The principle of lis pendens applies to transactions during the pendency of litigation, and the failure of impleaded parties to appear cannot be a ground for recall of a judgment.

JUDGMENT

1. Heard Mr. S.S. Kantak, the learned Senior Advocate, who appears along with Mr. Nikhil Vaze for the applicants.

2. These are applications for recall of common judgment and order dated 08.02.2021 in First Appeal No. 250/2009 and Writ Petition No. 983/2019.

3. The applicants contend that the learned Single Judge of this Court by order dated 06.01.2020 had directed the impleadment of M/s. Prasanna Developers Pvt. Ltd. and M/s. A.K. Constructions as respondent nos. 4 and 5 in Writ Petition No. 983/2019 because there was some material on record that these parties were subsequent purchasers or in any case, have acquired some interest in the suit property during the pendency of the litigation.

4. Mr. Kantak submits that by the time the Appeal and Writ Petition were disposed of, said M/s. Prasanna Developers Pvt. Ltd. and M/s. A.K. Constructions had already developed the suit property into plots and had sold such plots inter alia to the applicants herein. Mr. Kantak points out that M/s. Prasanna Developers Pvt. Ltd. and M/s. A.K. Constructions having done this, did not even bother to appear in this Court at the time of final disposal of the First Appeal and Writ Petition. Mr. Kantak submits that it is the applicants, who are the real affected parties and since the common judgment and order dated 08.02.2021 has been made without hearing them, a case for recall is made out.

5. According to us, M/s. Prasanna Developers Pvt. Ltd. and M/s. A.K. Constructions were already impleaded as parties in terms of the directions issued by the learned Single Judge in his order dated 06.01.2020. The fact that such parties despite service did not bother to appear in the matter could never have been a ground for seeking recall of the common judgment and order dated 08.02.2021. Since the applicants claim through the said two parties, the position of the applicants cannot be any better. At their behest, there is no case for recall of the common judgment and order dated 08.02.2021. Be that as it may, the transactions on which the applicants rely, appear to have been taken place during the pendency of the litigation. At least, prima facie, the principle of lis pendens will apply. This is yet another reason as to why the application for recall cannot be granted.

6. Mr. Kantak submits that it is the applicants, who are the real victims and therefore, some orders could have been made to compensate the applicants and other purchasers as against M/s. Prasanna Developers Pvt. Ltd. and M/s. A.K. Constructions. He submits that there are certain decisions of the Hon'ble Supreme Court where such orders have been made.

7. In this case, we were basically dealing with a substantive Appeal against a judgment and order made by the Trial Court. The Writ Petition was only against an order of the Tribunal that it declined leave to the Communidade to enter into any compromise in the matter. While deciding a substantive Appeal, we are not quite sure whether we would have been in a position to make the kind of orders suggested by Mr. Kantak, the learned Senior Counsel for the applicants. If the applicants state that they are affected, then, the applicants might have their own remedy to seek compensation against the builders and developers. According to us, there is nothing in the common judgment and order dated 08.02.2021 that in any manner, will affect the alleged rights of the applicants to claim refund, damages etc. from such builders and developers. However, we are of the opinion that no case has been made out for recall.

8. For the aforesaid reasons, we dismiss both these Applications. There shall be no order as to costs.