O.P.(C) No.391 of 2017 & F.A.O.No.134 of 2017

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 6[TH] DAY OF JANUARY 2022 / 16TH POUSHA, 1943 O.P.(C) NO. 391 OF 2017** ## **PETITIONER:** **SREENIVASAN** **AGED 71 YEARS, S/O.LATE V.P.NARAYANAN, RESIDING AT NO.16, I MAIN ROAD, MC NAGAR, CHITLAPAKKAM, CHENNAI – 64.** **BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY** ## **RESPONDENTS:** - **1 UMMER ALI AGED 47 YEARS, S/O.SYED SABJAN, MOUNSPURAM HOUSE, 20TH ACRE KARA, BISONVALLEY VILLAGE, UDUMBANCHOLA TALUK.** **2 E.JAYACHITHRA, W/O P.ELANKONAN, HOUSE NO.2/271, KAJANAPARA KARA & POST, RAJAKUMARY VILLAGE, UDUMBANCHOLA TALUK.** ## **R1 BY ADV SRI.S.SACHITHANANDA PAI** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 11.11.2021, ALONG WITH FAO.134/2017, THE COURT ON 06.01.2022 DELIVERED THE FOLLOWING:** 2 O.P.(C) No.391 of 2017 & F.A.O.No.134 of 2017 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 6[TH] DAY OF JANUARY 2022 / 16TH POUSHA, 1943** **FAO NO. 134 OF 2017** **AGAINST THE ORDER DATED 21.03.2017 IN I.A.NOS.57 AND 60 OF 2017 IN O.S.NO.51 OF 2011 OF SUB COURT, KATTAPPANA** ## **APPELLANT/PETITIONER/NO PARTY IN OS:** **SREENIVASAN** **S/O.LATE V.P NARAYANAN, NO. 16, 1 MAIN ROAD, M.C NAGAR, CHITTIAPAKKAM, CHENNAI – 64.** **BY ADVS.** **SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** - **1 UMMER ALI** **S/O. SYED SABJAN, MOUNSPURAM HOUSE, 20TH ACRE KARA, BISANVALLEY VILLAGE, UDUMBANCHOLLA TALUK – 685559.** - **2 E.JAYACHITHRA** - **W/O. P. ELANKOVAN, HOUSE NO 2/271, KANJANAPARA POST, RAJAKUMARY VILLAGE, UDUMBANCHOLA TALUK - 685 554.** **R1 BY ADV SRI.S.SACHITHANANDA PAI** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 11.11.2021, ALONG WITH OP(C).391/2017, THE COURT ON 06.01.2022 DELIVERED THE FOLLOWING:** 3 O.P.(C) No.391 of 2017 & F.A.O.No.134 of 2017 ## **JUDGMENT** ## Ajithkumar, J. ## O.P.(C) No.391 of 2017 The petitioner filed Interlocutory Application No.922 of 2016 in Interlocutory Application No.549 of 2014 in O.S.No.51 of 2011 on the file of the Sub Court, Kattappana, for getting himself impleaded as additional 2[nd] defendant in the suit. The Sub Court dismissed that application as per Ext.P7 order. Legality of that order is in challenge in this Original Petition filed invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. ## FAO No.134 of 2017 2. The appellant filed I.A.No.57 of 2017 seeking to set aside the exparte decree dated 17.01.2014 in O.S.No.51 of 2011 and I.A.No.60 of 2017 for condonation of delay of 690 days occurred in filing I.A.No.57 of 2017. Those applications were dismissed by the learned Sub Judge on 21.03.2017 and this appeal is filed challenging the said common order. ## O.P.(C) No.391 of 2017 & FAO No.134 of 2017 3. Parties are referred to as per their rank in the Original Petition. 4 O.P.(C) No.391 of 2017 & F.A.O.No.134 of 2017 4. Shorn of unnecessary details, the facts are the following: The 1[st] respondent entered into an agreement for sale with the 2[nd] respondent on 26.10.2009 with respect to 8 (eight) Ares of land comprised in Sy.No.355/10 of Rajakumari Village. Alleging that the 2[nd] respondent failed to perform her part of the contract, the 1[st] respondent filed O.S.No.51 of 2011. In the suit, a temporary injunction restraining the 2[nd] respondent from alienating the property was ordered in I.A.No.179 of 2011. The 2[nd] respondent entered appearance and filed a written statement. However, she subsequently failed to appear before the court resulting in the passing of an ex parte decree on 17.11.2014. The 2[nd] respondent filed I.A.No.937 of 2014 seeking to set aside the ex parte decree along with I.A.No.938 of 2014 for condonation of delay. Those applications were allowed on payment of cost of Rs.2,500/-. However, the 2[nd] respondent did not pay the cost resulting in dismissal of those applications. In the meantime, the 1[st] respondent filed I.A.No.549 of 2014 under Section 28(3) of 5 O.P.(C) No.391 of 2017 & F.A.O.No.134 of 2017 the Specific Relief Act, 1963 and pursued it for getting the sale deed executed. 5. The petitioner says that only by that time he came to know about the suit as was told to him by the 1[st] respondent. He contacted his counsel, Advocate Sri.T. Subramaniam at Bodinaikannur. Although the lawyer assured that there would not be any issue in the matter, later, after his coming to know that Sri. T.Subramaniam died, he went to the Sub Court, Kattappana and enquired about the suit. Only then he knew about the decree and pendency of I.A.No.549 of 2014. It was in that context, the petitioner filed I.A.No.922 of 2016, Ext.P4 for getting himself impleaded. He also filed Ext.P5, I.A.No.926 of 2016 to keep the proceedings in the suit in abeyance. Soon, he filed I.A.Nos.57 and 60 of 2017 also, which were for setting aside the ex parte decree and condonation of delay. The 1[st] respondent filed objection to all those applications. 6. The learned Sub Judge, Kattappana, did not consider the application for impleadment on time, and 6 O.P.(C) No.391 of 2017 & F.A.O.No.134 of 2017 therefore, the petitioner filed O.P.(C) No.2990 of 2016 before this Court for a direction to the learned Sub Judge to dispose of those applications expeditiously. This Court as per Ext.P6 judgment dated 20.12.2016 directed the Sub Court, Kattappana to dispose of Ext.P4 application, as expeditiously as possible. After hearing both sides, I.A.No.922 of 2016 (Ext.P4) was dismissed on 23.01.2017. I.A.Nos.57 and 60 of 2017 were also dismissed on the same day as per a common order. 7. Heard the learned counsel for the petitioner, Sri.Mathew John and Sri.S.Sachithananda Pai, learned counsel appearing for the 1[st] respondent. The 2[nd] respondent did not choose to appear before this Court, despite service of notice. 8. The learned counsel appearing for the petitioner would contend that the petitioner with utmost good faith only purchased the property from Sri.Pothuraj, who has no connection with the suit, O.S.No.51 of 2011 and that without any laches he approached the court to get himself impleaded and present his case. It is submitted that the long line of 7 O.P.(C) No.391 of 2017 & F.A.O.No.134 of 2017 decisions of the Apex Court as well as this Court are in favour of allowing a subsequent purchaser, even if there is laches or malafides on his part, to participate in the trial of the case for, he is the ultimate sufferer in case of allowing the prayers in the suit. According to the learned counsel, Section 52 of the Transfer of Property Act, 1982, Section 19 of the Special Relief Act, 1963 and Section 146, Order I Rule 10(2) and Order XXII Rule 10 of the Code of Civil Procedure, 1908 can only be interpreted in such a way that a subsequent purchaser, who volunteers to participate in the suit for specific performance should be allowed to be a party, unless it is so evident that his acts were highly contumacious and in flagrant violation of the orders of the court. 9. The learned counsel appearing for the 1[st] respondent, on the other hand, mainly raises two points. On 26.12.2014 at 4.00 p.m. the Commissioner appointed in O.S.No.51 of 2011 inspected the property. Originally there was a pukka building, which was valued at Rs.1,14,000/- in the sale deed in favour of the petitioner, while value of the 8 O.P.(C) No.391 of 2017 & F.A.O.No.134 of 2017 land was Rs.1,00,000/- only. But the commissioner, who inspected the property on 26.12.2014, reported that the said building was totally demolished, and a shed was seen constructed. The commissioner saw two persons there, of course, not the petitioner. Much thereafter, on 26.11.2016 only the petitioner approached the court with I.A.No.922 of 2016, which shows that the petitioner was well aware of the suit and the order of injunction. Therefore, the learned Counsel contends, the act on the part of the petitioner was not at all bonafide, instead, he acted hand in glove with the 2[nd] respondent with a view to defeat the 1st respondent. 10. The learned counsel appearing for the 1[st] respondent further contended that the application for setting aside the exparte decree and to condone the delay filed by the 2[nd] respondent as I.A.Nos.937 and 938 of 2014 were allowed on costs and on account of non-payment of costs only, the same were dismissed. Therefore, the applications filed by the petitioner being a person claiming under the 2[nd] respondent, no new petitions for the same purpose are maintainable. The 9 O.P.(C) No.391 of 2017 & F.A.O.No.134 of 2017 learned counsel further submitted that the chronology of incidents certainly points to the malafides on the part of the petitioner, especially, purchase of the property, which is the subject matter of the suit in disobedience to the order of injunction, and therefore, he is not entitled to be a party to the suit. 11. The essential question to be decided is whether a subsequent purchaser, knowingly or unknowingly of the suit as well as the order of injunction restraining alienation of the property, is entitled to be a party to the suit. 12. Section 52 of the Transfer of Property Act stipulates that, during the pendency of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceedings so as to affect the rights of any other party thereto under the decree or order which may made therein, except under the authority of the court and on such terms as it may impose. The Apex Court in **A.Nawab John and** 10 O.P.(C) No.391 of 2017 & F.A.O.No.134 of 2017 **others v. V.N.Subramaniyam [(2012) 7 SCC 738]** while considering the effect of Section 52 in relation to a claim for impleadment by a subsequent purchaser, held: “18. It is settled legal position that the effect of Section 52 is not to render transfers effected during the pendency of a suit by a party to the suit void; but only to render such transfers subservient to the rights of the parties to such suit, as may be, eventually, determined in the suit. In other words, the transfer remains valid subject, of course, to the result of the suit. The pendente lite purchaser would be entitled to or suffer the same legal rights and obligations of his vendor as may be eventually determined by the Court.” The Court after considering all the decisions relevant to the point, held, in paragraph No.22, that the preponderance of opinion of the Court was that a pendente lite purchaser’s application for impleadment should normally be allowed or “considered liberally”. 13. Section 146 of the Code deals with the effect of a proceedings upon representative in interest of a party to the 11 O.P.(C) No.391 of 2017 & F.A.O.No.134 of 2017 suit. It says, 'save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person then the proceeding may be taken or the application may be made by or against any person claiming under him.' 14. Right of a stranger to a suit to come on record and participate in the proceedings was considered with reference to Section 146 of the Code was considered in the following decisions; namely, **Smt.Saila Bala Dassi v. Smt.Nirmala Sundari Dassi and another [AIR 1958 SC 394], Raj Kumar v. Sardari Lal and others, [(2004) 2 SCC 601], Narayanan Vazhunnavar v. Haridasan Namboodiri [1991 (2) KLT 1]** and **Bhaskaran v. Vijayaraghavan [2005 (1) KLJ 127].** 15. In **Smt.Saila Bala Dassi** , the Apex Court after noticing that Section 146 was introduced newly in the Code with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment, and being a beneficent provision, held that it should be 12 O.P.(C) No.391 of 2017 & F.A.O.No.134 of 2017 construed liberally and so as to advance justice. The Court reminded that this provision should not be interpreted in a restricted or technical sense. This is a four-Judge Bench decision. This principle was reiterated in the decisions followed. 16. In **Raj Kumar (supra)** the facts are almost similar to this case. There was an order of injunction in the suit restraining alienation. The Court held that a lis pendens transferee from the defendant, though not arrayed as a party in the suit, is still a person claiming under the defendant. Further it was held that such a person would be entitled under Order XXII, Rule 10 of the Code to move an application under Order IX, Rule 13 of the Code to set aside a decree passed against the transferor, the original defendant in the suit. 17. This Court in **Narayanan Vazhunnavar v. Haridasan Namboodiri** and **Bhaskaran v. Vijayaraghavan (supra)** followed the said principle. In **Narayanan Vazhunnavar** a stranger to the suit wanted to be a party to the appeal, for which he filed an application to restore the 13 O.P.(C) No.391 of 2017 & F.A.O.No.134 of 2017 appeal on file, which was dismissed for default on the part of the appellant, who was the assignor of the applicant. The Court held that applying the principles underlying Section 146 and Order XXII, Rule 10 of the Code, the applications filed under Order XLI, Rule 19 for readmitting the appeal could be allowed. 18. In **Surjit Singh and others v. Harbans Singh and others [(1995) 6 SCC 50]** , the question was whether persons purchased right from parties to the suit, who obtained right under a preliminary decree only, and while an order prohibiting alienation of any right to the suit property during pendency of the case was in force, would be entitled to come on record. One of the purchasers was the wife of the lawyer of the vendor. The Apex Court held that those assignees were not entitled to get themselves impleaded. What reveals from the facts of that case is that the assignees were well aware of the final decree proceedings as well as the prohibitory order. The Court held that the persons had purchased the right in total defiance of the prohibitory order 14 O.P.(C) No.391 of 2017 & F.A.O.No.134 of 2017 and with the full knowledge of the pendency of the final decree proceedings and therefore they have no right to be in the array of parties. 19. After referring to the said decision as also almost all the decisions on the point, the Apex Court in **Vidur Impex & Traders Pvt. Ltd. v. Tosh Apartments Pvt. Ltd. [(2012) 8 SCC 384],** laid down the parameters to decide when and when not an application for impleadment can be allowed. Paragraphs 41.1 to 41.6 read thus: '41.1. The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the suit. 4.2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the Court. 41.3. A proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree 15 O.P.(C) No.391 of 2017 & F.A.O.No.134 of 2017 is to be made. 41.4. If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff. 41.5. In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation. 41.6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the Court or the application is unduly delayed then the Court will be fully justified in declining the prayer for impleadment.' 20. In **Thomson Press (India) Ltd v. Nanak Builders & Investors Pvt. Ltd. [(2013) 5 SCC 397]** , the Apex Court considered the ambit and the extent of application of Order I, Rule 10(2) of the Code not only in the light of Section 52 of the Transfer of Property Act, but also the effect of Section 19 of the Specific Relief Act, in a plea for impleadment in a suit for specific performance, by a 16 O.P.(C) No.391 of 2017 & F.A.O.No.134 of 2017 subsequent purchaser. In that case, the Court found that the applicant who sought impleadment was not a bonafide purchaser and was, therefore, not protected against specific performance of the contract between the plaintiffs and the defendants to the suit. It was observed that the transfer in favour of the applicant as per the pendente lite transaction, would be effective in transferring title in his favour, but his title would remain subservient to the rights of the plaintiff in the suit. The Apex Court even after finding the applicant not a bonafide purchaser, held that he was entitled to be acted as a party-defendant in the suit. 21. Relying on **Thomson Press (India) Ltd. (supra)** , the learned counsel appearing for the petitioner submitted that being the successor in interest, who purchased the entire plaint schedule property, the petitioner has every entitlement to be a party to the suit. The learned counsel appearing for the 1[st] respondent took exception to this contention and submitted that the petitioner did not purchase the entire estate, but only a part, and therefore, the principle in 17 O.P.(C) No.391 of 2017 & F.A.O.No.134 of 2017 **Thomson Press (India) Ltd.** cannot be come to his aid. The Apex Court held that since the appellant therein had purchased the entire estate that forms subject matter of the suit, the appellant was entitled to be added as a party to contest in the suit. Here, the subject matter of the suit is 21.250 cents of land comprised in Sy.No.355/10 of Rajakumari Village. Whereas, the petitioner had purchased only 19.768 cents and the building thereon from the suit property. To that extent, the submission of the learned counsel for the petitioner is wrong. It may be true that the petitioner purchased a less extent alone from the suit property, would not be of much consequence, insofar as his right to be a party to the suit is concerned. However, presentation of facts incorrectly would certainly tell upon the bonafides of the petitioner. Since the said aspect does not have a decisive consequence in this case, we leave the matter there. 22. In the context of this case, the decision of a learned Single Judge of this Court in **Mujeeb v. Royal Hospitals (P) Ltd. [2008 (3) KLT 131]** may be required 18 O.P.(C) No.391 of 2017 & F.A.O.No.134 of 2017 reference. It was held after referring to the provisions of Section 22 of the Specific Relief Act, which entitles a plaintiff in a suit for specific performance to ask for possession of the suit property in the same suit itself, held that when a person, who is sought to be impleaded as a defendant, is setting up the right with semblance of title and that too, by a series of registered deeds, it cannot be said that he is not a necessary party to the suit. The learned Judge, for holding so, followed the principle laid down by the Apex Court in **Sumtibai & others vs Paras Finance Co. Mankanwar [(2007) 10 SCC 82].** 23. Coming to the instant case, it is true that there occurred delay in the petitioner approaching the court for getting himself impleaded. There occurred further delay in filing the application for setting aside the exparte decree. The petitioner has come up with a case that only when he went to the court directly and enquired, he has come to know about the decree passed on 17.11.2014 and that proceedings under Section 28(3) of the Specific Relief Act was going on. Only 19 O.P.(C) No.391 of 2017 & F.A.O.No.134 of 2017 material pointed out by the 1[st] Respondent, to show that the petitioner might have got knowledge regarding the suit, is the report of the commissioner filed in the suit. Of course, there were two persons present in the property at the time when the commissioner visited the property on 26.12.2014, but it is not known whether they had any connection with the petitioner. From the said fact alone, it is not inferrable that the petitioner would have known about the suit. Having considered the entire materials on record, we are of the view that the petitioner did not know about the suit or proceedings before his approaching the court directly. After considering the said factual aspects in the light of the principle of law discussed above, we are of the view that the applicant is not guilty of a contumacious conduct or purchasing the property clendestinely or in defiance of the restraint order passed by the Court. It cannot be attributed undue delay on his part also. In that view of the matter we hold that the learned Sub Judge went wrong in dismissing I.A.No.922 of 2016, I.A.No.57 of 2017 and I.A.No.60 of 2017 in O.S.No.51 of 2011. 20 O.P.(C) No.391 of 2017 & F.A.O.No.134 of 2017 24. It is true that whether or not the petitioner is allowed to be a defendant in the suit, his claims and rights can only be under the 2[nd] respondent. That does not, however, mean that they cannot have separate identities as parties to the suit. The petitioner would be able to set up independent defence with respect to his title, subject, of course, to Section 52 of the Transfer of Property Act. In the above view of the matter, we hold that the dismissal of applications of the 2[nd] respondent to condone the delay and set aside the exparte decree in O.S.No.55 of 2011 does not create any bar to the applications filed by the petitioner, I.A.No.57 of 2017 and I.A.No.60 of 2017. 25. This is a case of the year 2011. Decree was passed on 17.11.2014. The 1[st] respondent filed an application under Section 28(3) of the Specific Relief Act for getting the deed executed in 2014 itself. On account of the applications filed by the petitioner the matter has been protracted this far. It is true that the petitioner has succeeded in proving sufficient cause for condonation of delay and setting aside the ex parte 21 O.P.(C) No.391 of 2017 & F.A.O.No.134 of 2017 decree. However, the inconvenience caused to the 1[st] respondent on account of the delay has to be sufficiently compensated. We deem it appropriate that a cost of Rs.15,000/- shall be paid by the petitioner to the 1[st] respondent. 26. Hence, we allow the Original Petition and the Appeal on the condition that the petitioner shall pay cost of Rs.15,000/- (Rupees fifteen thousand only) to the 1[st] respondent, within a period of three weeks from the date of production of a certified copy of this judgment before the Sub Court, Kattappana. On such payment, the orders of the Sub Court in I.A.No.922 of 2016, I.A.No.57 of 2017 and I.A.No.60 of 2017 in O.S.No.51 of 2011 will stand set aside and the suit restored on file. The parties shall appear before the Sub Court, Kattappana on 25.01.2022. ## **Sd/ANIL K. NARENDRAN, JUDGE Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr 22 O.P.(C) No.391 of 2017 & F.A.O.No.134 of 2017 ## **APPENDIX OF OP(C) 391/2017** ## **PETITIONER EXHIBITS** **EXT.P1 A TRUE COPY OF THE SALE DEED NO.3958/12 DATED 26/12/2012 OF RAJAKUMARI SRO. EXT.P2 A TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, RAJAKUMARI DATED 1/8/2014. EXT.P3 A TRUE COPY OF THE TAX RECEIPT ISSUED BY THE VILLAGE OFFICE, RAJAKUMARI DATED 4/11/2016. EXT.P4 A TRUE COPY OF I.A NO.922/2016 FILED BY THE PETITIONER DATED 22/11/2016 EXT.P5 A TRUE COPY OF THE AFFIDAVIT AND PETITION BY THE PETITIONER DATED 23/11/2016 EXT.P6 A TRUE COPY OF THE JUDGMENT IN OP(C) NO.2990/2016 DATED 20/12/2016 EXT.P7 A TRUE COPY OF THE ORDER IN I.A NO.922/2016 IN OS NO.51/2011 DT. 23/1/2017, SUB COURT, KATTAPPANA**