Shri. Vinod S/O. Radheshyam Dubey ... vs Smt. Rajubai Wd/O. Vijay Meshram ...
2017 Latest Caselaw 9783 Bom

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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.

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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

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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

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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

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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

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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

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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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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