2014 Supreme(Bom) 2083

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
MOHIT S. SHAH, M.S. SONAK, JJ.
Nitin Gandhi & Anr. - Appellants
Vs.
Dinyar Pheroz Dubash & Ors. - Respondents
Appeal No. 42 of 2014 in Chamber Summons No. 2087 of 2011 in Suit No. 1241 of 2007 with Notice of Motion No. 2308 of 2007 with Notice of Motion No. 537 of 2014
Decided on: 9th October, 2014

Headnote:Civil Procedure Code, 1908 - Order VII, Rule 11 Rejection of plaint. Since plea that there is futility in allowing amendment of plaint is not tenable hence application for rejection of plaint liable to be rejected.

       Specific Relief Act, 1963 - Section 19(b) Term "bona fide purchaser". A purchaser, purchasing a property without notice, actual or constructive of any adverse rights, claims, interest or equities of other in property sold, is a bona fide purchaser. There is no requirement of producing any material or evidence for establishing that the subsequent purchaser is not a bona fide purchaser, at the stage when leave for impleadment/consequential amendments is being applied for. As noted earlier, the expression `bona fide purchaser’ means and implies a purchaser who purchases a property without notice, actual or constructive of any adverse rights, claims, interest or equities of other in and to the property sold. Therefore, at the stage of seeking leave to implead/carry out consequential amendment, there was no question of adverting to any evidence or the lack of it in determining whether the subsequent purchaser was indeed a bona fide purchaser for value and without notice of the original contract.

       Specific Relief Act, 1963 - Section 19(b) Civil Procedure Code, 1908, Order I, Rule 10, Order VI, Rule 17 Suit for specific performance. In a suit for specific performance, when a subsequent purchaser is sought to be impleaded, true that to be applied by Court, stated. The decision of the Supreme Court in the case of Sopan Sukhdeo Sable and others v. Assistant Charity Commissioner, (2004) 3 SCC 137 : 2004 (5) All MR 360 (SC), to contend that the reading of the plaint has to be meaningful and not merely formal. Further, upon such meaningful reading of the plaint, if no cause of action is disclosed as against the subsequent purchaser, then no useful purpose would be served by grant of leave to implead and amend.

       There is no dispute regards the proposition that the reading of plaint, in the context of the provisions of Order VII, Rule 11 of the CPC, has to be meaningful and not merely formal. However, the very same decision also lays down that there cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without any addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. The real object of Order VII, Rule 11 of the Code is to keep out of Courts irresponsible law suits. As Court has already noted, the pleadings in the present case are quite sufficient, particularly since the onus of proving good faith is on the purchaser who takes the plea that he is an innocent purchaser.

       Specific Relief Act, 1963 - Section 19(b) Civil Procedure Code, 1908, Order VI, Rules 2 and 11 Suit for specific performance. While seeking impleadment of subsequent purchaser in a suit for specific performance, through amendment, pleadings to effect that subsequent purchaser is not a bona fide purchaser is sufficient. The pleadings in the context of the proposed amendment have therefore to be construed in the light of legal position that the protection afforded to the subsequent purchaser by Section 19(b) of the said Act is in the nature of an exception to the general rule and therefore, the onus of proving good faith is on the purchaser who takes the plea that he is an innocent purchaser. Ultimately, good faith is also question of fact to be considered and decided on the facts of each case. For this purpose, an opportunity has to be afforded to the parties to lead evidence in the course of trial. Court is, therefore, unable to share the view taken by the Single Judge that in the facts and circumstances of the present case there were insufficient pleadings or evidence on the aspect of the subsequent purchaser not being a bona fide purchaser for value and without notice of the original contract.

       Specific Relief Act, 1963 - Section 19(b) Civil Procedure Code, 1908, Order VI, Rule 17, Order VII, Rule 11 Suit for specific performance. Delegation of certain portion of text of amendment, or prayer clause, cannot be regarded as bar to grant leave to implead and amend. In a suit for specific performance, when a subsequent purchaser is sought to be impleaded, the true test to be applied by the Court is to determine whether the purchaser claims title under the vendor of the plaintiff or whether he claims a title independent of or adverse to the title of the vendor. In the farmer case, it is but necessary to join the subsequent purchaser in order to ensure that when a decree is passed by the Court at the trial of the suit, the subsequent purchaser can be directed to join in completing the title which may be required to be conferred upon the plaintiff.

       Specific Relief Act, 1963 - Section 19(b) Evidence Act, 1872, Section 108 Suit for specific performance. In a suit for specific performance, plea of being bona fide purchaser required to be proved by person who takes plea that he is a bona fide purchaser. The provision contained in Section 19(b) of the said Act which affords protection to a subsequent purchaser who purchases the contracted property in good faith and for value without notice of the original contract, is in the nature of an exception to the general rule. Therefore, it is a settled position in law that the onus of proof of good faith is upon the subsequent purchaser who takes a plea that he is an innocent or bona fide purchaser for value and without notice of the original contract. In the case of Shankarlal Narayandas Mundade v. The New Mofussil Co. Ltd. and others, AIR (33) 1946 Privy Council 97, in the context of Section 27 of the Specific Relief Act, 1877, which corresponds to Section 19 of the Specific Relief Act, 1963, the Privy Council, by relying upon its earlier authority in the case of Bhup Narain Singh v. Gokul Chand Mahton, AIR 1934 PC 68 has held thus :

       "Their Lordships have found it unnecessary to examine the evidence which was called on behalf of the plaintiff to show that these defendants in fact had notice of the earlier contract, since a decision of this Board is clear authority for the proposition that the burden of proving good faith and lack of notice lay upon defendants."

       Specific Relief Act, 1963 - Section 20 Grant of interim relief. Where subsequent purchaser, purchasing property from defendant, was not a bona fide purchaser therefore interim relief granted in favour of plaintiff. Defendant No. 4 vide Deed of Conveyance dated 12th January, 2012 has conveyed his undivided rights to the extent of only about 17% in the said property to the subsequent purchaser. Admittedly, such conveyance is after the subsequent purchaser was served with a copy of the Chamber summon No. 2087 of 2011 and had filed its reply thereto on 3rd January, 2012. Therefore, in so far as the Conveyance dated 12th January, 2012 is concerned, at least prima facie there is no question of the subsequent purchaser claiming to be a bona fide purchaser without notice of the original contract. Besides, the position in so far as property bearing CTS No. 725 has also not undergone any change. The building thereon continues in its original condition. Thus, in so far as the property bearing CTS No. 725 is concerned, it would be just, fair and proper, if the defendants are restrained from parting with the possession and/or creating any third party rights and/or inducting any new tenants.

       Specific Relief Act, 1963 - Section 20 Grant of interim relief in a suit for specific performance. Since balance of convenience not lies in favour of plaintiff hence plaintiff not entitled to grant of interim relief. The subsequent purchaser also claims to have entered into settlement with both the tenants of the building in the said property and thereafter demolished the building upon the said property, with a view to carry on construction and development thereon. Further, the subsequent purchaser prior to acquisition of the said property had caused an advertisement/public notice to be inserted in the Newspaper on or about 6 August 2010, to which there was no response from the plaintiffs. In Mumbai, the principle of lis pendens as provided in Section 52 of the Transfer of Property Act 1882 is prima-facie unenforceable, unless notice of lis pendens is duly registered. In the present case, the plaintiffs have admittedly not registered the notice of lis pendens. In these circumstances, whatever the prima facie case, certainly, balance of convenience is not in favour of the plaintiffs, in the matter of grant of any interim reliefs qua the property bearing CTS No. 515-C.