# Phulgen and Ors v. Vinay Kumar Tiwari

- **Citation:** (2013) 2 ILRA 1129
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-02
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/phulgen-and-ors-v-vinay-kumar-tiwari-42577
- **Pages:** 11

## Headnote

Code of Civil Procedure, Order I Rule 10-
Suit
for
specific
performance-during
pendency
of
suit-plaintiff
move
application to implead the subsequent
purchaser-held-proper Recessional court
rightly allowed the application.

Held: Para-50
In view of the aforesaid facts and
circumstances in the instant case the
subsequent purchasers who are actually
transferee pendente-lite are held to be
proper party to the suit for specific
performance of an agreement to sell and
if the revisional court below by the
impugned order has permitted their
impleadment that too on the application
of the plaintiff respondent, no exception
to it can be taken in law.

Case Law discussed:
AIR 1963 SC 786; (2001) 8 SCC 133; AIR 1978
Alld. 318; (2007) 8 SCC 506; (1006) 5 SCC 539;
(1846) 67 ER 1057; 1954 SC 75; 1970 (3) SCC
140 R.C.; (2005) 6 SCC 733; (1999) 2 SCC 777;
2007(2) AWC 1944 (SC); AIR 2007 SC 1332

## Text

2 All] Phulgen and Ors. Vs. Vinay Kumar Tiwari

1129
the statement are not confined to a
particular case or the year, therefore, in
my opinion, it is binding on the State
Government.

42. After careful consideration of
the law laid down by the Supreme Court,
I am of the view that this Court cannot
interfere with the transfer matter as the
Government servant has no vested right to
continue at a place of his choice. The
Government
can
transfer
the
officer/employee in the administrative
exigency and in public interest. However,
if a transfer is made against the executive
instructions
or
transfer
policy,
the
competent authority must record brief
reason in the file for deviating from the
transfer policy or executive instructions
and the transfer must be necessary in the
public interest or administrative exigency.
If an officer/employee, who is aggrieved
by his/her transfer, makes a representation
to
the
competent
authority,
his/her
representation
must
be
decided
objectively by a reasoned order.

43. Having regard to the facts and
circumstances of the case, in my view,
end of justice would be subserved by
giving liberty to the petitioner to make a
representation to the competent authority
within a week from the date of receipt of
certified copy of this order. In the event
such a representation is made, the
competent authority shall decide the same
as expeditiously as possible preferably
within a period of six weeks from the date
of communication of the order.

44. Accordingly, the writ petition is
disposed of.

45. No order as to costs.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.07.2013

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No.38524 OF 2012

Phulgen and Ors.
 ...Petitioners
Versus
Vinay Kumar Tiwari
 ...Respondents

Counsel for the Petitioner:
Sri Anil Kumar Aditya

Counsel for the Respondents:
Sri Ram Niwas Singh, S.C., Sri Vinod
Kumar Chandel, Sri Vinay Kr. Singh
Chandel

Code of Civil Procedure, Order I Rule 10-
Suit
for
specific
performance-during
pendency
of
suit-plaintiff
move
application to implead the subsequent
purchaser-held-proper Recessional court
rightly allowed the application.

Held: Para-50
In view of the aforesaid facts and
circumstances in the instant case the
subsequent purchasers who are actually
transferee pendente-lite are held to be
proper party to the suit for specific
performance of an agreement to sell and
if the revisional court below by the
impugned order has permitted their
impleadment that too on the application
of the plaintiff respondent, no exception
to it can be taken in law.

Case Law discussed:
AIR 1963 SC 786; (2001) 8 SCC 133; AIR 1978
Alld. 318; (2007) 8 SCC 506; (1006) 5 SCC 539;
(1846) 67 ER 1057; 1954 SC 75; 1970 (3) SCC
140 R.C.; (2005) 6 SCC 733; (1999) 2 SCC 777;
2007(2) AWC 1944 (SC); AIR 2007 SC 1332

(Delivered by Hon'ble Pankaj Mithal, J.)
1130 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

1. In this writ petition under Article 226
of the Constitution of India, I am to consider
the right of the plaintiff/respondent to seek
impleadment of subsequent purchasers, to be
precise of transferee pendente lite as
defendants in a suit for specific performance
of an agreement to sell and the consequential
amendment thereto in the plaint.

2. The facts of the case in a capsule
form are as under:

3. The plaintiff/respondent instituted
Original Suit No.466 of 2009 on 28.5.2009
for specific performance of an agreement to
sell
dated
29.1.1991.
The
defendant/petitioners in the said suit filed
their written statement on 30.8.2010 so as to
contest the same and in one of the paragraphs
of the written statement they pleaded that the
property has been transferred by them on
12.4.2010 and 13.4.2010 by two sale deeds
in favour of Smt. Sheela Devi, Anita Gupta,
Sangita Gupta, Krishnawati Devi, Anil
Kumar and Dinesh Singh.

4. In view of the pleadings in the
written statement, plaintiff/respondent moved
application for impleadment of the aforesaid
subsequent purchasers and for consequential
amendment of the plaint seeking declaration
of the aforesaid two sale deeds as null and
void. The applications were rejected by the
court of first instance vide order dated
15.11.2011
whereupon
the
plaintiff/respondent preferred civil revision
No.185 of 2011. The revision has been
allowed
and
the
impleadment
with
consequential
amendments
has
been
permitted by the impugned order dated
6.7.2012.

5. The defendants to the suit have
invoked the writ jurisdiction of this Court
challenging the aforesaid revisional order.

6. Sri Anil Kumar Aditya and Sri
R.N. Singh, learned counsel for the
parties were heard and they agreed for
disposal of the writ petition on the
averments in the petition without waiting
for any counter affidavit.

7. Sri Anil Kumar Aditya has raised
two submissions that in a suit for specific
performance subsequent purchasers are
not
necessary
and
property
party.
Secondly, against the rejection of the
impleadment application the revision was
not maintainable and, therefore, the
revisional order is without jurisdiction.

8. Sri R.N.Singh in reply submitted
that adding of the subsequent purchasers in
the suit cause no prejudice to the
defendant/petitioners.
The
plaintiff/respondent is the master of his suit
and is the best person to decide about his
adversaries and the defendant/petitioners
have no concern with their addition.
Therefore, no indulgence should be granted
in exercise of writ jurisdiction.

9. In this petition I am concern only
with the addition of parties as defendants
in the suit for specific performance of an
agreement to sell. Therefore, I would be
referring to the addition of party in
context
with
a
suit
for
specific
performance instead of substitution and
deletion of parties in general.

10. A person is a party to a suit if
there is cause of action for him or against
him. The First Schedule to the Code of
civil Procedure in Order I provides for the
parties to the suits to mean plaintiffs and
defendants.

11. Order 1 Rule 10 CPC enables the
Court to add any person as a party at any
2 All] Phulgen and Ors. Vs. Vinay Kumar Tiwari

1131
stage of the suit if his presence before the
Court is necessary, in whose absence
effective relief in the suit can not be granted
or to effectively and completely adjudicate
upon and settle all the issues involved in the
suit.
Avoidance
of
multiplicity
of
proceedings may also be recognised as one
of the objects enabling the Court to add any
person as a party to a suit.

12. Order I Rule 10 (2) CPC which
is relevant for addition or deletion of
parties to a suit reads as under:-

"(2) Court may strike out or add
parties-.

The Court may at any stage of the
proceedings, either upon or without the
application of either party, and on such
terms as may appear to the Court to be
just, order the name of any party
improperly joined, whether as plaintiff or
defendant, be struck out, and that the
name of any person who ought to have
been joined, whether as plaintiff or
defendant, or whose presence before the
Court may be necessary in order to enable
the Court effectively and completely to
adjudicate upon and settle all the
questions involved in the suit, be added."

13. Addition of the parties to a suit
is dependent upon the fact as to whether
the party sought to be added is a
necessary or a proper party.

14. The necessary party is one
whose presence is essential, against whom
relief in the suit is sought and in whose
absence no effective order/decree can be
passed therein. On the other hand, the
proper party is one in whose absence a
decree can be passed but whose presence
is needed for effective and complete
adjudication of the subject matter.

15.

In
Udit
Narain
Singh
Malpaharia Vs. Additional Member
Board of Revenue, Bihar and another
AIR 1963 SC 786 the five Judges Bench
of the Supreme Court have observed as
under:-

"The law as to to who are necessary
or proper parties to a proceeding is well
settled. A necessary party is one without
whom no order can be made effectively; a
proper party is one in whose absence an
effective order can be made but whose
presence is necessary for a complete and
final decision on the question involved in
the proceeding."

16. In view of the above, the court
while adding a party as defendant in a suit
is only required to see as to whether the
said party is a necessary or a proper party.

17. In any suit plaintiff is dominus litis
and it is upon him to chose his opponents or
the persons from whom he wants to claim
the relief. Normally, a court has limited or no
role in choosing the adversaries of the
plaintiff or the persons from whom the
plaintiff should fight. However, if the court is
satisfied that a person is a necessary or a
proper party to the suit it may exercise its
judicial discretion and direct for adding such
a party to the suit. The power of the court to
add, substitute or strike out parties to a suit is
discretionary which has to be exercised on
the facts and circumstances of a particular
case.

18. As the plaintiff in a suit is dominus
litis and has a right to decide about his
adversaries, the impleadment of parties on
his application stands on a better and higher
footing than that on an application, if any,
filed by the defendant. A defendant to the
suit cannot dictate the plaintiff as to who
1132 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

should be made a party along with him in the
suit. The criteria for considering the
impleadment application of a third party is
altogether different but of course subject to the
cardinal principle of being a necessary or
proper party. A liberal approach is generally
taken while considering the application
moved by the plaintiff to add defendant,
whereas it is not so while considering the
application of the defendant or of a third party.

19. A subsequent purchaser in context
with a suit for specific performance of an
agreement to sell may fall in two categories.
In the first category is a purchaser who
purchases the property from the vendor after
the earlier agreement/contract but before the
institution
of
the
suit
for
specific
performance of that agreement. The other is
where the purchase is made pendente lite.

20. All suits relating to specific
performance
of
contracts
including
agreement to sell immovable property are
governed by Chapter II of Specific Relief
Act, 1963 (hereinafter as 'Act' only). A
reading of Section 20 and 21 of the Act
reveals that the jurisdiction of the court to
grant a decree of specific performance of
an agreement is discretionary which has
to be exercised on sound and reasonable
judicial principles and in certain cases the
Court instead of a decree of specific
performance may award compensation.
At the same time Section 19 (b) of the Act
stipulates that specific performance of a
contract may be enforced against either
party thereto or any other person claiming
under them by a title arising subsequent to
the contract, except a transferee for value
who has paid money in good faith and
without notice of the original contact.

21. Section 19 (b) of the Act is
quoted below:-

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) -----------------------------

(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 the original contract;"

(c) -----------------------------------

------------------------------------"

22. In view of Section 19 (b) of the
Act an agreement to sell can not be
enforced against a transferee who has
purchased the property bonafidely in good
faith for value from the original owner in
ignorance of a contract sought to be
specifically performed. Even if it is
enforceable, the Court is not bound to
pass a decree for specific performance
merely because it is lawful to do also. In
other words, Court has a discretion to
refuse a decree of specific performance or
to award compensation.

23. In (2001) 8 SCC 133 Vasanta
Viswanathan and others Vs. V.K.
Elayalwar and others it was observed
that under Section 19 (b) of the Act a
specific performance of contract can be
enforced not only against either party
thereto but against any other person
claiming under them by a title arising
subsequent to the contract, except a
transferee for value who had paid the
money in good faith and without notice of
original contract. It means that though a
contract of specific performance can be
enforced against a subsequent purchaser
but not against a transferee for value who
2 All] Phulgen and Ors. Vs. Vinay Kumar Tiwari

1133
has paid money in good faith and without
knowledge of the prior contract.

24. In what cases the Court in exercise
of its judicial discretion refuse to pass a
decree of specific performance or to what
extent it should grant compensation to the
party and whether the subsequent purchaser
is a bona fide purchaser having no
knowledge of the agreement/contract sought
to be enforced or whether he is acting in
good faith are all questions that generally
crop up in a suit for specific performance
where during the subsistence of the
agreement but before the institution of the
suit there is a transfer in favour of third party.
These questions can not be decided in the
absence of the subsequent purchaser or
without opportunity to him to adduce
evidence on the above aspects though he
may not be a relevant person for pleading or
adducing evidence on the merits of the
agreement/contract.

25. The subsequent purchasers
falling in this class and not one who
purchases after the institution of the suit,
if given an opportunity can demonstrate
and establish that they had no knowledge
of the prior agreement and that they had
purchased the property bonafidely in good
faith for valuable consideration and as
such are not bound by the earlier
agreement or that they are entitle to
damages and to be restituted the sale
consideration
paid
by
them.
The
subsequent purchasers who purchase
property after the initial agreement to sell
but before the institution of the suit
subject to proving their bona fides, good
faith and ignorance of the contract for
value are clearly entitle to protection
under Section 19 of the Act. They as such
are undoubtedly, necessary and proper
party to be joined as defendants to the suit
for specific performance.

26. At the same time, one can not
afford to ignore the doctrine of lis
pendens. Section 52 of the Transfer of
Property Act, 1882 specifically provides
that the property cannot be transferred or
otherwise dealt with by any party to the
suit or proceedings so as to affect the
rights of the other parties thereto except
without the authority of the court. In view
of the complete embargo upon the parties
to the suit to transfer or deal with the
property during its pendency, the any sale
during the pendency of the suit would
clearly be within the teeth of Section 52
of the T.P. Act.

27. The doctrine of lis pendens
enshrined under Section 52 of the T.P.
Act
envisages
that
a
person
who
purchases property during the pendency
of the suit is bound by the decree that may
be passed against the person from whom
he drives title and the plaintiff is exempt
from taking notice of such a subsequent
sale or title so acquired by the third party.

28. The provision of Section 19(b)
of the Act has no application in respect of
cases covered by Section 52 of the
Transfer of Property Act. A Full Bench of
this Court in Smt. Ram Peary and
others Vs. Gauri and others AIR 1978
Alld. 318 has clearly ruled that Section 52
of the T.P. Act is not subservient or
subject to Section 19 (b) of the Act.

29. In Sunil Gupta Vs. Kiran
Girhotra and others (2007) 8 SCC 506
it has been observed by the Supreme
Court that ordinarily a party purchasing
property pendente lite without the leave of
1134 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

the Court can not be impleaded in a suit
without the permission of the Court.

30. In Sarvinder Singh Vs. Dalip
Singh (1006) 5 SCC 539 their Lordships
of the Supreme Court have observed that
alienation of property having been made
during pendency of the suit is hit by
doctrine of lis pendens and the transferees
are neither necessary nor proper party to
be brought on record.

31. In view of the aforesaid legal
position a transfer made during pendency
of the suit without the leave of the Court
may not be good and ordinarily such
transferees may not be entitle to be
impleaded but that has not been held to be
an absolute rule. In certain cases, a
transferee pendente lite may like to come
forward and demonstrate that in reality
there is no violation of Section 52 of the
Act and that he had purchased the
property with the leave of the Court or
that the prior agreement which existed
had failed for various reasons or has been
revoked, cancelled or held to be illegal by
the competent authority/court.

32. Section 52 of the T.P. Act puts
an embargo upon the transfer of the
property during pendency of the suit
without taking permission of the Court
but it stops short of providing the effect of
its violation. A consequence of a transfer
which is hit by doctrine of lis pendens is
that such a transaction is voidable at the
option of the affected party. A person who
actually purchases the property during
pendency
of
the
suit
for
specific
performance without the leave of the
Court does so at its own peril and the
sale/transfer made in his favour is always
in danger of being declared illegal, null
and void by the competent court. He
purchases the property with open eyes
presumably aware of the pendency of the
suit and if not due to concealment on part
of the vendor, his cause if any, would be
against the vendor for damages and
restitution of the sale consideration and
not to defend the enforcement of the
agreement to sell. Nevertheless, the sale
deed executed during pendency of the suit
without the leave of the Court can not be
declared to be void in a suit for specific
performance unless the party in whose
favour the sale deed exists is given an
opportunity to participate in the same.

33. Apart from the above, in the
absence of purchaser pendente lite on record,
a decree of specific performance, if any,
passed in the suit would not be effective and
complete. The reason being that such a
decree would provide for execution of sale
deed on behalf of the vendor only who
ceases to have rights therein by virtue of sale
made in favour of the transferee pendente
lite. Therefore, to extinguish the rights of the
transferee and to restore them in the vendor
and then to make him transfer in favour of
the plaintiff by means of a sale deed it is
imperative to direct the transferee to join the
vendor in executing the sale deed while
decreeing the suit so that there may not
remain any confusion about the title in
future. Otherwise, there would be two sale
deeds and the person having the first sale
deed would always be claiming better and
superior rights before all and sundry.
Therefore, in suits for specific performance
of an agreement to sell when the transfer lis
pendens is brought to the notice of the Court
the proper and the better course adopted by
the courts of law is to direct the subsequent
purchaser to join the vendor in executing the
sale deed so that rights of the vendor stands
duly and validly transferred in favour of the
decree holder and at the same time those
2 All] Phulgen and Ors. Vs. Vinay Kumar Tiwari

1135
created in favour of the subsequent
purchaser are extinguished.

34. The above principle had been
well recognised by the Court in England
more than a century ago. In Potter Vs.
Sanders (1846) 67 ER 1057 it was
observed that if a vendor contract with
two different persons to sale each of them,
the same Estate, the Court will, primafacie, enforce the contract which was first
made; and if party with whom the second
contract was made is able to procure a
conveyance on the basis of the second
contract, the Court will, in a suit for
specific
performance
by
the
first
purchaser against the vendor decree the
same to convey the estate to the plaintiff
with the direction to the second purchaser
to join the conveyance.

35. The practice of Indian courts had
not been uniform. According to one
practice the proper form of decree was to
declare the subsequent sale as void and
direct the conveyance of the property by
the vendor alone. The second option used
to be to direct both the vendor and vendee
to join and execute the sale deed.

36. The three Judges Bench of the
Supreme Court in Durga Prasad and
another Vs. Deep Chand and others
1954 SC 75 held that the proper from of
the decree in a suit for specific
performance of the contract is to direct
the subsequent transferee to join the
vendor in the conveyance so as to pass the
title which is vested in him.

37. The above view has been
followed by the Supreme Court in 1970
(3) SCC 140 R.C. Chandiok and
another Vs. Chunni Lal Sabharwal and
others. I have not been able to lay my
hands on any contrary view on the
subject.

38. In view of the above, it is settled
that in a case of transfer of rights in the
property during pendency of the suit for
specific performance, at the time of
decreeing the suit it is always better to
direct the subsequent purchaser to join the
vendor in executing the sale deed in
favour of the decree holder. This is
essential to set at rest all future disputes
relating to title of the suit property.

39. The above legal position which
has been adopted by the English and the
Indian courts, makes it apparent that in a
suit for specific performance of an
agreement to sell an effective decree
directing for execution of a sale in favour
of a plaintiff can not be passed until and
unless the subsequent purchaser more
precisely who has purchased rights during
the pendency of the suit, is asked to join
in the execution of the sale deed. In this
view of the matter, the subsequent
purchaser becomes proper party in the
absence of whom complete, effective and
proper relief can not be granted in the
suit.

40. A Bench of three learned Judges
of the Supreme Court in Kasturi Vs.
Iyyamperumal and others (2005) 6
SCC 733 in considering a similar
controversy in relation to a suit for
specific
performance
of
a
contract
observed that only the parties of the
contract or parties claiming under them or
a person who had purchased it from the
vendor with or without notice of the
contract alone are necessary parties and a
person who claims independent title and
possession adversely to the title of the
vendor is not a necessary party.
1136 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

41. The Court observed as under:-

" A bare reading of Order I Rule
10(2) CPC would clearly show that the
necessary parties in a suit for specific
performance of a contract for sale are the
parties to the contract or if they are dead,
their legal representatives as also a person
who
had
purchased
the
contracted
property form the vendor. In equity as
well as in law, the contract constitutes
right and also regulates the liabilities of
the parties. A purchaser is a necessary
party as he would be affected if he had
purchased with or without notice of the
contract, but a person who claims
adversely to the claim of the vendor is,
however, not a necessary party"

42. Another Bench of three Judges
of the Apex Court in (1999) 2 SCC 777
Savitri
Devi
Vs.
District
Judge,
Gorakhpur and others considering that
in a suit plaintiff is a dominus litis and is
not bound to sue every possible adversary
observed that the Court may at any stage
of the suit in exercise of power under
Order I Rule 10 CPC direct for addition of
parties which is generally a matter of
judicial discretion to be exercised keeping
in view the facts and circumstances of the
particular case. In the said case transferee
pendente lite of interest in immovable
property who claimed to be bona fide
purchasers for value in good faith was held
entitle to be impleaded not only to avoid
multiplicity of proceedings but to decide
whether the sale made in his favour created
any interest in the property.

43. In one other case Dhanalakshmi
and others Vs. P. Mohan and others
2007 (2) AWC 1944 (SC) the Apex Court
in considering the matter of impleadment
of a purchaser of the property during
pendency of the suit for partition held that
a purchaser pendente lite is a necessary
and a proper party under Order 1 Rule 10
CPC and is entitle to be impleaded.

44. The impleadment of transferee
pendente lite is also dependent upon host
of other factors viz., the person who is
seeking impleadment and the stage at
which it is being sought.

45. An application of the plaintiff, as
a general rule ought to be allowed
depending
upon
other
attending
circumstances. In contrast, the application
for the purpose moved by the defendant to
the suit or the transferee himself has to be
dealt with caution. The Court may
consider the intention of the party in
moving the application and the ground or
purpose of impleadment as it may be with
ulterior object to delay the proceedings
etc. It may be refused at the sound
judicious discretion of the Court.

46. Learned counsel for the petitioner
has relied upon Sanjai Verma Vs. Manik
Roy and others AIR 2007 SC 1332
wherein the Court refused to implead
transferee pendente-lite in a suit for specific
performance in view of Section 52 of the
Transfer of Property Act.

47. A careful reading of the above
decision reveals that in the said case an
application for impleadment was made by
the transferees themselves on the ground
that there was no body to represent and
safeguard their interest. The order allowing
the application was set aside and they were
held not entitle for impleadment. It was not
a case where the application was filed by
the
plaintiff.
The
application
for
impleadment of parties other than the
plaintiff stand on a weaker note on a lower
pedestal than that of the plaintiff to the suit.
2 All] Phulgen and Ors. Vs. Vinay Kumar Tiwari

1137
Moreover, it was also not a case where
transferees were pleading that the transfer
made in their favour was with the leave of
the Court or that the agreement which is
subject matter of the suit for specific
performance has been revoked or cancelled.
The ground for seeking impleadment was
not tenable. Therefore, the facts of the
above case are distinguishable and would
not stand in way of the plaintiff respondent
herein to get the transferees pendente-lite
impleaded in the suit so that an effective
executable decree is passed in their favour.

48. The apprehension that permitting
impleadment of transfer pendente lite,
may become a continuous and endless
process as the possibility of further sale
during the pendency of the suit can not be
ruled out is not well founded. It may not
pose any danger as there is no necessity to
indulge in the unending process of
impleadment of successive transferees.
Once the sale made in favour of the first
transferee is rendered non est and useless,
the subsequent sales would automatically
fall and cease to be operative in law
leaving no scope to take cognizance of the
same.

49. In view of the legal position that
has emerged above, depending upon the
facts and circumstances of each case, the
broad
conclusions
relating
to
impleadment/addition of defendants in a
suit for specific performance of an
agreement to sell can be summed up as
under:-

i)a contract of specific performance
is enforceable against the parties to the
contract including those who are claiming
under them;

ii)It is not enforceable against a
subsequent transferee for value who has
paid money in good faith without notice
of the earlier contract as contemplated
under Section19 (b) of the Act;

iii) the subsequent transferee covered
under Section 19 (b) of the Act is entitle
to demonstrate his bona fides, good faith
and that he has no knowledge of the
earlier contract and for the purpose is a
necessary and a proper party to the suit.

iv)transfers pendente lite are hit by
Section 52 of the T.P. Act and Section 19
(b) of the Act has no application to such
cases;

v) transferee pendente lite can not
take shelter of Section 19 (b) of the Act
but may be a proper party where he pleads
that he has purchased the property with
the leave of the Court or that the earlier
contract had been rescinded, revoked or
cancelled and for passing an effective
decree of specific performance;

vi)It is always proper to implead
transferee pendente lite on an application
of the plaintiff who is dominus litis;

vii)impleadment
of
transferee
pendente lite on the application of the
defendant or on his own application has to
be examined more carefully and strictly
and in case for some reason is turned
down even then the Court should ensure
to direct him to join the vendor in
executing the sale deed in favour of the
decree holder while decreeing the suit for
specific performance; and

viii) It is not necessary to go on adding
all subsequent transferees pendente lite as
once the transfer made in favour of the first
one fails all consequential transfers would
automatically stand invalid.
1138 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

50. In view of the aforesaid facts and
circumstances in the instant case the
subsequent purchasers who are actually
transferee pendente-lite are held to be proper
party to the suit for specific performance of
an agreement to sell and if the revisional
court below by the impugned order has
permitted their impleadment that too on the
application of the plaintiff respondent, no
exception to it can be taken in law.

51. The order impugned suffers from
no illegality or error of law which may
require any intervention in this petition.

52. This apart, the petitioners are
defendants in the suit. Their rights are not
affected by the impleadment of the aforesaid
subsequent purchasers. They do not suffer
any prejudice or injustice on account of
impleadment of the transferee pendente-lite
to give them any cause to invoke the extraordinary jurisdiction of this court.

53. Accordingly, they are not entitle
to any discretionary relief in this petition
in exercise of writ jurisdiction.

54.

The
argument
regarding
maintainability of the revision is of no
purpose. Once this Court has found and held
that in the present case the subsequent
purchasers are liable to be impleaded as
defendants to the suit, the setting aside or
quashing of the revisional order on any
ground much less on the technical ground of
maintainability of the revision or the
revisional order being without jurisdiction
would amount to reviving of an illegal order
passed by the court of first instance rejecting
the impleadment application.

55. It has been well settled that in
exercise of writ jurisdiction it is not
proper to undo an illegal order which may
have an effect of reviving of another
illegal order.

56. In Gadde Venketeswara Rao
Vs. Government of Andhra Pradesh
and others AIR 1966 SC 828 a challenge
was made to the Government Order dated
18th April 1963 before the High Court
which
failed.
The
Supreme
Court
observed that if the High Court had
quashed the said order, it would have
restored an illegal order. Therefore, the
High Court had rightly refused to exercise
its
extra-ordinary
power
in
the
circumstances of the case.

57. The above principle is being
followed continuously and in State of
Uttaranchal and another Vs. Ajit Singh
Bhola and another (2004) 6 SCC 800 the
Apex Court again reiterated that the Court
will not exercise its discretion to quash an
order which appears to be illegal but having
effect of reviving another illegal order.

58. In Maharaja Chintamani
Saran Nath Shahdeo Vs. State of Bihar
and others (1999) 8 SCC 16 the Supreme
Court observed where setting aside of an
order on the ground of lack of jurisdiction
results in revival of an illegal order, the
order which lacks jurisdiction should not
be set aside and the Court should refuse to
interfere under Article 226 of the
Constitution of India.

59. In Ramesh Heera Chandra
Kundan
Mal
Vs.
Municipal
Corporation of Greater Bombay (1992)
2 SCC 524 it has been laid down that it is
always upon the Court to interfere with an
order passed on an application for
addition of parties when it is found that
the courts below have gone wrong in
deciding
the
said
application.
2 All] Ram Nakshtra Sharma Vs. State of U.P. and Ors.

1139

60. In the overall facts and
circumstances
of
the
case,
without
entering into the controversy of the
maintainability of the revision before the
court below, since I am of the opinion that
the plaintiff/respondent are entitle to
implead transferee pendente lite in the
instant case, I decline to exercise the
discretionary jurisdiction in the matter for
the above reason alone.

61. In view of the aforesaid facts and
circumstances, the writ petition fails and is
dismissed with no orders as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.07.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 38790 of 2013

Ram Nakshtra Sharma
 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Kshetresh Chandra Shukla, Sri Ratan
Kumar Singh
Counsel for the Respondents:
C.S.C.

Constitution of India, Art. 226-Service Law-
Recovery of excess payment-pay scale
wrongly fixed Rs. 3200-4900 instead of
3050-4590-contention that petitioner being
no instrumental in getting wrong fixationnot entitled to refund-held-misconceived-in
view of recent case reported in 2012(3)
UPLBEC-2057 in C.P. Uniyal's Case-no such
principle of law-where excess payment
from
public
exchequer
can
not
be
recovered.

Held: Para-21
Every
single
penny
constituting
consolidated fund of India/State comes
from hard earned money of tax payers and
others. It has to be utilized strictly in the
manner in which the competent authority
i.e., the legislature has resolved and
decided. No amount of public exchequer
can be allowed to be squandered as a
matter of charity or otherwise to be
retained by a Government servant who is
not entitled to obtain such money but by
another Government Servant has been
allowed
to
withdraw
from
public
exchequer, may be, by his mistake or may
be collusive mistake or otherwise.

Case Law discussed:
1979 ALJ 1184; 1994(2) SCC 521; 1995
Suppl.(1) SCC 149; 1997(1) SC 353; 2002(3)
SCC
302;

2006(10)
SCALE
1999;
2006(1)UPLBEC 399; AIR 1993 SC 1903; AIR
2000 SC 2709; AIR 2000 SC 1557; (2006) 11
SCC 709; 2010(1) SCC 440; 1995 (Supp. (1)
SCC 18; 2012 (3) UPLBEC 2057; [(2009) 2
SCC 117]; [(2010) 14 SCC 323]; (2009) 3 SCC
475; Special No. 503 of 2008; 2004(1) ESC
(Allahabad) 455; AIR 1978 SC 78.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. The writ petition is directed
against the order dated 30.05.2013 passed
by Director, Horticulture and Food
Processing, U.P., Lucknow pointing out
that petitioner's pay w.e.f. 01.01.1996 was
wrongly fixed in the same of Rs. 32004900 inasmuch as he was earlier in the
pay scale of Rs. 950-1500 for which
revised pay scale was Rs. 3050-4590,
w.e.f. 01.01.1996. The petitioner having
been given wrong pay scale and excess
salary, the same was liable to be
recovered and hence direction has been
issued to Deputy Director, Horticulture to
recover aforesaid amount.

2. It is contended that excess
payment cannot be recovered from
petitioner since there is no fraud or
misrepresentation on his part. He placed
reliance on a Division Bench decision of