SANJAY SINGH Vs. OMBABU JAIN AND ORS.

JUDGEMENT

(1.) This writ petition under Article 227 of the Constitution of India takes exception to the order dated 3 -7 -2015 passed in Civil Suit No. 500 -A/2010 by X Additional District Judge, Bhopal, by which the application made by the petitioner under Order 1, Rule 10 of the Code of Civil Procedure (hereinafter referred to as 'the Code') for his impleadment as defendant in the suit filed by the respondent No. 1 has been rejected. The respondent No. 1 filed a suit for specific performance of contract against the respondents No. 2, 3 and 4. During pendency of the said suit, it appears that the respondents/defendants have executed a sale deed in favour of the petitioner herein, without even disclosing that any litigation in that respect was pending consideration before the trial Court. After the registration of the said sale deed, it appears that when the petitioner came to know about the pendency of the aforesaid suit, he moved an application under Order 1, Rule 10 of the Code for his impleadment as a defendant in the said suit. It was contended in the application that though the intention to purchase the property was brought to the notice of the general public by publication of notice to that effect in the newspaper, yet no objection in that respect was raised by anybody and, therefore, under a bona fide belief that the petitioner was purchasing undisputed property, the sale deed was got registered. However, when the petitioner came to know about such a suit, he immediately moved an application for his impleadment as a defendant in the suit. Such a prayer made by the petitioner was opposed by the respondent No. 1 and it was contended that the petitioner was a subsequent purchaser and any such purchase made by him would be hit by Sec. 52 of the Transfer of Property Act, 1982 (hereinafter referred to as 'the Act') and as such the petitioner was not to be impleaded as a party in the suit proceedings. Without even considering the law laid down by the Apex Court, since the application has been rejected by the impugned order, therefore, the order impugned is liable to be set aside.

(2.) Per contra, it is contended by the learned counsel for the respondents that well settled position of law is that the petitioner being a subsequent purchaser would not be entitled to be heard especially when the sale has been effected after filing of the suit by the respondent No. 1 and the principles of lis pendens would be applicable in such case. Even otherwise, considering all these aspects the trial Court has granted an injunction in favour of the respondent No. 1 with respect to maintaining the possession of the respondent No. 1 on the suit land. The petitioner is going to face consequence of getting the sale deed executed during the pendency of the lis and as such if the application has been rejected by the trial Court, interference in the order impugned is not called for.

(3.) After hearing learned counsel for the parties and after going through the record available and after examining the law laid down in this respect, it is clear that the application of the petitioner was not properly considered by the trial Court. In the case of Amit Kumar Shaw and another vs. Farida Khatoon and another, : (2005) 11 SCC 403 the Apex Court has categorically held after combined reading of the provisions of Order 1, Rule 10 as also Order 22, Rule 10 of the Code and keeping in view the principles laid down under Sec. 52 of the Act that it is not necessary that all subsequent purchasers may not be allowed to become a party in the suit if one is filed for specific performance of contract prior to obtaining the right by the subsequent transferee. While considering these aspects the Apex Court has categorically held in paragraphs 9, 10, 14 and 16, which read thus: - -