Ram Naresh Vs Additional District Judge and Others

Sudhir Agarwal, J.@mdashHeard Sri Manish Nigam, Advocate, for petitioner. None has put in appearance on behalf of respondents No. 3 and 4, despite notice. Therefore, this writ petition was heard ex parte and judgment was reserved. The writ petition is directed against order dated 7.9.2010 passed by Additional Civil Judge (Junior Division), Court No. 12, Deoria, rejecting application No. 111KA2 filed by plaintiff under Order VI, Rule 17 C.P.C. for seeking impleadment of Sri Vijay Pratap, Ram Pravesh and Ajay, as defendants No. 5, 6 and 7, and for addition of certain paragraphs in the plaint, bringing on record subsequent facts of transfer of property in dispute by defendants No. 3 and 4 in favour of respondents No. 5 to 7 vide sale-deed dated 10.12.1999. The writ petition is also directed against revisional order dated 25.1.2012 passed by Additional District Judge, Court No. 15, Deoria, dismissing petitioner''s Revision and confirming Trial Court''s order dated 7.9.2010.

2. The facts in brief, giving rise to present dispute, are as under.

3. Petitioner, Ram Naresh, instituted Original Suit No. 1697 of 1983, for specific performance of contract, by enforcing agreement dated 19.11.1974 relating to Plots No. 604 M, 605M, 606M, 607M, 608M and 609M measuring a total area of 2 acres which was executed by Sri Kishun, predecessor of respondents No. 3 and 4 for a total consideration of Rs. 10,000/- out of which it was alleged that Rs. 4,000/- was paid by petitioner to respondents No. 3 and 4 in advance and rest Rs. 6000/- was payable at the time of execution of sale-deed. It was mentioned in the agreement that since consolidation proceedings are going on, permission of consolidation authorities is necessary before transfer and after obtaining permission the sale-deed would be executed.

4. The suit was contested by defendants by filing written statement. During pendency of suit, respondents 3 and 4 allegedly executed a registered sale-deed dated 10.12.1999 of 2/3 portion of Chak No. 506 including plots in dispute, in Original Suit No. 1697 of 1983, in favour of Vijay Pratap, Ram Pravesh and Ajay, all sons of Ram Nagina Yadav. Petitioner claimed that the said information came to his notice in the second week of December, 1999 and after getting information of the said sale-deed, plaintiff, i.e., petitioner, filed an amendment application for impleadment of subsequent purchaser as also to incorporate certain paragraphs in the plaint to bring on record subsequent events and also for addition of a relief, i.e., cancellation of sale-deed dated 10.12.1999. The said amendment application was contested by defendants by filing their objection. The aforesaid amendment application. Paper No. 73-Ka2, dated 14.8.2000 was rejected vide Trial Court by order dated 10.11.2009. It held that under section 52 of Transfer of Property Act, 1882 (hereinafter referred to as "Act, 1882") the transactions ''lis pendens'' would also be subject to result of suit and, therefore, amendment sought by plaintiff was unnecessary.

5. Again another application, i.e., paper No. 110-Ka2 dated 12.1.2010 was filed by petitioner for impleadment of subsequent purchasers of property in dispute and also for addition of paragraph 10-A in the plaint so as to bring on record subsequent events. This application was also opposed by defendant vide objection dated 15.2.2010. Trial Court vide order dated 7.9.2010 rejected this application holding that once application has been rejected earlier, no second application for the same purpose would lie and that is also barred by principles of constructive res judicata. Petitioner preferred Civil Revision No. 161 of 2010 challenging order dated 7.9.2010 before District Judge, Deoria. Revisional Court, however, rejected the said revision confirming order of Trial Court holding that neither impleadment of subsequent purchasers is necessary nor they are otherwise necessary or proper party to be impleaded in a suit for specific performance of the contract for sale in which they were not party.

6. Sri Manish Nigam, learned Counsel for petitioner, contended that it is true that subsequent purchasers may be bound by ''lis pendens'' transactions, but it cannot be said that the plaintiff, if intend to bring those purchasers on record, the same can be declined by observing that they are neither necessary nor proper party. He placed reliance on decisions of Apex Court in Lala Durga Prasad and Another Vs. Lala Deep Chand and Others, AIR 1954 SC 75 : (1954) 1 SCR 360 ; Amit Kumar Shaw v. Farida Khatoon 2005 (59) ALR 584 (SC) : 2005 (29) AIC 1 and Thomson Press (India) Ltd. Vs. Nanak Builders and Investors P. Ltd. and Others, (2013) 10 AD 57 : AIR 2013 SC 2389 : (2013) 2 CTC 104 : (2013) 3 JT 289 : (2013) 171 PLR 26 : (2013) 2 RCR(Civil) 875 : (2013) 3 SCALE 26 : (2013) 5 SCC 397 : (2013) AIRSCW 1617 He also placed reliance on a Division Bench judgment of this Court in Raj Singh Vs. Ram Nivas and Another, AIR 1977 All 104 : (1977) AWC 96 and Madras High Court''s decision in Vimala Ammal Vs. C. Suseela and others, AIR 1991 Mad 209

7. I have heard learned Counsel for the petitioner and perused the record.

8. The application of petitioner, a copy whereof has been placed on record as Annexure-4 to the writ petition, mention Order VI, Rule 17 C.P.C., whereunder the said application was filed. The petitioner also prayed for impleadment of three persons namely Vijay Pratap, Ram Pravesh and Ajay, sons of Ram Nagina as defendants No. 5, 6 and 7. The said application was rejected by Trial Court only on the ground that similar amendment application was filed earlier, which was already rejected and, therefore, another application to the same effect is not maintainable and that the transaction of alleged sale having taken place during pendency of suit the result of suit would be binding on transferee also, therefore, amendment is wholly unnecessary and that proposed defendants are neither necessary nor proper party.

9. It is true that by virtue of section 52 of Transfer of Property Act, 1882 (hereinafter referred to as "Act, 1882") a transfer lis pendens shall bind subsequent transferee (s) also with the result of suit even if he is not a party thereto.

10. Privy Council in Gouri Dutt Maharaj vs. Sheikh Sukur Mohammed and OthersAIR 1948 147 (Privy Council) said,

"...The broad purpose of section 52 is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. The applicability of the section cannot depend on matters of proof or the strength or weakness of the case on one side or the other in bona fide proceedings."

11. In Kedar Nath Lal and Another Vs. Ganesh Ram and Others, AIR 1970 SC 1717 : (1969) 2 SCC 787 : (1970) 2 SCR 204 the Court said that the purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so it must bind the person driving his right, title and interest from or through him.

12. In Rajender Singh and Others Vs. Santa Singh and Others, AIR 1973 SC 2537 : (1973) 2 SCC 705 : (1974) 1 SCR 381 it was held that doctrine of lis pendens is intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of a Court, in which a dispute on rights or interests in immovable property is pending, by private dealings which may remove the subject-matter of litigation from the ambit of the Court''s power to decide a pending dispute or frustrate its decree. Alienees acquiring any immovable property during'' a litigation over it are held to be bound, by an application of the doctrine, by the decree passed in the suit even though they may not have been impleaded in it. The whole object of doctrine of lis pendens is to subject parties to the litigation as well as others, who seek to acquire rights in immovable property, which is the subject-matter of a litigation, to the power and jurisdiction of the Court so as to prevent the object of a pending action from being defeated.

13. However, this is one aspect of the matter. That by itself does not mean that such transferee is neither necessary nor proper party at all and, therefore, cannot be impleaded at all as a defendant under any provision of law. This understanding on the part of Courts below, in my view, does not appear to be correct.

14. The Courts below have totally ignored the provisions of Order XXII, Rule 10 C.P.C., which read as under :

"10. Procedure in case of assignment before final order in suit.--(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.

(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1)."

15. The plaintiff though without amendment and bringing subsequent transferee on record as a party, may have proceed to prosecute the suit. But that is one aspect of the matter. If he wants to bring on record subsequent transferee also, there is no bar in law from doing so. It can be done by taking recourse to Order XXII, Rule 10 C.P.C.

16. Order XXII, Rule 10 C.P.C. contemplates continuation of suit where person against whom proceedings were initiated, by way of assignment, creation or devolution of interest, has given effect to a transfer in respect to the property, to someone else. For example, where suit is filed in respect to Company ''A'' and during pendency thereof this Company ''A'' is taken over by a new Company ''B'', the suit can continue by new Company ''B''.

17. Order XXII, Rule 10 contemplates a situation arising in the cases of assignment, creation and devolution of interest during pendency of a suit, other than those referred to in earlier Rules. It is based on the principle that trial of a suit cannot be brought to an end merely on account of interest of a party, subject-matter of a suit, is devolved upon another, during its pendency. Such a suit may be continued with the leave of Court, by or against the person upon whom such interest has devolved. But, if no such step is taken, and transferee of interest is not brought on record and impleaded, that would not mean that suit cannot proceed. It may be continued with original party. The person upon whom interest has devolved, will be bound by and can have the benefit of decree, as the case may be, unless it is shown in a properly constituted proceeding that the original party being no longer interested in the proceeding did not vigorously prosecute, or colluded with the adversary, resulting in a decision, adverse to the party upon whom interest had devolved.

18. Under Order XXII, Rule 10, C.P.C, Legislature has intended that proceedings would continue by or against the original party, although he ceased to have any interest in the subject of dispute, despite the failure to apply for leave, to continue by or against the person upon whom the interest has devolved, for bringing him on record.

19. It is also plain inference drawn from the aforesaid provision that the person who has acquired an interest by devolution, if obtains leave to carry on suit, the suit in his hands is not a new suit. A cause of action is not prolonged by mere transfer of title. It is the old suit carried on at his instance and he is bound by all proceedings up to the stage when he obtains leave to carry on the proceedings. This is what was held by Lord Kingsdown of Judicial Committee in Prannath v. Rookea Begum. (1851) 7 M.I.A. 323 the Apex Court in Saila Bala Dassi Vs. Sm. Nirmala Sundari Dassi and Another, AIR 1958 SC 394 : (1958) 1 SCR 1287 held, if a suit is pending when transfer in favour of a party was made, that would not affect the result when no application has been made to bring such transferee on record, in the original Court, during pendency of suit.

20. In Shri Rikhu Dev, Chela Bawa Harjug Dass Vs. Som Dass (Deceased) through his Chela Shiam Dass, AIR 1975 SC 2159 : (1976) 1 SCC 103 : (1976) 1 SCR 487 : (1975) 7 UJ 770 , a three Judge Bench considered the scope and effect of Order XXII, Rule 10. A suit was filed by Mahant (the appellant before the Apex Court) on the allegation that Dera at Patiala, of which he was Mahant, had other branches, one at Landeke in Moga Tehsil and possession of that Dera and properties attached with, be restored to him. The defendant Som Dass contended that the said Dera at Landeke was an independent Dera and he was in possession of properties thereof, being a lawfully appointed Mahant. The suit was decreed by Trial Court but in appeal, the Trial Court''s judgment was reversed. The second appeal preferred before High Court and when the same was pending, defendant Som Dass died on 13.10.1970. No application to bring on record legal representatives of Som Dass was filed within the period of limitation. An application, filed subsequently after period of limitation, was rejected by High Court holding that appeal had abated and there was no ground for setting aside abatement. The Apex Court came to the conclusion that application for impleadment of Chela Shiam Dass, as legal representative of defendant Som Dass, could not have been taken as an application under Order XXII, Rule 3 C.P.C. but it is an application under Order XXII, Rule 10. When Som Dass died, the interest which was subject-matter of suit, i.e., the property of Dera, devolved upon Shiam Dass as he was elected Mahant of Dera and therefore appeal could be continued under Order XXII, Rule 10 against the person upon whom the interest had devolved. The Court said that Order XXII, Rule 10 is based on the principle that trial of a suit cannot be brought to an end merely because interest of a party in a subject-matter of suit has devolved upon another during pendency of suit. In fact such proceeding may be continued against the person acquiring interest, with the leave of the Court. When a suit is brought, by or against a person in a representative capacity, and there is a devolution of interest of such person, the rule that has to be applied is Order XXII, Rule 10 and not Rule 3 or 4, irrespective of fact whether devolution has takes place as a consequence of death or for any other reason. Order XXII, Rule 10, is not confined to devolution of interest due to death of a party but it also applies where the head of mutt or manager of a temple resigns his office or is removed from his office. In such a case, successor to the head of mutt or the manager of temple may be substituted as a party under this rule.

21. The word ''interest'' in Order XXII, Rule 10 means interest in the property i.e., the subject-matter of the suit. The "interest" is not the interest of the person who was party to the suit.

22. In Ghafoor Ahmad Khan Vs. Bashir Ahmad Khan (Dead) by Lrs., AIR 1983 SC 123 : (1982) 2 SCALE 1372 : (1982) 3 SCC 486 : (1982) 14 UJ 829 during lifetime of sole respondent, there was a transfer of property, which was subject-matter of appeal, by way of gift to his wife. The High Court, where the appeal was pending, observing that appeal has abated, dismissed the same. The Apex Court held that here is not a case where proceedings would stand abated and said :

"In other words it is a case of devolution of interest and the case falls under Order XXII, Rule 10 C.P.C. and there will be no question of abatement. We, therefore, direct that the transferee be brought on the record."

23. In P.P.K. Gopalan Nambiar Vs. P.P.K. Balakrishnan Nambiar and others, AIR 1995 SC 1852 : (1995) 5 JT 163 : (1995) 2 SCALE 560 : (1995) 2 SCC 664 Supp : (1995) 2 SCR 585 : (1995) 81 TAXMAN 424 : (1995) 2 UJ 61 the suit was decreed by Trial Court but in appeal, decree was partially modified excluding the property covered by a Will dated 1.11.1955 executed by one Lakshmi Amma, the mother of the first defendant in the suit. On second appeal, the High Court reversed the decree of first Appellate Court and confirmed Trial Court''s judgment. Before Apex Court, the defendant in suit, who was appellant, contended that three of the parties i.e., respondents No. 2, 4 and 11 since have expired, their legal representatives were not substituted, the appeal stood abated. Rejecting this contention, the Court observed :

"Admittedly, before their deaths, they sold their respective shares by registered sale-deeds in favour of other respondents. So, by operation of Order XXII, Rule 10 C.P.C., their respective interest devolved by transfer of the respondents who are already on record. Therefore, there is no need to bring the L.Rs. of the deceased on record or to transpose them as legal representatives."

(Emphasis added)

24. In Dhurandhar Prasad Singh Vs. Jai Prakash University and Others, AIR 2001 SC 2552 : (2001) 5 JT 578 : (2001) 4 SCALE 495 : (2001) 6 SCC 534 : (2001) 3 SCR 1129 : (2001) 3 SLJ 432 : (2001) AIRSCW 2674 : (2001) 5 Supreme 278 the Court, construing scope and ambit of Order XXII, Rule 10 C.P.C., said, "it provides for cases of assignment, creation and devolution of interest during pendency of a suit". Trial of a suit cannot be brought to an end for the sole reason that interest of a party in the subject-matter of suit has devolved upon another, during its pendency. Such a suit may be continued with the leave of Court, by or against person upon whom such interest has devolved. The Court also observed, if no such steps is taken, the suit may be continued with original party and person upon whom interest has devolved will be bound by decree, particularly, when such transferor had knowledge of proceedings and made no attempt to get himself impleaded in pending proceedings. The Limitation Act provides limitation in respect to applications under Order XXII, Rules 3 and 4 but it has not been shown to the Court that there is any provision providing limitation for impleadment of a transferor by way of assignment, creation or devolution of interest in subject-matter of suit property, governed by Order XXII, Rule 10. The relevant extract of judgment discussing Order XXII, Rule 10 C.P.C. is as under:

"Plain language of Rule 10 referred to above does not suggest that leave can be sought by that person alone upon whom the interest has devolved. It simply says that the suit may be continued by the person upon whom such an interest has devolved and this applies in a case where the interest of plaintiff has devolved. Likewise, in a case where interest of defendant has devolved, the suit may be continued against such a person upon whom interest has devolved, but in either eventuality, for continuance of the suit against the persons upon whom the interest has devolved during the pendency of the suit, leave of the Court has to be obtained. If it is laid down that leave can be obtained by that person alone upon whom interest of party to the suit has devolved during its pendency, then there may be preposterous results as such a party might not be knowing about the litigation and consequently not feasible for him to apply for leave and if a duty is cast upon him then in such an eventuality he would be bound by the decree even in cases of failure to apply for leave. As a rule of prudence, initial duty lies upon the plaintiff to apply for leave in case the factum of devolution was within his knowledge or with due diligence could have been known by him. The person upon whom the interest has devolved may also apply for such a leave so that his interest may be properly represented as the original party, if it ceased to have an interest in the subject-matter of dispute by virtue of devolution of interest upon another person, may not take interest therein, in ordinary course, which is but natural, or by colluding with the other side. If the submission of Shri Mishra is accepted, a party upon whom interest has devolved, upon his failure to apply for leave, would be deprived from challenging correctness of the decree by filing a properly constituted suit on the ground that the original party having lost interest in the subject of dispute, did not properly prosecute or defend the litigation or, in doing so, colluded with the adversary. Any other party, in our view, may also seek leave as, for example, where plaintiff filed a suit for partition and during its pendency he gifted away his undivided interest in the Mitakshara Coparcenary in favour of the contesting defendant, in that event the contesting defendant upon whom the interest of the original plaintiff has devolved has no cause of action to prosecute the suit, but if there is any other co-sharer who is supporting the plaintiff, may have a cause of action to continue with the suit by getting himself transposed to the category of plaintiff as it is well settled that in a partition suit every defendant is plaintiff, provided he has cause of action for seeking partition. Thus, we do not find any substance in this submission of learned Counsel appearing on behalf of the appellant and hold that prayer for leave can be made not only by the person upon whom interest has devolved, but also by the plaintiff or any other party or person interested."

(Emphasis added)

25. In Raj Kumar Vs. Sardari Lal and Others, (2004) 4 CTC 549 : (2004) 2 JT 196 : (2004) 2 SCALE 17 : (2004) 2 SCC 601 : (2004) 1 SCR 838 the Apex Court following and reiterating its view taken in Smt. Saila Bala Dassi (supra) said that doctrine of lis pendens expressed in the maxim ''ul lite pendente nihil innovetur'' (during a litigation nothing new should be introduced) has been statutorily incorporated in section 52 of Transfer of the Property Act, 1882 (hereinafter referred to as "Act, 1882"). A defendant cannot by alternating property during pendency of litigation, venture into depriving successful plaintiff of the fruits of decree. The transferee pendente lite is treated in the eye of law, as a representative in interest of the judgment-debtor, and is bound by decree passed against judgment-debtor, though neither the defendant has chosen to bring transferee on record by apprising his opponent and the Court about the aforesaid transfer, nor, the transferee has chosen to come on record by taking recourse to Order XXII, Rule 10. The Court, further, said :

"In case of an assignment creation or devolution of any interest during the pendency of any suit to grant leave for the person in or upon whom such interest has come to vest or devolve to be brought on record. Bringing of a lis pendens transferee on record is not as of right but in the discretion of the Court. Though not brought on record the lis pendens transferee remains bound by the decree."

(Emphasis added)

26. Similar issue also came up for consideration in Amit Kumar Shaw and Another Vs. Farida Khatoon and Another, AIR 2005 SC 2209 : (2005) 4 CTC 47 : (2005) 5 JT 20 : (2005) 141 PLR 201 : (2005) 11 SCC 403 : (2005) 3 SCR 509 The Court observed that power of a Court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property or not. The question is, whether right of a person may be affected if he is not added as a party. Such right, however, will include necessarily an enforceable legal right. Under Order XXII, Rule 10, no detailed inquiry at the stage of granting leave is contemplated. The Court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit by or against the person on whom the interest has devolved by assignment or devolution. The question about existence and validity of assignment or devolution can be considered at the final hearing of the proceedings.

27. In A. Nawab John and Others Vs. V.N. Subramaniyam, (2012) 4 CTC 206 : (2012) 6 JT 450 : (2012) 168 PLR 634 : (2012) 3 RCR(Civil) 749 : (2012) 7 SCC 738 the Court with reference to Order XXII, Rule 10 has observed that subsequent pendente lite purchaser can be allowed to be impleaded as party to prosecute the suit and placed reliance on its earlier decision in Amit Kumar Shaw v. Farida Khatoon (supra). In para 16 of the judgment in Amit Kumar Shaw (supra), the Court said :

"16.....Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the Court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, where the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party, under Order XXII, Rule 10 an alienee pendente lite may be joined as party. As already noticed, the Court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The Court has held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where his predecessor-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case."

(Emphasis added)

28. Referring to the aforesaid observations in Amit Kumar shaw (supra), the Court in A. Nawab John (supra) in para 22 said as under :

"22. The preponderance of opinion of this Court is that a pendente lite purchaser''s application for impleadment should normally be allowed or "considered liberally"."

29. Recently in Thomson Press (India) Ltd. Vs. Nanak Builders and Investors P. Ltd. and Others, (2013) 10 AD 57 : AIR 2013 SC 2389 : (2013) 2 CTC 104 : (2013) 3 JT 289 : (2013) 171 PLR 26 : (2013) 2 RCR(Civil) 875 : (2013) 3 SCALE 26 : (2013) 5 SCC 397 : (2013) AIRSCW 1617 the Court has again reviewed the law in respect to the status of a subsequent purchaser whether he is necessary and proper party and must be impleaded in a pending suit for specific performance. The question, which was considered by Court, as formulated in para 16 of the judgment is "Whether if the appellant who is the transferee pendente lite having notice and knowledge about the pendency of the suit for specific performance and order of injunction can be impleaded as party under Order I, Rule 10 on the basis of sale-deeds executed in their favour by the defendant Sawhneys." Referring to section 52 of Act, 1882, it was observed that doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a Court in a suit should be binding not only on the litigating parties but on those who derive title pendente lite. The provision of this section does not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parties to a litigation.

30. The Court in Thomson Press (India) Limited (supra) also referred to section 19 of Specific Relief Act, 1963 (hereinafter referred to as Act 1963") and Order I, Rule 10. With reference to Order I, Rule 10, the Court referred to its earlier decision in Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Others, (1992) 2 JT 116 : (1992) 1 SCALE 530 : (1992) 2 SCC 524 : (1992) 2 SCR 1 : (1992) 2 UJ 181 and said that desirable consequence of the rule is to prevent multiplicity of actions. It quoted with approval Amon v. Raphael Tuck and Sons Ltd., (1956)1 All ER 273 observing that true test lies not so much in an analysis of what are the constituents of applicants'' rights, but rather in what would be the result on the subject-matter of the action, if those rights could be established. The test is: "May the order for which the Plaintiff is asking directly affect the intervener in the enjoyment of his legal rights?". With reference to section 19 of Act, 1963, the Court said that a contract for specific performance may be enforced against the parties to the contract and the persons mentioned in the said section. The suit for specific performance cannot be enforced against a person who is a transferee from the vendor for valuable consideration and without notice of the original contract which is sought to be enforced in the suit. Hon''ble M.Y. Eqbal, J., in His Lordship''s judgment, took the view that a subsequent purchaser, with notice, is to be added as party defendant in the suit relying on its earlier decisions in R.C. Chandiok and Another Vs. Chuni Lal Sabharwal and Others, AIR 1971 SC 1238 : (1970) 3 SCC 140 : (1971) 2 SCR 573 : (1971) 3 UJ 35 and Dwarka Prasad Singh and Others Vs. Harikant Prasad Singh and Others, AIR 1973 SC 655 : (1973) 75 PLR 264 : (1973) 1 SCC 179 : (1973) 2 SCR 1064 : (1973) 5 UJ 467 . His Lordship T.S. Thakur, J. in his separate but concurring judgment, referred to earlier decisions in Nagubai Ammal and Others Vs. B. Shama Rao and Others, AIR 1956 SC 593 : (1956) 1 SCR 451 ; Vinod Seth Vs. Devinder Bajaj and Another, (2010) 8 JT 66 : (2010) 8 SCC 1 : (2010) 7 UJ 3489 . A. Nawab John and Others Vs. V.N. Subramaniyam, (2012) 4 CTC 206 : (2012) 6 JT 450 : (2012) 168 PLR 634 : (2012) 3 RCR(Civil) 749 : (2012) 7 SCC 738 and Jayaram Mudaliar Vs. Ayyaswami and Others, AIR 1973 SC 569 : (1972) 2 SCC 200 : (1973) 1 SCR 139 and said in para 54 as under:

"A simple reading of the above provision would show that in cases of assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. What has troubled us is whether independent of Order I, Rule 10 C.P.C. the prayer for addition made by the appellant could be considered in the light of the above provisions and, if so, whether the appellant could be added as a party-defendant to the suit. Our answer is in the affirmative. It is true that the application which the appellant made was only under Order I, Rule 10 C.P.C. but the enabling provision of Order XXII, Rule 10 C.P.C. could always be invoked if the fact situation so demanded. It was in any case not urged by the Counsel for the respondents that Order XXII, Rule 10could not be called in aid with a view to justifying addition of the appellant as a party-defendant. Such being the position all that is required to be examined is whether a transferee pendente lite could in a suit for specific performance be added as a party- defendant and, if so, on what terms."

(Emphasis added)

"57. To sum up:

57.1 The appellant is not a bona fide purchaser and is, therefore, not protected against specific performance of the contract between the plaintiffs and the defendant owners in the suit.

57.2 The transfer in favour of the appellant pendente lite is effective in transferring title to the appellant but such title shall remain subservient to the rights of the plaintiff in the suit and subject to any direction which the Court may eventually pass therein.

57.3 Since the appellant has purchased the entire estate that forms the subject-matter of the suit, the appellant is entitled to be added as a party-defendant to the suit.

57.4 The appellant shall as a result of his addition raise and pursue only such defences as were available and taken by the original defendants and none other."

32. The aforesaid decisions make it very clear that subsequent transferee can be impleaded as party in the suit where plaintiff is seeking enforcement of an agreement for sale and has come up for specific performance though it is wholly unnecessary for plaintiff to challenge conveyance/sale-deed executed by defendants during pendency of suit to the party proposed to be brought on record in the suit.

33. The writ petition, therefore, is partly allowed. The impugned orders passed by Courts below are hereby set aside to the extent they have declined to add Vijay Pratap, Ram Pravesh and Ajay as defendants No. 5, 6 and 7 in the suit in question and they are directed to allow the aforesaid persons to be brought on record as defendants in the suit. No costs.