ROHTAS KUMAR AND ORS. Vs. SATPARKASH AND ORS.

JUDGEMENT

(1.) THIS is plaintiffs' revision petition filed against the order passed by the trial Court dismissing their application under Order 1 Rule 10 CPC for impleading Director of Suman Villas Private Limited as additional defendant on the ground that defendant Nos. 3 & 4 had sold the suit property to the said company, claiming that the said company would be a necessary party required to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. The trial Court dismissed the application on the ground that the plaintiffs -petitioners want to prolong the proceedings.

(2.) BRIEF facts, relevant for the decision of the present revision petition, are that the plaintiffs have filed a suit for specific performance against defendant Nos. 1 & 2 for specific performance of agreement of sale regarding the property mentioned in para 1 of the plaint on the basis of agreement of sale dated 14.6.2005 and the sale deed was to be executed on the date fixed for registration i.e., 14.10.2005. It was pleaded that the defendants Nos. 1 & 2 have executed an illegal sale deed dated 21.12.2005 in favour of defendant Nos. 3 & 4 regarding the land in dispute. The plaintiffs sought cancellation of the sale deed dated 21.12.2005 and possession of the property by a decree of specific performance of the agreement of sale. During pendency of the suit, defendant Nos. 3 & 4, alienated the suit land vide sale deed dated 24.3.2006 in favour of Subhash Chand, Director, Suman Villas Private Limited, as such application under Order 1 Rule 10 CPC was filed to implead him as defendant No. 5 in the capacity as Director of the Company vide Annexure P2. The execution of the sale deed in favour of Director, Suman Villas Private Limited, has not been denied by the defendants. While dismissing the application under Order 1 Rule 10 CPC, the trial Court has observed that the factum regarding alienation of the property in dispute in favour of Director, Suman Villas Private Limited, was in the knowledge of the plaintiffs on 28.7.2009 when written statement was filed but no steps were taken to implead the said company as defendant No. 5.

(3.) I have heard the counsel for the petitioners as well as the counsel for the respondents and I am of the opinion that the right of the plaintiffs in their suit for specific performance regarding their entitlement to get the sale deed executed in their favour regarding the property in dispute is essential. The defendant No. 5 is alleged to have become owner by virtue of a registered sale deed whereas the sale deed in favour of his vendors dated 21.12.2005 is already subject matter of the suit. It is not doubted that the alienation of the property during pendency of the suit is always subject to the principle of lis pendens. Similar question came up before Hon'ble the Apex Court in Amit Kumar Shaw and another Vs. Farida Khatoon and another, : 2005 (2) RCR (Civil) 651, wherein by an order the High Court had rejected the application for substitution of transferees pendente lite in the second appeal. Hon'ble the Apex Court held that the Court has got discretion in the matter to implead such a person but an alienee would ordinarily be joined as a party to enable him to protect his interest and that the transferee pendente lite can be added as a proper party if his interest in the subject matter of the suit is substantial. A transferee pendente lite of an interest in movable property is representative -in -interest of the party from whom he has acquired that interest. Hon'ble the Apex Court has observed that the presence of the alienee was absolutely necessary as he was the only person who has got subsisting right, title and interest in the suit. In the said case Hon'ble the Apex Court was dealing with the matter in which the property had been transferred during pendency of the suit. In the present case, the plaintiffs -petitioners appear to have filed a suit on 17.10.2008 challenging the validity of sale deed in favour of defendant Nos. 3 & 4. In the application filed under Order 1 Rule 10 CPC, it has been claimed that the plaintiffs came to know about the sale deed dated 24.3.2006 executed by defendant Nos. 3 & 4 in favour of defendant No. 5, on 10.5.2012 during pendency of the suit.