1. The above civil revision petition is filed under Section 115 of Civil Procedure Code against the order and decretal order of the IV Additional Subordinate Judge, Coimbatore dated 10.7.2000 made in I. A. No. 21 of 2000 in O.S.No.470 of 1996.
2. The brief facts of the case are as follows: -
The petitioner herein as plaintiff filed a suit in O.S.No.470 of 1996 on the file of IV Additional Subordinate Judge, Coimbatore for specific performance of the agreement of sale dated 27.11.1994. Along with the suit, an application in I.A. No. 488 of 1996 was filed seeking for the relief of interim injunction restraining the respondent from making alienation or creating encumbrance over the property, which is the subject matter of the suit. It seems that no injunction was granted as prayed for, obviously, on the ground of lis pendens. The suit was taken up for trial. During the cross examination of the respondent/defendant, it was elicited from him that subsequent to the filing of the suit, the property in dispute was sold to one Jegannathan during July, 1992, Hence, the petitioner herein filed an application in I.A. No. 21 of 2000 to implead the said Jegannathan as a party/defendant to the suit under Order 1, Rule 10(2) of the Civil Procedure Code. The said application was dismissed by the trial court. The correctness of the same is now questioned in the present civil revision petition.
3. The learned counsel appearing for the petitioner Mr. Srinivasan has submitted that the fact of subsequent sale of the disputed property was not mentioned in the written statement filed in the suit or in the counter filed in the injunction application. Though the sale is invalid and void and it would not affect the petitioner's right in the suit property, the said Jegannathan is a necessary party. Without impleading the subsequent purchaser to the suit, even if a decree is obtained in favour of the petitioner, that cannot be executed and the non-impleadment of the subsequent purchaser would create unnecessary complication and multiplicity of proceedings. In order to sustain his case, the learned Counsel relied on the decisions in Savitri Devi v. District Judge, Gorakhpur, , Vellaya Gounder and Anr. v. A.P. Ramalingam, 1998 (1) L.W. 219 and Sengamalam v. The Idol of Arulmighu Ranganaha Swami, Srirangam, 1999 (3) L.W. 888.
4. On the other hand, the learned counsel appearing for the respondents has submitted that the proposed respondent - the subsequent purchaser is not a necessary party to resolve the issue in the suit. The suit itself is for a specific performance of an alleged agreement of sale entered into between the petitioner and respondent/defendant. It is the contention of the learned counsel for the respondent herein that in the written statement, the execution of the agreement itself is disputed by the respondent. Even assuming that the petitioner would get a decree in his favour, any sale during the pendency of the specific performance suit hit by the principle of lis pendens under Section 52 of the Transfer of Property Act. The decree that would be passed in the suit would definitely bind not only the parties to the suit, but also the transferee-pendente lite purchaser. The trial court has exercised the jurisdiction vested on it based on the principle of settled law and that the order cannot be characterised as exercise of Jurisdiction illegally or with material irregularity. In order to sustain his case, the learned counsel appearing for the respondent has sought the support of the decisions in Anil Kumar Singh v. Shivnath Mishra, and Bakthavatsalam v. Anjapali and Ors., 2001 (1) MLJ
5. I heard the learned counsel appearing on either side.
6. Mr. Srinivasan, learned counsel appearing for the petitioner has submitted that Order 1, Rule 10(2) of the Civil Procedure Code clearly states that the Court at any stage of the proceedings, either on application 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 person, who ought to have been joined as a defendant or whose presence before the Court may be necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit be added. For the purpose of complete adjudication as to the right of the petitioner over the property in dispute, the presence of the subsequent purchaser, Jaganathan, is necessary. He further contended that under Order 22, Rule 10 of the Civil Procedure Code, in 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. Since the disputed property was purchased by the proposed respondent, he is a necessary party to the suit.
7. In the decision relied on by the learned counsel for the petitioner in Savitri Devi v. District Judge Gorkhapur, the
facts of the case were that the suit was filed by the appellant before the Supreme Court against her sons for decree for maintenance and creation of charge over ancestral properties. Pending suit, injunction was granted by the Court restraining the sons from alienating the property. However, the suit property was sold by one of the sons. The subsequent purchasers filed an application before the trial court under Order 1, Rule 10 for impleading them as parties to the suit. In the application, the subsequent purchasers have stated that the first defendant had received sale consideration before executing the sale deeds and handed over possession of the subject matter of the sale deeds. It was also alleged that the plaintiff and the defendants had colluded together in order to cause loss to them. The application was opposed by the appellant on the ground that the sales were in breach, contempt and disregard of the order of injunction passed by the Court and the transferees under such sales got no title to the property in order to get impleaded as parties to the suit. The Supreme Court has held that "the plea raised by the subsequent purchasers that the first respondent had played fraud not only against him, but also on the Court would have to be decided before it can be said that the sales effected by the first defendant were in violation of the order of the Court, and the further plea of the subsequent purchaser that the purchase was bonafide transaction for value in good faith was also to be decided before it could be held that the sales in their favour created no interest in the property. Those questions have to be decided by the Court in the suit "and on that ground, the Supreme Court has held"...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..." The facts of the above said case, in my opinion, have no application to the present case. The present suit is for specific performance of agreement of sale dated 27.11.1994 between the petitioner and the respondent. Whether the petitioner is entitled to the relief of specific performance against the respondent is the only question to be resolved in this case. Admittedly, the subsequent purchaser-Jeganathan did not file an application to implead him. On the other hand, the learned counsel appearing for the subsequent purchaser-Jeganathan in this revision, has in all force, adopted the argument of the first respondent herein, against the impleadment. That would mean that he is ready to suffer by default on account of any order passed in the suit for specific performance.
8. The other decision relied on by the learned counsel Mr. Srinivasan appearing for respondents is Vellaya Gounder and Anr. v. A.P. Ramalingam,1998 (1) L.W 219. The said decision is with regard to Order 22, Rules 3 and 10 of C.P.C and that was a case in which the suit property was admittedly sold by the defendant to the petitioners, who sought to implead them as parties to the proceedings under Order 22, Rule 10 after an ex parte decree was passed in the suit. During the pendency of the suit there was a transfer of property by way of sale in favour of the petitioners. Since it was a case of devolution of interest by the defendant, on the petitioners, the case squarely falls under Order 22, Rule 10, CPC and there would not be a question of abatement and the petition filed by the petitioners to implead themselves to continue the proceedings was maintainable and legally sustainable and are entitled to be brought on record. The issue involved in the said case mainly was that the application by the petitioners, who are third parties under Order 22, Rule 10, C.P.C. is not maintainable and the application ought to have been filed under Order 22, Rule 3 of C.P.C. Since such an application has not been filed by the legal representatives of the deceased defendant within the time stipulated by law, the suit would stand abated in so far as the deceased defendants are concerned and the Court also decided only as to the issue in that case of devolution of interest, no question of abatement arises and on that ground, the persons, in whose favour, the interest involved were permitted to be impleaded as parties. As already stated, the facts of the present case are totally different than the one cited by the learned counsel.
9. The next decision relied on by the learned counsel for the petitioner is S. Sengamalam v. The Idol of Arulmighu Ranganathasami, Srirangam, 1999 (3) L.W 888. This is also a case where an application filed by the purchaser of the property, which is the subject matter of the suit, to implead himself as a party as a bona fide purchaser for value was dismissed by the lower court on the ground that it is hit by the principle of lis pendens and the plaintiff is dominus litis. On a revision filed, this Court has held that the revision petitioner applied to the lower Court stating that the 7th defendant purchased the property under registered sale deed dated 4.7.1983 from its original owner (first defendant in the suit) and after purchase, petitioner herein had put up further constructions, and she being a bona fide purchaser for value without notice during the pendency of the suit, she should be impleaded in the suit. It is further held that "the transferee is a representative-in- interest of the party from whom he has acquired an interest and the right to get impleadment is only on the basis of an assignment. This is also a case wherein the subsequent purchaser of the property filed an application to implead as a party to the suit under Order 1, Rule 10 of CPC on the ground of bona fide purchaser for value. So, this is also a case considered wherein the application at the instance of the subsequent purchaser was dismissed by the trial court and allowed by the High Court. As already stated, it is the clear stand of the subsequent purchaser before this Court that he does not want to be a party to the proceedings.
10. It is the case of the respondent that the subsequent purchaser is not a necessary party to the proceedings. He relied on a decision of the Supreme Court in Anil Kumar Singh v. Shivnath Mishra alias Gadasaguru, . In that case, the Supreme Court held
"In this case, since the suit is based on agreement of sale said to have been executed by Mishra, the sole defendant in the suit, the subsequent interest said to have been acquired by the respondent by virtue of a decree of the Court is not a matter arising out of or in respect of the same act or transactions or series of acts or transactions in relation to the claim made in the suit.
6. Order 1. Rule 10(2) C.P.C......
7. By operation of the above rule though the Court may have power to strike out the name of a party improperly joined or add a party either on application or without application of either party, but the condition precedent is that the Court must be satisfied that the presence of the party to be added, would be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit. To bring a person as a party-defendant is not a substantive right but one of procedure and the Court has discretion in its proper exercise. The object of the rule is to bring on record all the persons who are parties to the dispute relating to the subject-matter so that the dispute may be determined in their presence at the same time without any protraction, inconvenience and to avoid Multiplicity of proceedings.
8. The question is whether the person who has got his interest in the property by an independent decree but not a party to the agreement of sale, is a necessary and proper party to effectually and completely adjudicate upon and settle all the questions involved in the suit. The question before the Court in a suit for the specific performance is whether the vendor had executed the document and whether the conditions prescribed in the provisions of the Specific Relief Act have been complied with for granting the relief of specific performance.
9. Sub-rule (2) of Rule 10 of Order 1 provides that the Court may either upon or without an application of either party, add any party whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit. Since the respondent is not a party to the agreement of sale, it cannot be said that without his presence the dispute as to specific performance cannot be determined. Therefore, he is not a necessary party."
11. The real construction of the rule i.e. Order 1, Rule 10(2), in particular, the meaning of the words "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, is that the Court is empowered to join a person whose presence is necessary for the prescribed purpose and cannot under the rule direct the addition of a person whose presence is not necessary for that purpose.
12. As stated already, the suit was filed for specific performance of agreement of sale entered into between the petitioner and the respondent herein and the issue to be decided in the suit is, whether the petitioner/plaintiff is entitled to the relief of specific performance as per the provisions of the Specific Relief Act and the defendant is liable to execute the sale deed. The relief sought for in the suit in the prayer portion is also for a decree in favour of the plaintiff for specific performance of an agreement of sale deed dated 27.11.1994 in his favour and for directing the defendant to execute the sale deed in favour of the plaintiff in respect of the suit property on receiving the balance sale consideration of Rs.15,000 from the plaintiff. For the issue to be resolved, the parties necessary are the parties to the agreement only.
13. In the given set of facts, as stated above, it cannot be said that without the presence of the proposed respondent, the dispute as to the specific performance cannot be determined and as such, he is not a necessary party. It is to be pointed out that the trial court has gone in elaboration as to the scope of Section 52 of the Transfer of Property Act and the doctrine of lis pendens to the effect that the result of the suit binds not only the parties to the suit, but also the party, who purchased the property, pendente lite and relying on the decision reported in 1993 (2) MLJ 395 held that the transfer pendent lite would be void or at least voidable at the instance of the decree holder in a specific performance suit.
14. In the light of the above discussion and in view of the decision of the Supreme Court on the point in issue ,
which has taken into consideration not only Order 1, Rule 3 and 10(3) of the Civil Procedure Code, but also Order 22, Rule 10 and Sections 15 and 16 of the Specific Relief Act and ultimately held that in a suit for specific performance, the subsequent purchaser is neither a necessary nor a proper party. I am of the considered view that the order of the trial court requires interferences from this Court while exercising the revision jurisdiction under Section 115 of the Civil Procedure Code.
Hence, the Civil Revision Petition is dismissed. However, there shall be no order as to costs. Consequently, the connected C.M.P. is also dismissed.