:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION CHAMBER CHAMBER CHAMBER SUMMONS NO. 773 OF 2007 SUMMONS NO. 773 OF 2007 SUMMONS NO. 773 OF 2007 IN IN IN SUIT SUIT SUIT NO. 289 OF NO. 289 OF NO. 289 OF 2006 2006 2006 Kamladevi Raychand Shah & Ors. ... Plaintiffs. V/s. Bhupendra Yashwant Ajinkya & Ors. ... Defendants. And M/s. Goyal Properties & Esttes Pvt. Ltd. & Anr. ... Respondents. Mr. A. Bookwala, Sr. Counsel i/b. M.L. Chaturvedi for the Plaintiffs. Mr. A.S. Rai for Defendant Nos. 1 to 5. Mr. Vijay Nair, Sr. Counsel a/w. N.J. Pandey a/w. Pankaj Shah for Respondent No.2. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 24TH 24TH 24TH FEBRUARY 2009. FEBRUARY 2009. FEBRUARY 2009. P.C. P.C. P.C. : : : . This is a Plaintiff’s Chamber Summons. 2. They seek leave to amend the plaint. The amendment includes Joinder of Respondent Nos.1 and 2 as Defendant Nos.9 and 10 (Proposed). Certain other averments and reliefs are sought to be incorporated as is clear from the Schedule to this Chamber Summons. 3. It is contended by the Plaintiffs that they have filed this Suit against the Original Defendants for declaration that an Agreement dated 21st September 1993 (Annexure ‘K’ to the plaint) executed between Defendant No.6 and the Original Plaintiffs in respect of the suit :2: property, more particularly described in paragraph 5 of the plaint, is valid, subsisting so also binding upon the parties to the Suit. The reliefs claimed are based upon the plea that all Defendants to the Suit are parties to the Suit Agreement and therefore, the reliefs be granted against them. 4. During hearing of an application for interim relief made vide Notice of Motion No.449 of 2006 in this Suit, it was stated by the Original Defendants to the Suit and more particularly Defendant Nos. 1 to 5 that they have entered into an Agreement in favour of Respondent No.1 The assertion was that third party interest in favour of this Respondent has been created. 5. After this statement was made and no ad-interim reliefs were granted, the Plaintiffs have moved this Chamber Summons. It is stated further that when earlier application for amendment to the plaint was made and that was for joining the legal heirs of original Plaintiff, a statement was made by Respondent No.1 that the property has been sold to a third party by executing a conveyance in favour of such a party. It is upon all these statements that the Plaintiffs sought clarifications. They were informed about a Deed of Conveyance executed by Defendant Nos.1 to 5 and Respondent No.1 in favour of Respondent No.2. It is in such circumstances, that joinder of Respondent No.2 to the Suit is claimed. :3: 6. The Chamber Summons is resisted by Respondent No.2 alone. Defendant Nos.1 to 5 and Respondent No.1 did not contest this Chamber Summons though duly served. There is no reply. Thus, the statements are uncontroverted. Similarly, the plaint averments are also to be taken into account. 7. It is stated that the plaint cannot be allowed to be amended as that would change the nature of the Suit from a Suit claiming specific performance of an Agreement of Sale of an Immovable property into a Suit on title in respect of the immovable property. Merely because the immovable property is common does not mean that Respondent No.2 is a necessary or proper party. It is contended that Respondent No.2 is not claiming the property from the Vendor of the Plaintiff. Respondent No.2 has acquired the rights from Respondent No.1 and Defendant Nos. 1 to 5. The Suit Agreement is between the Plaintiff and Defendant No.6. In such circumstances, there are distinct causes of action. If now Respondent No.2 is allowed to be impleaded, the nature of the Suit will undergo a change and that is impermissible in law. 8. Reliance is placed upon two decisions of the Hon’ble Supreme Court reported in AIR (2008) S.C. page 2134 (Bharat Karsondas Thakkar V/s. M/s. Kiran Construction Co. & Ors.) and (2005) 6 S.C.C. page 733 :4: (Kasturi V/s. Iyyamperumal & Ors.). 9. The decision reported in (2005) 6 S.C.C. page 733 (Kasturi V/s. Iyyamperumal & Ors.) is also referred to in the later decision. The Hon’ble Supreme Court has observed that necessary parties in a Suit for specific performance for contract of a sale are parties to the contract or if they are dead, their legal representatives as as as also also also a person who had purchased the contracted property a person who had purchased the contracted property a person who had purchased the contracted property from from from the vendor. the vendor. the vendor. It is stated that a purchaser is a necessary party as he would be affected if he has purchased with or without notice of the contract, but a person who claims adversely to the claim of a vendor, however, is not a necessary party. These observations were made by the Supreme Court after referring to the facts. The Appellant before the Supreme Court had filed the Suit for Specific Performance. He did not, even after receiving a notice of claim title and possession by Respondent Nos. 1 and 4 to 11, join them as party in the pending Suit. However, after referring to the facts in paragraph 3, the Hon’ble Supreme Court observed that Respondent Nos.1 and 4 to 11 making independent and adverse claim to the title of Respondent Nos.2 and 3 are neither necessary nor proper parties. They were not entitled to be joined as party Defendants. Pertinently, it is their application which was allowed and the Original Plaintiff was aggrieved by their Joinder. That is how, the observations have been made. However, at the same :5: time, the Supreme Court made reference to the decisions in the field and also held that Respondent Nos.1 and 4 to 11 had no direct and legal interest in the Suit for Specific Performance because they are not parties to the contract nor they claimed any interest from the parties in the litigation. 10. The later decision of the Supreme Court after making reference to all earlier decisions holds that if the nature of the Suit is completely changed from being a Suit for Specific Performance of an Agreement for Sale, to one for declaration for title and possession followed by prayers for Specific Performance of an Agreement for Sale, then, such amendments cannot be allowed. Once again, the observations made must be seen in the back-drop of the facts from which the matter came to the Supreme Court. The facts have been set out in paragraphs 2 to 6 and thereafter, the observations relied upon have been made. 11. What I find in the present case is that the Plaintiffs have filed the Suit in this Court for a declaration that the Agreement dated 21st September 1993 executed between Defendant No.6 and Original Plaintiff is valid, subsisting and binding upon all parties to the Suit and they be directed to specifically perform the same. Prayers (a) and (b) proceed on the basis of the substantive averments in the plaint. The substantive averments are that Defendant No.6 alone is not obliged to :6: perform the Agreement but Defendant Nos.1 to 5 as well as must do all such acts because these are matters which are necessary for the Agreement being performed specifically. Thus, Defendant Nos. 1 to 5 and 6 are being sued by the Plaintiffs as being parties to the Agreement for Sale and obliged to perform their obligations therein. it is another thing that the reliefs claimed may or may not be granted. Today is not possible to proceed on the assumption that the Plaintiffs have no cause of action against Defendant Nos.1 to 5. 12. It is Defendant Nos. 1 to 5 who have purportedly transferred the suit property to Respondent No.1 Thereafter, Defendant Nos.1 to 5 and Respondent No.1 have purportedly conveyed the same to Respondent no.2. In such circumstances, what the Plaintiffs seek now is that Defendant Nos.1 to 5 have purportedly and with a view to defeat their rights, transferred the property to Respondent No.1. Pertinently, Defendant Nos.1 to 5 and Respondent No.1 do not contest the Chamber Summons. There is no affidavit in reply filed on their behalf contesting or disputing the statements made by the Plaintiffs on affidavit. Therefore, very same property in which interest is claimed by the Plaintiffs and Respondent No.2 from the Original Defendants is subject matter of this Suit. In fact, to such a case, the principles in the Two Judge Decision of the Supreme Court in Amit Kumar Shaw v/s. Farida Khatoon reported in AIR 2005 SC 2209 would :7: squarely apply. In that decision the Supreme Court observes thus :- "(9) The object of Order 1 Rule 10 is to discourage contests on technical pleas, and to save honest and bona fide claimants from being non-suited. The power to strike out or add parties can be exercised by the Court at any stage of the proceedings. Under this Rule, a person may be added as a party to a suit in the following two cases : (1) When he ought to have been joined as Plaintiff or Defendant, and is not joined so, or (2) When, without his presence, the questions in the Suit cannot be completely decided. (10) The power of a Court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The question is whether the right of a person may be affected if he is not added as a party. Such right, however, will include necessarily an enforceable legal right. (14) An alienee pendente lite is bound by the final decree that may be passed in the Suit. Such :8: an alienee can be brought on record both under this rule as also under Order I Rule 10. Since under the doctrine of lis pendens a decree passed in the suit during the pendency of which a transfer is made binds the transferee, his application to be brought on record should ordinarily be allowed. (16) The doctrine of lis pendens applies only where the lis is pending before a Court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the Court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, whether the transfer is of the entire interest of the defendant, the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party; under Order XXII Rule 10 an alienee pendente lite may be joined as party. As already noticed, the Court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to :9: enable him to protect his interests. The Court has held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where the transferee pendente lite is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case." 13. One of the object and purpose that is served by the reliefs that are claimed in the Chamber Summons is avoiding multiplicity of litigation. That is an object and purpose in allowing amendment as well. If the very same property and the very same vendors are before the Court, then, there is no question of any adverse title or dispute regarding title of the property being brought within the framework of the Suit. The suit is filed claiming specific performance and continues to be such. Until and unless the Plaintiffs prove that the Defendants are bound and liable to specifically perform their agreement, there is no question of getting any relief in the Suit. They will have to prove their case but presently, the claim proceeds on the basis that all Defendants are parties to the Suit Agreement and bound and liable to perform the same. When during the pendency of such a Suit, the very parties purport to transfer or create third party rights, then, such persons in whose :10: favour rights are created have to be made parties so as to avoid multiplicity of proceeding. This is not a case where any adverse title would be gone into. This is neither a case of the Vendors being different and title adverse to them being raised and set up. 14. For all these reasons, there is no merit in the objections raised by Respondent No.2 and they are accordingly overruled. 15. The Chamber Summons therefore succeeds and is made absolute in terms of prayer clause (a). Amendment to be carried out within a period of two weeks from the date of receipt of a copy of this order. 16. However, it is clarified that all observations and finding are tentative and rendered for the purposes of the disposal of this Chamber Summons. They shall, in no way affect the outcome of the Suit which must be decided on the basis of the evidence led and arguments canvassed by parties. All rights and contentions including that of maintainability of the Suit are kept open. 17. At this stage, it is prayed that the order passed on this Chamber Summons be stayed for a period of six weeks. Mr. Bookwala, learned Counsel appearing for the Plaintiffs opposes the said request. Prayer for stay refused. Needless to state that, amendment even if :11: carried out, would always be subject to orders of the higher Court and merely because it is carried out in no way prejudices Respondent No.2 from challenging this order in Appeal. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)