                                  DATE    : 7-12-2016.




                                                 
    ORAL JUDGMENT
                              
                     Rule.  Rule made returnable forthwith.  
                             

2. Heard Shri Ambilwade, learned counsel for the petitioner,

Shri Khumkar, learned counsel for the respondent nos. 1 to 4 and

Shri Ansari, learned counsel appearing on behalf of Shri Dangre,

learned counsel for the respondent no. 7.

3. None appears for the respondent nos. 5 and 6 though

they are duly served by way of paper publication.

4. The petitioner challenges the order passed by the learned

3rd Joint Civil Judge Senior Division, Nagpur dated 12-1-2015 thereby

allowing the application filed at the instance of the respondent no. 7

seeking intervention in the suit.

5. Brief facts giving rise to the present petition can be

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summarized as follows.

The petitioner is the plaintiff who had instituted the suit against

the respondent nos. 1 to 6 for declaration, specific performance of

contract. The contentions raised by the petitioner-plaintiff in Special

Civil Suit No. 580/2011 are countered by filing written statement on

behalf of the defendant nos. 1 to 4 and 5 and 6. The suit is filed on

26-4-2011. On 4-5-2011, learned 3rd Joint Civil Judge Senior Division,

Nagpur passed the order. The same reads thus :

"Defendant Nos. 1 to 6 are hereby restrained from disturbing plaintiff. In his possession over suit property and from creating third party interest therein in any manner till their appearance and filing reply to Exh. 5.

Issue notice to defendants as to why above ex parte

injunction should not be confirmed on P.F. r/o 09/06/2011.

Plaintiff to comply mandatory provision of Order 39 Rule 3(a)(b) C.P.C."

The respondent no. 7 submitted an application before the learned 3 rd

Joint Civil Judge Senior Division seeking permission to intervene in

the suit being necessary and interested party and for being added as

co-defendant. It was the submission of the respondent no. 7 that the

respondent no. 7 i.e. the applicant was a bonafide purchaser of the suit

property for valuable consideration under sale deed dated 10-5-2011.

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It was submitted that the applicant is the bonafide purchaser and

further it was stated that there are the decisions of the Supreme Court

holding that when a pendente lite purchaser seeks to implead himself

as a party - defendant to the suit, such application should be liberally

considered. This application was filed on 1-10-2012. This application

was strongly opposed and objected by the petitioner-plaintiff. It was

submitted at the instance of the petitioner-plaintiff that along with the

application, photocopies of the documents were placed on record and

it would be necessary to go through the original documents. Learned

3rd Joint Civil Judge Senior Division considering the objections raised

by the petitioner-plaintiff passed order dated 4-4-2013 thereby

directing the applicant/intervener (respondent no. 7 herein) to

produce the original copies of documents which are filed along with

list Exhibit 54 within stipulated period i.e. one week from passing the

order. Learned 3rd Joint Civil Judge Senior Division on finding that in

spite of direction given to the applicant/intervener to file original

copies of the documents, the documents were not placed on record,

thus, on 13-9-2013 by referring to this fact, namely, non filing of the

documents till the date of the order, the application was filed. Perusal

of the material placed on record shows that the respondent no. 7

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instituted special civil suit on 23-1-2013 seeking declaration of

ownership of suit land and for permanent injunction against the

petitioner and other respondents herein i.e. defendants nos. 1 to 7.

Subsequent to filing of suit again, the application was submitted at the

instance of the respondent no. 7 for permission to add the applicant as

co-defendant being necessary and interested party. This application

was opposed by the petitioner. It was submitted that the earlier

application filed at the instance of the applicant(respondent no. 7

herein) was filed for non compliance of the order. It was also brought

to the notice of the Court that the applicant had filed the suit and the

same is pending before the learned Civil Judge Senior Division,

Nagpur. It was submitted that the defendant nos. 5 and 6 were

having full knowledge about the injunction granted by the Court and

in spite of that order, the defendant nos. 5 and 6 indulged in act of

selling property. It was submitted that there is a collusion between

the respondents. Learned 3 rd Joint Civil Judge Senior Division

observed that the petitioner-plaintiff filed the suit for declaration,

specific performance of contract, breach of agreement and

cancellation of sale deed executed by defendant no. 1 in favour of the

defendant nos. 5 and 6. It is further observed by the learned 3 rd Joint

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Civil Judge Senior Division that the defendant nos. 5 and 6 sold suit

property to the intervener(respondent no. 7 herein) and the same is

subject matter of the suit and then observed that the applicant is

pendente lite purchaser, his application must be considered and further

observing that the intervention of the applicant would be necessary for

effectual and complete adjudication, allowed the application.

6.

Shri Ambilwade, learned counsel for the petitioner

vehemently submitted that the learned 3 rd Joint Civil Judge Senior

Division grossly erred in allowing the application. It was submitted by

Shri Ambilwade, learned counsel that first attempt of the respondent

no. 7 seeking intervention in the suit by application dated 1-10-2011

itself failed as the respondent no. 7 failed to file the original copies of

the documents on record within stipulated period. Shri Ambilwade,

learned counsel submitted that the learned Court below by recording

this fact filed the application. He then submitted that the learned

Court below even though referred to the objections raised by the

petitioner to the second application and attempt of the respondent

no. 7 seeking intervention in the matter, namely, the suit property was

purchased in spite of the injunction order, failed to consider the

relevant facts. It was submitted by Shri Ambilwade, learned counsel

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that by order dated 4-5-2011, the defendants were restrained from

disturbing the plaintiff in possession over the suit property and further

they were directed not to create third party interest in any manner

till their appearance and filing reply before the Court below.

Shri Ambilwade, learned counsel by inviting my attention to the order

dated 4-5-2011 placed on record at Annexure-3 submitted that while

issuing notice to the defendants, the Court below had posted the

matter on 9-6-2011 for considering the aspect of confirmation of the

ex-parte injunction. Shri Ambilwade then submitted that the

defendants filed their written statements on 12-7-2011 and

25-7-2011. Shri Ambilwade, learned counsel submitted that the

defendants who were aware of the fact that they were restrained from

disturbing the plaintiff for his possession over the suit property as well

as they were prohibited to create third party interest in the property,

in spite of such knowledge, the defendants indulged in the act of third

party interest thereby selling the property to the respondent no. 7

by registered sale deed dated 10-5-2011. Shri Ambilwade, learned

counsel then submitted that the petitioner also filed an application in

the Court below under Order 39 Rule 2A of the Code of Civil

Procedure against the respondents for committing the breach of the

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order passed by the Court. Shri Ambilwade, learned counsel then

submitted that the first application of the respondent no. 7 was filed

by order dated 13-9-2013 and the respondent no. 7 instituted the suit

on 23-1-2013 seeking declaration in respect of the suit property.

Shri Ambilwade then submitted that on the backdrop of the fact that

special civil suit is instituted at the instance of the respondent no. 7,

neither there was any reason for the respondent no. 7 to file a fresh

application for the very prayer which was in consideration before

the Court below and the application was filed nor the Court below

could have entertained that application. It was the submission of

Shri Ambilwade, learned counsel that the attempt of the respondent

no. 7 filing the application after application and similarly, initiating

the suit is nothing but an act leading to multiplicity of the

proceedings. Thus Shri Ambilwade, learned counsel submitted that

the learned Court below failed to appreciate all these facts and passed

an erroneous order allowing the application and permitted the

applicant (respondent no. 7 herein) to intervene in the suit.

7. Shri Ansari, learned counsel appearing on behalf of

Shri Dangre, learned counsel for the respondent no. 7 in support of

the order impugned in the present petition submitted that the

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respondent no. 7 was a bonafide purchaser of the suit property and

he was not aware of the proceedings instituted by the plaintiff.

Shri Ansari, learned counsel submitted that the earlier application

filed by the respondent no. 7 seeking his intervention was filed for non

supplying certain documents. As the application was only filed, the

respondent no. 7 submitted another application. Shri Ansari, learned

counsel then submitted that the suit filed at the instance of the

respondent no. 7 and the second application seeking permission to

intervene in the suit filed by the petitioner-plaintiff are for protecting

his right over the suit property. Shri Ansari then placed heavy reliance

on the judgment of the Apex Court which was also relied on before the

Court below that is in the matter of A. Nawab John and others. Vs.

V. N. Subramaniyam reported in 2013(1) Mh.L.J. 1. He submitted

that the Apex Court in the said judgment opined that the application

of the pendente lite purchaser for impleadment should normally be

allowed or considered liberally. Shri Ansari, learned counsel

submitted that by adopting the liberal approach, learned Court below

committed no error.

8. On the backdrop of the rival contentions of the learned

counsel appearing for the petitioner-plaintiff and the respondent no. 7

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i.e. contesting party before this Court, I have gone through the

material placed on record. The relevant facts are already referred to,

such as, order passed by the learned 3 rd Joint Civil Judge Senior

Division, Nagpur dated 4-5-2011, the first application filed for

intervention by respondent no. 7 dated 1-10-2012 and the orders

passed on that application dated 4-4-2013 and 13-9-2013, the specific

civil suit filed by the respondent no. 7 for declaration of ownership of

suit land and for permanent injunction on 23-1-2013 and the written

statement and preliminary objections filed by the defendant no. 1

(petitioner herein) dated 16-4-2013, second application filed by the

respondent no. 7 for permission to be added as co-defendant in the

suit filed by the petitioner-plaintiff dated 14-8-2014 and the reply filed

to the second application of the respondent no. 7 by the petitioner-

plaintiff dated 25-8-2014. As stated above, a heavy reliance was

placed on the judgment of the Apex Court in the matter of A. Nawab

John and others. Vs. V. N. Subramaniyam (cited supra) by the

learned counsel appearing for the respondent no. 7. It would be

useful to refer to the relevant observations of the Apex Court.

19. This Court on more than one occasion held that when a pendente lite purchaser seeks to implead himself as a party - defendant to the suit, such application should be

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liberally considered. This Court also held in Smt. Saila Bala Dassi v. Smt. Nirmala Sundari Dassi and Another, AIR

1958 SC 394, that, "justice requires", a pendente lite purchaser "should be given an opportunity to protect his rights". It was a case, where the property in dispute had been mortgaged by one of the respondents to another

respondent. The mortgagee filed a suit, obtained a decree and 'commenced proceedings for sale of the mortgaged property'. The appellant Saila Bala, who purchased the property from the judgment-debtor subsequent to the decree

sought to implead herself in the execution proceedings and resist the execution. That application was opposed on various counts. This Court opined that Saila Bala was

entitled (under Section 146 of the C.P.C.) to be brought on record to defend her interest because, as a purchaser pendente lite, she would be bound by the decree against

her vendor. 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 2005(3) Mh.L.J. (S.C.) 330 = (2005) 11 SCC

403, held that :

"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

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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 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]

The preponderance of opinion of this Court is that a pendente lite purchaser's application for impleadment should

normally be allowed or "considered liberally".

Though there cannot be any dispute on the proposition reflected in the

judgment of the Apex Court in the case of A. Nawab John and others.

Vs. V. N. Subramaniyam (cited supra), I am of the opinion that in

view of the peculiar facts and circumstances, the approach of the

respondent no. 7 was not worthy of seeking liberal approach. As

stated above, there was a specific order passed by the learned 3 rd Joint

Civil Judge Senior Division, Nagpur dated 4-5-2011 directing the

defendants not to create third party interest in any manner over the

suit property and the learned Court below posted the matter on 9-6-

2011 for consideration of confirmation of the ex parte injunction order.

The defendant nos. 1 to 6 took their time to file their reply. The

respondent no. 7 claims to be purchaser of the property from the

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respondent nos. 5 and 6. The respondent nos. 5 and 6, in spite of

notice issued to them by this Court and though served duly by taking

recourse to the mode of paper publication, chose not to appear before

this Court. The application filed by the respondent no. 7 was for the

consideration before the Court below and the Court below granted an

opportunity to the respondent no. 7 by directing him to produce the

original documents which were filed along with list Exhibit 54 within a

stipulated period. The respondent no. 7, for the reasons best known to

him in spite of grant of opportunity, failed to file the documents before

the Court below within that stipulated period. Interesting to note that

the respondent no. 7 was directed to file the documents within the

period of one week from 4-4-2013 and till the date of passing of order

dated 13-9-2013, no steps were taken by the respondent no. 7 to file

documents. When the respondent no. 7 was directed to file the

documents within one week, he also take leisure time of four months

only to show failure for filing the documents. The first application

thus was filed under order dated 13-9-2013. The respondent no. 7

then filed special civil suit for declaration of the ownership of the suit

land and for permanent injunction, similarly, he filed the second

application for intervention. The petitioner-plaintiff brought to the

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notice of the Court below all these facts. Thus, it was the submission

of the petitioner-plaintiff that the respondent no. 7 was indulged in the

act of multiplicity of proceedings.

9. It was also brought to the notice of the Court below that

the defendant nos. 5 and 6 were having the knowledge of order passed

by the Court restraining them to create third party interest over the

property and in spite of the order of the Court, third party interest

were created. All these facts clearly show that the second application

filed by the respondent no. 7 seeking intervention in the suit filed by

the petitioner were not of such a nature requiring a liberal approach.

The learned Court below failed to appreciate all these facts and

without considering the judgment of the Apex Court in its proper

perspective passed the order. The judgment of the Apex Court in the

matter of A. Nawab John and others. Vs. V. N. Subramaniyam (cited

supra) makes it clear that normally, the Court should adopt liberal

approach and the discretion is with the Court. The Apex Court also

made it clear that the discretion is to be exercised judiciously.

10. As stated above, I am of the opinion that the facts

emerged from the perusal of the material were indicating that the

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application filed by the respondent no. 7 was not worthy of seeking

liberal approach. Considering all these facts, in my opinion, the order

impugned in the petition is unsustainable. The order passed by the

learned 3rd Joint Civil Judge Senior Division, Nagpur dated 12-1-2015

is quashed and set aside. The petition is allowed and disposed of

accordingly.

                              ig                                            JUDGE
                            
    wasnik