Sumit S/O Sunil Agrawal vs. 6th Joint Civil Judge

IN THE HIGH COURT OF JUDICATURE AT BOMBAY : NAGPUR BENCH : NAGPUR.

Writ Petition No.1563 of 2012. (Sumit Agrawal vs 7th Joint Civil Judge, Senior Division, Nagpur & others)

Office Notes, Office Memoranda of Court's or Judges Order. Coram, appearances, Court's Orders or directions and Registrar's orders.

Smt. R.D. Raskar, Advocate for petitioner.

Coram : A.V. Nirgude, J. Dated : 11th July, 2013.

Heard the learned Counsel appearing for the petitioner. None for the respondents.

This writ petition challenges the order dated 2082011 rejecting the petitioner's application to become party in Special Civil Suit No. 120 of 2008. One N. Sureshbabu filed this Suit for specific performance against N. Kishor and others in 2008. It was his case that the suit lands were agreed to be sold to him. During the pendency of the suit, defendants N. Kishor and others sold all the suit lands to the petitioner. It is pertinent to note that the parties to the suit are closely related, in as much as N. Sureshbabu and N. Kishor are the brothers. But the petitioner is an

outsider and knew full way about pendency of this suit. Even in the sale deeds there is a specific covenant saying that in case the suit is decreed against defendants N. Kishor and others, the petitioner would not get any title to the property. After the sale deeds were executed, the petitioner filed application for joining him as a party to the suit. The learned Judge rejected his application on two grounds viz; (i) that the petitioner has no say in the case because he was not party to the suit transaction (ii) he was put to notice that the title so transferred in his favour would depend on the outcome of the present suit.

The question is whether in spite of all the adverse circumstances against the petitioner he is entitled to be a party to this litigation? The answer is in affirmative. The answer is found in the provisions of Section 19 of the Specific Relief Act, which is relevant as under :

"19. Relief against parties and persons claiming under them by subsequent title. Except as otherwise provided by this Chapter, specific performance of a contract maybe enforced against

(a) either party thereto;

(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;

(c ) any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant;

(d) when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation;

(e) when the promoters of a company have, before its incorporation, entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation, the company;

Provided that the company has accepted the contract and communicated such acceptance to the other party to the contract."

The circumstance under Clause (b) of this section is applicable to the facts of this case. The petitioner is claiming title from the defendants on the basis of the sale deeds that were executed subsequent

to the suit. So, the relief likely to be granted in this suit in favour of the plaintiff and against the defendants would directly affect the petitioner. The petitioner, thus, has substantial interest in the outcome of this suit. Even though, he would not be able to help the Court in deciding the question between the original parties to the suit, his presence in the suit is necessary, so as to prevent collusion between the original parties to the suit. The Hon'ble Supreme Court considered this aspect in the Judgment of Amit Kumar Shaw and another vs Farida Khatoon and another, reported in AIR 2006 SC 2209. The Hon'ble Supreme Court held that a party who acquires substantial right in the property subsequent to the filing of suit, he should be made party to the suit. The original plaintiff would not get affected if the applicant is made party to the suit. Probably he would be benefited. Thus would help him in execution of the decree for specific performance.

The writ petition is allowed. The impugned order is set aside. The original plaintiff shall be made party to the suit.

JUDGE

Deshmukh