1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7246 OF 2008 Ramvilas S/o.Ramgopal Soni PETITIONER VERSUS Omprakash S/o.Bhagwandas Bhutada and others RESPONDENTS Mr.C.R.Deshpande, advocate for petitioner. Mr.Dhananjay Deshpande, advocate for respondent no.1. Mr.R.K.Ashtekar, advocate for respondent no.3. Mr.Sudhir Nandode, advocate for respondent no.2. (CORAM : A.V.POTDAR, J.) DATE : 30/06/2009 PER COURT : 1. By the present writ petition under Article 227 of The Constitution of India, the petitioner herein, who is a third party applicant, has challenged the order passed below Exh.57 in Spl.C.S.No.4/2006 dated 29/09/2008 passed by the Jt.Civil Judge, S.D.Latur. 2. Heard advocate for petitioner followed by the arguments of advocate for respondents. 3. The facts which gave rise to file present writ petition can be 2 summarized as follows. The respondent no.1 Omprakash Bhutada has filed suit for Specific Performance of Contract against respondent no.2 and 3 who were arrayed as defendant no.1 and 2 in Spl.C.S.No.4/2006 before the Trial Court. The respondent no.1 has asked for the specific performance of the contract which he has entered into with first defendant initially on 10/11/2004. According to him, the respondent no.2 failed to perform his part of contract, which resulted in filing the suit for specific performance. After service of summons, respondent no.2 and 3 appeared in the suit and contested the suit by filing their written statement respectively. The written statement of the second respondent, who is the first defendant before the Trial Court is at Exh.27 while the written statement of second respondent is at Exh.14. It further appears that after the said suit was filed by the first respondent, he has prayed for temporary injunction under Order 39 Rule 1 & 2 of CPC, and accordingly the Trial Court has passed the order to maintain status- quo as on the date of the suit i.e. on 24/01/2006. 4. It appears that the petitioner herein have purchased the suit property by registered sale deed dated 20/07/2007, and thereafter filed an application to implead him as necessary party to the suit under Order 1 Rule 10 CPC. After hearing the petitioner and respondents before the Trial Court, the Trial Court vide his order dated 29/09/2008, pleased to reject the said application, of which impugned order is under challenge before this Court by way of this writ petition. 3 5. During the course of submissions across the bar, learned advocate Shri.C.R.Deshpande vehemently urged that the petitioner third party applicant is the bonafide purchaser for value without notice. According to him, before he has entered into the transaction with respondent no.2, he has given paper publication about his intention to purchase the property from respondent no.2. Inspite of paper publication, no objections were raised either by the first respondent or the 3rd respondent for the said transaction with which the third party applicant/the petitioner entered into an agreement with the first respondent. According to him, immediately after execution of the sale transaction, he was put in possession of the suit property and accordingly necessary mutation entries were effected in the revenue record and his name is also entered in the possession coloumn to show that he is in possession of the subject matter of the said suit pending on the file of Trial Court. Thus according to petitioner, as he has parted with the consideration in the sum of Rs. 9,90,000/-, and he is put in possession, he is interested party in the suit and if he is not allowed to join as a party to the said suit, then his interest will be defeated, hence he is necessary party under Order 1 Rule 10 of CPC. Thus he has stated that the order passed by the Trial Court by which the Trial Court has rejected the application filed by the petitioner to implead him as a party defendant in the suit. 6. During the course of submissions, he placed reliance on the ruling reported in AIR 1958 Supreme Court, 886, a Full Bench judgment in the matter of Razia Begum versus Sahebzadi Anwar 4 Begum and placed reliance on the observations of para no.13 of the said judgment wherein it is observed by the Apex Court that which points require to be considered to see whether a particular party is a necessary party or not. After going through the facts of the citation, it appears that, the suit which was filed in the Trial Court against which the appeal is preferred is in the form of declaratory decree about the declaration, about the status of the parties and their right in the property. It further appears from the careful perusal of the facts of the citation that property in which the interest is claimed, the interest is jeopardized, then the parties whose interest will be affected is a necessary party under Order 1 Rule 10 of CPC. Thus one fact is clear that the ratio as laid down by the Apex Court is not applicable in the present case. Thereafter reliance is placed on the ruling AIR 1999 Supreme Court 976, a Full Bench judgment in the matter of Savitri Devi versus District Judge Gorakhpur and others. The facts which gave rise to file the Civil appeal is that the parties to the suit have filed the suit for maintenance and creation of charge on the ancestral properties. The question before the Trial Court as well as before the Appellate Court is that in the suit for maintenance, and the charge to be kept on the ancestral property, how to deal with the situation about part of the ancestral property parted with and those who are in possession of that part of the ancestral property, and the persons who are in possession of that ancestral property have an interest in the property on which the charge of the maintenance to be kept. In the premise, it is held by the Apex Court that purchasers are necessary parties under Order 1 Rule 10 of CPC. Thereafter, 5 reliance is placed on the ruling reported in 1994 Andhra Pradesh 50, in the matter of Adapa Venkateswra Rao and another versus Mohammad Suleman and others, wherein it is held that even in a suit for specific performance, another purchaser of the same property getting affected by the litigation, is a necessary party. Here it is to be noted that a purchaser of the property before filing of the suit for specific performance is a necessary party but if after the suit is filed and subsequent transaction took place about the alienation of the property was not the subject matter before the Single Bench, who delivered the judgment by which it is held that another purchaser of the same property if getting affected by the litigation is a necessary party even in a suit for specific performance. 7. While opposing these submissions, Advocate Mr.Dhananjay Deshpande directly placed his reliance on the ruling 1995(1) Mh.L.J. 893, in the matter of Shamrao Rajeshwarrao Potdukhe versus Gurukul Gruha Nirman Bhadekaru, wherein it is held by the Bench of this Court that in a suit for specific performance, the scope of the inquiry is limited to the agreement of which specific performance is sought, stranger to the contract can not be impleaded as party in the suit, he being neither a necessary nor property party, hence not covered under interested party under Order 1 Rule 10 of CPC. Further reliance is placed on the ruling reported in 2008 AIR SCW 3192, a Division Bench judgment in the matter of Bharat Karsondas Thakkar versus M/s.Kiran Construction Co. and 6 others about the observations in para no.21 of the judgment cited, wherein it is held while holding that the scope of a suit for specific performance could not be enlarged to convert the same into a suit for title and possession. A third party or a stranger to the contract could not be added so as to convert a suit of one character into a suit of a different character. 8. Advocates appearing for respondent no.2 and 3 supports the submissions of advocate for respondent no.1 and supports the order passed by the Trial Court. 9. While considering these submissions across the bar, I have to bear it in mind that the third party applicant is not a party to the agreement for which specific performance is asked for by the first respondent against respondent no.2 and 3. If he is not a party to the agreement for which the specific performance is asked for, then he is a stranger to that contract and not a necessary party in the suit for Specific Performance of Contract. 10. Apart from this, I have to bear it in mind that the third party transaction entered by the petitioner with the second respondent after the institution of the suit and not prior to institution of the suit, i.e. inspite of the status-quo order passed by the Trial Court in respect of the situation of the property, as the transaction entered into by the third party i.e. the petitioner to this writ petition with the second respondent is in breach of the status-quo order passed by the 7 Trial Court. Whether the action to be initiated under Order 39 Rule 2(a) of CPC for the dis-obedience of order passed by the Court as day in and day out inspite the interim orders are passed by this Court or by the Competent Court of Law, it is a developing tendancy in the society to float the orders of the Court and whether the Courts are not able to take any action against such dis-obedient citizens who are dis-obeying the orders of the Court. Respondent no.1 and 2 are at liberty to take the necessary action about this act of the petitioner during the pendancy of the suit. As it is not the subject matter of the writ petition, I am not dealing with it. 11. The fact remain u/s.52(C) of the Transfer of Property Act, which is known as lis-pendence. If any transaction took place by the third party with a party to the proceeding, the third party will get right of the party in whose shoes he placed himself as per the final decision in that proceeding and will not get any independent right from whom he is claiming the right. Thus the principle of lis- pendence will be applicable to the present transaction. Even though the third party petitioner have entered into a transaction of registered sale deed inspite of the specific prohibitory order of the Court, his title will depend upon the title of the party i.e. second respondent through whom he has claimed and not more than that. In the premise, considering the principle of lis-pendence as a right of the party who entered into a transaction during the proceeding before the competent Court of Law, such person is not a necessary party to the pending proceeding under Order 1 Rule 10 of CPC. 8 12. Apart from it, the fact remain whether there is any independent status to the petitioner third party applicant at the time of institution of the suit. Admittedly, the alleged creation of the interest in the property with the third party petitioner that right was accrued in him after the institution of the suit and not prior to the institution of the suit. In the premise, the alleged created interest was not a interest in jeopardy at the time of institution of the suit which will likely to be affected if the suit will proceed without impleading him as a party defendant. Thus the fact is clear that the petitioner is not a necessary party as contemplated under Order 1 Rule 10 of CPC. 13. Thus for these reasons, the writ petition is devoid of any merits and stands dismissed in limine at the stage of admission. The petitioner to pay the costs of this writ petition in the sum of Rs. 5,000/- to each respondent and to bear his own costs. Writ petition stands disposed of accordingly. The payment of costs is condition precedent. Two weeks time granted to deposit the costs. (A.V.POTDAR, J.) khs/wp7246-8