The necessity of impleading a subsequent transferee in specific performance suits is recognized, but must be balanced against limitations and the stage of proceedings.

JUDGMENT :

N.J. JAMADAR, J.

1. Rule. Rule made returnable forthwith and with the consent of the Counsel for the parties, heard finally.

2. The petitioner - plaintiff takes exception to an Order dated 1^st December 2022 passed by the learned Civil Judge, Kolhapur on an Application (Exhibit-157) in Special Civil Suit No. 319 of 2010, whereby the application preferred by the petitioner to implead a subsequent transferee as a party-defendant to the suit and also carry out necessary and consequential amendment in the Plaint came to be rejected.

3. Shorn of superfluities the background facts can be stated as under:

3.1 For the sake of convenience and clarity, the parties are hereinafter referred to in the capacity they are arrayed before the Trial Court.

3.2 Under an Agreement for Sale dated 30^th April 2007, defendant nos. 1 and 2 agreed to sale the suit property for a consideration of Rs. 75 lakhs. Under the said Agreement, the defendant nos. 1 and 2 accepted a sum of Rs. 5 lakhs. Further amounts were received towards part consideration. Under the terms of the Agreement, the Sale Deed was to be executed after disposal of First Appeal No. 96 of 2002. The said appeal was disposed by an Order dated 27^th November 2009 pursuant to the Consent Terms filed by the parties thereto.

3.3 The plaintiff asserts, the said Consent Terms were obtained by playing fraud upon the Court. During the currency of the Agreement for Sale in favour of the plaintiff, defendant nos. 1 and 2 executed a registered Sale Deed of the suit property in favour of defendant nos. 3 to 6 on 3^rd December 2009. Thus the plaintiff was constrained to institute the suit for specific performance of the contract against the original vendors as well as the transferees.

3.4 Post completion of pleadings, issues were settled and the plaintiff led his evidence. When the matter was posted for cross- examination of the defendants’ witness, the plaintiff preferred instant application (Exhibit “157”) seeking the impleadment of Dinkar Shinde as a party-defendant to the suit and also permit the plaintiff to carry out amendment in the Plaint, purportedly under the provisions of Order I Rule 10(2) and Order VI Rule 17 read with Section 151 of Code of Civil Procedure 1908 (“the Code”).

3.5 The substance of the application of the plaintiff was that defendants nos. 3 to 6, the transferees from the vendors- defendant nos. 1 and 2, have pleaded in their Written Statement that the defendant nos. 3 to 6 have, in turn, executed a registered Sale Deed on 5^th July 2010 in favour of Dinkar Shinde and thereby sold 26 gunthas land out of the suit property for a consideration of Rs. 4,25,000/- It was, therefore, necessary to implead Dinkar Shinde as a party-defendant to the Suit.

3.6 To substantiate the claim that the said Dinkar Shinde was not a bona fide purchaser for value without notice, by way of amendment, averments were sought to be incorporated in the Plaint to the effect that Dinkar was fully aware of the transaction between the plaintiff and defendant nos. 1 and 2 and the said Sale Deed in favour of Dinkar Shinde came to be executed without consideration and by way of illegal gratification for the assistance rendered by Dinkar Shinde in getting the Sale Deed of the suit land executed in favour of defendant nos. 3 to 6 fraudulently. It was, therefore, not necessary to seek a declaration that the said Sale Deed dated 5^th July 2010 was null and void. The plaintiff thus simply sought to implead Dinkar Shinde as defendant no.7 and seek the relief of possession and injunction qua the proposed defendant no.7 also.

3.6 The application was resisted by the defendant.

3.7 By the impugned order, the learned Civil Judge, Senior Division, Kolhapur, was persuaded to reject the application observing inter alia that the said Sale Deed dated 5^th July 2010 in favour of Dinkar Shinde was executed before the institution of the Suit; the principle of lis pendens did not came into play; the defendant nos. 3 to 6 had specifically