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Judgment
The singular question involved in this petition filed under Article 227 of the Constitution is : whether transferee pendente lite is a necessary/proper party in the instant suit and whether the order of Court below dated 17.06.2015 rejecting the applications preferred under Order 6 Rule 17 and under Order 1 Rule 10 of Code of Civil Procedure for impleadment of transferee pendente lite is legal and justified?
The relevant facts necessary for adjudication of this matter are that Civil Suit No.157-A/2014 is pending between the petitioner/plaintiff and the respondents. The suit is filed against respondent Nos.1 & 2 for declaration and specific performance of contract. The trial Court passed an order of injunction against respondent Nos.1 & 2. The plaintiff filed two applications for amendment and impleadment of transferee pendente lite by stating that the respondent Nos.1 & 2 inspite of earlier order of injunction operating against them, executed two registered sale deeds dated 05.03.2014 registered on 27.03.2014 in favour of the respondent Nos.3 and 4 herein respectively. It is stated that actual possession of aforesaid property is still with the petitioner since 1976.
The petitioner argued that the respondent Nos.3 & 4 are the necessary parties. The conduct of respondent Nos.1 & 2 was in clear breach of injunction. The plaintiff is the dominus litis and, therefore, plaintiff''s should have been permitted to implead the said respondents.
Respondent Nos.2 & 3/defendants opposed the said prayer by contending that Section 52 of the Transfer of Property Act will take care of plaintiff''s grievance and in view of the judgment of Supreme Court reported in the case of Sarvinder Singh Vs. Dalip Singh, 1997 (1) MPLJ 325, applications were rightly dismissed.
The Court below by the impugned order dated 17.06.2015 disallowed both the applications preferred under Order 1 Rule 10 of CPC and under Order 6 Rule 17 of CPC. In nutshell, the Court below held that in view of the judgment of Supreme Court in the case of Sarvinder Singh (supra), the transferee pendente lite is not a necessary party and Section 52 of the Transfer of Property Act will take care of the grievance of the petitioner.
The parties appearing before me advanced their rival contentions in the aforesaid line.
I have heard learned counsel for the parties at length and perused the record.
A plain reading of the impugned order shows that it is based on the judgment of Supreme Court in the case of Sarvinder Singh (supra) and by considering Section 52 of the Transfer of Property Act. However, this question was again considered by the Supreme Court in great detail in the case of 2013 (5) SCC 397 (Thomson Press (India) Ltd. Vs. Nanak Builders and Investors Private Limited and others).
After considering the catena of judgments, the Apex Court opined in the said case that although there is apparent conflict in the observations made in certain judgments, the broad principles which should govern disposal of the application for impledment are : (i) The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the Suit.
(ii) A necessary party is the person who ought to be joined as party to the Suit and in whose absence an effective decree cannot be passed by the Court.
(iii) 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.
(iv) 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.
(v) 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.
(vi) 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.
It is noteworthy that said view is based on the judgment of Supreme Court in the case reported in Vidhur Impex and Traders (P) Ltd. Vs. Tosh Apartments (P) Ltd., 2012 (8) SCC 384.
Interestingly, in the case of Thomson Press (India) Ltd. (supra), the suit for specific performance of agreement was filed. In the said suit, summons were issued against the defendants. They appeared through their Advocate and stated before the Court that possession of flat in question is not with the defendants rather it is with some other body. He gave an undertaking that till disposal of the suit, the property in question would not be transferred or alienated by the defendants. Later on, two sale deeds were executed by the defendants in favour of Thomson Press (India) Ltd. In order to get impleaded the transferee pendente lite filed application under Order 1 Rule 10 of CPC.
Learned Single Judge of Delhi High Court dismissed the said application and Division Bench did not interfere in the matter. The Apex Court, after taking stock of various judgments, came to hold that the appellant is needed to be added as party-defendant in the suit. The appeal was accordingly allowed and orders of the High Court were set aside.
In Thomson Press (India) Ltd. (supra), the Apex Court considered the provision i.e. Order 22 Rule 10 of CPC and opined that in cases of assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. In clear terms, it was held that independent of Order 1 Rule 10 of CPC, the prayer for addition/impleadment made by the appellant can be considered in the light of Order 22 Rule 10 CPC and thus the appellant can be added as a party-defendant to the suit. The Apex Court expressed its view that although the application preferred was only under Order 1 Rule 10 of CPC, but the enabling provision of Order 22 Rule 10 CPC can always be invoked if the fact situation so demands.
In the case of Sarvinder Singh (supra), the Supreme Court did not consider the effect of Order 22 Rule 10 of CPC. Thus the said judgment cannot be mechanically pressed into service. There is a glaring similarity of facts in the present case and that of Thomson Press (India) Ltd. (supra). In Thomson Press (India) Ltd., the defendant made a statement before the Court that they will not alienate the suit property whereas in the present case, the Court injuncted the defendants from alienating the property. Thus, in my view, in the factual matrix of the case, transferee pendente lite needs to be added as partydefendant in the suit.
Resultantly, the impugned order, whereby aforesaid two applications were rejected, is set aside. The applications filed by the petitioner Under Order 6 Rule 17 of CPC and Order 1 Rule 10 of CPC are allowed. The Court below shall proceed from that stage in accordance with law.
Petition is allowed.