A.K. Chatterjee vs Ashok Kumar Chatterjee
2008 Latest Caselaw 2215 Del

       *IN THE HIGH COURT OF DELHI AT NEW DELHI

+         IA No. 12212/2007 (of strangers to the suit for substitution
             in place of defendant) in CS(OS) No.2314/1994.



%11.12.2008                                 Date of decision:11.12.2008


A.       K. Chatterjee                                     ...    Plaintiff
                        Through:  Mr. Ravinder Sethi, Sr. Advocate & Mr.
                        Rajiv Kumar Ghawana, Advocate for the plaintiff.


                                            Versus

Ashok Kumar Chatterjee                                     .... Defendant
                        Through:        Mr. N.N. Aggrawal, Mr. Abhijeet
                        Chatterjee, Mr. Subodh K. Pathak & Mr. S.P.M.
                        Tripathi, Advocates for the defendant No.1.
                        Mr. A.S. Chandhiok, Sr. Advocate and Mr. Ashwani
                        Kumar Chopra, Sr. Advocate with Ms. Fareha, Ms.
                        Vibha Dhawan and Mr. Shekhar Kumar, Advocate for
                        the applicants.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.       Whether reporters of Local papers may
         be allowed to see the judgment?   YES

2.       To be referred to the reporter or not? YES

3.       Whether the judgment should be reported
         in the Digest?                        YES


RAJIV SAHAI ENDLAW, J.

1. The purchasers from the defendant in this suit for partition of

immovable property claim substitution in place of the defendant. The

application is opposed by the defendant only to the extent of

substitution. The defendant otherwise has no objection to the

impleadment of the applicants as a party to the suit. The plaintiffs,

however, oppose substitution or even impleadment of the applicants as

parties.

2. This suit for partition has been pending since 1994 and the

plaintiffs and the defendant have already concluded their evidence and

the suit is ripe for final arguments. The plaintiffs claimed that each of

the plaintiffs No.1 to 6 and the defendant have a 1/7 th share in the

property. It is the case of the plaintiffs that the predecessor of the

parties was a member of the cooperative society which had allotted

the land; that the said predecessor with the consent of all the parties

transferred the said land in the name of the defendant being the eldest

son so as to enable grant of government loan for house construction,

the defendant being in government service. The defendant contested

the suit claiming to be the sole owner of the property.

3. There was an interim order in the suit restraining the defendant

from selling the property. The defendant, however, notwithstanding

the said interim order admittedly executed and registered a sale deed

in favour of the applicants. Separate applications for taking action

against the defendant and applicants for violation of the interim order

of the court are pending.

4. The contention of the senior counsel for the plaintiffs is that the

sale deed executed by the defendant in favour of the applicants being

in violation of the order of the court, is nonest and void. Reliance is

placed on Surjit Singh Vs. Harbans Singh (1995) 6 SCC 50.

5. The senior counsels for the applicants on the other hand have

relied upon Savitri Devi Vs. Distt. Judge Gorakhpur (1999) 2 SCC

577 where Surjit Singh (Supra) was considered and distinguished.

6. In Savitri Devi the suit was for recovery of maintenance and for

creation of charge therefor on ancestral properties of family. The

defendants in that case also were injuncted by interim order from

transferring the properties; they however, in breach of injunction

order sold the property. The purchasers applied for impleadment. It

was contended by the plaintiff in that case that the sale being in

breach, contempt and disregard of order of injunction, the applicants

therein got no title to the property in order to get impleaded. The

application for impleadment was allowed. The plaintiff took the

matter to apex court and relied upon Surjit Singh (Supra). However,

the apex court relying on Khem Chand Shankar Choudhari Vs.

Vishnu Hari Patil (1983) 1 SCC 18 held that a transferee pendente

lite of an interest in immovable property subject matter of suit has a

right to be impleaded. Surjit Singh (supra) was distinguished

because (i) in that case there was an assignment of rights under a

preliminary decree and which was held not capable of conveying any

rights to the assignees and (ii) in that case there was no dispute that

the assignors and the assignee had knowledge of the order of

injunction. The apex court held that impleadment of purchasers during

pendency of suit, and in violation of interim order was warranted.

7. Thus it follows that a sale deed of immovable property executed

in violation/contempt of interim order of injunction is not nonest or

void, as contended by the plaintiffs in the present case. It also cannot

be said that no right in immovable property subject matter of suit has

passed to the applicants, under such a sale deed. In a given case,

where sale deed is executed in violation of interim order, the court

may direct status quo ante by ordering reconveyance to be executed

by the erring parties or asking the erring parties to join in execution of

conveyance in favour of party ultimately found entitled to the same.

The Apex Court in Gurunath Manohar Pavaskar v Nagesh

Siddappa Navalgund AIR 2008 SC 901 has held that the courts can

pass an interlocutory order in the nature of mandatory injunction in

exercise of its jurisdiction under Section 151 CPC on the premise that

a party against whom an order of injunction was passed acted in

breach thereof and so as to relegate the parties to the same position

as if the order of injunction has not been violated. This again implies

that the conveyance in violation of interlocutory order is not void,

inasmuch as if it was so, there would be no need for reconveyance.

8. Lord Denning had observed as follows in Hadkinson v

Hadkinson (1952) (2) All.E.R. 567:

"I am of the opinion that the fact a party to a cause has disobeyed an order of the court is not of itself a bar to his being heard, but if his disobedience is such that, so long as it continues, it impedes the course of justice in the cause, by making it more difficult for the cause, by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make, then the court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed."

9. I do not find the act of execution of sale deed in violation of

interim order of this court in the present case to be of such nature as

to be an impediment in the decision of the suit or grant of a decree as

claimed by the plaintiffs, if found entitled to the same. The said sale

deed would not be binding on the plaintiffs and would be hit by the

doctrine of lis pendens as adumbrated under Section 52 of the

Transfer of Property Act. The said sale deed would not come in the

court's way in passing a decree in favour of plaintiffs. Its validity or

otherwise would not be necessary to be considered as the plaintiffs are

not bound thereby.

10. In Lal Chand Vs. Sohan Lal AIR 1938 Lah, 220 also it was held

that effect of non compliance with an injunction under Order 39 is to

make the offender liable to punishment prescribed therein and there is

no statutory authority for the proposition that a completed sale in

contravention of an injunction under Order 39 Rule 1 is a nullity.

11. The Sr. Counsel for plaintiffs has contended on the basis of

language of an agreement dated 30th July, 2003 executed between the

defendant and the applicants that the applicants in the present case

had knowledge of the interim order in this suit. The senior counsel for

the applicants contests the said position and relies on the sale deed in

which there is no mention whatsoever of this suit and the various

classes whereof suggest to the contrary. In my view, once the legal

position is that sale of immovable property in violation of interim order

under Order 39 Rule 1 CPC is not a nullity, the knowledge of the

applicants thereof is not relevant for the purposes of deciding whether

they are to be impleaded or not and will be of relevance only in

applications filed by plaintiffs for taking action against them. I also

find that the question whether the applicants are bonafide purchasers

for value or not is of no relevance. The case of the plaintiffs is that

defendant has 1/7th share only in the property. The case of defendant

is that he is the sole owner - he has executed sale deed conveying

rights as sole owner of the property. If the defendant is held to be

having 1/7th share only in the property, he could not have conveyed to

the applicants more than what he himself had, howsoever bonafide the

applicants may have been. The concept of bonafide purchaser for

value is only in Section 19(b) of the Specific Relief Act in relation to a

purchaser acquiring title subsequent to the agreement of which

specific performance is claimed; though specific performance under

Section 19 of Specific Relief Act can be enforced against subsequent

purchaser from seller but not if such subsequent purchaser is for value

and has acted in good faith and without notice of original contract.

However, this principle has no application where the seller has no title

or title lesser than conveyed.

12. It is relevant to note that the defendant after the execution of the

sale deed in favour of applicants has moved an application in the

present suit which appears to suggest that the defendant is agreeable

to the suit being decreed. It is contended by the senior counsel for the

applicants that the defendant after execution of the sale deed in favour

of the applicants and after receiving the sale consideration from the

applicants is colluding with the plaintiffs and if the suit is left for the

defendant to contest, the defendant would not contest the suit and act

to the detriment of the applicants. Order 22 Rule 10 of the CPC

provides that in cases of assignment, creation or devaluation of any

interest during the pendency of a suit, the suit may, by leave of the

court, be continued by or against the person to or upon whom such

interest has come or devolved. This is an enabling provision. The trial

of a suit cannot be arrested merely by reason of a devaluation of the

interest of a party in the subject matter of the suit. The said provision

enables the person acquiring the interest to continue with the suit or

for a suit to be continued against him with the leave of the court; but

that if he does not chose to do so, the suit may be continued with the

original party and the person acquiring the interest will be bound by

or can have the benefit of the decree. It is not necessary for the

assignee to make an application for being substituted or impleaded as

a party in the suit or appeal if he finds that his interests are being well

looked after by the assignor. This conduct of the defendant shows that

the applicants cannot now be asked to trust the defendant to look after

their interest in this suit.

13. I find that if the applicants are not party to the present suit, the

same will also lead to multiplicity of proceedings, which is to be

avoided. In fact, the decision of the present suit in the absence of the

applicants to whom the defendant has conveyed all his rights in the

property subject matter of the suit will be no decision at all. A plaintiff

cannot be permitted to indulge in a mock action against a party who

has no interest or real interest left in the claim of the plaintiff. The

defendant in the present case, after execution of sale deed in favour of

applicants is left with no interest in the property and any decree in

this suit in the presence of defendant alone and absence of applicants

will be sham, as is apparent from the conduct of defendant. It will

definitely also lead to other actions/litigations by the applicants for

adjudication of their rights in the property under the sale deed

executed by defendant in their favour. On the contrary, the plaintiffs

shall suffer no prejudice if the applicant who has stepped into the

shoes of the defendant qua the property subject matter of suit are

impleaded as party. It will lead to full and final settlement of lis which

has been pending for last 14 years.

14. The only prejudice which the plaintiffs could suffer by

substitution/impleadment of applicants is of delay in the disposal of

suit. I have enquired from the senior counsel for the applicants

whether, if they are impleaded, substituted to the present suit they

would lead any evidence. It has been stated that save for relying upon

the sale deed executed by the defendant in their favour the applicants

do not have to lead any evidence or to file/amend pleadings. They have

stated that they are themselves interested in early disposal of the suit

and are willing to finally argue the suit immediately.

15. The next question is whether the applicants should be

substituted in place of defendant or impleaded in addition to

defendant. The defendant wants to continue as a party to the suit on

the ground that as per the agreement dated 30th July, 2003, in the

event of the defendant losing in the present litigation, the defendant

has agreed to refund the entire sale consideration to the applicants. It

is the contention of the defendant that his continuance in the suit is

necessary to secure at least his 1/7th rights in the property in the event

of the suit being decreed. Per contra it is argued that the defendant

has in rejoinder to I.A.No.5005/2008 categorically stated that in the

event of the suit being decreed, the applicants would be entitled to

1/7th share in pursuance to the sale deed already executed by him. The

inter se disputes if any between the defendant and the applicants are

however not subject matter of this suit.

16. I consider the presence of the defendant, not withstanding

execution of sale deed in favour of applicant's proper. It is the

defendant who is the author of all pleadings and evidence in the suit.

Applications under Order 39 Rule 2 A CPC are also pending against

him and in which he, in any case, shall remain a party. Moreover, if

the defendant was to be substituted and the suit was to be decided in

the absence of defendant, it may leave scope for other/further

proceedings and which is avoidable.

17. The application is therefore allowed to the extent that the

applicants though found entitled to be a party to the suit are

impleaded as defendants No. 2 and 3 instead of being substituted in

place of defendant.

Amended memo of parties be filed by plaintiffs within one week.

RAJIV SAHAI ENDLAW (JUDGE)

December 11, 2008 PP