Gujarat High Court
Kishorsinh Jashubha Jadeja vs Kapadi Vishram Ramji on 4 October, 2023
Bench: J. C. Doshi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5435 of 2014
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KISHORSINH JASHUBHA JADEJA
Versus
KAPADI VISHRAM RAMJI & 8 other(s)
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Appearance:
MS MAMTA R VYAS(994) for the Petitioner(s) No. 1
DECEASED LITIGANT for the Respondent(s) No. 4
MR. ADITYA DAVDA, AGP for the Respondent(s) No. 7
NOTICE SERVED for the Respondent(s) No. 1,4.1,4.2,4.3
NOTICE SERVED BY DS for the Respondent(s) No.
2,3,5,6.1,6.2,6.3,6.4,6.5,6.6,6.7,6.8,8,9
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 04/10/2023
ORAL ORDER
1. Heard Ms. Mamta Vyas, learned advocate for the petitioner
and Mr. Aditya Davda, learned AGP for the respondent No. 7
2. Though served to the contesting defendants, none remain
present to assist this Court.
3. Application under Order 1 Rule 10(2) of Civil Procedure
code is filed in Regular Civil Suit No. 231 of 2006 before the
learned Principal Sr. Civil Judge, Anjar by the petitioner. It was
given number at Exh. 67. It is claimed by the present petitioner that
he has purchased the land of Survey No. 49 of Village Anjar
admeasuring 15 acre 15 gunthas from Kanji Raja- defendant No.1 by
registered sale deed dated 20.10.2006 vide Sr. No. 8769. In view of
the fact that he has purchased suit land he claimed that he is
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necessary party to the suit. Any order in the suit therein will
adversely affect the right, title and interest of the present petitioner
and therefore, he requests the learned Principal Sr.Civil Judge,
Anjar, Kutchh to join him as party. This application was rejected by
the Court below. This order has given rise to the present petition.
4. Ms. Mamta Vyas, learned advocate referred the decision in the
case of Thomson Press (India) Ltd. Vs. Nanak Builders &
Investors (P) Ltd reported in (2013) 5 SCC 397 to submit that the
plaintiff has filed suit claiming right, title and interest initially in the
land of Survey No. 44. But, subsequently by amending the plaint, he
has claimed the right, title and interest in the land of Survey No. 49
claiming that plaintiff has purchased the said land. She would
further submit that since the dispute is regarding the title and
ownerhsip of land being Survey No. 49 pending between the parties
at the trial Court and as the petitioner is also holding the registered
sale deed of the said land if any judgement and order is passed in
Regular Civil Suit, it would affect the rights, title and interest of the
petitioner and therefore, under Order 1 Rule 10 of CPC, he is
necessary party but,the learned trial Court has rejected the
application disbelieving the contention of the present petitioner and
as such erred. Above submission is made to allow this petition.
5. Learned AGP Mr. Aditya Davda appearing for the respondent
No.7 would submit that they are joined in the suit with the purpose
to give effect to the judgement and decree which could be passed in
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the said suit. The State is not contesting party in the suit. Therefore,
he would submit to pass necessary order.
6. Hon'ble Apex Court in the case of Thomson Press (India)
Ltd. (Supra) referred to its earlier judgement in the case of Vidhur
Impex and Traders Pvt. Ltd. Vs. Tosh Appt. Pvt. Ltd. reported in
2012(8) SCC 384 and also discussed the effect of Section 52 of
transfer of property Act which speaks about doctrine of lis pendens
wherein it is observed as under:-
22. In the case of Vidhur Impex (supra), the Supreme Court again
had the opportunity to consider all the earlier judgments. The fact
of the case was that a suit for specific performance of agreement
was filed. The appellants and Bhagwati Developers though totally
strangers to the agreement, came into picture only when all the
respondents entered into a clandestine transaction with the
appellants for sale of the property and executed an agreement of
sale which was followed by sale deed. Taking note all the earlier
decisions, the Court laid down the broad principles governing the
disposal of application for impleadment. Paragraph 36 is worth to
be quoted hereinbelow:
"Though there is apparent conflict in the observations made in
some of the aforementioned judgments, the broad principles which
should govern disposal of an application for impleadment are:
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.
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.
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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 whom a decree is to be made.
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.
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.
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 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."
23. It would also be worth to discuss some of the relevant laws in
order to appreciate the case on hand. Section 52 of the Transfer of
Property Act speaks about the doctrine of lis pendens. Section
52 reads as under:
"52. Transfer of property pending suit relating thereto. -
During the [pendency] in any Court having authority [within
the limits of India excluding the State of Jammu and
Kashmir] or established beyond such limits] by [the Central
Government] [***] of [any] suit or proceedings which is not
collusive and in which any right to immovable property is
directly and specifically in question, the property cannot be
transferred or otherwise dealt with by any party to the suit or
proceeding so as to affect the rights of any other party
thereto under any decree or order which may be made
therein, except under the authority of the Court and on such
terms as it may impose.
[Explanation - For the purposes of this section, the pendency
of a suit or proceeding shall be deemed to commence from
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the date of the presentation of the plaint or the institution of
the proceeding in a Court of competent jurisdiction, and to
continue until the suit or proceeding has been disposed of by
a final decree or order and complete satisfaction or discharge
of such decree or order has been obtained, or has become
unobtainable by reason of the expiration of any period of
limitation prescribed for the execution thereof by any law for
the time being in force."
24. It is well settled that the doctrine of lis pendens is a doctrine
based on the ground that it is necessary for the administration of
justice that the decision of a court in a suit should be binding not
only on the litigating parties but on those who derive title pendente
lite. The provision of this Section does not indeed annul the
conveyance or the transfer otherwise, but to render it subservient to
the rights of the parties to a litigation.
Discussing the principles of lis pendens, the Privy Council in the
case of Gouri Dutt Maharaj v. Sukur Mohammed & Ors.
AIR (35) 1948, observed as under:
"The broad purpose of Section 52 is to maintain the status quo
unaffected by the act of any party to the litigation pending its
determination. The applicability of the section cannot depend on
matters of proof or the strength or weakness of the case on one side
or the other in bona fide proceedings. To apply any such test is to
misconceive the object of the enactment and in the view of the
Board, the learned Subordinate Judge was in error in this respect in
laying stress, as he did, on the fact that the agreement of 8.6.1932,
had not been registered."
25. In the case of Kedar Nath Lal & Anr. v. Ganesh Ram & Ors.
AIR 1970 SC 1717, this Court referred the earlier decision (1967
(2) SCR18) and observed:
"The purchaser pendente lite under this doctrine is bound by the
result of the litigation on the principle that since the result must
bind the party to it so it must bind the person driving his right, title
and interest from or through him. This principle is well illustrated
in Radhamadhub Holder vs. Monohar 15 I.A. 97 where the facts
were almost similar to those in the instant case. It is true
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that Section 52 strictly speaking does not apply to involuntary
alienations such as court sales but it is well-established that the
principle of lis pendens applies to such alienations.(See Nilkant v.
Suresh Chandra 12 I.A.171 and Moti Lal v. Karrab-ul-Din 24
I.A.170."
26. The aforesaid Section 52 of the Transfer of Property Act again
came up for consideration before this Court in the case of Rajender
Singh & Ors. v. Santa Singh & Ors. AIR 1973 SC 2537 and Their
Lordship with approval of the principles laid down in 1973 (1)
SCR 139 reiterated:
"The doctrine of lis pendens was intended to strike at attempts by
parties to a litigation to circumvent the jurisdiction of a court, in
which a dispute on rights or interests in immovable property is
pending, by private dealings which may remove the subject matter
of litigation from the ambit of the court's power to decide a
pending dispute of frustrate its decree. Alienees acquiring any
immovable property during a litigation over it are held to be bound,
by an application of the doctrine, by the decree passed in the suit
even though they may not have been impleaded in it. The whole
object of the doctrine of lis pendens is to subject parties to the
litigation as well as others, who seek to acquire rights in
immovable property which are the subject matter of a litigation, to
the power and jurisdiction of the Court so as to prevent the object
of a pending action from being defeated."
27. In the light of the settled principles of law on the doctrine of lis
pendens, we have to examine the provisions of Order 1 Rule 10 of
the Code of Civil Procedure. Order 1 Rule 10 which empowers the
Court to add any person as party at any stage of the proceedings if
the person whose presence before the court is necessary or proper
for effective adjudication of the issue involved in the suit. Order 1
Rule 10 reads as under:
"10. Suit in name of wrong plaintiff.-
(1) Where a suit has been instituted in the name of the wrong
person as plaintiff or where it is doubtful whether it has been
instituted in the name of the right plaintiff, the Court may at any
stage of the suit, if satisfied that the suit has been instituted through
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a bona fide mistake, and that it is necessary for the determination
of the real matter in dispute so to do, order any other person to be
substituted or added as plaintiff upon such terms a the Court thinks
just.
(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.
(3) No person shall be added as a plaintiff suing without a next
friend or as the next friend of a plaintiff under any disability
without his consent.
(4) Where defendant added, plaint to be amended.-Where a
defendant is added, the plaint shall, unless the Court otherwise
directs, be amended in such manner as may be necessary, and
amended copies of the summons and of the plaint shall be served
on the new defendant and, if the Court thinks fit, on the original
defendant.
(5) Subject to the provisions of the Indian Limitation Act, 1877 (15
of 1877), section 22, the proceedings as against any person added
as defendant shall be deemed to have begun only on the service of
the summons."
28. From the bare reading of the aforesaid provision, it is manifest
that sub-rule (2) of Rule 10 gives a wider discretion to the Court to
meet every case or defect of a party and to proceed with a person
who is a either necessary party or a proper party whose presence in
the Court is essential for effective determination of the issues
involved in the suit.
29. Considering the aforesaid provisions, this Court in the case
of Ramesh Hirachand Kundanmal v. Municipal Corporation of
Greater Bombay & Ors. 1992 (2) SCC 524 held as under:
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"It cannot be said that the main object of the rule is to prevent
multiplicity of actions though it may incidentally have that effect.
But that appears to be a desirable consequence of the rule rather
than its main objectives. The person to be joined must be one
whose presence is necessary as a party. What makes a person a
necessary party is not merely that he has relevant evidence to give
on some of the questions involved; that would only make him a
necessary witness. It is not merely that he has an interest in the
correct solution of some questions involved and has thought of
relevant arguments to advance. The only reason which make it
necessary to make a person a party to an action is that he should be
bound by the result of the action and the question to be settled,
therefore, must be a question in the action which cannot be
effectually and completely settled unless he is a party. The line has
been drawn on a wider construction of the rule between the direct
interest or the legal interest and commercial interest. It is, therefore,
necessary that the person must be directly or legally interested in
the action in the answer, i.e., he can say that the litigation may lead
to a result which will affect him legally that is by curtailing his
legal rights. It is difficult to say that the rule contemplates joining
as a defendant whose only object is to prosecute his own cause of
action. Similar provision was considered in Amon v. Raphael Tuck
& Sons Ltd. (1956) 1 All E.R. 273, wherein after quoting the
observations of Wynn-Parry,J. in Dollfus Mieg et Compagnie S.A.
v. Bank of England (1950) 2 All E.R. 611, that the true test lies not
so much in an analysis of what are the constituents of the
applicants' rights, but rather in what would be the result on the
subject matter of the action if those rights could be established,
Devlin,J. has stated:
The test is 'May the order for which the plaintiff is asking directly
affect the intervener in the enjoyment of his legal rights."
30. At this juncture, we would also like to refer Section 19 of the
Specific Relief Act which reads as under:
"19. Relief against parties and persons claiming under them by
subsequent title. - Except as otherwise provided by this Chapter,
specific performance of a contract may be enforced against-
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(a) either party thereto;
(b) any other person claiming under him by a title arising
subsequently to the contract, except a transferee for value who has
paid his money in good faith and without notice of the original
contract;
(c) any person claiming under a title which, though prior to the
contract and known to the plaintiff, might have been displaced by
the defendant;
(d) when a company has entered into a contract and subsequently
becomes amalgamated with another company, the new company
which arises out of the amalgamation;
(e) when the promoters of a company have, before its
incorporation, entered into a contract for the purpose of the
company and such contract is warranted by the terms of the
incorporation, the company;
Provided that the company has accepted the contract and
communicated such acceptance to the other party to the contract."
31. From the bare reading of the aforesaid provision, it is manifest
that a contract for specific performance may be enforced against
the parties to the contract and the persons mentioned in the said
section. Clause (b) of Section 19 makes it very clear that a suit for
specific performance cannot be enforced against a person who is a
transferee from the vendor for valuable consideration and without
notice of the original contract which is sought to be enforced in the
suit.
7. After discussing the law, Hon'ble Apex Court in para 44
allowed the petitioner and join the subsequent purchaser as party
defendant in the suit. It is necessary to produce para 44 to 55 which
reads as under:-
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49. The second aspect which the proposed judgment succinctly
deals with is the effect of a sale pendete lite. The legal position in
this regard is also fairly well settled. A transfer pendete lite is not
illegal ipso jure but remains subservient to the pending
litigation. In Nagubai Ammal & Ors. v. B. Shama Rao & Ors. AIR
1856 SC 593, this Court while interpreting Section 52 of the
Transfer of Property Act observed:
"...The words "so as to affect the rights of any other party thereto
under any decree or order which may be made therein", make it
clear that the transfer is good except to the extent that it might
conflict with rights decreed under the decree or order. It is in this
view that transfers pendente lite have been held to be valid and
operative as between the parties thereto."
50. xx
51 xx
52. xx
53 xx
54. The third dimension which arises for consideration is about
the right of a transferee pendete lite to seek addition as a party
defendant to the suit under Order I, Rule 10 CPC. I have no
hesitation in concurring with the view that no one other than parties
to an agreement to sell is a necessary and proper party to a suit. The
decisions of this Court have elaborated that aspect sufficiently
making any further elucidation unnecessary. The High Court has
understood and applied the legal propositions correctly while
dismissing the application of the appellant under Order I, Rule 10
CPC. What must all the same be addressed is whether the prayer
made by the appellant could be allowed under Order XXII Rule 10
of the CPC, which is as under:
"Procedure in case of assignment before final order in suit. - (1) In
other cases of an assignment, creation or devolution 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.
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(2) The attachment of a decree pending an appeal therefrom shall
be deemed to be an interest entitling the person who procured such
attachment to the benefit of sub-rule (1)." A simple reading of the
above provision would show that in cases of assignment, creation
or devolution 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. What has
troubled us is whether independent of Order I Rule 10 CPC the
prayer for addition made by the appellant could be considered in
the light of the above provisions and, if so, whether the appellant
could be added as a party-defendant to the suit. Our answer is in
the affirmative. It is true that the application which the appellant
made was only under Order I Rule 10 CPC but the enabling
provision of Order XXII Rule 10 CPC could always be invoked if
the fact situation so demanded. It was in any case not urged by
counsel for the respondents that Order XXII Rule 10 could not be
called in aid with a view to justifying addition of the appellant as a
party- defendant. Such being the position all that is required to be
examined is whether a transferee pendete lite could in a suit for
specific performance be added as a party defendant and, if so, on
what terms.
55. We are not on virgin ground in so far as that question is
concerned. Decisions of this Court have dealt with similar
situations and held that a transferee pendete 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. In
Khemchand Shanker Choudhary v. Vishnu Hari Patil (1983) 1 SCC
18, this Court held that the position of a person on whom any
interest has devolved on account of a transfer during the pendency
of a suit or a proceeding is somewhat similar to the position of an
heir or a legatee of a party who dies during the pendency of a suit
or a proceeding.
Any such heir, legatee or transferee cannot be turned away
when she applies for being added as a party to the suit. The
following passage in this regard is apposite:
"6... Section 52 of the Transfer of Property Act no doubt lays down
that 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 in so far as that interest is
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concerned by the proceedings in the suit. Such a transferee is a
representative in interest of the party from whom he has acquired
that interest. Rule 10 of Order 22 of the Code of Civil Procedure
clearly recognises the right of a transferee to be impleaded as a
party to the proceedings and to be heard before any order is made.
It may be that if he does not apply to be impleaded, he may suffer
by default on account of any order passed in the proceedings. But if
he applies to be impleaded as a party and to be heard, he has got to
be so impleaded and heard. He can also prefer an appeal against an
order made in the said proceedings but with the leave of the
appellate court where he is not already brought on record. The
position of a person on whom any interest has devolved on account
of a transfer during the pendency of any suit or a proceeding is
somewhat similar to the position of an heir or a legatee of a party
who dies during the pendency of a suit or a proceeding, or an
official receiver who takes over the assets of such a party on his
insolvency. An heir or a legatee or an official receiver or a
transferee can participate in the execution proceedings even though
their names may not have been shown in the decree, preliminary or
final. If they apply to the court to be impleaded as parties they
cannot be turned out." (emphasis supplied).
8. For the forgoing reasons, this petition is allowed. The
impugned order is set aside the. Application at Exh. 67 is granted.
The petitioner is permitted to join them as party defendant in the
suit. The petitioner shall carry out the necessary rectification in
cause tile as to array him as party defendant in seriatim within a
period of 4 weeks from the date of receipt of this order.
Interim relief if any stands discontinued.
(J. C. DOSHI,J)
BEENA SHAH
