1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3107 OF 2009 1. Karan Tej Paramount Properties ] Pvt. Ltd. ] ] 2. Paramount Gavrav Shelters Pvt.Ltd] Through, Director of both the ] Companies, ] ... Petitioners Shri.Pramod Madhukar Waghmare] Age – 36 years, Occupation - ] Business, R/at. G 702, Rohan ] Nilay, Aundh, District – Pune. ] Versus 1. Anand Ganpat Waghmare, ] Age – 45 years, Occu.-Agriculturist] R/at. Wakad, Taluka – Mulshi, ] District – Pune. ] ] 2. Madhav Raghunath Waghmare, ] Age -56 years, Occu.-Agriculturist, ] R/at-Wakad, Taluka – Mulshi, ] District – Pune. ] ] 3. Smt.Dwarkabai Shantinath ] Waghmare, Age – 62 years, ] Occu.-Agriculturist, ] R/at-Wakad, Taluka – Mulshi, ] District – Pune. ] ] 4. Vishwanath Shantinath Waghmare] Age–39 years, Occu.-Agriculturist, ] 2 R/at-Wakad, Taluka – Mulshi, ] District – Pune. ] ] 5. Vinayak Shantinath Waghmare, ] Age-32 years,Occu.-Agriculturist, ] R/at-Wakad, Taluka – Mulshi, ] District – Pune. ] ] 6. Mrs.Yashodabai Vijay Kambale, ] Age -Adult, Occu.-Agriculturist, ] R/at. Patraychi Chawl, ] Bhawani Peth, Pune. ] ] 7. Smt.Leelabai Haribhau Dolas, ] Age -55 years, Occu.-Agriculturist, ] R/at. Bhosarigaon, Ashoknagar ] Near Dolas Talim, Bhosari, Pune. ] ] 8. Miss Usha Shantinath Waghmare, ] Age -Adult, Occu.-Agriculturist, ] R/at-Wakad, Taluka – Mulshi, ] District – Pune. ] ] 9. Shakuntalal Kashinath Chavan, ] Age – Adult, ] R/at.288, Mangalvar Peth, ] Bhimnagar, Pune – 411 011. ] ] 10. Smt.Kamal Ganpat Waghmare @ ] Kamal Nandu Shinde ] (since deceased through legal ] heirs and representatives) ] ] a) Nandu Narayan Shinde ] Age-48 years., ] Occupation – Business, ] R/at.64/7, Sector No.28, ] Ganganagar, Pradhikaran, ] 3 Pune – 411 004. ] ] b) Vijay Narayan Shinde, ] Age -32 years, ] Occupation – Service, ] R/at.64/7, Sector No.28, ] Ganganagar, Pradhikaran, ] Pune – 411 004. ] ] c) Rajesh Narayan Shinde, ] Age – 28 years, ] Occupation – Service, ] R/at.64/7, Sector No.28, ] Ganganagar, Pradhikaran, ] Pune – 411 004. ] ] d) Neeta Kiran Gaikwad, ] Age – 25 years, ] Occupation – Housewife, ] R/at.64/7, Sector No.28, ] Ganganagar, Pradhikaran, ] Pune – 411 004. ] ] 11. Jagannath Krishnaji Deore, ] Age – 60 years, ] Occupation – Agriculturist, ] R/at. 56, Pavana Nagar, ] Chinchvad, Pune – 411 030. ] Mr.P.K.Dhakephalkar, Senior Advocate a/w. Mr.S.R.Ganbavale for the Petitioners. Mr.A.M.Adagule i/b. Mr.Rahul P.Walvekar for Respondent Nos. 1,3 to 9. Mr.R.S.Apte, Senior Advocate a/w. Mr.P.G.Chavan for Respondent No.11. 4 CORAM : A.S. OKA, J. DATE : 16 th OCTOBER, 2009 JUDGMENT : The Petition was taken for final disposal on the earlier date. I have heard the submission of the learned senior counsel appearing for the Petitioners, the learned senior counsel appearing for Respondent No.11 and the learned counsel appearing for Respondent Nos.1 and 3 to 9. The challenge in this writ Petition under Article 27 of the Constitution of India is of the order dated 24 th October, 2008 passed by the Appellate Court on application made by the Petitioner at Exhibit 41. By the said application, a prayer made by the Petitioners for impleading themselves as parties to the Appeal. By the impugned order, the said prayer has been rejected. 2. The eleventh Respondent is the original Plaintiff and rest of the Respondents are the Defendants. The suit was filed by the eleventh Respondents claiming specific performance of 5 agreement for sale dated 21 st June, 1987 executed by the first and second Defendants (first and second Respondents herein) as well as the legal representative of the third Defendant (Respondent Nos. 3 to 8 herein). The suit properties are described in paragraph 1 of the plaint. The Respondent Nos. 9 and 10 were impleaded as parties as their names were reflected in the revenue records. The suit agreement is dated 21 st June, 1987 and the suit was filed on 17 th November, 1995. The suit was contested and by Judgment and decree dated 14 th March, 2007, a decree for specific performance was passed in favour of the 11 th Respondents. An appeal was preferred by 1 st to 3 rd to 7 th Defendants before the District Court in which the application at Exhibit 41 was moved by the Petitioners. In the application at Exhibit 41 made by the Petitioners, it is contended that the Appellants in the Appeal, during the pendency of the suit, transferred development rights in respect of the suit property in favour of the Devi Sneh Park Co-operative Housing Society by executing four separate agreements in the year 1988 and 1989. It is further stated that the said Society executed a development 6 agreement dated 24 th March, 2005 in favour of M/s.Sneh Constructions. In paragraph 12 of the application, it is stated that by separate sale deeds dated 29 th December 2006 which were duly registered, the Appellants in the Appeal transferred the suit property in favour of the first Petitioner. It is alleged that the first Petitioners alongwith M/s. Sneh Construction transferred the development rights by way of a registered development agreement dated 8 th August, 2006 in favour of the Petitioners herein. By an order dated 11 th October, 2007, the Appellate Court allowed the said application. A Writ Petition was filed by the 11 th Respondent in this Court. In the said writ petition, by setting aside the said order, this Court directed the Appellate Court to reconsider the application. By the impugned order dated 24 th October, 2008, the learned District Judge rejected the application made by the Petitioners. The application was rejected on the ground that though in the application made by the Petitioners it is contended that the Appellants executed a sale deed in favour of the Petitioners, the same has not been produced on record and what has been produced is a copy of 7 development agreement dated 8 th August, 2006 executed by M/s.Sneh Constructions in favour of the Petitioners. The second ground on which application was rejected is that notices of lis pendens were registered in the year 1996 and 2001 and a note was taken in the 7 X 12 extracts of the pendency of the suit. The learned Judge relied upon the decision of Apex Court in the case of Amit Kumar Shaw and another Vs. Farida Khatoon and another (2005) 11 SCC 403 and came to the conclusion that the Petitioners are not the bonafide purchasers in view of the registration of lis pendens. 3. The learned senior counsel appearing for the Petitioners invited my attention to the documents on record. He submitted that the owners of the suit property, namely, Defendant Nos. 1 to 9 had executed development agreement in favour of Devi-Sneh Park Co-Operative Housing Society Limited (hereinafter referred to as “the said Society”). He pointed out that the said society by executing a registered agreement dated 25 th March, 2005 in favour of M/s.Sneh Constructions has 8 assigned the development rights in respect of the suit property. He pointed out that by registered sale deeds, the owners (the Defendant Nos. 1 to 9) transferred the suit property in favour of the said Society. He pointed out that the Petitioners are claiming on the basis of a registered development agreement dated 8 th August, 2006 executed by M/s.Sneh Constructions in their favour to which the owners and the said Society are confirming parties. He submitted that the view taken by the Apex Court in the case of Kasturi V/s. Iyyamperumal & Others (2005) 6 S.C.C. 733 has been explained in the subsequent decision of the Apex court in the case of Sumtibai and Others V/s.Paras Finance Company & Others (2007) 10 SCC 82. He submitted that the Apex Court has held that the decision in the case of Kasturi (Supra) will apply only in a case where the third party applicant had no semblance of title in the property in dispute. He submitted that by the said decision, the Apex court has said that said decision in the case of Kasturi will not apply where the third party shows a semblance of title or interest in the suit property. He submitted that the Petitioners are holding a property under a 9 registered development agreement to which the owners are parties and the owners have executed a power of attorney in their favour and therefore, it can be certainly said that the Petitioners have a semblance of title. He submitted that in view of the decision of Amit Kumar (Supra) normally the Petitioners would be entitled to be impleaded as parties as the appellants are no longer not interested in the suit property and may not property prosecute the Appeal. 4. The learned senior counsel appearing for the 11 th Respondent submitted that the Petitioners have entered into a development agreement after the notice of lis pendens was registered. Moreover, Petitioners initially claimed that the first Petitioner is a purchaser under the sale deed executed by the owners and the said fact could not be established. He submitted that obviously the Petitioners cannot be termed as bonafide purchasers. He further submitted that no interference is called for. 10 5. Before considering the legal submissions made by the learned counsel appearing for the parties, the admitted factual position will have to be borne in mind. As stated by the learned senior counsel appearing for the Petitioners, they are claiming on the basis of a registered development agreement executed on 8 th August, 2006 in their favour by M/s.Sneh Constructions to which the said Society and the Defendants in the suit are parties. Therefore, the Petitioners are claiming to be the developers on the basis of the development agreement and not on the basis of any sale deed. 6. It must be noted here that the suit was filed on 17 th November, 1995 which was decreed on 14 th March, 2007. The appeal appears to have been filed on 21 st November, 2007. The transaction on which the Petitioners are relying upon has admittedly taken place during the pendency of the suit. No doubt, it is sought to be contended that the Defendants while executing agreements for development in the year 1988 and 1889 in favour of the said Society did not disclose that the suit 11 was pending. The said Society executed a development agreement in favour of M/s.Sneh Constructions on 24 th March, 2005. The sale deeds were executed by Defendants in favour of the said Society on 29 th December 2006 during the pendency of the suit and the development agreement on which the Petitioners have placed reliance is again executed during the pendency of the suit on 8 th August, 2006. Another important factual aspect which will have to be noted is registration of notice of lis pendens. The first notice of lis pendens appears to have been registered on 13 th September, 1996 and the second one appears to have been registered on 24 th October, 2001. There is no dispute about the registration of the aforesaid notice of lis pendens as on pages 628 to 637 of the Petition, a xerox copy of the certified copy of notice of lis pendens registered on 24 th October, 2001 has been annexed alongwith receipt of fees issued by the Sub-Registrar in the name of Respondent No.11. A xerox copy of the certified copy of the earlier notice of lis-pendens registered on 13 th September, 1996 is also a part of the petition on page Nos.638 to 639. The Appellate Court in the impugned 12 order has referred to the said notices. The Appellate Court has made a reference that 7 X 12 extracts at Exhibit 112 and 113 of the suit property which show the entry regarding pendency of the suit. When this Judgment is being dictated, the learned Advocate on record for the Petitioners submitted that there is specific challenge in the writ Petition to the factum of registration of notice of lis pendens. He pointed out that the index register maintained by Sub-Registrar does not show as to who registered lis pendens notices. It must be noted here that the said submission was not canvassed by the learned senior counsel for the Petitioner when this Petition was heard. Apart from this, the certified copies of notices of lis pendens have been placed on record of the Appellate Court and xerox copies thereof have been annexed to this petition itself. Perusal of impugned order shows that no submission has been made before the Appellate Court that the certified copies are fabricated. The only contention raised in this Petition which is not canvassed at that time of hearing is that in the index register, the signature of the person who allegedly registered the notice does not appear. 13 There is no challenge to the fact that the lis pendens notices were lodged and registered. Moreover, the Appellate Court has referred to a public notice of pendency of suit and 7 X 12 extracts in respect of the suit property containing entry of notice of lis pendens registered by the Respondent No.11. 7. Thus, the transaction of development agreement entered into by the Petitioners is certainly after registration of notice of lis pendens and during the pendency of the suit. Apart from this, there is a finding of the fact recorded by the Appellate Court based on the documentary evidence of the notices of lis pendens, public notice and entries of lis pendens in the revenue record that the Petitioners are not the bonafide purchasers. 8. Now, turning back to the averments made in the application at Exhibit 41, it must be noted that in paragraph 12, the Petitioners have specifically claimed that the Appellants in the Appeal executed the sale deeds dated 24 th October, 2006 in 14 favour of the first Petitioner. The said factual contention is found to be totally incorrect as admittedly there is no such sale deed. It is further alleged that the first Petitioner alongwith M/s.Sneh Constructions executed an agreement for development. Moreover, in this petition the Petitioners have claimed rights only on the basis of the development agreement dated 8 th August, 2006. It is not the case made out in the application at Exhibit 41 that the Petitioners are bonafide purchasers without notice of the pendency of the suit. It is not the case of the Petitioners that before entering into the agreement they investigated into title by taking search. Apart from the fact that the Petitioners are not the purchasers but are claiming rights on the basis of a development agreement, by taking the averments made in the application at Exhibit 41 as it is, no case is made out that they are bonafide purchasers. These two factual aspects viz., that the factually incorrect statement was made in paragraph 12 in the application as Exhibit 41 and the fact that the Petitioners cannot be the bonafide purchasers have been noted in the impugned order in paragraph Nos.13 and 14 thereof. Considering this 15 conduct of the Petitioners, this is not a case where the impugned order cannot be interfered with in exercise of the extra-ordinary jurisdiction under Article 227 of the Constitution of India. 9. It will be necessary to consider the legal submissions made by the learned senior counsel for the Petitioner. In the case of Kasturi (Supra), in paragraph 1 of the decision, the Apex court has noted the question which arose before it. Paragraph 1 of the said decision, reads thus : “ The only question that needs to be decided in this case is whether in a suit for specific performance of contract for sale of a property instituted by a purchaser against the vendor, a stranger or a third party to the contract, claiming to have an independent title and possession of the contracted property, is entitled to be added as a party/defendant in the said suit.” 10. Thus, the issue before the Apex Court was whether in a suit for specific performance of contract for sale of immovable property, a stranger or a third party who was claiming to have an independent title and possession of the contracted property is 16 entitled to be added as a party to the suit. Thus, the Apex Court was not dealing with a case where a third party was claiming to be a purchaser through the defendant-vendor on the basis of a transaction made during the pendency of the suit. In paragraph 15 of the said decision, the Apex Court has observed that a third party or a stranger to the contract cannot be added so as to convert a suit of one character into a suit of different character. In paragraph 16, the Apex Court observed that if addition of a third party claiming an independent title is allowed, it would lead to a complicated litigation by which the trial and the decision will involve of serious questions which are totally outside the scope of the suit for specific performance. In paragraph 17, the Apex Court observed thus : “17. That apart, there is another principle which cannot also be forgotten. The appellant, who has filed the instant suit for specific performance of the contract for sale is dominus litus and cannot be forced to add parties against whom he does not want to fight unless it is a compulsion of the rule of law, as already discussed above.” 17 11. The issue of impleading a purchaser who is claiming through Defendants in a suit for specific performance on the basis a document subsequent to the suit transaction did not arise for consideration before the Apex Court. The Apex Court has considered a case where a stranger to the suit agreement claiming an independent right applies for impleadment in a suit for specific performance of such agreement. In this context the observations of the Apex Court in the case of Sumatibai and Ors. (Supra) will have to be understood. In paragraph 9 of the said decision, the Apex Court has observed thus : “ In our opinion, the aforesaid decision is clearly distinguishable. In our opinion, the aforesaid decision can only be understood to mean that a third party cannot be impleaded in a suit for specific performance if he has no semblance of title in the property in dispute. Obviously, a busybody or interloper with no semblance of title cannot be impleaded in such a suit. That would unnecessarily protract or obstruct the proceedings in the suit. However, the aforesaid decision will have no application where a third party shows some semblance of title or interest in the property in dispute. In the present case, the registered sale deed dated 12-8-1960 by which the property was purchased shows that the shop in dispute 18 was sold in favour of not only Kapoor Chand, but also his sons. Thus prima facie it appears that the purchaser of the property in dispute was not only Kapoor Chand but also his sons. Hence, it cannot be said that the sons of Kapoor Chand have no semblance of title and are more busybodies or interlopers.” In the case before the Apex Court, a suit for specific performance was filed by the Respondent-vendor for specific performance of agreement for sale executed by one Kapoor Chand who claimed that the suit property was his self acquired property. During the pendency of the suit, the said Kapoor Chand died. His sons applied alongwith his wife to be brought on record under Order XXII Rule 4(2) read with Rule 10 of Order I and claimed right to file written statement. The said application was rejected by impugned order. The sons of Kapoor Chand did not claim only to be the heirs but they claimed to be the co-owners of the property alongwith Kapoor Chand. Thus, the third parties before the Apex Court were claiming independent rights as co-owners and not through the vendor-defendant. Therefore both the decisions considered above may not be significant in so far as 19 controversy in this petition is concerned. 12. In the case of Amit Kumar Shaw (Supra), the Apex Court held that a Plaintiff is under no obligation to make a lis- pendens transferee as a party. However, the Court can consider the case of such transferee under Rule 10 of Order I of the said Code. The Apex Court observed that it is again a discretion of the Court to implead such a party. The Apex Court observed that the object of Rule 10 of Order I is to save honest and bonafide claimants from being non suited. 13. In the case of Bibi Zubaida Khatoon V/s. Nabi Hassan Saheb & Anr. (2004) 1 SCC 191, the Apex Court held that though normally a joinder based on transfer pendente lite is permitted to enable the transferee to protect his interest, the Court was justified in rejecting such a prayer where alienations prima facie did not appear to be bonafide. As the transfer allegedly claimed by the Petitioners is hit by lis pendens, in any case, the Petitioners will be bound by the decree which may be 20 passed in the suit. On this aspect, it will be necessary to consider the decision of the Apex court in the Case of Sanjay Varma V/s. Manik Roy & Others (2006) 13 S.C.C.608 in paragraph 12, the Apex Court held thus : “12. The principles specified in Section 52 of the TP Act are in accordance with equity, good conscience or justice because they rest upon an equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. A transferee pendente lite is bound by the decree just as much as he was a party to the suit. The principle of lis pendens embodied in Section 52 of the TP Act being a principle of public policy, no question of good faith or bona fide arises. The principle underlying Section 52 is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject-matter of the suit. The section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the Court.” 14. A transferee pendente lite is bound by the decree 21 just as much as he was a party to the suit. In the case of Guruswamy Nadar V/s. P.Lakshmi Ammal & Ors ((2008) 5 SCC 796) the Apex Court in paragraph 13 as under : “Normally, as a public policy once a suit has been filed pertaining to any subject-matter of the property, in order to put an end to such kind of litigation, the principle of lis pendens has been evolved so that the litigation may finally terminate without intervention of a third party. This is because of public policy otherwise no litigation will come to an end. Therefore, in order to discourage that same subject-matter of property being subjected to subsequent sale to a third person, this kind of transaction is to be checked. Otherwise, litigation will never come to an end.” 15. Though no authority is required for this proposition, in the case of (1996(2)Mh.L.J.885), this Court held that a suit for specific performance of a contract of transfer of immovable property operates as lis pendens and consequently when such a suit for specific performance ends in a final decree, a subsequent transfer of title, relates back to the date of agreement on which the suit is based and the Court will not permit the decree to be rendered nugatory by intermediate conveyances. 22 16. Therefore, this is a case where even going by the averments made by