M/S Bhavesh Commotrade (P) Ltd vs Smt. Chanchala Kumari
2025 Latest Caselaw 4983 Jhar

Jharkhand High Court

M/S Bhavesh Commotrade (P) Ltd vs Smt. Chanchala Kumari on 21 April, 2025

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

                                                        2025:JHHC:11851




       IN THE HIGH COURT OF JHARKHAND, RANCHI
                C.M.P. No. 515 of 2023
                           ----

M/s Bhavesh Commotrade (P) Ltd., through its Director Suresh Kumar Agarwalla @ Suresh Kumar Agarwal, aged about 64 years, son of Late Ramrikshpal Agarwal, having registered office at Saiket Place, Barrackpur, District - Howrah, and Corporate Office at B-1/55, Shastri Nagar, West Professor Colony, PO - Dhanbad, PS - Dhanbad, District - Dhanbad .... Petitioner

-- Versus --

1. Smt. Chanchala Kumari, wife of Jay Prakash Roy, resident of House of J.N. Chowdhary, Gali No.8, Jai Prakash Nagar, PO + PS + District - Dhanbad

2. M/s A to Z Properties through its proprietor, Smt. Chanchala Kumari, wife of Sri Jai Prakash Roy, office at House of J.N. Chowdhary, Gali No.8, Jai Prakash Nagar, PO + PS + District - Dhanbad

3. Jay Prakash Roy, son of Sri Ujager Roy, resident of House of J.N. Chowdhary, Gali No.8, Jai Prakash Nagar, PO + PS + District - Dhanbad Sl. Nos.2 and 3 being represented by Lawful Attorney - Sri Jai Prakash Roy

4. Maya Paul w/o Late Rabindra Nath Paul

5. Binay Krishna Paul, son of Late Satya Narayan Paul

6. Amiya Kumar Paul, son of Late Satya Narayan Paul

7. Bani Brata Paul, son of Late Nirmal Kumar Paul

8. Uday Shankar Paul, son of Late Nirmal Kumar Paul Sl. Nos.4 to 8, residents of Pathar Kothi, Purana Bazar, Dhanbad, PO, PS and District - Dhanbad

9. Tarun Kanti Ghosal, son of Late Shishir Kumar Ghosal (constituted Attorney of Plaintiff Nos.4 to 8), resident of

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Devipara (Telipara), Hirapur, PO, PS and District - Dhanbad .... Opposite Parties

----

CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

---

For the Petitioner :- Mr. Bibhash Sinha, Advocate :- Mr. Ankit Vishal, Advocate :- Md. Saukat Daud, Advocate For O.P. Nos.1 to 3 :- Mr. Prashant Pallav, Advocate For O.P. Nos.4 to 8 :- Mr. Rahul Kr. Gupta, Advocate For O.P. No.9 :- Mr. Shailesh Kr. Singh, Advocate

----

17/21.04.2025 Heard Mr. Bibhash Sinha, learned counsel appearing

for the petitioner, Mr. Rahul Kr. Gupta, learned counsel appearing for

opposite party Nos.4 to 8, Mr. Prashant Pallav, learned counsel

appearing for the opposite party Nos.1 to 3 along with Mr. Ayush

Aditya and Mr. Lukesh and Mr. Shailesh Kr. Singh, learned counsel

appearing for the opposite party No.9

2. This petition has been filed under Article 227 of the

Constitution of India for setting aside of the order dated 12.04.2023

passed by learned Civil Judge (Sr. Division)-I, Dhanbad in M.C.A.

No.354 of 2022 arising out of Title Suit No.92 of 2010 whereby the

petition filed by the petitioner under Order 1 Rule 10(2) read with

Section 151 of Code of Civil Procedure has been rejected by the

learned Court. Further prayer is made after quashing of the said

order the petitioner may kindly be allowed to be impleaded as one

of the respondent in Title Suit No.92 of 2010.

3. Mr. Bibhash Sinha, learned counsel appearing for the

petitioner submits that the plaintiffs, who are opposite party Nos.1

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to 3 in the instant civil miscellaneous petition have instituted Title

Suit No.92 of 2010 for specific performance of agreement and

during the pendency of the suit the plaintiffs and defendants have

entered into the compromise. He further submits that on the basis

of the compromise, the said Title Suit No.92 of 2010 was decreed

on 16.06.2011. He then submits that in the meanwhile the

defendants of the said title suit, who are opposite party Nos.4 to 8

herein by virtue of ten sale deeds dated 23.07.2012 and 27.07.2012

transferred the suit property in favour of the intervener/petitioner.

He submits that Title Suit No.92 of 2010 was between the opposite

party Nos.1 to 3 and opposite party Nos.4 to 8 herein and the suit

was for specific performance. He submits that within stipulated time

the consideration money was not paid by the opposite party Nos.1

to 3 and for that the suit has been instituted and for extension of

stipulated period of payment of consideration amount, the

application was filed by the plaintiff, who are opposite party Nos.1

to 3 before the learned trial court, however, the said was rejected

by order dated 05.06.2014. He submits that the plaintiff on

07.08.2012 filed application under Section 28(3) of the Specific

Relief Act in Title Suit No.92 of 2010 for enforcement of compromise

decree and defendants filed separate petition on 26.11.2012 for

rescission of contract under Section 28(1) of the Specific Relief Act

which has been rejected by the learned Court by order dated

05.06.2014 and against the said rejection order opposite party

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Nos.1 to 3 herein moved before this Court in Civil Revision No.30 of

2014. With respect of the same suit property in another suit i.e.

Title Suit No.76 of 2006, the judgment and decree was passed on

15.12.2011 which was challenged by the parties in First Appeal

No.43 of 2012. He submits that the plaintiffs of Title Suit No.76 of

2006 are defendants of Title Suit No.92 of 2010. He submits that

the plaintiffs of Title Suit No. 92 of 2010 who are respondent nos. 1

to 3 herein were impleaded as respondent nos. 16 to 18 in First

Appeal No. 43 of 2012 and thereafter First Appeal No. 43 of 2012

and Civil Revision No. 30 of 2014 were tagged together for

analogous hearing. He further submits that the petitioner

meanwhile filed an interlocutory application under Order 1 Rule 10

of the Code of Civil Procedure for its impleadment in First Appeal

No. 43 of 2012 and the said intervention application was allowed

vide order dated 14.12.2018 passed by this Hon'ble Court and the

petitioner herein was allowed to be impleaded as party respondent.

He then submits that the petitioner thereafter was impleaded as

respondent no.19 in First Appeal No. 43 of 2012. He submits that

this Hon'ble Court by its judgment dated 30.06.2022 passed in First

Appeal No. 43 of 2012 as well as Civil Revision No. 30 of 2014

[reported in 2022 (3) JBCJ 260] dismissed the first appeal. The

Hon'ble High Court vide para-91 of the said judgment has held that

"so far as claim of the respondent no.19 (the present petitioner) is

concerned, they being pendent lite transferee their claims shall

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depend upon the final outcome of Title Suit No. 92 of 2010 and has

disposed of the civil revision and remanded back to the learned

Court for passing the order on the petitions of both sides i.e.

plaintiffs and defendants filed under Section 28(3) and 28(1) of the

Specific Relief Act. The Hon'ble High Court has categorically made

observation that "everything is left open to be decided by the

Executing Court". He submits that thereafter the petitioner has filed

application dated 08.08.2022 which was registered as M.C.A. No.

354 of 2022 in Title Suit No. 92 of 2010 for its impleadment under

Order 1 Rule 10(2) read with Section 151 of the Code of Civil

Procedure. In the said petition, it is stated that:

(i) The Hon'ble Jharkhand High Court in First Appeal No. 43 of 2012 decided by judgment dated 30.06.2022 has held that the above Title Suit No. 92 of 2010 shall be deemed to be pending for final decision. The judgment of the Hon'ble High Court is being filed herewith as per separate list, along with other documents.

(ii) During the pendency of the above suit, the defendants (referred to as Pauls) entered into a MoU dated 31.03.2012 for the sale of the suit properties to this petitioner-

intervener, M/s Bhavesh Commotrade (P) Ltd. and in pursuant thereof executed and registered 10 (ten) separate sale deeds in favour of M/s Bhavesh Commotrade (P) Ltd. bearing nos.

(a) 5372/4746.

(b) 5373/4747.

(c) 5374/4748.

(d) 5375/4849.

(e) 5376/4750.

(f) 5377/4755.

(g) 5378/4752.

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(h) 5379/4753.

(i) 5380/4754.

All dated 23.07.2012.

(j) 5729/5085 dated 27.07.2012.

Be it mentioned that the defendant no.6 is the Power of Attorney Holder and Constituted Attorney of Defendant Nos. 1 to 5. Copies of the registered sale deeds mentioned above are being filed herewith as per list.

(iii) The defendants (Pauls) had given the plaintiff to understand that they have revoked the agreement dated 05/10.09.2008, to sale the land to the plaintiff as the plaintiff was not ready and willing for payment of consideration and the defendants were in search of some other purchaser.

(iv)The plaintiff was fully aware of his failure to abide by the said agreement, as he was never ready and willing to pay the consideration as promised and was fully aware that the defendants obviously were in search of some new purchaser.

(v) The plaintiff at that juncture in order to create pressure had filed this Title Suit No. 92 of 2010 against the Pauls.

(vi) The plaintiff has expressed apprehension at para-28 of the plaint.

"that, the defendants (i.e. Pauls) in collusion and connivance of each other are bent upon in alienating by sale of otherwise the lands in suit to other persons."

This statement itself makes it clear that the Pauls had the intention to sale the property to other persons, namely to the intervener petitioner also.

(vii) The plaintiff filed this suit and obtained a vague and indefinite compromise decree by judgment dated 16.06.2011, wherein it has been held that:

"If the Court holds that the plaintiffs are not entitled to a decree for specific performance of the agreement, a decree for Rs. 18 Crore (tentatively) on account of damages as per account given below be passed."

The question arises What the court held, whether the

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plaintiff is entitled to a decree for specific performance? If yes, then how does the decree for damages could be passed? Plaintiff will be entitled to a decree of Specific Performance, rather, has expressed possibilities on the happening of some events, if and but, and leaving scope of alternative, but, the plaintiff failed to comply with the terms of the compromise decree dated 16.06.2011. At that time the defendants (Pauls) were contesting a Title Suit No. 76 of 2006 for declaration of their right and title as against M/s Sahara India Commercial Corporation Ltd. failure of the plaintiff to comply with the terms of the compromise decree dated 16.06.2011 has made it legally not tenable, it is not executable and it is non-est in the eye of law.

(viii) The Title Suit No. 76 of 2006 was decreed in favour of defendants by judgment dated 15.12.2011, but, yet the plaintiffs have failed and neglected to comply with the terms of compromise decree, which has rendered it inoperative, invalid and non-est in the eye of law. The decree is otherwise vague, indefinite and legally not tenable as no "conditional decree" can be passed depending on the happening or not happening of any event. The Hon'ble High Court has re-opened the Title Suit No. 92 of 2010 in all respect and has given clear directions that it shall be deemed to be pending. The defendants had filed an application under Section 28(1) of Specific Relief Act for rescinding the contract. Therefore, the intention of the defendants are very clear that as the plaintiff failed to pay the purchase money within the stipulated period mentioned in the compromise decree, the defendants disclosed their intention and opted for rescinding the contract. The defendants cannot blow hot and cold according to their whims.

(ix) Therefore, the defendants were bound by the MoU dated 31.03.2012 entered into by them and executed and registered ten sale deeds in favour of M/s Bhavesh Commotrade (P) Ltd. as stated in para-2 of this petition herein above, on receiving payment of consideration money in part, as elaborated and explained in the legal notice dated

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26.07.2022 addressed to the defendants by this petitioner and this petitioner has offered to pay the balance consideration money any day by cheque orг RTGS or any other legal mode of payment to the defendants, expressing their ready and willingness to pay, which has so far not been refused or denied by the defendants, till the date of filing of this petition.

(x) The judgment dated 15.12.2011 in Title Suit No. 76 of 2006 in favour of the defendants was challenged in First Appeal No. 43 of 2012 before the Hon'ble High Court. This petitioner M/s Bhavesh Commotrade (P) Ltd. being a stakeholder to the property by virtue of registered deeds of sale in his favour, was also made a sale in his favour, was also made a party respondent no.19 by the Hon'ble High Court and his status has been declared by the Hon'ble High Court as a 'Transferee' pendent lite and his interest has been protected and he has already stepped into the shoes of the present defendants. This intervener has every right to protect his interest in the suit property acquired by registered deeds of sale and he cannot be subject to any collusion between the plaintiff and the defendants at this stage, whereby his right, title and interest in the suit property may be jeopardized.

(xi) The final outcome of First Appeal No. 43 of 2012, the right, title and interest of present defendants confirms their right to execute sale deeds in favour of M/s Bhavesh Commotrade (P) Ltd. and now the sale of the compromise decree is going to be decided in Title Suit No. 92 of 2010 in which the property purchased by M/s Bhavesh Commotrade (P) on part payment of consideration and through 10 (ten) registered sale deeds executed by these defendants.

4. In the aforesaid background, he submits that the judgment

of First Appeal No.43 of 2012 of High Court was challenged before

Hon'ble Supreme Court in Civil Appeal No.6781-6782 of 2023 which

has been allowed by the Hon'ble Supreme Court by judgment dated

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26.04.2024 and the said was remanded with following observations:

(i) Impugned judgment dated 30.06.2022 in so far as the First Appeal No.43 of 2012 is concerned, is hereby set aside.

First Appeal No.43 of 2012 is restored to the file of the High Court

(ii) The interim applications which were disposed of in view of the disposal of the said appeal also stand restored.

(iii) The interim relief, if any, operative in First Appeal No.43 of 2012 till the date of impugned judgment also stands restored with liberty to the parties to make fresh application(s) for grant of interim relief, if any; Accordingly, we pass the following order:

(iv) As the judgment on the First Appeal has been set aside, the Review Petition will not survive and the order passed on the Review Petition is also set aside;

(v) All contentions in the restored appeal are kept open and which can be agitated before the High Court;

(vi) We direct that the restored appeal shall be listed before the Roster Bench of Jharkhand High Court on 08.07.2024 for fixing a schedule of hearing. The parties who are represented today, shall be bound to appear before the High Court on that date and they will not be served with a fresh notice of the date fixed;

(vii) A copy of this order shall be forwarded to the Registrar (Judicial) of the Jharkhand High Court who will ensure that the restored appeal along with application(s), if any, are listed on 08.07.2024.

(viii) We make it clear that we have made no adjudication on the rights and contentions of the parties. The parties are free to raise it in accordance with law before the High Court; and.

(ix) The appeals are disposed of on above terms. No costs.

5. He further submits that after the remand, the said First

Appeal No.43 of 2012 is restored to the file of the High Court and

that is pending. He submits that the said first appeal is arising out

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of judgment and decree passed in Title Suit No.76 of 2006 which

was meant for declaration of right, title and interest. He further

submits that before Hon'ble Supreme Court only the judgment of

the First Appeal No.43 of 2012 was travelled and this aspect has

been clarified by a co-ordinate Bench of this Court by order dated

08.07.2024 in Contempt Case (C) No.700 of 2012 with Civil Revision

No.30 of 2014 and the said order reads as under :-

Heard the parties. No one turns up on behalf of the petitioner in Contempt Case (C) No. 700 of 2012 even after repeated calls.

Learned counsel for the petitioner of Civil Revision No. 30 of 2014 drawing attention of the court to the common judgment passed by the Hon'ble Predecessor Judge, in the roster, in F.A. No. 43 of 2012 with Contempt Case (C) No. 700 of 2012 and also with Civil Revision No. 30 of 2014, submits that in the said common judgment at internal page no. 88 of the brief, Para 10 of the portion of the judgment relating to Contempt Case (C) No. 700 of 2012 it has been mentioned, that the said petition has been dismissed and drawing attention of the court to the page no. 93 of the brief, it is submitted that Civil Revision No. 30 of 2014 has also been disposed of. Drawing attention of the Court to the order dated 26.04.2024 passed in Civil Appeal No. 6781 -

6782 /2023 by the Hon'ble Supreme Court of India, it is submitted by learned counsel for the petitioner of Civil Revision No. 30 of 2014 and learned counsel for the respondent no. 2 to 8 of Contempt Case (C) No. 700 of 2012 , that only the impugned judgment dated 30.06.2022 so far as it relates to FA No. 43 of 2012 has been set aside by the Hon'ble Supreme Court of India. It is then submitted that as out of the common judgment of 3 cases that is FA No. 43 of 2012, Civil Revision No. 30 of 2014 and Contempt Case (C) No. 700 of 2012; only the portion of the judgment so far as it relates to FA No. 43 of 2012 as well as the interim

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application which were disposed of in view of the disposal of the appeal, has been restored to the file of the High Court but as the Hon'ble Supreme Court of India has not interfered with the portion of the said judgment dated 30.06.2022, so far as Contempt Case (C) No. 700 of 2012 and Civil Revision No. 30 of 2014; therefore, the natural corollary is that the instant two cases that is Civil Revision No. 30 of 2014 and Contempt Case (C) No. 700 of 2012 have already been disposed of. So, the Registry be directed not to list the instant Contempt Case (C) No. 700 of 2012 and Civil Revision No. 30 of 2014 anymore before the Bench.

I find force in the submissions made by the learned counsels at the Bar and as the Contempt Case (C) No. 700 of 2012 has been dismissed and Civil Revision No. 30 of 2014 has been disposed of by the said common judgment dated 30.06.2022 and the Hon'ble Supreme Court of India has not interfered with the portion of the said judgment so far as it relates to Contempt Case (C) No. 700 of 2012 and Civil Revision No. 30 of 2014. So, both these cases stands disposed of.

Accordingly, the Registry is directed not to list these said disposed of cases i.e. Contempt Case (C) No. 700 of 2012 and Civil Revision No. 30 of 2014 before the Bench any further.

6. He submits that the sale deed was registered in favour of

the petitioner executed by the power of attorney holder of opposite

party Nos.5 to 8, who is opposite party No.9 in the present C.M.P.

He submits that the opposite party No.4 to 8 has executed the said

power of attorney in favour of opposite party No.9 and opposite

party Nos.4 to 8 herein has executed the said power of attorney. In

this background, he submits that the petition under Order 1 Rule 10

of CPC has been filed before the learned Court which has been

rejected on the ground that the decree has already attained finality

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at belated stage that petition cannot be allowed and only on this

ground the said petition has been dismissed. He submits that one

fact has been further taken note in the impugned order that one

suit being Title Suit No.210 of 2015 has been instituted by opposite

party Nos.4 to 8 herein against the petitioner for cancellation of the

sale deed which is pending. He submits that in the aforesaid facts,

the petitioner is a necessary party in spite of that the learned Court

has been pleased to reject the said petition. According to him, the

case is arising out of the Specific Relief Act and the opposite party

Nos.4 to 8 and opposite party Nos.1 to 3 are in collusion as the Civil

Revision for rescission of contract has been simply withdrawn before

the High Court. He submits that in the case of this nature and when

the petitioner is a purchaser by way of registered sale deed, the

petitioner is the necessary party. He submits in the case of specific

relief, the Court does not loose its jurisdiction after the grant of

decree for specific performance nor does it become functus officio

and to buttress this argument, he relied in the case of Bhupinder

Kumar versus Angrej Singh reported in (2009) 8 SCC 766.

7. Relying on the above judgment, he submits that

consideration of Section 28 is further made therein at paragraph

Nos.21 and 22 of the said judgment which is as under :-

21. It is clear that Section 28 gives power to the court either to extend the time for compliance with the decree or grant an order of rescission of the agreement. These powers are available to the trial court which passes the decree of specific performance. In other words, when the court passes

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the decree for specific performance, the contract between the parties is not extinguished. To put it clearly the decree for specific performance is in the nature of a preliminary decree and the suit is deemed to be pending even after the decree.

22. Sub-section (1) of Section 28 makes it clear that the court does not lose its jurisdiction after the grant of decree for specific performance nor it becomes functus officio. On the other hand, Section 28 gives power to the court to grant an order of rescission of the agreement and it has the power to extend the time to pay the amount or perform the conditions of decree for specific performance despite the application for rescission of the agreement/decree. In deciding an application under Section 28(1) of the Act, the Court has to see all the attending circumstances including the conduct of the parties.

8. He submits that the suit for specific performance is in the

nature of discretionary remedy and on equity the petitioner is

entitled for the impleadment in the pending suit. He further draws

the attention of the Court to the judgment of Hon'ble Supreme

Court in the case of Yogesh Goyanka versus Govind and

Others reported in 2024 SCC OnLine SC 1692 and he relied in

paragraph Nos.15 to 21 which reads as under :-

15. We have heard the Learned Counsel for the parties and have carefully perused the record.

16. The fulcrum of the dispute herein concerns the impleadment of a transferee pendente lite who undisputedly had notice of the pending litigation. At the outset, it appears pertinent to reiterate the settled position that the doctrine of lis pendens as provided under Section 52 of the Act does not render all transfers pendente lite to be void ab-initio, it merely renders rights arising from such transfers as subservient to the rights of the parties to the pending litigation and subject to any direction that the Court may

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pass thereunder.

17. Therefore, the mere fact that the RSD was executed during the pendency of the Underlying Suit does not automatically render it null and void. On this ground alone, we find the Impugned Order to be wholly erroneous as it employs Section 52 of the Act to nullify the RSD and on that basis, concludes that the impleadment application is untenable. Contrary to this approach of the High Court, the law on impleadment of subsequent transferees, as established by this Court has evolved in a manner that liberally enables subsequent transferees to protect their interests in recognition of the possibility that the transferor pendente lite may not defend the title or may collude with the plaintiff therein [See the decision of this Court in Amit Kumar Shaw vs. Farida Khatoon, (2005) 11 SCC 403 & A. Nawab John vs. V.N. Subramaniyam, (2012) 7 SCC 738].

18. Similarly, we also find fault with the order of the ADJ and its misplaced reliance on Bibi Zubaida (supra). The only principle emerging from the judgment of this Court in Bibi Zubaida (supra) is that transferees pendente lite cannot seek impleadment as a matter of right and to that extent, we agree with the ADJ. However, Bibi Zubaida (supra) does not place a bar on impleadment of transferees who purchase property without seeking leave of the Court. The decision of the Court in Bibi Zubaida (supra) turns on its own facts; the Court rejected the application for joinder therein noting that the underlying suit was pending since 1983 and upheld the finding of the Trial Court that the subsequent purchaser was not bona fide and attempted to complicate and delay the underlying suit. Therefore, the judgment in Bibi Zubaida (supra), being distinguishable on facts, does not assist the Respondents herein.

19. The Respondents herein assail the impleadment of the Appellant on the ground that he is not a bona fide purchaser as he had full knowledge of the pending litigation. While that is the admitted position, there exists no bar to the impleadment of transferees pendente lite with notice.

Permitting the impleadment of a transferee pendente lite is,

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in each case, a discretionary exercise undertaken to enable a purchaser with a legally enforceable right to protect their interests especially when the transferor fails to defend the suit or where there is a possibility of collusion.

20. In the particular facts and circumstances of this case, Mr. Sundaram has been able to satisfy this Court on the possibility of collusion between the Respondents. It is a fact that the Plaintiffs and Defendants are relatives. More importantly, Plaintiffs approached the court in the Underlying Suit after a substantial delay of 11 years whereas admittedly, the revenue records were mutated to reflect the name of Respondent No. 21 since 2007. It is also curious that the claim of non-payment of consideration by the Appellant was made for the first time before this Court.

21. On the other hand, the Appellant has a registered sale deed in his favor and has therefore seemingly acquired an interest in the Subject Land. Whether or not the consideration was paid, is a disputed question of fact that shall be determined by the Trial Court. Therefore, in the considered opinion of this Court, considering the totality of the circumstances in this case, including the fact that the trial has not progressed significantly, the Appellant herein, in the interest of justice, is entitled to impleadment in the Underlying Suit in order to protect his interests, if any, in the Subject Land.

9. Relying on the above judgment, he submits that considering

the totality of the judgment, so far the facts in the present case is

concerned, the learned trial Court has erred in dismissing the said

petition meant for impleadment in the said suit.

10. Mr. Rahul Kumar Gupta, learned counsel appearing for the

opposite party Nos.4 to 8 opposes the prayer and submits that the

learned Court has rightly passed the said order and there is no

illegality in the impugned order. According to him, the opposite

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party Nos.4 to 8 has already revoked the power of attorney in

favour of opposite party No.9 in spite of that he has executed the

sale deed. He submits that the power of attorney is already revoked

and in spite of that he has illegally transferred the property in

question to the petitioner herein and that has been challenged by

the opposite party Nos.4 to 8 in Title Suit No.210 of 2015 wherein

prayer is made for cancellation of the sale deed. He submits that so

far present proceeding with regard to the Title Suit No.92 of 2010 is

concerned, the petitioner is not a necessary party and the validity of

the sale deed cannot be looked into in the present suit. On this

ground, he submits that this petition may kindly be dismissed.

11. Mr. Prashant Pallav along with Mr. Ayush Aditya, learned

counsel appearing for the opposite party Nos.1 to 3 vehemently

opposes the prayer and submits that the decree was already passed

in the said suit by the learned Court on 16.06.2011 and according to

him, one first appeal was pending before the High Court. He

submits that arising out of the different suit with regard to the

schedule property another first appeal was pending before this

Court in which the injunction was allowed and during the pendency

of the injunction the sale deed in the year 2012 was executed in

favour of the petitioner herein. He submits that on 08.08.2012, the

petition for impleadment was filed and the MOU was entered. He

draws the attention of the Court on Sub-Section 3 of Section 28 of

the Specific Relief Act and submits in view of the provisions made

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therein, the petitioner is not a necessary party and the suit is

already pending between the opposite party Nos.4 to 8 being Title

Suit No.210 of 2015 and in view of that this petition is fit to be

dismissed. He further submits that so far opposite party No.9, who

is the power of attorney holder is concerned he was aware about

the compromise decree and petitioner was also a party in spite of

that the registered deed was executed. He then submits that the

petitioner is not a bona fide purchaser and in view of that the

learned Court has rightly passed the order. He further submits that

the transfer made to the petitioner herein and it is not pendente lite

transfer and he relied in the case of Gurmit Singh Bhatia versus

Kiran Kant Robinson and Others reported in (2020) 13 SCC

773, wherein at paragraph No.5.5 it has been held as under :-

5.5. It is further observed and held by this Court in Kasturi that if the plaintiff who has filed a suit for specific performance of the contract to sell, even after receiving the notice of claim of title and possession by other persons (not parties to the suit and even not parties to the agreement to sell for which a decree for specific performance is sought) does not want to join them in the pending suit, it is always done at the risk of the plaintiff because he cannot be forced to join the third parties as party defendants in such suit. The aforesaid observations are made by this Court considering the principle that the plaintiff is the dominus litis and cannot be forced to add parties against whom he does not want to fight unless there is a compulsion of the rule of law.

12. Relying on the above judgment, he submits that the

petitioner was not the party and in view of that the learned Court

has rightly passed the order. He further relied in the case of Babu

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Lal versus M/s Hazari Lal Kishori Lal and Others reported in

(1982) 1 SCC 525, wherein at paragraph Nos.26 and 27 it has

been held as under :-

26. sub-section (3) of section 28 clearly contemplates that if the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree, the Court may on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to. Sub-clause (b) of sub-section (3) of section 28 contemplates the delivery of possession or partition and separate possession of the property on the execution of such conveyance or lease. Sub-section (4) of section 28 bars the filing of a separate suit for any relief which may be claimed under section 28.

27. In Hungerford Investment Trust Ltd. v. Haridas Mundhra and ors. dealing with section 28 (1) of the Specific Relief Act, 1963 this Court observed:

"The Specific Relief Act, 1963, is not an exhaustive enactment and under the law relating to specific relief a Court which passes a decree for specific performance retains control over the decree even after the decree had been passed. Therefore, the Court, in the present case, retained control over the matter despite the decree and it was open to the Court, when it was alleged that the party moved against had positively refused to complete the contract, to entertain the application and order rescission of the decree if the allegation was proved."

The reasoning given by this Court with regard to the applicability of sub-section (1) of section 28 will equally apply to the applicability of sub-section (3) of section 28.

13. Relying on the above judgment, he submits that in light of

sub-section (3) of Section 28 which has been considered in the said

judgment, the case of the petitioner is not maintainable and in view

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of that the learned Court has rightly passed the order and on this

ground, he submits that this petition may kindly be dismissed. He

further submits that the judgment relied by the petitioner are

relating to trial stage and not after the decree in view of that those

judgments are different from the present case.

14. Mr. Shailesh Kr. Singh, learned counsel appearing for

opposite party No.9 submits that on 03.03.2006 the agreement was

entered into between the landlord, who are the opposite party

Nos.4 to 8 and the opposite party No.9 for sale of the property. He

draws the attention of the Court to the power of attorney brought in

the counter affidavit which is the document by which the revocation

has been made on 26.02.2015 and submits that in view of the

provision made therein the act done by the opposite party No.9

prior to revocation has been kept intact that has been recorded in

the said revocation deed. He further draws the attention of the

Court to Annexure-E to his counter affidavit and submits that the

agreement has been made for sale of the land in question between

the opposite party Nos.4 to 8 and one Smt. Chanchala Kumari, who

is opposite party Nos.1. He submits that has been made on

25.06.2008 and thereafter in the year 2008 further agreement was

made by opposite party No.9 between the opposite party Nos. 1 to

3. He submits that in light of the agreement, the compliance has

not been made by the opposite party Nos.1 to 3 and for that the

paper publication has been made by the power of attorney holder

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who is opposite party No.9 in the Prabhat Khabar newspaper

indicating that opposite party Nos.1 to 3 are not in possession and

no deals be made with them. He further submits that the collusion

has been made between the opposite party Nos.1 to 3 and opposite

party Nos.4 to 8 and for that complaint case has been separately

filed being Complaint Case No.308 of 2011. He further submits that

the compromise has entered between the opposite party Nos.4 to 8

and opposite party Nos.1 to 3 and opposite party No.9 and the

opposite party No.9 has acted on the basis of power of attorney on

behalf of opposite party Nos.4 to 8. He submits in light of

compromise even the cheque has been issued in favour of power of

attorney holder which has not been honoured and in view of that

the compromise clauses have not been honoured. He submits that

the learned Court has been pleased to dispose of the suit in light of

the compromise by order dated 16.06.2011. According to him, even

after the cheque which was not honoured further request was made

by way of writing letters in spite of that the fresh cheque has not

been issued by the opposite party Nos.1 to 3. On this ground, he

submits that if such a dispute is there the petitioner herein is a

necessary party in the pending suit and the learned Court has

wrongly dismissed the same and the same may kindly be allowed.

15. In reply, Mr. Bibhash Sinha, learned counsel appearing for

the petitioner draws the attention of the Court to sub-section 1 and

4 of Section 28 of Specific Relief Act and submits that in view of the

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provision made therein no separate suit is required to be filed and

this issue can be decided only in the pending suit. He submits that

the revision application filed before this Court was withdrawn in the

year 2015 and since then the matter is pending before the learned

Court and no development has been made in view of that the

argument with regard to the belated purchasing is not tenable. He

further submits that even if the whole of the price is not paid but

the document is executed and thereafter registered the sale to be

completed and entitled to pass under the transaction in view of that

the cancellation of the deed can't be made, however, consideration

amount can be claimed and to buttress this argument, he relied in

the case of Dahiben versus Arvindbhai Kalyanji Bhanusali

(Gajra) Dead through Legal Representatives and Others

reported in (2020) 7 SCC 366 wherein at paragraph Nos.29.8

and 29.9 it has been held as under :-

29.8 In Vidyadhar v. Manikrao & Anr.14 this Court held that the words "price paid or promised or part paid and part promised" indicates that actual payment of the whole of the price at the time of the execution of the Sale Deed is not a sine qua non for completion of the sale. Even if the whole of the price is not paid, but the document is executed, and thereafter registered, the sale would be complete, and the title would pass on to the transferee under the transaction.

The non-payment of a part of the sale price would not affect the validity of the sale. Once the title in the property has already passed, even if the balance sale consideration is not paid, the sale could not be invalidated on this ground. In order to constitute a "sale", the parties must intend to transfer the ownership of the property, on the agreement to

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pay the price either in praesenti, or in future. The intention is to be gathered from the recitals of the sale deed, the conduct of the parties, and the evidence on record. 29.9 In view of the law laid down by this Court, even if the averments of the Plaintiffs are taken to be true, that the entire sale consideration had not in fact been paid, it could not be a ground for cancellation of the Sale Deed. The Plaintiffs may have other remedies in law for recovery of the balance consideration, but could not be granted the relief of cancellation of the registered Sale Deed. We find that the suit filed by the Plaintiffs is vexatious, meritless, and does not disclose a right to sue. The plaint is liable to be rejected under Order VII Rule 11 (a).

On this ground, he submits that this petition may kindly be

allowed.

16. In view of above submission of learned counsel appearing

for the parties, it is an admitted position that there are separate

suits with regard to the property in question. However, the prayers

are different in the said suit. Title Suit No.76 of 2006 was filed for

declaration of right, title and interest by the opposite party Nos.4 to

8 against Sahara and Others which was decreed in favour of the

opposite party Nos.4 to 8 in the year 2011 which was challenged by

filing First Appeal No.43 of 2012 by Sahara and Others which the

High Court has been pleased to decide by the judgment dated

30.06.2022 affirming the decree passed by the learned trial court.

Against the said judgment of the High Court, the State and Others

have moved to the appeal before Hon'ble the Supreme Court and

pursuant to that the Hon'ble Supreme Court has interfered and set

aside the High Court order and restored the said first appeal on the

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observation as quoted here-in-above at paragraph No.4 of this

judgment (supra) and the said first appeal is pending before the

High Court. The document on the record clearly suggests that

opposite party Nos.4 to 8, who are owners of the land in question

have executed the power of attorney in favour of opposite party

No.9 herein and pursuant to that the opposite party No.9 has

entered into an agreement with the opposite party No.1 to 3 as well

as MOU with the petitioner herein on 31.03.2012 and subsequently

power of attorney holder has sold the property in question by ten

registered sale deeds in favour of the petitioner and this fact is not

denied by either of the parties. Title Suit No.92 of 2010 which is the

subject matter of the present CMP has been instituted by opposite

party Nos.1 to 3 for specific performance which has proceeded and

on the basis of the compromise the learned Court has been pleased

to pass the order on 16.06.2011 within the stipulated time the

consideration amount has not been paid and for extension of time

for payment that petition has been filed before the learned Court

which has been rejected by order dated 05.06.2014 which was the

subject matter before the High Court on remand on the ground to

decide it afresh. The civil revision was allowed and remanded back

to the learned Court to decide the said point afresh, however

rescission of contract was the subject matter in another civil revision

which has been simply withdrawn.

17. Admittedly, the power of attorney was revoked on

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20.06.2015 wherein one clause with regard to the retention of act

done before revocation stipulates as under :-

AND WHEREAS for personal reasons and consideration it has become necessary and/or expedient to revoke the said power of attorney. Now, we completely revoke also all powers or authority thereby and there under given to him, either expressly or impliedly, to all intents and purposes provided that nothing herein contained shall render invalid or ineffective any act, deed or thing lawfully and bona fide doe of caused to be done by the said attorney under and by virtue of the power given to him before the revocation thereof by these present.

18. In view of the above clause, it is crystal clear that before

the revocation of power of attorney any act done by the power of

attorney holder was kept intact. Admittedly, the sale deed in favour

of the petitioner was made in the year 2012 that is before the

revocation of power of attorney. Thus, ten registered sale deeds

prima facie cannot be said to be without any authority, however,

that is already under challenge in Title Suit No.210 of 2015 and that

issue will be decided in that pending suit and in view of valid

transaction by way of ten registered sale deeds Prima facie on the

strength of which the petitioner has filed petition under Order 1

Rule 10(2) of CPC it cannot be said that the compromise entered

between the opposite party No.9 on behalf of opposite party Nos.4

to 8 it is not valid, however, the said suit is still pending before the

learned Court. It has been pointed out that the said suit has already

been decreed, however execution case is pending and the issue in

question, the judgment relied by the petitioner with regard to the

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decree and the judgment of Hon'ble Supreme Court in the case of

Bhupinder Kumar versus Angrez Singh (supra) clearly

suggests that the trial court retains its power and jurisdiction to deal

with the decree of specific performance.

19. The court in light of sub-section 1 of Section 28 does not

loose its jurisdiction and it did not become functus officio as has

been held in paragraph No.21 and 22 of the said judgment. Sub-

section 4 of Section 28 of Specific Relief Act speaks of that arising

out of the dispute in question no other suit will lie. In this

background, it is crystal clear that when a petition was filed before

the learned Court for impleading as one of the party in the said suit,

the petitioner is a necessary party cannot be ruled out.

20. It is well settled that 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.

The hon'ble Supreme Court in the case of Vidur Impex (2012) 8

SCC 384 laid down the broad principles governing the disposal of

application for impleadment wherein at paragraph No.41 it has been

held as under :-

"41. 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:

41.1. The court can, at any stage of the proceedings, either on an application made by the parties or

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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 4 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 whom 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 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."

21. In view of the above and considering the settled principles

of law on the doctrine of lis pendens, the Court has to examine the

provisions of Order 1 Rule 10 of the Code of Civil Procedure 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

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in the suit.

22. It is further well settled that 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 objective. 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 question involved and

has thought of relevant arguments to advance. The only reason

which makes it necessary to make a person a party to an action is

so 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. This 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.

23. The Hon'ble Supreme Court in the case of Mumbai

International Airport (P) Ltd. v. Regency Convention Centre

& Hotels (P) Ltd. reported in (2010) 7 SCC 417 has discussed

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the law relating to impleadment of the parties. It will be relevant to

quote paragraph Nos.13, 14, 15, 22, 25 & 27 of the said judgment

which is as under :-

"13. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be Patna High Court C.Misc. No.320 of 2023 dt.27-08-2024 6/13 impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure ("the Code", for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:

"10. (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."

14. The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and Patna High Court C.Misc. No.320 of 2023 dt.27-08- 2024 7/13 settle the questions involved in the suit. In short,

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the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party

15. A "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a "necessary party" is not impleaded, the suit itself is liable to be dismissed. A "proper party" is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.

22. Let us consider the scope and ambit of Order 1 Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice.

25. In other words, the court has the discretion to either to allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances

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and no person has a right to insist that he should be impleaded as a party, merely because he is a proper party.

27. On a careful examination of the facts of this case, we find that the appellant is neither a necessary party nor a proper party. As noticed above, the appellant is neither a purchaser nor the lessee of the suit property and has no right, title or interest therein. The first respondent-plaintiff in the suit has not sought any relief against the appellant. The presence of the appellant is not necessary for passing an effective decree in the suit for specific performance. Nor is its presence necessary for complete and effective adjudication of the matters in issue in the suit for specific performance filed by the first respondent plaintiff against AAI. A person who expects to get a lease from the defendant in a suit for specific performance in the event of the suit being dismissed, cannot be said to be a person having some semblance of title in the property in dispute".

24. In view of the above judgment, an application of a person

claiming to be a proper party depending upon the facts and

circumstances of the case.

25. Hon'ble Supreme Court in the case of Sumtibai v. Paras

Finance Co. Regd. Partnership Firm beawer (Raj.), reported

in (2007) 10 SCC 82 has held that a party having a semblance of

interest in the suit property could be impleaded as a party in the

suit.

26. So far case in hand is concerned what has been discussed

here-in-above, it is crystal clear that the petitioner, who has

purchased the property by registered ten sale deeds cannot be said

that he is not a necessary party to decide the said suit.

27. In the case of Amit Kumar Shaw and Another vs.

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Farida Khatoon and Another reported in AIR 2005 SC 2209

while dealing with the applicability of doctrine of lis pendens, it was

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 and he is entitled to be impleaded in the

suit or other proceedings where the transferee pendente lite is

made a party to the litigation, he is entitled to be heard in the

matter on the merits of the case.

28. In view of the above and considering that the power of

attorney holder who is opposite party No.9, has executed the

registered sale deeds in favour of the petitioner and also entered

with agreement with the opposite party Nos.1 to 3 which is the

subject matter of the Title Suit No.92 of 2010 and one of the order

is challenged in this present C.M.P. under Article 227 of the

Constitution of India.

29. It is well settled that in absence of payment of

consideration, the sale cannot be said to be valid, however, that

issue is already pending before the learned trial court.

30. The Court finds that the petitioner herein is a necessary

party. Accordingly, the impugned order dated 12.04.2023 is hereby

set aside.

31. The petition dated 08.08.2022 under Order 1 Rule 10 of

CPC filed by the petitioner is hereby allowed.

32. However, the observation made here-in-above will not

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prejudice the case of either of the parties in the pending

proceedings in whatever nature and that will be decided in

accordance with law.

(Sanjay Kumar Dwivedi, J.) Sangam/ A.F.R.