Balveer vs Krishan Lal And Ors

By the instant writ petition under Article 226 & 227 of the Constitution of India, petitioner-defendant has challenged order dated 8th of August, 2018 (Annex.P/7) passed by Addl. District Judge No.2 rejecting his application under Order XVI Rule 1 CPC in a suit for specific performance of contract filed by respondent-plaintiff.

Facts in brief are that initially respondent-plaintiff filed a suit for specific performance of contract and permanent injunction against respondents No.2 to 4 with specific averment that as per agreement to sale, agricultural land of Khasra No.1163 ad-measuring 20 bighas was agreed to be sold by respondent No.2 to him upon obtaining Sanad of the land but after obtaining Sanad instead of abiding by the terms of agreement, the land in question was sold to respondents No.3 & 4. It appears that subsequently respondents No.3 & 4 further alienated the suit property to the petitioner by a registered sale-deed. Considering the subsequent sale relevant in the backdrop of lis involved in the suit, respondent-plaintiff filed an application for amendment of the suit by adding additional paragraph 7(a) and further impleaded petitioner as defendant. In para 7(a), a specific averment is made that respondents No.3 & 4 have sold the property to the petitioner during pendency of the suit and therefore, the said transaction is hit by lis pendens. Although, in the relief clause no specific prayer is made for cancellation of subsequent sale-deeds, including the sale-deed in favour of the petitioner, but the factum of execution of sale-deed in his favour by respondents No.3 & 4 is clearly discernible from the amended plaint. Taking into account this sort of pleadings, the petitioner approached learned trial Court by laying application under Order XVI Rule 1 CPC for summoning some additional witnesses for substantiating his defence.

Learned trial Court, after hearing the arguments, by the order impugned, rejected the application by citing the reason that suit has materially progressed and it is at the final stage, therefore, solely on account of delay, application cannot be entertained.

Heard learned counsel for the parties and perused the impugned order.

While it is true that in the prayer, the sale-deed, allegedly executed in favour of petitioner, has not been questioned and the relief prayed for is confined to specific performance of contract against respondent No.2, but in the pleadings the plaintiff-respondent No.1 has very candidly admitted that the land has been sold to third party including the petitioner. It is also borne out from the pleadings that the plaintiff-respondent has also taken shelter of Section 52 of the Transfer of Property Act, 1882, which relates to transfer of property pending suit relating thereto. The doctrine of lis pendens is intended to prevent a party to suit to make an assignment inconsistent with the rights, which may be decided in the suit and which might require a further party to be impleaded in order to make effectual the court's decree. This being the position, adjudication of the main suit eventually will have direct ramification on the rights of the petitioner-defendant, who is subsequent purchaser. The right of a subsequent purchaser though hit by doctrine of lis pendens but its right to defend the said suit cannot be circumscribed.

True it is that the endeavour made by petitioner for submitting additional evidence and summoning the witnesses was delayed, but in overall fact scenario, it cannot be said that adjudication of the lis involved in the suit would not adversely affect his rights, which accrued to him on the strength of registered sale-deed executed in his favour.

Learned Court below has essentially declined prayer of the petitioner solely on the ground of delay and stage of the suit, however, in my opinion, in the interest of justice it would have been appropriate for the Court to have considered prayer of the petitioner objectively. In view thereof, the order impugned merits annulment even in exercise of limited scope of judicial review under the supervisory jurisdiction enshrined Article 227 of the Constitution of India. Moreover, learned Court below has also committed an error apparent on the face of record to non-suit the petitioner, and therefore, impugned order cannot be sustained to prevent miscarriage of justice.

Consequently, the petition is allowed and the impugned order is set aside. The matter is remitted back to the learned trial Court for deciding the application under Order XVI Rule 1 CPC of the petitioner afresh strictly in accordance with law.