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PATNA HIGH COURT
Mungeshwar Sahoo, J.
Kalawati Devi & Anr. —Petitioners
versus
Yoganti Devi & Ors. —Respondents
Civil Writ Jurisdiction Case No. 13934 with 12994 of 2011
Decided on 23.1.2012
Counsel for the Parties:
For the Petitioner:Mr.Chandrakant, Advocate.
For the Respondent:Mr. Ranjan Kumar Dubey, Advocate.
IMPORTANT POINT
In view of Section 19(b) of Specific Relief Act, subsequent transferee is a necessary party.
Headnote:Civil Procedure Code, 1908—Order 1, Rule 10—Specific Relief Act—Section 19(b) —Petition filed by plaintiff for adding subsequent purchaser as defendant 4 in a suit for specific performance of contract—Rejected by Sub-Judge—Challenge thereagainst—Held in view of provisions as contained in Section 19(b) of Specific Relief Act, the subsequent transferee is a necessary party as this question that whether subsequent transferee purchased property for value and paid the money in good faith and without notice of original contract is to be decided in his presence—In view of Apex Court a purchaser is a necessary party—Hence party cannot be added and deleted at the instance of a party defendant—In such circumstances when it has already been settled by Apex Court that purchaser is necessary party in suit for specific performance of contract, Court below could not have rejected the application of plaintiff—Court below had not exercised a jurisdiction bested in it by law and thereby occasioned failure of justice—Impugned order held liable to be set aside—Writ Applications allowed. (Paras 9 to 13).
Result: Writ applications allowed.
Mungeshwar Sahoo, J.— I have already heard the learned counsel Mr.Chandrakant on behalf of the petitioners and the learned counsel Mr. Ranjan Kumar Dubey on behalf of the respondents in both the applications.
2. C.W.J.C.No.12994 of 2011 has been filed by the plaintiffs petitioners against the order dated 5.8.2010 passed by Sub-Judge 5th, Siwan in Title Suit No.165 of 2008, whereby the court below rejected the petition filed by the plaintiffs for adding subsequent purchaser as defendant No.4 in the suit for specific performance of contract.
3. The other C.W.J.C. No.13934 of 2011 has been filed against the order dated 29.4.2011 passed by the said court rejecting the review application filed by the petitioners for reviewing the order challenged in C.W.J.C.No.12994 of 2011. In view of the above facts both the writ applications are heard together in admission matter and disposed of by this common order. The result of the writ application arising out of the original order rejecting the application under Order 1, Rule 10 CPC will govern the result of the subsequent writ application.
4. The plaintiffs petitioners filed Title Suit No. 165 of 2005 for specific performance of contract alleging that the suit property belonged to defendant No.1 who entered into agreement to sell the suit property and pursuant to that agreement the plaintiff has already paid Rs.53,500 to the defendant No.1. For registration of the sale deed both the plaintiffs and defendants went to Registrar office on 8.8.2000 but on that day deed could not be registered. On the next day the defendant refused to come to Registrar office. The plaintiff filed Compulsory Registration Case No.1 of 2001 and 2 of 2001 in the court of Registrar who after hearing the parties dismissed the case on 9.4.2001. The appeals were filed which were also dismissed. Thereafter the plaintiffs filed the suit for specific performance of contract.
5. The defendants appeared and filed contesting written statement alleging that there was good relation between the parties earlier. The defendant No.1 was hospitalized for her treatment and during that period the plaintiffs obtained signature of the defendant No.1 on some blank paper and prepared forged agreement to sell. Admittedly, during the pendency of the suit the defendant No.1 sold the land to Babu Lal Manjhi on 19.1.2007. Thereafter the application was filed by the plaintiffs for adding Babu Lal Manjhi as defendant No:4 in the suit. By the impugned order the said prayer has been rejected.
6. The learned counsel for the petitioners submitted that in suit for specific performance of contract the subsequent purchaser is necessary party because by execution of the sale deed by the defendant No.1 the title passed to the subsequent purchaser. If he will not be added as party defendant then even if the suit will be decreed the plaintiff will not be able to recover possession of the properties from subsequent purchaser. The learned counsel relied upon 2005(6) SCC 733 and also 2010(7) SCC 417 and submitted that so far specific performance case is concerned the Apex Court has held that the purchasers are necessary party. The learned court below without considering the aforesaid settled principles of law rejected the application.
7. On the other hand, the learned counsel appearing on behalf of the respondents submitted that the transfer in favour of the purchaser will always be subject to the result of the suit and, therefore, the purchasers are not necessary party. The learned court below therefore, rightly rejected the application. The learned counsel relied upon the order dated 29.8.2011 passed by a Bench of this Court in C.W.J.C.No.19215 of 2010 and submitted that it has been held by this Court that subsequent purchaser cannot be added as party defendant.
8. From perusal of the decision of this court relied upon by the defendant is concerned it appears that in that case the purchasers filed the application for being added as party. The plaintif
