# Anil Kumar Singh Revisionist v. State of U.P. & Ors

- **Citation:** (2022) 1 ILRA 894
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-10
- **Case number:** Civil Revision No. 102 of 2019
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-singh-revisionist-v-state-of-u-p-ors-48075
- **Pages:** 17

## Headnote

Manish
Mehrotra,
Manoj
Kumar
Tiwari,
Mohammad
Aslam
Khan,
Mohd.
Danish,
Sudhanshu Chauhan, Virend Singh

A. Civil Law - Impeadment of Stranger to
the Suit - Civil Procedure Code, 1908:
Order I Rule 10 - In a question whether in a
suit for specific performance of a contract for
sale of a property instituted by a purchaser
against the vendor, a stranger or a third party to
the contract claiming to have an independent
title or possession over the contracted property
is entitled to be added as a party-defendant in
the suit or not. This Court opined that as in the
instant case where the applicant is a stranger
i.e., he was claiming independent and adverse
title to the parties to the suit, is not under a
compulsion to implead such party as he being a
dominus litis. (Para 36)
Revision Rejected. (E-10)

List of Cases cited:

## Text

_Characters 0–39,822 of 58,119. This is a partial read: ask again with offset=39822 for what follows._

894 INDIAN LAW REPORTS ALLAHABAD SERIES
held on 24.01.2020 that the expression
"reasonable grounds" means something
more than prima facie grounds, and (ii) that
person is not likely to commit any offence
while on bail. It is the mandate of the
legislature
which
is
required
to
be
followed. The non-obstante clause with
which this Section starts should be given its
due meaning and clearly it is intended to
restrict the powers to grant bail. To check
the
menace
of
dangers
drugs
and
psychotropic
substances
flooding
the
market, the Parliament has provided that
the person accused of the offences under
the Act should not be released on bail
during the trial unless the mandatory
conditions provided under Section 37 of the
Act, 1985 are satisfied.

20. In State of M.P. Vs. Kajad, (2001)
7 SCC 673, the Hon'ble Supreme Court has
held that negation of bail is the rule and its
grants an exception under (ii) of clause (b) of
Section 37(1) of the Act, 1985.

21. In Criminal Appeal No(s) 154-157
of 2020 (Supra) the Hon'ble Supreme Court
has held that liberal approach in the matter of
bail under the NDPS Act, is uncalled for.
Therefore, it is quite clear that an order of bail
cannot be granted in an arbitrary or fanciful
manner. A ratio decidendi of the judgment of
Hon'ble Apex Court in Anil Kumar Yadav
Vs. State (N.C.T.) of Delhi and another,
2018(1) CCSC 117 is that in serious crimes,
the mere fact that the accused is in custody
for more than one year, may not be a relevant
consideration to release the accused on bail.

22. In the light of the facts and
circumstances of the present case, it would be
inappropriate to discuss the evidence in depth
at this stage because it is likely to influence
the trial of accused. But, from the perusal of
the evidences, collected during investigation
so far, prima facie, the involvement of the
accused in the present case cannot be ruled
out. No reason is found to falsely implicate
the applicant/accused. Therefore, there is no
good ground to release the applicant-accused
on bail at this stage. All the contentions raised
by the learned senior counsel for the accused
pertain to the merits of the case and the same
cannot be considered while considering
application for grant of bail. This court is
unable to form an opinion at this stage that
the accused has not committed an offence.

23. In the ultimate conclusion,
considering the facts and circumstances of
the case, gravity of the offence, severity of
punishment, in my opinion, no case for bail is
made out. Accordingly, the bail application is
hereby rejected.

24. It is clarified that the observations
made regarding the bail application is limited
to the decision of the bail application and any
observations made herein shall not effect the
trial of the case.

25. However, it is expected that the trial
court shall make all sincere endeavours to
expedite the proceedings of the trial and
conclude the same as expeditiously as
possible, in accordance with law, within a
period of six months.
----------
(2022)01ILR A894
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.01.2022

BEFORE

THE HON'BLE RAJAN ROY, J.

Civil Revision No. 102 of 2019

Anil Kumar Singh ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties
1 All. Anil Kumar Singh Vs. State of U.P. & Ors.
895
Counsel for the Revisionist:
Ashish Chaturvedi

Counsel for the Opposite Parties:
Manish
Mehrotra,
Manoj
Kumar
Tiwari,
Mohammad
Aslam
Khan,
Mohd.
Danish,
Sudhanshu Chauhan, Virend Singh

A. Civil Law - Impeadment of Stranger to
the Suit - Civil Procedure Code, 1908:
Order I Rule 10 - In a question whether in a
suit for specific performance of a contract for
sale of a property instituted by a purchaser
against the vendor, a stranger or a third party to
the contract claiming to have an independent
title or possession over the contracted property
is entitled to be added as a party-defendant in
the suit or not. This Court opined that as in the
instant case where the applicant is a stranger
i.e., he was claiming independent and adverse
title to the parties to the suit, is not under a
compulsion to implead such party as he being a
dominus litis. (Para 36)
Revision Rejected. (E-10)

List of Cases cited:

1. Gurmit Singh Bhatia Vs Kiran Kant Robinson
& ors. 2019 SCC OnLine SC 912

2. Mohamed Hussain Gulam Ali Shariffi Vs
Municipal Corporation of Greater Bombay & ors.
(2020) 14 SCC 392

3. Usha Sinha Vs Dina Ram & ors. (2008) 7 SCC
144

4. Ram Swaroop Singh & ors. Vs Karan Singh &
ors. (2010) 6 Alld LJ 425

5. Vidur Implex & Traders Pvt. Ltd. & ors. Vs
Tosh Apartments Pvt. Ltd. & ors. (2012) 8 SCC
384

6. Ramesh Hirachand Kundanmal Vs Municipal
Corporation of Greater Bombay & ors. (1992) 2
SCC 524

7. Dr. Shyam Chandra Srivastava Vs Estate of
Padmasri Smt. Savitri Sahni (2010) 111 RD 182
8. Amit Kumar Shaw & anr. Vs Farida
Khatoon & anr. (2005) 11 SCC 403

9. Shyama Devi Vs A.D.J. Sultanpur & ors. 2014
(4) ALJ 559

10. Aliji Momonji & co. Vs Lalji Mavji & ors.
(1996) 5 SCC 379

11. Richard Lee Vs Girish Soni & anr. (2017) 3
SCC 194

12. Kesardeo Chamria Vs Radha Kissen Chamria
& ors. AIR 1953 SC 23

13. Thomson Press (India) Ltd. Vs Nanak
Builders & Investors (P.) Ltd. (2013) 5 SCC 39

14. Government of Orissa Vs Ashok Transport
Agency & ors. (2005) 1 SCC 536

15. Khafiladdin Vs Samiraddin AIR 1931 Calcutta
67

16. Durga Prasad Vs Deep Chand AIR 1954
Supreme Court 75

17. R.C. Chandiok Vs Chunni Lal Sabbarwal
(1970) 3 SCC 140

18. Khem Chand Shankar Chaudhari Vs Vishnu
Hari Patil (1983) 1 SCC 18

19. Kasturi Vs Iyymperumal & ors. (2005) 6 SCC
733 (followed)
(Delivered by Hon'ble Rajan Roy, J.)

1. This is a revision filed by the
plaintiff under section 115 of the Code of
Civil Procedure challenging an order dated
31.10.2019 passed by the Civil Judge,
Junior Division, Lucknow, allowing an
application bearing No. A-47 filed by the
transferees pendent lite for impleadment.

2. The application A-47 has been
allowed by the Court below on the finding
that the applicants (respondent nos. 3 and 4
896 INDIAN LAW REPORTS ALLAHABAD SERIES
in the revision) are the bona fide purchasers
whose presence is necessary in order to
enable court to effectually and completely
adjudicate upon and settle all the questions
involved in the suit.

3. The facts of the case, in brief, are that
respondent no. 1 and 2 (defendant nos. 1 and
2 in the suit) entered into an agreement to sell
in respect to the suit property on 8.5.2015
with the revisionist-plaintiff, but failed to
perform their part of the agreement,
consequently a suit for specific performance
of contract was filed by the revisionist on
5.10.2016 before the court below at
Lucknow. The civil court issued summons
which were served upon defendant nos. 1 and
2 on 20.10.2016. Thereafter, i.e., during
pendency of the said suit bearing No. 1857 of
2016, Anil Kumar Singh v. Pappu & anr.,
defendant nos. 1 and 2 (respondent nos. 1 and
2 in the revision) executed a sale-deed in
favour of defendant nos. 3 and 4 (respondent
nos. 3 and 4 in the revision) on 23.11.2016
which, according to the revisionists' counsel
was hit by section 52 of the Transfer of
Property Act 1882. The defendant nos. 1 and
2 filed their written statement on 21.2.2018
and issues were framed by the Civil Court on
15.5.2018. On 1.12.2018 P.W. 1 was
examined. He was cross-examined by the
defendant nos. 1 and 2 on 13.12.2018. On
9.1.2019 P.W.2 was examined. He was crossexamined on 19.10.2019. In the interregnum
when the matter was fixed for examination of
Defence witness 2, respondent nos. 3 and 4
filed an application bearing no. A-47 for their
impleadment on 5.7.2019 stating that they
had purchased the suit property vide saledeed dated 23.11.2016. It is this application
which has been allowed by the impugned
order dated 31.10.2019.

4. Contention of Sri N.K. Seth,
learned counsel for the revisionist was that
the plaintiff being the dominus litis cannot
be compelled to implead stranger in the
suit, especially a transferee pendent lite as
neither any relief has been sought against
him nor is he a necessary or proper party in
the matter. It was his submission that the
issues involved in the suit are between the
plaintiff and defendant nos. 1 and 2 who
had entered into an Agreement-to-sell and
the plaintiffs are claiming their rights
against the said defendants. In this regard
he has placed reliance upon a decision of
this court in the case of Gurmit Singh
Bhatia v. Kiran Kant Robinson & ors.,
2019 SCC OnLine SC 912 and another
decision reported in (2020) 14 SCC 392,
Mohamed Hussain Gulam Ali Shariffi v.
Municipal
Corporation
of
Greater
Bombay & ors.

5. The other argument advanced by him
was that the objections raised by the
revisionist before the Civil Court were not
even taken note of and without a proper
consideration of relevant aspects of the matter
the impugned order has been passed. He
submitted that even the sale-deed was not
annexed with the application by the
respondent nos. 3 and 4. The application for
impleadment did not even mention as to how
and when they came to know about the
pendency of the suit. Their impleadment at
the stage of examination of defence witness 2
was prejudicial to the interest of the plaintiff
and would delay the suit. The applicants were
not bona fide purchasers. Purchase itself was
hit by the doctrine of lis pendens. Sri Seth
relied upon the decision reported in (2008) 7
SCC 144, Usha Sinha v. Dina Ram & ors.;
and another decision reported in (2010) 6
Alld. LJ 425, Ram Swaroop Singh & ors.
v. Karan Singh & ors.

6. On the other hand, Sri M.A. Khan,
learned counsel appearing for respondent
1 All. Anil Kumar Singh Vs. State of U.P. & Ors.
897
nos. 3 and 4, i.e., the transferees pendent
lite, submitted that they were necessary and
proper parties for a complete and effective
adjudication of the suit and the court below
has rightly allowed the application for
impleadment. He invited attention of the
court to relevant clauses of the sale-deed to
drive home the point that the sale-deed did
not disclose the pendency of the suit
proceedings between the plaintiff and
defendant nos. 1 and 2 and that his clients
were bona fide purchasers. He submitted
that the suit proceedings are going on
between the plaintiff and defendant nos. 1
and 2 in collusion. The transferees pendent
lite are entitled to protect their rights as
they would be bound by the decree passed
in the suit and also have a right to challenge
the said decree, therefore, no interference is
called for in exercise of the revisional
jurisdiction under section 115, C.P.C. In
this regard he has relied on the decisions
reported in (2012) 8 SCC 384, Vidur
Implex and Traders Pvt. Ltd. & ors. v.
Tosh Apartments Pvt. Ltd. & ors.; (1992) 2
SCC 524, Ramesh Hirachand Kundanmal
v. Municipal Corporation of Greater
Bombay & ors.; (2010) 111 RD 182, Dr.
Shyam Chandra Srivastava v. Estate of
Padmasri Smt. Savitri Sahni; (2005) 11
SCC 403, Amit Kumar Shaw & anr. v.
Farida Khatoon & anr.; 2014 (4) ALJ 559,
Shyama Devi v. A.D.J. Sultanpur & ors.;
(1996) 5 SCC 379, Aliji Momonji & co. v.
Lalji Mavji & ors.; (2017) 3 SCC 194,
Richard Lee v. Girish Soni & anr.

7. Learned counsel appearing for the
respondent nos. 1 and 2 informed the
court that his clients were opposing the
claim of the plaintiff as also the claim of
defendant nos. 3 and 4 based on the saledeed dated 23.11.2016 which in fact has
been challenged by his clients seeking
cancellation of the same, albeit, after
filing of the application for impleadment
by respondent nos. 3 and 4. He informed
the court that his clients were contesting
the suit and were not in collusion with the
plaintiff or for that matter with the
applicants/respondent nos. 3 and 4.

8. It has not been denied by the
revisionist-plaintiff before this court that
sale-deed was executed by the defendant
nos.
1
and
2
in
favour
of
the
applicants/defendant nos. 3 and 4 on
23.11.2016 with respect to the property
which is the subject matter of the suit
bearing no. 1857 of 2016.

9. Before proceeding to consider the
merits
of
the
issue
it
would
be
worthwhile to refer to a few decisions as
to the scope of revisional jurisdiction
under section 115, C.P.C. by the High
Court. A Four Judges' Bench of the
Supreme Court of India had an occasion
to consider this aspect of the matter in the
case of Kesardeo Chamria v. Radha
Kissen Chamria & ors., AIR 1953 SC
23. Relevant extract of the said judgment
is quoted hereinbelow:

"17. We now proceed to consider
whether a revision was competent against
the order of 25th April, 1945, when no
appeal lay. It seems to us that in this matter
really the High Court entertained an
appeal in the guise of a revision. The
revisional jurisdiction of the High Court is
set out in the 115th section of the Code of
Civil Procedure in these terms:

"The High Court may call for the
record of any case which has been decided
by any court subordinate to such High
Court and in which appeal lies thereto, and
it such subordinate court appears:
898 INDIAN LAW REPORTS ALLAHABAD SERIES

(a) to have exercised a jurisdiction not
vested in it by law, or

(b) to have failed to exercise a
jurisdiction so vested, or

(c) to have acted in the exercise of its
jurisdiction illegally or with material
irregularity,

the High Court may make such order
in the case as it thinks fit." A large number
of cases have been collected in the fourth
edition of Chitaley & Rao's Code of Civil
Procedure (Vol. 1), which only serve to
show that the High Courts have not always
appreciated the limits of the jurisdiction
conferred by this section. In Mohunt
Bhagwan Ramanuj Das v. Khetter Moni
Dassn
the
High
Court
of
Calcutta
expressed the opinion that sub-clause (c) of
Section 115 of the Civil Procedure Code,
was intended to authorise the High Courts
to interfere and correct gross and palpable
errors of subordinate courts, so as to
prevent grave injustice in non-appealable
cases.
This
decision
was,
however,
dissented from by the same High Court in
Enat Mondul v. Baloram Dey but was cited
with approval by Lort-Williams, 3., in
Gulabchand Bangur v. Kabiruddin Ahmed.
In these circumstances it is worthwhile
recalling again to mind the decisions of the
Privy Council on this subject and the limits
stated
therein
for
the
exercise
of
jurisdiction conferred by this section on the
High Courts.

18. As long ago as 1894, in Rajah
Amir Hassen Khan y. Sheo Baksh Singhi
the Privy Council made the following
observations on Section 622 of the former
Code of Civil Procedure, which was
replaced by Section 115 of the Code of
1908:

"The question then is, did the Judges
of the lower courts in this case, in the
exercise of their jurisdiction, act illegally
or with material irregularity. It appears
that they had perfect jurisdiction to decide
the case, and even if they decided wrongly,
they did not exercise their jurisdiction
illegally or with material irregularity."

In 1917 again in Balakrishna Udayar
v. vasudeva Aiyar the Board observed:

"It will be observed that the section
applies to jurisdiction alone, the irregular
exercise or non-exercise of it, or the illegal
assumption of it. The section is not directed
against conclusions of law or fact in which
the question of jurisdiction is not involved."

In 1949 in Venkatagiri Ayyangar v.
Hindu
Religious
Endowments
Board,
Madrass the Privy Council again examined
the scope of Section 115 and observed that
they could see no justification for the view
that the section was intended to authorise
the High Court to interfere and correct
gross and palpable errors of subordinate
courts so as to prevent grave injustice in
non-appealable cases and that it would be
difficult to formulate any standard by which
the degree of error of subordinate courts
could be measured. It was said -

"Section 115 applies only to cases in
which no appeal lies, and, where the
legislature has provided no right of appeal,
the manifest intention is that the order of
the trial court, right or wrong, shall be
final. The section empowers the High Court
to satisfy itself on three matters, (a) that the
order of the subordinate court is within its
jurisdiction; (b) that the case is one in
which
the
court
ought
to
exercise
jurisdiction; and (c) that in exercising
jurisdiction the court has not acted
illegally. that is, in breach of some
provision
of
law,
or
with
material
irregularity, that is, by committing some
error of procedure in the course of the trial
which is material in that it may have
affected the ultimate decision. If the High
Court is satisfied on those three matters, it
has no power to interfere because it differs,
1 All. Anil Kumar Singh Vs. State of U.P. & Ors.
899
however from the conclusions of the
subordinate court on questions of fact or
law."

19. Later in the same year in Joy
Chand
Lal
Babu
v.
Kamalaksha
Choudhuryis Their Lordships had again
adverted to this matter and reiterated what
they had said in their earlier decision. They
pointed out:

"There have been a very large number
of decisions of Indian High Courts on
Section 115 to many of which Their
Lordships have been referred. Some of such
decisions prompt the observation that High
Courts have not always appreciated that
although error in a decision of a
subordinate court does not by itself involve
that the subordinate court has acted
illegally or with material irregularity so as
to justify Interference in revision under subsection (c), nevertheless, if the erroneous
decision results in the subordinate court
exercising jurisdiction not vested in it by
law, or failing to exercise a jurisdiction so
vested, a case for revision arises under subsection (a) or sub-section (b) and subsection (c) can be ignored."

20. Reference may also be made to the
observations of Bose, 3. in his order of
reference in Narayan Sonaji v. Sheshrao
Vithobail wherein it was said that the words
"illegally" and "material irregularity" do
not cover either errors of fact or law. They
do not refer to the decision arrived at but to
the manner in which it is reached. The
errors contemplated relate to material
defects of procedure and not to errors of
either law or fact after the formalities
which the law prescribes have been
complied with."

10. Though section 115 C.P.C. has
undergone some changes over the years,
especially so far as its application in the
State of U.P. is concerned and in
addition to the requirements contained in
Clause (a) to (c) of section 115, C.P.C.
which are required to be satisfied for
exercise of such revisional jurisdiction,
now, by virtue of the U.P. Act 14 of 2003,
two other requirements are required to be
satisfied, (i) the order if it had been made in
favour of the party applying for revision,
would have finally disposed off the suit or
other proceeding; or (ii) the order, if
allowed to stand, would occasion a failure
of justice or cause irreparable injury to the
party against whom it is made. However, as
far as clauses (a), (b) and (c) laying down
the jurisdictional parameters for exercise of
revisional jurisdiction under section 115(1),
C.P.C. they stand as it is, therefore, to this
extent the law as laid down in Kesardeo
Chhamaria (supra) applies even today as to
the meaning and purport of the said
clauses.

11. It is not in dispute that the suit has
been filed by the revisionist-plaintiff for
specific performance of contract against the
defendant nos. 1 and 2 who had entered
into an Agreement-to-sell with the plaintiff.
The defendant nos. 3 and 4 are not parties
to the said Agreement-to-sell, but, they
have purchased the property which is the
subject matter of such Agreement-to-sell,
during pendency of suit proceedings.

12. Now it is very well settled that
section 52 of the Transfer of Property Act
and the doctrine of lis pendens on which it
is based do not operate to annul such
transfers pendent lite, but, they operate to
render the same subservient to the rights of
the parties to a litigation. Such transfer is
neither illegal nor void ab initio, but the
subsequent purchaser is bound by the
litigation between the parties to the suit. A
900 INDIAN LAW REPORTS ALLAHABAD SERIES
reference may be made in this regard to the
decision of the Supreme Court of India in
the case of Thomson Press (India) Ltd. V.
Nanak Builders & Investors (P.) Ltd.,
(2013) 5 SCC 397 (Paras 26 to 29). If such
sale is in violatioi of any injunction or
restraint order than the legal position may
be different, but that is not the case here.

13. Now the question before this court
is as to whether the court below has
committed a jurisdictional error so as to
require interference by this court in
exercise of its revisional power under
section 115 C.P.C. as it applies in the State
of U.P. or not ?

14. It is implicit in this question as to
whether the court below has rightly
exercised its jurisdiction in allowing the
application of the transferees pendent lite for
impleadment in the suit of the revisionist
which is for specific performance of contract
and in which relief claimed is the defendant
nos. 1 and 2, or not ?

15. In this context we may first refer
to the provisions contained in Order I Rule
10 which reads as under:

"10. Suit in name of wrong plaintiff.-
(1) Where a suit has been instituted in the
name of the wrong person as plaintiff or
where it is doubtful whether it has been
instituted in the name of the right plaintiff,
the Court may at any stage of the suit, if
satisfied that the suit has been instituted
through a bona fide mistake, and that it is
necessary for the determination of the real
matter in dispute so to do, order any other
person to be substituted or added as
plaintiff upon such terms as the Court
thinks just.

(2) Court may strike out or add
parties.-The Court may at any stage of the
prxdings, either upon or without the
application of either party, and on such
terms as may appear to the Court to be
just, order that the name of any puty
improperly joined, whether as plaintiff or
defendant, be struck out, and that the name
of any person who ought to have been
joined, as plaintiff or defendant, or whose
presence
before
the
Court
may
be
necessary in order to enable the Count
effectually and completely to adjudicate
upon and settle all the questions involved in
the suit, be added.

(3) No person shall be added as a
plaintiff suing a next friend or as the next
friend of a plaintiff under any disability
without his consent.

(4) Where defendant added, plaint to
be amended.-Where a defendant is added,
the plaint shall, unless the Court otherwise
directs, be amended in such manner as may
be necessary, and amended copies of the
summons and of the plaint shall be served
on the new defendant and, if the Court
thinks fit, on the original defendant.

(5) Subject to the provisions of the
Indian Limitation Act, 1877 (15 of 1877),
Section 22, the proceedings as against any
person added as defendant shall be deemed
to have begun only on the service of the
summons.

16. The court may in this this context
fruitfully refer to the decision of the
Supreme Court in the case of Thomson
Press India Ltd. (supra) wherein after
considering the provisions of Order I Rule
10, C.P.C. it has been held ... "From the
bare reading of the aforesaid provision, it is
manifest that sub-rule (2) of Rule 10 gives
a wider discretion to the court to meet
every case or defect of a party and to
proceed with a person who is either a
necessary party or a proper party whose
presence in the court is essential for
1 All. Anil Kumar Singh Vs. State of U.P. & Ors.
901
effective
determination
of
the
issues
involved in the suit."

17. The court may also refer to
another decision of the Supreme Court in
the
case
of
Ramesh
Hirachand
Kundanmal v. Municipal Corpn. of
Greater Bombay (1992) 2 SCC 524,
which has also been considered in the case
of Thomson Press India ltd., wherein it has
been held as under ...

"14. It cannot be said that the main
object of the rule is to prevent multiplicity
of actions though it may incidentally have
that effect. But that appears to be a
desirable consequence of the rule rather
than its main objective. The person to be
joined must be one whose presence is
necessary as a party. What makes a person
a necessary party is not merely that he has
relevant evidence to give on some of the
questions involved; that would only make
him a necessary witness. It is not merely
that he has an interest in the correct
solution of some question involved and has
thought of relevant arguments to advance.
The only reason which makes it necessary
to make a person a party to an action is so
that he should be bound by the result of the
action and the question to be settled, a
therefore, must be a question in the action
which cannot be effectually and completely
settled unless he is a party. The line has
been drawn on a wider construction of the
rule between the direct interest or the legal
interest and commercial interest. It is,
therefore, necessary that the person must
be directly or legally interested in the
action the answer i.e. he can say that the
litigation may lead to result which will
affect him legally that is by curtailing his
legal rights. is difficult to say that the rule
contemplates joining as a defendant a
person whose only object is to prosecute
his own cause of action. Similar provision
was considered in Amon v. Raphael Tuck &
Sons Ltd., (1956) 1 QB 357, wherein after
quoting the observations of Wynn-Parry, J.
in Dollfus Mieg et Compagnie SA v. Bank
of England, (1950) 2 All ER 605, that the
true test lies not so much in an analysis of
what are the constituents of the applicants'
rights, but rather in what would be the
result on the subject-matter of the action if
those rights could be established, Devlin, J.
has stated: (Amon casels, QB p. 371)

... the test is: "May the order for which
the plaintiff is asking directly affect the
intervener in the enjoyment of his legal
rights?"

18. The provisions of Order XXII
Rule 10 also need to be referred and they
read as under :

"XXII Rule 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)."

19. In the context of the above quoted
provision of Order XXII Rule 10 the court
may refer to a Three Judge Bench decision
of the Supreme Court of India reported in
(2005) 1 SCC 536, Government of Orissa
v. Ashok Transport Agency & ors.,
wherein it has been held .... "9. Normally,
in a case covered by Order 22 Rule 10 of
902 INDIAN LAW REPORTS ALLAHABAD SERIES
the Code of Civil Procedure where rights
are derived by an assignee or a successorin-interest pending a litigation, it is for that
assignee or transferee to come on record if
it so chooses and to defend the suit. It is
equally open to the assignee to trust its
assignor to defend the suit properly, but
with the consequence that any decree
against the assignor will be binding on it
and would be enforceable against it.
Equally, in terms of Section 146 of the
Code of Civil Procedure, a proceeding
could be taken against any person claiming
under the defendant or the judgmentdebtor. Similarly, a person claiming under
the defendant or the judgment-debtor could
seek to challenge the decree or order that
may be passed against the defendant, by
way of appeal or otherwise, in the
appropriate manner. But, it would not be
open to it to challenge the decree as void or
unenforceable in execution in the absence
of any specific provision in that regard in
the statute or order bringing about such a
transfer or assignment."

20. In the case of Thomson Press
India Ltd. (supra) Hon'ble Mr. Justice T.S.
Thakur as he then was, while rendering his
supplementing opinion held in the facts of
the said case that the application which the
appellant made was only under Order I
Rule 10, C.P.C., but enabling provision of
Order XXII Rule 10 C.P.C. could always be
invoked if the facts situation so demanded.

21. The Supreme Court in the case of
Amit Kumar Shaw & anr. V. Farida
Khatoon & anr., (2005) 11 SCC 403,
opined that under Order XXII Rule 10 no
detailed inquiry at the stage of granting
relief is contemplated. The court has only
to be prima facie satisfied for exercising its
discretion in granting relief for continuing
the suit by or against the person on who the
interest has devolved by assignment or
devolution.
The
question
about
the
existence and validity of the assignment
and devolution can be considered at the
final hearing of the proceedings.

22. It is also necessary to refer to the
provisions of section 146 C.P.C. which read
as under:

"146, C.P.C.: 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."

23. It is also relevant to refer to
section 19 of the Specific Relief Act 1963,
especially clause (b) thereof which reads 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
may be 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;
1 All. Anil Kumar Singh Vs. State of U.P. & Ors.
903

(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."

24. This clause was considered by the
Supreme Court in the case of Thomson
Press India Ltd. (supra) and with reference
to clause (b) of section 19 it was observed
... "From the bare reading of the aforesaid
provision, it is manifest that a contract for
specific performance may be enforced
against the parties to the contract and the
persons mentioned in the said section.
Clause (b) of Section 19 makes it very clear
that a 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."

25. In this context their Lordship
referred to a decision of the Calcutta High
Court in the case of Kafiladdin v.
Samiraddin, AIR 1931 Calcutta 67,
wherein the English law on the point was
considered. It is relevant to quote para 39 to
40 of the decision in Thomson Press India
Ltd. (supra) in this regard, which are as
follows:

"39. As discussed above, a decree for
specific performance of a contract may be
enforced against a person who claimed
under the plaintiff (sic 9 defendant), and
title acquired subsequent to the contract.
There is no dispute that such transfer made
in favour of the subsequent purchaser is
subject to the rider provided under
Section 52 of the Transfer of Property Act
and the restraint order passed by the Court.

40. The aforesaid
question
was
considered by the Calcutta High Court in
Kafiladdin v. Samiraddin20, where Their
Lordships referred to the English law on
this point and quoted one of the passages of
the book authored by Dart, on Vendors and
Purchasers', 8th Edn., Vol. 2, which reads
as under: (Kafiladdin case)

'Equity
will
enforce
specific
performance of the contract for sale against
the vendor himself and against all persons
claiming under him by a title arising
subsequently to the contract except purchasers
for valuable consideration who have paid their
money and taken a conveyance without notice
to the original contract.' "

26. The decision of the Supreme
Court in Thomson Press India Ltd. was in
respect of suit proceedings which were for
specific performance of contract just as in
this case.

27. In Thomson Press India Ltd.
(supra) the question as to what would be
the form of decree to be passed in a suit for
specific performance, especially one in
which the suit property has been transferred
pendent lite came up for consideration and
in this context the Supreme Court referred
to a decision of the Calcutta High Court in
the case of Kafilladdin (supra) as also
another decision of the Supreme Court in
the case of Durga Prasad v. Deep Chand,
AIR 1954 Supreme Court 75, as also its
decision in the case of R.C. Chandiok v.
Chunni Lal Sabbarwal, (1970) 3 SCC
140, and discussing the same held as under:

"Discussing elaborately, the Court
finally observed: (Kafladdin case)
904 INDIAN LAW REPORTS ALLAHABAD SERIES

"This statement of the law is exactly
what is meant by the first two clauses of
Section 27 of the Specific Relief Act. It is
not necessary to refer to the English cases
in which decrees have been passed against
both the contracting party and the
subsequent purchaser. It is enough to
mention some of them: Daniels v. Davison
[(1803-13), All ER Rep 432], Potter v.
Sanders, [(1846) 6 Hare 1] and Lightfoot v.
Heron [(160 ER 835). The question did not
pertinently arise in any reported case in
India; but decrees in cases of specific
performance of contract have been passed
in several cases in different forms. In
Chunder Kant Roy v. Krishna Sunder Roy,
ILR (1884) 10 Cal 710, the decree passed
against the contracting party only was
upheld. So it was in Kannan v. Krishnan
ILR (1890) 13 Mad 324. In Himatlal
Motilal v. Vasudev Ganesh Mhaskar ILR
(1912) 36 Bom 446, the decree passed
against the contracting defendant and the
subsequent purchaser was approved. In
Faki Ibrahim v. Faki Gulam Mohidin, AIR
1921 Bom 459, the decree passed against
the
subsequent
purchaser
only
was
adopted. In Gangaram v. Laxman Ganoba
Shet Chaudole, ILR (1916) 40 Bom 498, the
suit was by the subsequent purchaser and
the decree was that he should convey the
property to the person holding the prior
agreement to sale. It would appear that the
procedure adopted in passing decrees in
such cases is not uniform. But it is proper
that English procedure supported by the
Specific Relief Act should be adopted. The
apparent reasoning is that unless both the
contracting party and the subsequent
purchaser join in the conveyance it is
possible that subsequently difficulties may
arise with regard to the plaintiff's title."

41. The Supreme Court in Durga
Prasad v. Deep Chand, AIR 1954 SC 75
referred to the aforementioned decision of
the Calcutta High Court in Kafiladdin case
and finally held: (Durga Prasad case)

"42. In our opinion, the proper form of
decree is to direct specific performance of
the contract between the vendor and the
plaintiff
and
direct
the
subsequent
transferee to join in the conveyance so as to
pass on the title which resides in him to the
plaintiff. He does not join in any special
covenants made between the plaintiff and
his vendors all he does is to pass on his title
to the plaintiff. This was the course
followed by the Calcutta High Court in
Kafiladdin v. Samiraddin, and appears to be
the English practice. (See Fry on Specific
Ivrformance, 6th Ed., p. 90. para 207 and
also
Potter
v.
Sanders)
We
direct
accordingly."

42. Again in R.C. Chandiok v. Chuni
Lal Sabharwal this Court refened to their
earlier decision and observed: (SCC p.
146, para 9)

"9. It is common ground that the plot
in dispute has been transferred by the
respondents and therefore the proper form
of the decree would be the same as
indicated at SCR p. 369 in Durga Prasad v.
Deep Chand viz.

'to direct specific performance of the
contract between the vendor and the
plaintiff
and
direct
the
subsequent
transferee to join in the conveyance so as to
pass on the title which resides in him to the
plaintiff. He does not join in any special
covenants made between the plaintiff and
his vendor; all he does is to pass on his title
to the plaintiff (AIR p. 81, para 42)

We order accordingly. The decree of
the courts below is hereby set aside and the
appeal is allowed with costs in this Court
and the High Court"

43. This Court again in Dwarka
Prasad Singh v. Harikant Prosod Singh
subscribed to its earlier view and held that
in a suit for specific performance against a
1 All. Anil Kumar Singh Vs. State of U.P. & Ors.
905
person with notice of a prior agreement of
sale is a necessary party.

44. Having regard to the law discussed
hereinabove
and
in
the
facts
and
circumstances of the case and also for the
ends of justice the appellant is to be added
as party-defendant in the suit. The appeal
is, accordingly, allowed and the impugned
orders passed by the High Court are set
aside.

45. Before parting with the order, it is
clarified
that
the
appellant
after
impleadment as party-defendant shall be
permitted to take all such defences which
are available to the vendor Sawhneys as the
appellant derived title, if any, from the
vendor on the basis of purchase of the suit
property subsequent to the agreement with
the plaintiff and during the pendency of the
suit."

28. From the aforesaid it is evident as
was held in Kafilladdin's case (supra) that
unless both the contracting party and the
subsequent
purchaser
join
in
the
conveyance it is possible that subsequent
difficulties may arise with regard to the
plaintiff's title, that is why in Durga Prasad
(supra) the Supreme Court held that the
proper form of decree is to direct the
specific performance of contract between
the vendor and the plaintiff and direct the
subsequent
person
to
join
in
the
conveyance so as to pass on the title which
resides in him to the plaintiff. He does not
join in any special covenants made between
the plaintiff and his vendor; All he does is
to pass on his title to the plaintiff.

29. Based on the aforesaid discussion
the appellant's appeal in Thomson Press
India Ltd. (supra) was allowed with the
observations that it should be added as a
party-defendant in the suit and orders of the
High Court to the contrary were set
aside, however, it was further held that the
appellant after impleadment as partydefendant shall be permitted to take all
such defences which are available to the
vendors as the appellant derived title, if
any, from the vendor on the basis of the
purchase of the suit property subsequent to
the Agreement with the plaintiff and during
the pendency of the suit. In fact, it has also
been held by the Supreme Court in the case
of Ashok Transport Agency (supra) that
such a transferee pendent lite who is
impleaded in the suit as defendant cannot
take a defence inconsistent with the
defence already set up by the defendant in
its written statement, i.e., the vendor from
whom he has purchased the property during
pendency of the suit.

30.