Madan Lal @APPELLANT@Hash Smt. Ghisi Bai

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

“(a) By an appropriate writ, order or direction, the writ petition filed by the petitioner may kindly be allowed.

(b) by an appropriate writ, order or direction impugnedorder dated 04.05.2016 (Annex-7) passed by the learned District Judge, Chittorgarh in Civil

Original Suit No.76/2014 titled as “Madan Lal Vs. Smt. Ghisi Baiâ€​ may kindly be quashed and set aside.

(c) By an appropriate writ, order or direction both theapplication under Order 1 Rule 10 and Section 151 CPC (Annex.4) filed by the petitioner/plaintiff

may kindly be allowed as prayed for.

(d) Any other appropriate order, which this Hon’ble Court deems just and proper in the facts and circumstances of the case may kindly be passed

in favour of the petitioner.

(e) Cost of the writ petition may please be awarded infavour of the petitioner.â€​

2.(The petitioner-plaintiff has filed a suit for specific performance of a contract dated 19.05.2014 against the respondent-defendant. The petitioner has

moved an application under Order 1 Rule 10 CPC to implead the subsequent purchaser/respondent No.2, who claimed to have purchased the land in

question from the defendant through through a registered sale deed dated 16.07.2014. However, the learned court below has rejected the said

application on the ground that the suit was for specific performance of contract, and not for cancellation of sale deed.

Learned counsel for the petitioner has relied upon the judgment of this Hon’ble Court in Ganesh Gadri Vs. Chhoga Gadri reported in (2012) 1

DNJ 371, which reads as under:

“1. In this writ petition filed under Article 227 of the Constitution of India, order dated 29.09.2011 is under challenge by which the application filed

under Order 1 Rule 10, read with Section 151, C.P.C. filed by the petitionerplaintiff was rejected.

Learned counsel for the petitioner submits that asuit for specific performance of contract and permanent injunction was filed by the petitioner

against defendantrespondent No.1, in which, it is pleaded that an agreement to sale of land described in the plaint was agreed to be sold by the

defendant for consideration of Rs.6,60,000/per bigha and defendant received Rs.3,00,000/- in advance at the time of execution of the agreement and,

thereafter, further received Rs.2,98,000/- on 11.01.2010 to pay off the mortgage loan taken on the land and handed over possession of the land on

11.01.2010 itself.

Learned counsel for the petitioner submits that alegal notice was given which is published on 17.02.2010 with regard to land and another legal notice

was sent to the respondent No.1 on 02.03.2010 to perform the agreement but the sale was not executed. Thereafter, a suit was filed in the Court for

specific performance of the contract agreement.

In the suit filed by the plaintiff-petitioner, therespondent-defendant filed his written-statement and replied that since the plaintiff failed to fulfill the

terms and conditions of the agreement to sale, therefore, the land has now been sold to one Smt. Saroj Chhabra on 26.02.2010 by way of registered

sale-deed. After filing written-statement the plaintiff-petitioner came to know about the fact that land in question has been sold to Smt. Saroj,

therefore, he immediately moved application under Order 1 Rule 10, C.P.C. to implead Smt. Saroj Chhabra as party in the suit. The trial Court

however rejected the application filed by the petitioner holding that the subsequent purchaser is not a necessary party in the suit for specific

performance.

Learned counsel for the petitioner submits that theorder impugned is totally illegal because the defendant sold the property in between the period

from the date of sending the legal notice and publishing the notice in the news paper and date of filing suit and this fact was not in the knowledge of

the petitioner as it came to his knowledge only after filing written-statement by the defendant-respondent in the suit. Therefore, the reason for

rejection of the petitioner's application is illegal. More so, only to non-suit the petitioner-plaintiff the respondent-defendant sold the property after

sending notice for performance of the contract-agreement, therefore, obviously the purchaser of the said property is a necessary part in the suit. But,

the trial Court rejected the application illegally and in a very arbitrary manner and as such while quashing the order impugned, the application filed by

the petitioner under Order 1 Rule 10, C.P.C. may be allowed and the trial Court may be directed to proceed in the matter after impleading Smt. Saroj

as party in the suit.

Per contra, learned counsel appearing on behalf ofthe respondent vehemently argued that suit was filed against the defendant-respondent who had

already sold the property before filing the suit, therefore, the suit itself was not maintainable against the defendant-respondent but the petitioner-

plaintiff filed the suit contrary to law, therefore, without challenging the sale-deed executed in favour of buyer Smt. Saroj Chhabra the petitioner filed

application under Order 1 Rule 10, C.P.C. and as such the trial Court has rightly rejected the application filed under Order 1 Rule 10(2), C.P.C.

Hence, the order impugned does not require any interference and this writ petition may be dismissed.

Admittedly, the respondent-defendant sold theproperty after receiving the notice from the petitionerplaintiff and this fact is not in dispute, therefore,

if there was no knowledge with the petitioner-plaintiff prior to filing the suit and the written-statement, then, it was not possible for him to implead Smt.

Saroj Chhabra or to challenge the sale-deed. In this view of the matter, the trial Court ought to have considered this aspect of the matter; but, the trial

Court rejected the application only on the ground that the suit cannot be maintained against the subsequent purchaser. In my opinion, the order

impugned suffers from the material illegality.

Therefore, this writ petition is allowed. Orderimpugned dated 29.09.2011 is quashed and set aside and application filed under Order 1 Rule 10(2),

C.P.C. by the petitioner-plaintiff for impleading Smt. Saroj Chhabra whom the property in question was sold by the defendant is hereby allowed and

trial Court is directed to proceed in the suit after impleading Smt. Saroj Chhabra as party in the suit.â€​

Learned counsel for the respondents has refuted the aforesaid submissions made on behalf of the petitioner and stated that the respondents is only a

bonafide purchaser.

After hearing learned counsel for the parties and perusing the record of the case as well as precedent law cited at the Bar by learned counsel for

the petitioner, this Court is of the opinion that the respondent, who has been sought to be impleaded as party defendant in the suit by the petitioner, is

undisputedly a bonafide purchaser and his rights are directly attached to the property in question.

In light of such facts, the present petition is allowed and the impugned order dated 04.05.2016 passed by learned District Judge, Chittorgarh in Civil

Original Suit No.76/2014 is hereby quashed and set aside and the application under Order 1 Rule 10 and Section 151 CPC filed by the petitioner-

plaintiff for impleading the subsequent purchaser as party defendant in the suit is also allowed. However, this order shall not prejudice the rights of the

party impleaded to contest the suit in accordance with law.