24-WP-100-2023.DOC

Andreza

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO. 100 OF 2023

Fabrica Da Igreja De Vasco, Thr. Its Attorney

Mr. Romald Colaco, 55 years of age, r/o.

H.No. 269, Nr. Laxmi Niwas, Belabai, Vasco,

Mormugao, Having office at St. Andrew's

Church Complex, Vasco-da-Gama, Goa

403802.

… Petitioner

V e r s u s

1. M/s. Paul Dias & Sons, A Partnership firm

Thr. Its Managing Partner William Dias with

office at 10, Khalap Mansion, Vasco da Gama,

Goa. Legal heirs of Deceased Petitioner

1(a) Mrs. Glendora Rebecca Dias (widow)

1(b) Ms. Tatum Arabella Dias (Daughter)

1(c) Mr. Dulan Vincent Dias (Son),

All residing at 6, Colaco Building, Mangor

Hill, Vasco da Gama, Goa 403 802.

2. Fabrica de Igreja de St. John Baptista da

Paroqula of Benaulim, through its President,

Fr. Francis X. Pereira, Benaulim, Salcete,

Goa, 403 716.

3. Mr. Xec Ashfaq, M/s. Foto Mohammed

Studio, Flat No.28, First Floor, St. Pelegia

Building, Fr. Jose Vaz Road, Vasco-da-Gama,

Goa.

…Respondents

Mr. A. D. Bhobe, Advocate with Mr. Shailesh Henriques and

Ms. Shaizeen Shaikh, Advocates for the Petitioner.

Ms. Flavia Mesquita, Advocate for the Respondent No. 1.

_______________________

CORAM: M. S. KARNIK, J

DATED: 21

st

MARCH 2023

_______________________

JUDGMENT

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1. Heard Mr. Bhobe, learned Counsel for the Petitioner and Ms.

Mesquita, learned Counsel for the Respondent No.1

2. The challenge in this Petition filed under Article 227 of the

Constitution of India, is to an Order dated 24.01.2023 passed on the

application dated 09.01.2023 at Exhibit D-185.

3.The Petitioner is the original Defendant No.3. The Respondent

No.1- Original Plaintiff instituted a suit on 14.01.2008 against the

Respondent No. 2/Original Defendant No.1 and the Respondent

No.3/Original Defendant No. 2 seeking declaration that the

Respondent No.1 has a right to obtain on lease the suit premises

consisting of flat no.2-B located on the first floor of St. Pelegia

Building, Vasco da Gama from Respondent No. 2/original Defendant

No.2; that the lease deed dated 24.03.1999 in respect of the suit

premises executed by Respondent No.2/Original Defendant No.1 in

favour of Respondent No.3/original Defendant No.2 be declared null

and void and the Respondent No.2 be commanded to execute lease

deed in favour of Respondent No.1 by delivering possession of the

suit premises to the Respondent No.1 and further for injunction. The

Defendant No.1 is the landlord. The Plaintiff is a lessee in respect of

FlatNo.2-A. The Plaintiff's case is that instead of leasing Flat No.2-B

in his favour, the Defendant No.1 in violation of the lease agreement,

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leased Flat No.2-B in favour of Defendant No.2. Hence, the suit that

the lease Flat No.2- in favour of Defendant No.2 is null and void.

4.The Defendant No.1 filed written statement dated 12.03.2008

opposing the suit. The Defendant No.1 also filed a counter claim

seeking a decree that the Defendant No.1 is entitled to recover

possession of flat no.2A and that the Plaintiff having failed and

neglected to quit and vacate the flat no.2A, be ordered to deliver the

vacant possession of the same to the Defendant No.1.

5.The Defendant No.2 filed his written statement on 03.04.2008

as also to the counter claim filed by the Defendant No.1 praying that

the Suit of the Plaintiff be dismissed and the counter claim of the

Defendant No.1 in terms of prayer clause (d) be granted.

6.In the meantime and during the pendency of the suit, the

Defendant sold the suit property by registered Sale Deed dated

22.04.2021 to the Petitioner-Defendant No.3. On 09.06.2022, the

Respondent No.1 filed an application under Order 1 Rule 10(2) of

CPC seeking impleadment/addition of party and for striking out the

Defendant no.1 from the array of Defendants, which application was

marked as Exhibit D-150. By the application Exhibit D-150, the

Plaintiff, inter alia stated that pursuant to the Sale Deed in favour of

the Defendant No.3, the Defendant No.3 ceased to have any right or

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interest in the suit property/suit flat as the ownership vests in the

Defendant No.3 and hence, the relief and the claim of the Plaintiff

would lie against the Defendant No.3. It is averred that the

Petitioner-Defendant No.3 was a necessary party to the proceedings

as in his absence the suit would be incompetent. On the basis of the

said plea, the Plaintiff sought for deletion of the Defendant No.1 and

for substitution of the Defendant No.3.

7.By an Order dated 04.07.2022, the learned trial Judge allowed

the application dated 09.06.2022 at Exhibit D-150 filed by the

Plaintiff to the extent of joinder of the Petitioner herein as Defendant

No.3. The learned Judge observed that the Defendant No.1 cannot be

deleted in view of the counter claim of the Defendant No.1 wherein

the Plaintiff was a party Defendant. The Petitioner was thus arrayed

as Defendant No. 3 in the suit. The Petitioner-Defendant No.3 filed

the written statement on 15.09.2022.

8.On 09.01.2023, the Plaintiff filed an application captioned as

'Application for disallowing the Defendant No.3 from leading

evidence' which was marked as Exhibit D-185. The Plaintiff

contended that the Defendant No.1 had closed his evidence on

30.09.2022 by making an endorsement to that effect; that the

Petitioner-Defendant No.3 who was the transferee pendent lite was

seeking to lead evidence; that when the Defendant No.1, who was the

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original owner of the suit flat, had given up the right to lead evidence,

the Petitioner-Defendant No.3 who is the transferee pendent lite does

not get any right to lead evidence as he steps into the shoes of the

Defendant No.1. On the basis of the said contention, the Plaintiff

prayed that the affidavit in evidence filed by the Defendant No.3 be

discarded.

9.A reply came to be filed by the Petitioner-Defendant No.3

opposing the said application inter alia on the ground that the

Petitioner-Defendant No.3 had filed an independent written

statement; that the Defendant No.2 was cross examined at length by

the Plaintiff and Defendant No.1 and thereafter by the Defendant

No.3. The Trial Court by the impugned Order allowed the application

at Exhibit D-185 thereby disallowing the Defendant No.3 from

leading evidence. The Trial Court while relying upon the decision of

the Apex Court in the case of Dhanna Singh vs. Baljinder Kaur

1

,

observed thus :

“......Apart from doctrine of lis pendens, under Section 52

of the Transfer of Property Act, the subsequent purchaser

does not get any right to lead any evidence, as he stepped

into the shoes of the first defendant.”

10.Shri Bhobe, learned Counsel for the Petitioner urged that the

decision in Dhanna Singh vs. Baljinder Kaur (supra) will have

1 (1997) 5 SCC 476

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no application in the facts of the present case. It is submitted that it

was at the instance of the Plaintiff that the Defendant No.3 was

impleaded as a necessary party. It is submitted that it is not as if the

Petitioner-Defendant No.3 had made an application for impleadment

being a transferee pendent lite. It is further submitted that the

Defendant No.1 was examined pursuant to the impleadment of the

Defendant No.3 and Defendant No.3 was allowed to file the written

statement. Learned Counsel submitted that the Defendant No.2 was

permitted to be cross examined at length by the Plaintiff, the

Defendant No.1 and Defendant No.3. It is further submitted that the

Defendant No.1 having lost interest in the property, did not choose to

lead any evidence. It is submitted that though Defendant No.3 has

stepped into the shoes of the Defendant No.1, but from the frame of

the application Exhibit D-150 made by the Plaintiff and the tenor of

the Order passed thereon by the Trial Court, it is obvious that the

Defendant No.3 is impleaded as a party Defendant No. 3 in an

independent capacity and, therefore, in such circumstances, the

Defendants' right to lead evidence cannot be curtailed. Learned

Counsel relied upon the decision of the Supreme Court in the case of

Amit Kumar Shaw & Anr. vs Farida Khatoon & Anr .

2

and

that of the High Court of Madras in the case of V. Damodaran &

2 (2005) 11 SCC 403

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Ors. vs. Thulasirama Reddy & Ors.

3

in support of his

submissions.

11.Ms. Mesquita, learned Counsel for the Respondent No.1, on the

other hand, argued in support of the impugned Order. It is

submitted that the decision of the Supreme Court in Dhanna Singh

vs. Baljinder Kaur (supra) squarely applies to the facts of the

present case. It is submitted that as rightly observed by the Trial

Court, the Defendant No.3 having stepped into the shoes of

Defendant No.1 as transferee pendent lite, the Defendant No. 3

cannot claim a better right than that of the predecessor in title. It is

submitted that if the Defendant No.1 has given up his right to lead

evidence, it is then not open for the Defendant No.3 to adduce

evidence, the position being well settled by the Supreme Court. It is

submitted that in terms of Section 52 of the Transfer of Property Act,

the subsequent purchaser i.e. Defendant No.3 does not get any right

to lead evidence. It is moreover submitted that in the written

statement filed by the Defendant No.3, no fresh plea has been raised

by the Defendant No.3 and, therefore, there are hardly any facts in

the written statement which would justify the need for leading

evidence by the Defendant No.3. The learned Counsel, apart from

relying on the decision in Dhanna Singh vs. Baljinder Kaur

(supra), relied upon the decision of the Supreme Court in the case of

3 2011(3) MWN (Civil) 214

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Guruswamy Nadar vs. P. Lakshmi Ammal (D) through LR's

& Ors.

4

in support of her submission that as a public policy once a

suit has been filed pertaining to any subject matter of the property,

in order to put an end to such kind of litigation, the principle of lis

pendens is evolved so that the litigation may finally terminate

without intervention of a third party. It is submitted that if the

request of the Petitioner to lead evidence is to be accepted, then there

would be no end to litigation as in a given case, pursuant to the

transfer made during the pendency of the proceedings. According to

her, every subsequent purchaser will claim a right to adduce

evidence. It is submitted that knowing fully well that the suit

property is under litigation, the Defendant No.3 took the risk of

entering into a sale transaction with the Defendant No.1 and,

therefore, it hardly will make any difference if the Defendant No.3

has been impleaded at the instance of the Plaintiff or at his instance

in view of the settled proposition of law. Reliance is also placed on

the decision of the Punjab and Haryana High Court in the case of

Sukhdev Singh & Ors. vs. Mohan Singh & Ors.

5

, in support of

the submissions advanced on behalf of Respondent No.1. Learned

Counsel then placed reliance on the decision of the Punjab and

Haryana High Court in the case of Jaswinder Singh & Ors. vs.

4 2008 (5) SCC 796

5 2011 DGLS (P&H) 3105

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Sohan Singh & Ors.

6

, to submit that the subsequent transferee

even though he obtained transfer without notice of original contract,

cannot set up any right against the Plaintiff. A reference is also made

to the decision of this Court in Manoihar Yadaoraoji Belge &

Ors. vs. KamlabaiManohar Rat & Ors.

7

12. Heard learned Counsel at length.

13.Admittedly, the Defendant No.3 purchased the suit property

from the Defendant No.1 during the pendency of the suit. The law so

far as the rights of the transferee pendent lite to lead evidence being

the representative in interest is well settled. The transferee steps into

the shoes of the transferor. Section 52 of the Transfer of Property

Act, which has a direct bearing on the issue involved, reads thus :

“Section 52 - Transfer of property pending suit relating

thereto.—During the [pendency] in any Court having

authority within the limits of India excluding the State of

Jammu and Kashmir] or established beyond such limits]

by the Central Government] [* * *] of [any] suit or

proceedings which is not collusive and in which any right

to immoveable property is directly and specifically in

question, the property cannot be transferred or otherwise

dealt with by any party to the suit or proceeding so as to

affect the rights of any other party thereto under any

decree or order which may be made therein, except under

6 2004 DGLS (P&H) 166

7 2013 (2) Mh.L.J. 312

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the authority of the Court and on such terms as it may

impose.

Explanation.—For the purposes of this section, the

pendency of a suit or proceeding shall be deemed to

commence from the date of the presentation of the plaint

or the institution of the proceeding in a Court of competent

jurisdiction, and to continue until the suit or proceeding

has been disposed of by a final decree or order and

complete satisfaction or discharge of such decree or order

has been obtained, or has become unobtainable by reason

of the expiration of any period of limitation prescribed for

the execution thereof by any law for the time being in

force.”

14.Learned Counsel for the Respondent placed emphasis on the

decision of the Supreme Court in the case of Dhanna Singh vs.

Baljinder Kaur (supra). To appreciate the controversy, it would be

profitable to reproduce the decision which reads thus :

“1. Leave granted.

2. This appeal by special leave arises from the order of the

Single Judge of the Punjab and Haryana High Court, made

on May 22, 1996 in C.R. No.4333/1995.

3. The undisputed facts are that the respondents filed a

suit for permanent injunction with the following prayer:

"It is, therefore, prayed that a decree for

permanent injunction restraining the defendants

from raising any construction over any specific

portion of the property detailed in the heading of

the plaint, and also restraining the defendants

from filling any part of the property by sand and

also retraining the defendants from alienating any

specific portion of the property and also

restraining the defendants from transferring the

possession of the property without the same being

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partitioned between the parties to the suit may

kindly be passed in favour of the plaintiffs against

the defendants with costs and any other relief

which the Hon'ble Court may deem fit be also

granted."

4. Pending the suit, though several opportunities were

given, no evidence was adduced by the defendant. The

court passed an order on September 22, 1995 foreclosing

the evidence of the defendant on the statement of the

counsel that the first defendant was not willing to lead any

evidence. An application for impleadment was filed earlier

by the appellant who is a subsequent purchaser from the

first defendant. After impleadment, he filed application

for adduction of evidence which was rejected. Thus this

appeal.

5. The undisputed fact is that in the plaint the plaintiff-

respondent had already sought for a relief of injunction of

alienation, yet the alienation came to be made. Apart from

the doctrine of lis Pendense under Section 52 of the T.P.

Act, the subsequent purchaser does not get any right to

lead to any evidence, as he stepped into the shoes of the

first defendant, who had given up the right to lead

evidence. In view of these circumstances, he does not get

any right to lead any evidence.

6. The appeal is accordingly, dismissed. No costs.”

15.Their Lordships thus held that the subsequent purchaser does

not get any right to lead any evidence, as he stepped into the shoes of

the first Defendant, who had given up the right to lead evidence. In

the context of Section 52, Their Lordships in the case of

Guruswamy Nadar vs. P. Lakshmi Ammal (supra) observed

thus :

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“Normally, as a public policy once a suit has been filed

pertaining to any subject matter of the property, in order to

put an end to such kind of litigation, the principle of lis

pendens has been evolved so that the litigation may finally

terminate without intervention of a third party. This is

because of public policy otherwise no litigation will come to

an end. Therefore, in order to discourage that same subject

matter of property being subjected to subsequent sale to a

third person, this kind of transaction is to be checked.

Otherwise, litigation will never come to an end.”

16.The Punjab and Haryana High Court in Jaswinder Singh &

Ors. vs. Sohan Singh & Ors. (supra) and this Court in Manoihar

Yadaoraoji Belge & Ors. vs. Kamlabai Manohar Rat & Or s

(supra) cited by the learned Counsel for the Respondent No.1, relied

on the decision in Dhanna Singh vs. Baljinder Kaur (supra).

17.In the context of the present controversy, it would also be

profitable to refer to the decision of the Supreme Court in the case of

Amit Kumar Shaw & Anr vs Farida Khatoon & Anr . (supra).

Their Lordships in paragraphs 15 and 16 while considering the

question of application of doctrine of lis pendens observed thus :

“15. Section 52 of the Transfer of Property Act is an

expression of the principle "pending a litigation nothing

new should be introduced". It provides that pendente lite,

neither party to the litigation, in which any right to

immovable property is in question, can alienate or

otherwise deal with such property so as to affect his

appointment. This Section is based on equity and good

conscience and is intended to protect the parties to

litigation against alienations by their opponent during the

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pendency of the suit. In order to constitute a lis pendens,

the following elements must be present:

1. There must be a suit or proceeding

pending in a Court of competent

jurisdiction.

2. The suit or proceeding must not be

collusive.

3. The litigation must be one in which

right to immovable property is directly and

specifically in question.

4. There must be a transfer of or otherwise

dealing with the property in dispute by any

party to the litigation.

5. Such transfer must affect the rights of

the other party that may ultimately accrue

under the terms of the decree or order.

16. The doctrine of lis pendens applies only where the lis

is pending before a Court. 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, whether

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 the transferee pendente lite is made a party to the

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litigation; he is entitled to be heard in the matter on the

merits of the case. (emphasis mine)

18.The High Court of Madras had an occasion to deal with an

issue somewhat similar to the one that arises for consideration in the

present Petition in the case of V. Damodaran & Ors. vs.

Thulasirama Reddy & Ors.(supra). Paragraph 13 to 20, which are

relevant reads thus :

13. A mere poring over and perusal of those judgments

would unambiguously and unequivocally highlight and

spotlight the fact that no doubt a learned single Judge of

this Court at one point of time felt that there are two lines

of judgments, one to the effect that a pendente lite

purchaser is having a right to get impleaded in the suit and

contest the matter on merits and another to the effect that

a pendente lite purchaser is alien to the proceedings and he

is bound by the decision. This case in view of its peculiar

factual scenario has not got itself caught in the cross fire of

such conflicting views.

14. Here it is quite obvious and axiomatic that the

purchasers never filed any application to get themselves

impleaded as parties to the proceedings; whereas,

admittedly the plaintiffs took steps to implead them; Of

course, according to them even though the

appellants/defendants had no legs to stand in the legal

proceedings in the suit, yet the plaintiffs wanted to avoid

future unnecessary litigation and with that motive such

impleadment resulted. However, there is nothing on

record to indicate and exemplify that the Court while

allowing the I.A. for impleadment passed any order to the

effect that the appellants/defendants here, were added in

the suit only for the limited purpose of naming them as

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formal parties so as to avoid future litigation. The plaintiffs

wrongly assumed as though the course adopted by them,

was the line of least resistance, forgetting for the moment

that they cannot approbate and reprobate.

15. Adding fuel to the fire, the trial Court with the

connivance of the plaintiffs' so to say without any objection

from the plaintiffs, allowed the written statement to be

filed by the appellants/defendants and issues and

additional issues were framed by it and the matter was

posted for trial. My mind is redolent and reminiscent of

the following maxim: Consensus Tollit Errorem The

acquiescence of a party who might take advantage of an

error obviates its effect and the relevant portion from

Broom's Legal Maxims, Tenth Edition is extracted

hereunder for ready reference:

"When applied to the proceedings in an action,

waiver may be defined to be the doing

something after an irregularity committed, and

with a knowledge of such irregularity, where the

irregularity might have been corrected before

the act was done; and it is essential to

distinguish a proceeding which is merely

irregular from one which is completely defective

and void. In that latter case the proceeding is a

nullity, which cannot be waived by any laches or

subsequent proceedings of the opposite

property.

Where, however, an irregularity has been

committed, and where the opposite party knows

of the irregularity, it is a fixed rule observed by

all the Courts in this country, that he should

come in the first instance to avail himself of it,

and not allow the other party to proceed to incur

expense. "It is not reasonable afterwards to

allow the party to complain of that irregularity,

of which, if he had availed himself in the first

instance, all that expense would have been

rendered unnecessary" (e); and therefore, if a

party, after any such irregularity has taken place,

consents to a proceeding which, by insisting on

the irregularity, he might have prevented, he

waives all exceptions to the irregularity (f). This

is a doctrine long established and well known,

and extends so far, that a person may be

materially affected in a subsequent criminal

prosecution by proceedings to the irregularity of

which he has, by his silence, waived objection

(g).

It may appear in some measure superfluous to

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add, that the consent which cures error in legal

proceedings, may be implied as well as

expressed: for instance-- where, at the trial of a

cause, a proposal was made by the judge in the

presence of the counsel on both sides, who made

no objection, that the jury should assess the

damages contingently, with leave to the plaintiff

to move enter a verdict for the amount found by

the jury, it was held that both parties were

bound by the proposal, and that the plaintiff's

counsel was not therefore at liberty to move for a

new trial on the ground of misdirection (h), for

qui tacet consentire videtur (i), the silence of

counsel implied their assent to the course

adopted by the judge, and "a man who does not

speak when he ought shall not be heard when he

desires to speak"(k)"

Only at the stage of cross examining P.W.1 the plaintiff got

awakened and filed the I.A. so as to prevent the defendants

from cross examining P.W.1 and for adducing rebuttal

evidence by the newly added parties. No doubt there is no

estoppel against law. Not to put too fine a point on it, here

the method and manner in which the proceedings went on

before the trial Court would pellucidly and palpably make

the point clear that the appellants/defendants were added

in the suit only for the purpose of giving opportunity to

them to litigate on merits.

16. The learned Senior Counsel for the plaintiffs by

narrating the relevant facts would submit that absolutely

there is no merit in the contentions of the

appellants/defendants and that they had no personal

knowledge about the benami transaction which emerged

between Jayarama Reddy and his brother-in-law

Chinnamma Reddy. He would also hasten to add that as of

now the appellants/defendants are also having no locus

standi to proceed with the matter, because they in turn

parted with the entire suit property in favour of various

other persons; as such they are having no legal or moral

stand to proceed with the matter; if the matter is

remanded, then that would amount to prolongation of the

litigation. He would also submit that in the long longevity

of this litigation, the first respondent/plaintiff has actually

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become an octogenarian and he has been litigating for

three generations without reaping any fruits and as such

he would oppose the move for remanding the matter back

to the trial Court for giving opportunity to the appellants.

17. I would also like to hark back to the decision of the

Madurai Bench of this Court rendered by me on

14.12.2006 in S.A.No.518 of 1996; certain excerpts from it

would run thus:

"27. At this juncture, I may proceed to lay down

as a general rule that whenever a party after

effecting transfer pendente lite simply agrees to

the claim of the other side without taking the

transferee pendente lite into confidence or

making adequate provisions to safeguard the

interest of such transferee pendente lite, such

act should be termed as only a collusive act.

28. The question may arise as to how the other

party to the litigation who was not a party to the

transfer pendente lite could be imputed with

knowledge and ultimately with collusive state of

mind. Normal course of occurrences alone is the

sole test. The transferor pendente lite invariably

does make the transfer with some specific

purposes and more specifically as against the

opposite side in the litigation and if such a

person all of a sudden turns turtle by having a

volte fact and submits to the claim of his enemy

in the litigative battle that is the opposite party,

naturally the role of the opposite party could

rightly be inferred in it and ultimately, bringing

about a non-adjudicatory judgment."

18. Even though the facts and circumstances of that case

are different from the factual scenario of this case, yet I

had the opportunity of referring to the doctrine of lis

pendens and also the duty of the seller of the property

pendente lite.

19. The factual circumstances in this case would display

and demonstrate that the original defendants did not file

any written statement and they did not contest the matter;

so to say, after initially contesting the injunction

application, they left the matter holus bolus. They did not

choose to safeguard the interest of the purchasers

pendente lite, namely the appellants herein. It is not a case

where the vendor's pendente lite, contested the matter and

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that the subsequent purchasers pendente lite are trying to

improve upon the case of their vendors by filing additional

written statement or by adducing more evidence etc. But

this is a singularly singular case in which the plaintiffs

themselves added the purchasers pendente lite and

allowed them to file written statement and whereupon the

issues were framed by the trial Court and only thereafter

the plaintiffs did choose to file the said I.A. for preventing

the appellants/defendants, so to say the purchasers

pendente lite from cross-examining P.W.1 and adducing

rebuttal evidence.

20. The decisions of the Hon'be Apex Court reported in

Raj Kumar vs. Sardari Lal & others, 2004 (1) CTC

549 and Amit Kumar Shaw & anr. vs. Farida

Khatoon & anr. 2005 (4) CTC 47 (SC): AIR 2005 SC

2209, supra would, in my considered view, come to the

rescue of the appellants herein. The said decisions would

unambiguously and unequivocally highlight and spotlight

that such purchasers pendente lite are having a right to

contest the matter on merits even after getting the ex parte

decree and judgment set aside as against their vendor. In

fact here the plaintiffs themselves paved the way for the

purchasers pendente lite to contest the matter on merits

and in such a case I am of the considered view that the

decision cited on the side of the plaintiffs would not in any

way prevent the appellants/defendants from contesting the

matter on merits. The trial Court went off on a tangent and

decided the lis, without referring to all the relevant

precedents and the factual circumstances; and it simply

prevented the defendants from contesting the matter on

merits. There is no quick fix and also there are no two ways

about it, in disposing the matter without adhering to the

maxim "audi alteram partem No man shall be

condemned unheard." No doubt, I am fully aware of the

fact that this is a long pending matter and in such a case if

the matter is remitted back to the trial Court, it would take

further time for the litigation to get concluded. The first

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appellate Court being the last Court of facts, on

considering the facts and circumstances of the case could

have given opportunity to cross examine the plaintiffs'

witness and also could have given opportunity to the

defendants concerned to adduce evidence, but it failed to

do so. Hence, remanding the matter to the first appellate

Court which happened to be the last Court of facts would

to some extent curtail further time of the litigation and

with that intention I would like remand the matter back to

the first appellate Court with the following direction:

The first appellate Court shall give due opportunity

to the appellants/defendants to cross examine P.W.1

and also give further opportunity to the plaintiffs to

adduce additional evidence both oral and

documentary, if any. The defendants also shall be

given opportunity to adduce oral and documentary

evidence. Endeavour shall be taken by the appellate

Court to see that the entire process is completed on

day to day basis and judgment delivered on merits

within a period of two months from the date of

receipt of the records.”

19.The law as regards the right of subsequent purchaser to adduce

evidence has been crystalised by the Hon'ble Supreme Court in the

case of Dhanna Singh vs. Baljinder Kaur (supra). The decision

in Amit Kumar Shaw & Anr. vs Farida Khatoon & Anr .

(supra) and that of the High Court of Madras come close to the facts

of the present case. In my considered opinion, the decision in

Dhanna Singh vs. Baljinder Kaur (supra) can be distinguished

on facts.

20.In the present case, it is the Plaintiff who had filed an

application for impleadment of the Petitioner as a necessary party to

the suit and deletion of Defendant No.1. Even before the evidence of

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Defendant No.1 was adduced, the Plaintiff filed the application for

impleadment of Petitioner/Defendant No.3. The Plaintiff contended

that as the interest in the property of Defendant No.1 has been

purchased by the Petitioner, the Petitioner be substituted in place of

Defendant No.1. The Trial Court was however of the opinion that the

Petitioner be added as Defendant No.3 as there was counter claim of

the Defendant No.1 seeking a relief that the Lease Deed executed

between the Defendant No. 1 and the Plaintiff be declared as null and

void and, therefore, the name of the Defendant No.1 cannot be struck

off. Thus, the Defendant No. 1 continued to be party-Defendant and

Defendant No.3 came to be added as a necessary party, all this at the

instance of the Plaintiff.

21.It is pertinent to note that present is a case where the

Defendant No.1 has filed a counter claim against the Plaintiff for

recovery of the possession on determination of the lease. As

indicated earlier, Plaintiff filed a suit against the Defendant No.1 and

Defendant No.2 for the relief that the lease executed by the

Defendant No.1 in favour of Defendant No.2 in respect of Shop No. 2-

A is illegal. Not only was the Defendant No.3 impleaded at the

instance of the Plaintiff, but there was no objection from the Plaintiff

to the Defendant No.3 filing an independent written statement. The

evidence of Defendant Nos. 1 and 2 was yet to be adduced. It was at

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this stage that the Defendant No.3 was impleaded and permitted to

file a Written statement.

22.The Defendant No.1 refused to lead evidence in the matter and

closed his evidence on 30.09.2022 by making an endorsement to that

effect on the Court file. Thereafter, the Defendant No.2 was

examined by the Plaintiff. The Defendant No.2 was also examined by

the Defendant No.1 and the Defendant No.3. It is then that the

Defendant No. 3 sought to lead evidence in the matter. It is at this

stage, an application was made by the Plaintiff to the effect that as the

Defendant No.1 and the original Plaintiff had given up the right to

lead evidence, the Defendant No.3 who is a transferee pendent lite

does not get any right to lead evidence as he stepped into the shoes of

the Defendant No.1. This application is allowed by the impugned

Order.

23.The Supreme Court in Amit Kumar Shaw & Anr vs Farida

Khatoon & Anr. (supra) observed that a transferee pendent lite to

the extent he has acquired interest from the Defendant is vitally

interested in the litigation, whether 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. It is to be borne in mind

that it was at the instance of the Plaintiff that the Petitioner is joined

as a necessary party at a stage when the evidence of Defendant No.1

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was yet to be adduced. It is after the impleadment of the Defendant

No.3 that the Defendant No.1 chose not to lead evidence. The

Defendant No.3 was allowed to file written statement and examine

Defendant No.2. In such facts, there is no justification to curtail the

right of Defendant No.3 to lead evidence. A party who has been

permitted to file written statement and examine witnesses, at the

stage of leading his evidence, cannot be precluded from doing so on

the plea that he has stepped into the shoes of Defendant No.1 who

has given up the right to lead evidence. It is also pertinent to note

that Defendant No.1 has filed a counter claim. Filing of the counter

claim was the reason why the trial Court did not permit deletion of

Defendant No.1 though such deletion was specifically prayed for by

the Plaintiff. It is therefore, in these facts, I am of the considered

opinion that the decision of the Hon'ble Supreme Court in Dhanna

Singh vs. Baljinder Kaur (supra), is distinguishable. In my

opinion, the Trial Court committed an error in allowing the

application Exhibit D-185.

24.The Petition is allowed. The impugned Order of the Trial Court

is set aside. Application Exhibit-185 stands rejected. No order as to

costs.

M. S. KARNIK, J

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ANDREZA PEREIRA

Digitally signed by ANDREZA

PEREIRA

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