1 6-cas-1836-2008.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION srj CIVIL APPLICATION NO. 1836 OF 2008 WITH CIVIL APPLICATION NO.1835 OF 2008 WITH CIVIL APPLICATION NO.1147 OF 2011 IN SECOND APPEAL NO.453 OF 2009 Smt. Shakuntala P. Sonawane .. Applicant V/s. Maimunabai B. Maniyar & Others .. Respondents. Mr. C. T. Chandratre, for the Applicant. Mr. H. S. Venegaonkar, for Respondent No.1. CORAM : G.S.GODBOLE, J. DATE : 30th AUGUST, 2011. P.C.: 1 Heard the learned Advocates for the parties. 2 For the purpose of hearing this Civil Applications and considering whether Applicants/Appellants should be granted leave to file Second Appeal or not, the presence of the other Respondents is not necessary. 2 6-cas-1836-2008.sxw 3 The facts leading to the filing of these proceedings are brief and the same are as under:- (a) Respondent No.1 claims that an Agreement for Sale dated 21st May, 1994 was executed in her favour by Defendant Nos.1 and 2 in Special Civil Suit No.184 of 1997 filed in the Court of learned Civil Judge, Senior Division, Niphad, namely Dhondopant M. Dokhale and Ramkrishna M. Dokhale. The suit was filed for specific performance on 5th December, 1997. Shri Suresh P. Sonawane, son of present Applicant/Appellant was impleaded as Defendant No.3. (b) All the Defendants filed joint Written Statement below Exhibit 17 and contended that the transaction was money lending transaction. They contended that Defendant Nos.1 & 2 and their brother Manik had agreed to sell the suit property to Defendant No.3. (c) Pending the suit on 13th January, 1998, the Applicant claims to have got a Sale Deed executed in her favour from the following persons:- (1) Pandurang N. Patil, (2) Vishnu N. Patil and (3) Janardhan N. Patil. 3 6-cas-1836-2008.sxw Copy of the Sale Deed is filed by the Applicant along with additional affidavit. Apart from Defendant Nos.1 and 2, their brother Manik M. Dokhale are also shown as consenting parties to the Sale Deed. 4 By Judgment and Order dated 28th April, 2000, the learned Civil Judge, Senior Division, Niphad partly decreed the suit and while declining to grant relief of specific performances, a decree for refund of earnest with interest was passed. This decree was challenged by the Original Plaintiff by filing Regular Civil Appeal No.71 of 2005 in the Court of the Additional District Judge, Niphad. By impugned Judgment and Order dated 5th November, 2007, the learned Ad-hoc District Judge-I, Niphad allowed the said Appeal and a decree for specific performance and permanent injunction was passed. 5 When this decree was put in execution by filing Regular Darkhast No.48 of 2008 in which the Applicant/Appellant was also impleaded as party; the Applicant/Appellant has filed Civil Application No. 1835 of 2008. The memo of Second Appeal was also filed along with said Application and though leave is yet to be granted; for statistical purposes, Office has numbered the Second Appeal. 6 Civil Application No.1836 of 2008 is filed for stay of the 4 6-cas-1836-2008.sxw impugned Judgment and Decree. Pending all these proceedings, Civil Application No.1147 of 2011 is filed for stay of further proceedings in Darkhast No.48 of 2008. 7 The learned Advocate for Applicant/ Appellant relied on the Judgment of the Division Bench of this Court in the matter of The Province of Bombay v/s. Western India Automobile Association, reported in AIR(36) 1949, Bombay – 141 and the Judgment of the Supreme Court in the matter of Smt. Jatan Kanwar Golecha v/s. M/s. Golecha Properties Pvt. Ltd, reported in AIR 1971, SC-374 in support of his submission that even a third party who is not a party to the proceedings, is entitled to file an Appeal, if a particular Judgment and Decree adversely affects its interest with leave of the Appellate Court and leave to file such an Appeal can be granted. 8 The learned Advocate for Respondent No.1 submits that Applicant/ Appellant has no locus standi to file Second Appeal and opposed the Application. 9 Since Appellant is claiming to be a purchaser of the same property, though it is contended by the Advocate for the Appellant/Applicant that the provisions of lis pendense under Section 52 of 5 6-cas-1836-2008.sxw the Transfer of Property Act, 1882 do not apply, as the Appellant has not purchased the suit property from any of the parties to the suit; since the Appellant has been impleaded as Judgment Debtor No.4 in the execution, the application filed by the Appellant for granting leave to file Second Appeal deserves to be granted. Accordingly, Civil Application No.1835 of 2008 is allowed in terms of prayer clause (a) only. 10 Since the Advocate for the Appellant and Respondent No.1 have been extensively heard even on the merits of the controversy, it is now necessary to consider whether the Appeal involves any substantial question of law warranting its admission. 11 The learned Advocate for Appellant advanced following submissions:- (a) The transfer in favour of the Appellant is not hit by Section 52 of the Transfer of Property Act, 1882, as there is no transfer by the parties to the suit. He accepts that the transfer is made by the Conveyance Deed dated 13th January, 1998 which is executed during the pendency of the earlier suit. The contention that the Vendors of the Appellant were not parties to the suit, is prima facie incorrect, at least in respect of Defendant Nos.1 and 2, on a bare perusal of the copy of the Conveyance Deed, which is filed 6 6-cas-1836-2008.sxw along with additional affidavit in this Court; though, the perusal of the said Conveyance shows that Defendant Nos.1 and 2 were consenting parties. The learned Advocate for Appellant submits that the said Defendant Nos.1 and 2 were not the owners of the suit property. However, that question cannot be gone into in the present Second Appeal. Since the decree is sought to be executed against Appellant, however, it will be open to the Appellant to show before the Executing Court, that Defendant Nos.1 and 2 who were Vendors in the original Agreement for Sale dated 21st May, 1994 had no title to the suit property and that aspect will have to be looked into by the Executing Court. (b) Reliance is placed on Order 22, Rule 10 of the Code of Civil Procedure, 1908, to contend that it was essential to implead the Appellant as a party in the suit for specific performance. This question will have to be decided in the context of the provisions of the Specific Relief Act, 1963 and the issue involved is to determine as to whether in a suit for specific performance of an agreement for sale, a subsequent purchaser is a necessary party. The learned Advocate for Appellant relied on the Judgment of learned Single Judge in the case of Pralhad J. Jawale & Others v/s. Sitabai C. Nikam & Others, reported Mah. L. J. 2011 (4), page-137. Perusal of the said Judgment shows that the conclusions drawn therein are in paragraph 28 which reads thus:- 7 6-cas-1836-2008.sxw (i) as far as right of impleadment of transferee pendente lite is concerned, what will bind this Court is what is held by the Apex Court in the case of Amit Kumar Shaw and anr. (supra); (ii) in view of the binding precedents of the Apex Court, the observation in clause (c) of paragraph No.30 that the provision of Rule 1 of Order XXXIX could be invoked only if protection provided by section 52 is shown to be inadequate cannot bind this Court. Even the observation in first part of clause (a) of paragraph No.30 that section 52 provides adequate protection to the parties from transfers pendent lite cannot be read as a binding precedent. In any event, in view of the law laid down by the Apex Court, it cannot be said that provisions of section 52 of the said Act of 1882 in any manner put fetters on the powers of Civil Court conferred by Rules 1 and 2 of Order XXXIX of the said Code. As stated earlier, in a given case, while exercising discretionary powers, the Court can always come to the conclusion in peculiar facts of the given case, that in any event, in view of the law laid down by the Apex Court, it cannot be said that provisions of section 52 of the said Act of 1882 in any manner put fetters on the powers of Civil Court conferred by Rules 1 and 2 of Order XXXIX of the said Code. As stated earlier, in a given case, while exercising discretionary powers, the Court can always come to the conclusion in peculiar facts of the given case, that in view of provisions of section 52 of the said Act of 1882, equitable relief of temporary injunction need not be granted.” 12 The ratio of Judgment of the Supreme Court in the case of Amit Kumar Shaw and another v/s. Farida Khatoon and another, reported in 2005(3) Mh.L.J.(SC)330-(2005) 11 SCC-403, has been reproduced in paragraph 19 of the Judgment of learned Single Judge which reproduces paragraphs 15 and 16 of the Supreme Court Judgment in the case of Amit Kumar Shaw which read thus:- 8 6-cas-1836-2008.sxw Para-15:- Section 52 of the Transfer of Property Act is an expression of the principle "pending a litigation nothing new should be introduced". It provides that pendente lite, neither party to the litigation. In which any right to immovable property is in question, can alienate or otherwise deal with such property so as to affect his appointment. This section is based on equity and good conscience and is intended to protect the parties to litigation against alienations by their opponent during the pendency of the suit. In order to constitute a lis pendens, the following elements must be present: 1. There must be a suit or proceeding pending in a Court of competent jurisdiction. 2. The suit or proceeding must not be collusive. 3. The litigation must be one in which right to immovable property is directly and specifically in question. 4. There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation. 5. Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order. Para-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 9 6-cas-1836-2008.sxw 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 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 The argument of the learned Advocate for Appellant to the effect that Appellant was a necessary party in the suit and that non impleadment of the Appellant will allegedly vitiate the decree will have to be considered in this context. Though, the ratio of the Judgment of the Supreme Court, as observed in paragraph 19 of the Judgment of the learned Single Judge, shows that it would be desirable to implead the pendente lite purchaser as a party Defendant in the suit; it cannot be held that said party is a necessary party. At best, the said third party purchaser can be a proper party and it is discretion of the Court to consider impleadment. In fact, the learned Single Judge has further observed in paragraph 20 that :- “ there cannot be any dispute about the proposition of law that transferee pendente lite is not required to be impleaded as a party by the plaintiff and that he is bound by the decree, which will be eventually passed in the suit. However, as far as right of impleadment of such transferee is concerned, what will bind this Court is what is held by the Apex Court in the case of Amit Kumar Shaw and anr. (supra)”. 14 In the present case, no such application was filed by the 10 6-cas-1836-2008.sxw Appellant, despite the fact that suit was filed in the year 1997, wherein her son was Defendant No.3, contested the suit on merits and remained absent in the District Court in the Appeal filed by the Plaintiff. Thus, the aforesaid Judgments- one of the Supreme Court in the case of Amit Kumar Shaw (supra) followed by the learned Single Judge of this Court (A.S.Oka,J.) in the case of Pralhad v/s. Sitabai (supra) are of no assistance for accepting submissions advanced by the Advocate for the Appellant. 15 The learned Advocate for the Appellant relied upon the Judgment of Punjab-Haryana High Court in the matter of Gajraj v/s. Karamjeet Singh and Others, reported in (2008), 149-PLR-77. Paragraph 5 of the said Judgment was relied upon. The said observations will not be of any assistance for the submission that the Appellant was a necessary party to the suit. 16 It is lastly contended that decree passed by District Court has been obtained by collusion. But no material has been placed on record, even in the memo of Second Appeal, to support this submission. 17 It is finally argued that the provisions of Sections 16 and 20 of the Specific Relief Act, 1963 are not considered by the Appellate Court. It is difficult to accept this argument in view of the discussion made in 11 6-cas-1836-2008.sxw paragraphs 10 to 13 of the Judgment of the District Court. Even the Trial Court has recorded the finding of the fact regarding existence of agreement for sale and refusal on the part of Defendant Nos.1 and 2 to perform their part of contract; but specific performance was declined on account of the finding on the question of readiness and willingness which has been reversed by the Appellate Court. These are pure findings of facts and do no require any interference. No substantial question of law arises. Second Appeal is dismissed. 18 On account of dismissal of the Second Appeal, Civil Application Nos.1836 of 2008 and 1147 of 2011 do not survives and same are also dismissed. (G.S.GODBOLE, J.)