Rajasthan High Court - Jodhpur

Prem Kumar vs Jaskaran Singh on 1 December, 2021

Bench: Pushpendra Singh Bhati

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 6665/2019

Prem Kumar S/o Balwant Ram, Aged About 35 Years, By Caste- Bawari, Resident Of 24 Pbn, Tehsil- Pilibanga, District Hanumangarh.

----Petitioner Versus

1. Jaskaran Singh S/o Jagdev Singh, By Caste- Ramgadia, Resident Of 19 Jrk, Tehsil- Pilibanga, District- Hanumangarh.

2. Rooplal S/o Sohan Singh,, By Caste- Chamar, Resident Of Singhpura, Tehsil- Pilibanga, District- Hanumangarh.

3. Prithvi Singh S/o Bhadar Ram, B/c Jat, Resident Of Surawali Teh. Pilibanga, Dist.- Hanumangarh.

                                                                      ----Respondents


For Petitioner(s)           :        Mr. RC Joshi
For Respondent(s)           :        Mr. Trilok Joshi

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

01/12/2021

Counsel for the petitioner has shown judgment passed by

this Hon'ble Court in S.B. CWP No.5265/2017 rendered on

13.04.2018, which reads as follows:-

"1. The petitioner has preferred this writ petition under Article 226 & 227 of the Constitution of India claiming the following reliefs:

"It is therefore, respectfully prayed that the writ petition may kindly be allowed and by writ, order or direction the impugned order dated 21.02.2017 passed by Additional District Judge No.1, Hanumangarh in Civil Suit No.6/2011 (CIS No.404/2014) may kindly be quashed and set aside and consequently application under Order 6 Rule 17 read 1 Rule 10 CPC may kindly be allowed and its prayer clause.

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Any other appropriate writ, order or direction, which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly also be passed in favour of the petitioner."

2. The suit for specific performance was filed by the petitioner-

plaintiff against the respondent for specific performance of the contract dated 23.05.2008. During the suit proceedings, the respondent has brought a document on record reflecting that a partition has taken place between the respondent/defendant and his brother, Fuman Singh, and the land in question has come to the share of Fuman Singh, pursuant to the said partitions. Learned counsel for the petitioner states that the petitioner states that the petitioner immediately sought impleadment of said Fuman Singh, as the purpose of the suit for specific performance would be frustrated, if the claimed actual owner of the land in question, would not be a party to the proceedings of the suit.

3. Learned counsel for the petitioner Mr. Sushil Bishnoi has relied upon the judgment of Hon'ble Apex Court in Thomas Press (Indian) Ltd. Vs. Nanak Builders & Investors P. Ltd. & Ors. reported in 2013(1) WLC (SC) Civil 453, the operative portion of which reads as under:

"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

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pendency of a suit or proceeding shall be deemed to commence from 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) SCR 18) 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

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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 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

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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 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

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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:

"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

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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-

(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

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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.

32. In the light of the aforesaid discussion both on facts and law, we shall now examine some of the relevant facts in order to come to right conclusion.

33. As noticed above, even before the institution of suit for specific performance when the plaintiff came to know about the activities of the Sawhneys' to deal with the property, a public notice was published at the instance of the plaintiff in a newspaper "The Hindustan Times" dated 12.02.1990 (Delhi Edn.) informing the public in general about the agreement with the plaintiffs. In response to the said notice the sister concern of the appellant M/s Living Media India Limited served a legal notice on the defendants- Sawhneys' dated 24.06.1990 whereby he has referred the 'agreement to sell' entered into between the plaintiffs and the defendants- Sawhneys'.

34. Even after the institution of the suit, the counsel who appeared for the defendants-Sawhneys' gave an undertaking not to transfer and alienate the suit property. Notwithstanding the order passed by the Court regarding the undertaking given on behalf of the defendants- Sawhneys', and having full notice and knowledge of all these facts, the sister concern of the appellant namely Living Media India Ltd. entered into series of transaction and finally the appellant M/s. Thomson Press got a sale deed executed in their favour by Sawhneys' in respect of suit property.

35. Taking into consideration all these facts, we have no hesitation in holding that the appellant entered into a clandestine transaction with the defendants-Sawhneys' and got the property transferred in their favour. Hence the appellant - M/s Thomson Press cannot be held to be a

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bonafide purchaser, without notice.

36. On perusal of the two orders passed by the single judge and the Division Bench of the High Court, it reveals that the High Court has not gone into the question as to whether if a person who purchases the suit property in violation of the order of injunction, and having sufficient notice and knowledge of the Agreement, need to be added as party for passing an effective decree in the suit.

37. As discussed above, a decree for specific performance of a contract may be enforced against a person claimed under the plaintiff, and title acquired subsequent to the contract. There is no dispute that such transfer made in favour of the subsequent purchaser is subject to the rider provided under Section 52 of the Transfer of Property Act and the restrain order passed by the Court.

38. The aforesaid question was considered by the Calcutta High Court in the case of Kafiladdin and others vs. Samiraddin and others, AIR 1931 Calcutta 67 where Lordship referred the English Law on this point and quoted one of the passage of the Book authored by Dart, on "Vendors and Purchasers" Edn.8, Vol.2, which reads as under :-

"Equity will enforce specific performance of the contract for sale against the vendor himself and against all persons claiming under him by a title arising subsequently to the contract except purchaser for valuable consideration who have paid their money and taken a conveyance without notice to the original contract." Discussing elaborately, the Court finally observed:-

"The statement of the law is exactly what is meant by the first two clauses of S.27, Specific Relief Act. It is not necessary to refer to the English cases in which decrees have been passed against both the contracting party and the subsequent purchaser. It is enough to mention some of them : Daniels v. Davison (2), Potters v. Sanders (3), Lightfoot v. Heron(4). The question did

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not pertinently arise in any reported case in India; but decrees in case of specific performance of contract have been passed in several cases in different forms. In Chunder Kanta Roy v. Krishna Sundar Roy (5) the decree passed against the contracting party only was upheld. So it was in Kannan v. Krishan (6). In Himmatlal Motilal v. Basudeb(7) the decree passed against the contracting defendant and the subsequent purchaser was adopted. In Gangaram v. Laxman(9) the suit was by the subsequent purchaser and the decree was that he should convey the property to the person holding the prior agreement to sale. It would appear that the procedure adopted in passing decrees in such cases is not uniform. But it is proper that English procedure supported by the Specific Relief Act should be adopted. The apparent reasoning is that unless both the contracting party and the subsequent purchaser join in the conveyance it is possible that subsequently difficulties may arise with regard to the plaintiff's title."

39. The Supreme Court referred the aforementioned decision of the Calcutta High Court in the case of Durga Prasad and Another v. Deep Chand and others AIR (1954) SC 75, and finally held:-

"In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special convenants made between plaintiff and his vendor; all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta High Court in -Kafiladdin v. Samiraddin, AIR 1931 Cal 67 (C) and appears to be the English practice. See Fry on Specific Performance, 6th Ed. Page 90, paragraph 207; also - 'Potter v. Sanders', (1846) 67 ER. We direct accordingly."

40. Again in the case of Ramesh Chandra v. Chunil

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Lal (1971) SC 1238, this Court referred their earlier decision and observed:-

"It is common ground that the plot in dispute has been transferred by the respondents and therefore the proper form of the decree would be the same as indicated at page 369 in Lala Durga Prasad v. Lala Deep Chand, 1954 SCR 360 = (AIR 1954 SC 75) viz., "to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff". We order accordingly. The decree of the courts below is hereby set aside and the appeal is allowed with costs in this court and the High Court."

41. This Court again in the case of Dwarka Prasad Singh and others vs. Harikant Prasad Singh and others (1973) SC 655 subscribed its earlier view and held that in a suit for specific performance against a person with notice of a prior agreement of sale is a necessary party.

42. Having regard to the law discussed hereinabove and in the facts and circumstances of the case and also for the ends of justice the appellant is to be added as party-defendant in the suit. The appeal is, accordingly, allowed and the impugned orders passed by the High Court are set aside.

43. Before parting with the order, it is clarified that the appellant after impledment as party-defendant shall be permitted to take all such defences which are available to the vendor Sawhneys' as the appellant derived title, if any, from the vendor on the basis of purchase of the suit property subsequent to the agreement with the plaintiff and during the pendency of the suit."

4. Learned counsel for the respondents Mr. R.C. Joshi has refuted the submissions made on behalf of the petitioner, on the ground that the specific performance is between two contracting parties, and no third party has a right to be impleaded or sought to be impleaded as party to the suit

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therefor.

5. After hearing learned counsel for the parties as well as perusing the record of the case, this Court is of the opinion that if any third party has been shown to have a direct interest in the property in question for which, the decree of specific performance is being sought, then the learned court below ought to have liberally permitted the same party to be impleaded as a party to the suit. The learned court below should have appreciated that Section 19(b) of the Specific Relief Act, 1963, deals with the relief against the parties and persons claiming under them by a subsequent title and provides that except as otherwise provided by the chapter, specific performance of a contract may be enforced against, amongst others, 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.

6. In light of the aforementioned legislative provision, it would be appropriate to avoid multiplicity of the litigation and the brother of the respondent No.1 ought to be impleaded as a party.

7. Resultantly, the present writ petition is allowed and the impugned order dated 21.02.2017 passed by learned Additional District Judge No.1, Hanumangarh in Civil Suit No.6/2011 (CIS No.404/2014) is hereby quashed and set aside and the consequent application under Order 6 Rule 17 read with Order 1 Rule 10 CPC is also allowed."

Counsel for the petitioner submits that in the present case

also, it is suit for Specific Relief Act and question of further

alienation of the property came to a knowledge of the present

petitioner only when the same was recorded in the written

statement.

Counsel for the petitioner submits that subsequent creation

of interest is going to prejudice the present petition and the

aforesaid precedent law is directly applicable.

Counsel for the respondent submits that Specific Relief Act is

for limited purposes and, thus, the point of adjudication is only an

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agreement between two parties whether has to be performed or