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MANU/TN/2783/2013

Equivalent Citation: 2014-1-LW519

IN THE HIGH COURT OF MADRAS

C.R.P.(PD) 1507 of 2010

Decided On: 17.12.2013

Appellants: Yasodha
Vs.
Respondent: V.G.P. Housing (Private Limited) rep. by its Managing Director, Thiru G.
Santhosam and Ors.

Hon'ble Judges/Coram:
K. Kalyanasundaram, J.

Counsels:
For Appellant/Petitioner/Plaintiff: Mr. S. Mohammed Azaad for S.T.S. Murthi

For Respondents/Defendant: Mr. K. Balamurali for R1 to R6 for Shivakumar and


Suresh

Subject: Contract

Subject: Property

Acts/Rules/Orders:
Code of Civil Procedure, 1908 (CPC) - Order XXII Rule 10

Disposition:
Petition allowed

Citing Reference:

Discussed 1

Mentioned 1

ORDER

K. Kalyanasundaram, J.

1. This civil revision petition is directed against the order dated 9.2.2010 passed by
the Sub Judge, Perundurai, in I.A. No. 91 of 2009 in O.S. No. 12 of 2009. The
petitioner is a third party to the suit in O.S. No. 127 of 2009 on the file of Sub Court,
Perundurai. The respondents 1 to 6 herein had filed the suit for specific performance
of the agreements dated 22.5.2000 and 2.5.2003, against respondents 6 to 9 herein.
In the suit, the petitioner filed an application in I.A. No. 118 of 2009 for impleading,
contending that the third defendant in the suit, namely, Mrs. Parimalam, had
executed a settlement deed, dated 15.5.2008, in his favour. So, as per the settlement
deed, he became owner of the suit property and he has been in possession and
enjoyment of the property as absolute owner. The respondents 1 to 6 herein had filed
their counter stating that the settlement deed must be a sham and nominal document

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and it is hit by lis pendens, so, the petitioner is not a necessary and proper party to
the suit. The learned Sub Judge, Perundurai, dismissed the petition. Aggrieved by the
said order, the present revision is filed.

2. Heard Mr. S. Mohammed Azaad, learned counsel for the petitioner and Mr. K.
Balamurali, learned counsel for R1 to R6.

3. The learned counsel for the petitioner submitted that admittedly the third
defendant in the suit, namely, Mrs. Parimalam, was the owner of the property, as per
the Will executed by Mrs. Muthayammal, in her favour. Subsequently, the third
defendant had executed a registered settlement deed in favour of the petitioner on
15.5.2008 and the same was accepted and acted upon. The learned counsel further
argued that as on date, the petitioner has been in possession and enjoyment of the
property. So, the petitioner is a proper and necessary party to the suit and even a
transferee pendente lite, is a necessary party. The learned counsel has relied on the
judgments of the Honourable Apex Court as well as this Court reported in (i)
MANU/SC/0058/2004 : 2004 (2) SCC 601-Raj Kumar v. Sardari Lal and Others, (ii)
MANU/SC/0284/2005 : (2005) 11 SCC 403-Amit Kumar Shaw and another v. Farida
Khatoon and another, (iii) MANU/SC/0192/2013 : 2013 (5) SCC 397-Thomson Press
(India) Limited v. Nanak Builders and Investors Private Limited and Others, (iv)
MANU/TN/2451/2010 : (2011) 3 MLJ 251-K.P. Rajendran and another v. N.R.
Nachimuthu and Others and (v) (2011) 3 MLJ 452 M.K.M. Mohammed Nazar and
Others v. R.A. Venugopal (Died) and Others.

4. Per contra, the learned counsel for the respondents 1 to 6 has submitted that the
plaintiffs have not entered into any agreement or contract with the petitioner and the
suit is filed only against the parties to the agreement. The petitioner is claiming right
only through the third defendant in the suit and the third defendant had already filed
her written statement and she was effectively contesting the case. The learned Sub
Judge has considered the entire aspect and dismissed the application rightly, which
does not warrant interference by this Court.

5. The learned counsel for the respondents relied on the judgments of the Honourable
Apex Court reported in (i) CDJ 1994 SC 375-Anil Kumar Singh v. Shivnath Mishra alias
Gadasa Guru, (ii) MANU/SC/0319/2005 : (2005) 6 SCC 733-Kasturi v. Iyyamperumal
and Others, (iii) MANU/SC/7476/2008 : (2008) 13 SCC 658 Bharat Karsondas
Thakkar v. Kiran Construction Company and Others and (iv) MANU/SC/0427/2010 :
(2010)7 SCC 417-Mumbai International Airport Private Limited v. Regency Convention
Centre and Hotels Private Limited and others to substantiate his contention that third
parties to the agreement for sale are not necessary and proper parties and they
cannot be impleaded in a suit for specific performance.

6. In the recent judgment of the Honourable Apex Court reported in


MANU/SC/0192/2013 : 2013 (5) SCC 397-Thomson Press(Inia) Limited v. Nanak
Builders and Investors Private Limited and Others, it has been held as follows:

57.1. The appellant is not a bona fide purchaser and is, therefore, not
protected against specific performance of the contract between the
plaintiffs and the defendant owners in the suit.

57.2. The transfer in favour of the appellant pendente lite is effective in


transferring title to the appellant but such title shall remain subservient to
the rights of the plaintiff in the suit and subject to any direction which the
Court may eventually pass therein.

57.3. Since the appellant has purchased the entire estate that forms the
subject-matter of the suit, the appellant is entitled to be added as a party-
defendant to the suit.

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57.4. The appellant shall as a result of his addition raise and pursue only
such defences as were available and taken by the original defendants and
none other.

7. In the judgment in MANU/SC/0284/2005 : (2005)11 SCC 403-Amit Kumar Shaw


and another v. Farida Khatoon and another, the Supreme Court has held has follows:

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, where 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 22 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 enable him to protect his interests.
The 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 his predecessor-in-interest is made a party to the
litigation; he is entitled to be heard in the matter on the merits of the case.

8. The same view has been taken in the judgment reported in MANU/SC/0058/2004 :
2004(2) SCC 601-Raj Kumar v. Sardari Lal and Others.

9. In the light of the recent judgment of the Honourable Apex Court, even the
pendente lite transferee is entitled to be impleaded as party to the suit filed, for
specific performance, by the respondents 1 to 6 herein. Hence, the order passed in
I.A. No. 91 of 2009 is set aside and the I.A. is allowed. In the result, the civil revision
petition is allowed. No costs. Consequently, connected miscellaneous petition is
closed.

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