Bombay High Court

Amirkhan Ahemadkhan Pathan vs Anita Arunrao Jadhav And Others on 4 February, 2021

Bench: R. G. Avachat

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             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD

                         WRIT PETITION NO.12758 OF 2018

 Amirkhan Ahmedkhan Pathan                              ... Petitioner
       Versus
 Anita Arunrao Jadhav and others                        ... Respondents
                                   ....
 Mr. A. R. Devakate, Advocate for petitioner
 Mr. N. S. Tekale, Advocate for respondent No.1
 Mr. K. R. Doke, Advocate for respondent Nos. 2 to 19
                                   ....

                                    CORAM : R. G. AVACHAT, J.

DATED : 04th FEBRUARY, 2021

PER COURT :-

. Heard.

2. The challenge in this writ petition is to the order dated

21.09.2018 passed by the Court of Joint Civil Judge, Senior Division,

Bhoom, below Exh.107 in Regular Civil Suit No.15 of 1970. By the

impugned order, the application moved by respondent No.1 for his

impleadment as a defendant in the suit, came to be allowed. The

petitioner (Original plaintiff No.2), has therefore, preferred this writ

petition against the said order.




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3. Shri A. R. Devakate, learned Advocate for the petitioner

would submit that the suit dates back to 1967. It has been filed for

injunction simpliciter. The learned Judge framed the issue as regards

tenancy and referred it to a competent authority for finding thereon.

The petitioner has been held to be a tenant in the suit land. A

compromise has been arrived at between the plaintiff and the

original defendants. A compromise pursis was therefore preferred

before the trial Court on 11.09.2018. On the same day, respondent

No.1 filed application Exh.107 for impleadment as a defendant in

the suit. The trial Court allowed the said application. According to

the learned Advocate, respondent No.1 claimed to have purchased

the suit land way back in 2004. After over 14 years, he sought for

impleadment in the suit. The petitioner, being the plaintiff, has

choice as to person against whom he shall proceed. Learned

Advocate has relied on the judgment of the Apex Court in the case of

Vidur Impex and Traders Private Limited and others vs. Tosh

Apartments Private Limited and others reported in (2012) 8 SCC

384 and the Judgment of this Court in the case of Sandeep Ramesh

Solanki and others vs. Sou. Shevanti Dadoba Nashte reported in

(2019) AIR Bom R 427. Learned Advocate ultimately urged for

allowing the writ petition.

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4. Shri N. S. Tekale, learned Advocate for respondent No.1

would, on the other hand, submit that in view of principle of lis

pendens, respondent No.1 would be bound by a decree that may be

passed in the suit. The original defendant No.1 after having sold the

suit land to respondent No.1, has joined hands with the

plaintiff/petitioner and arrived at a compromise. The original

defendant has admitted the plaintiffs claim in the suit. The same is

necessarily prejudicial to the interest of respondent No.1. The trial

Court has rightly allowed the application. He, therefore, urged for

dismissal of the writ petition.

5. Order 1 Rule 10(2) of the Code of Civil Procedure reads

thus:

"(2) Court may strike out or add parties. - The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."

6. The petitioner/plaintiff filed the suit for perpetual

injunction. It is his claim that the suit land has been possessed by

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him as a tenant. Finding on the issue of his tenancy claim has been

answered in affirmative. Pending the suit, the original defendant

No.1 (owner of the suit land) and her two sisters have transferred

the suit land by way of sale in favour of respondent No.1 way back

in 2004. There is prima-facie nothing to indicate the respondent

No.1 to have knowledge of the pendency of the suit. Pending the

suit, the plaintiff and the defendants have arrived at a compromise.

In view of the terms of the compromise, the defendants including the

vendor of the defendant No.1 admitted the plaintiffs' claim of being

in possession of the suit land as a tenant. This is nothing but

collusion between the plaintiff and defendant No.1.

Section 52 of the Transfer of Property Act speaks of lis

pendens . 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 insofar as that interest is concerned by the

proceedings in the suit.

7. The cases referred in the case of Sandeep Ramesh

Solanki (supra), it is held that a transferee pendente lite can be

added as a party to the suit lest the transferee suffered prejudice on

account of the transferor losing interest in the litigation post transfer.


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Sometimes, a transferor pendente lite may not even defend the title

properly as he has no interest in the same or may collude with the

plaintiff in which case the interest of the purchaser pendente lite will

be ignored.

8. In Vidur Impex and Traders Private Limited (supra) the

Apex Court has given circumstances under which a person may be

joined as a party to the suit, those are as under:

"41.1. The court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the court is necessary for effective and complete adjudication of the issues involved in the suit.

41.2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the court.

41.3. A proper party is a person whose presence would enable the court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against who a decree is to be made.

41.4. If a person is not found to be a proper or necessary party, the court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff.

41.5. In a suit for specific performance, the court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation.

41.6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit

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property in violation of the restraint order passed by the court or the application is unduly delayed then the court will be fully justified in declining the prayer for impleadment."

9. Keeping all the legal proposition in mind, the issue needs

to be answered in the light of facts and circumstances of the case. In

the case in hand, the suit has been compromised between the

plaintiff and the defendants. Pending the suit, defendant No.1

transferred the suit land to the respondent No.1. Thereafter,

defendant No.1 admitted the plaintiffs' claim made in the suit. It is

nothing but a collusion between the plaintiff (petitioner) and the

original defendant No.1. Respondent No.1, who claims through

defendant No.1, if not allowed to join as a party to the suit, may be

bound by the outcome of the suit. The compromise arrived at, is

prejudicial to the interest of respondent No.1. The trial Court has

rightly allowed application for impleading her as party defendant.