Supreme Court Summarizes Legal Principles Regarding Abatement Of Suit, Specific Performance & Lis Pendens

The Supreme Court has summarized certain legal principles with respect to the abatement of suit or proceeding, specific performance of an agreement, and lis pendens.

The Court was hearing Civil Appeals arising from the suits instituted in relation to the property dispute between parties.

The two-Judge Bench comprising Justice Manoj Misra and Justice Ujjal Bhuyan culled out the following legal principles –

(1) Before declaring a suit or proceeding to have abated on ground of non-substitution of the heirs/ legal representatives of a deceased party, the Court must examine whether the interest of the deceased party qua the subject matter of the proceeding is sufficiently represented by other parties already on record. If the interest of the deceased party is sufficiently represented by other parties already on record, and the decree/order eventually passed in the suit or proceeding would not be rendered non executable for absence of that party, the suit or proceeding would not abate.

(2) In a suit for specific performance of an agreement for sale of an immovable property, vendor is a necessary party notwithstanding he has transferred his interest in the property to a third party. As a sequitur, a suit or an appeal emanating from such a suit would abate if, upon death of the vendor, his legal heirs/representatives are not substituted.

(3) Though a transfer lis pendens is not always void, such transferee’s title is subservient to the decree that may ultimately be passed in the pending suit. As a sequitur, a transferee lis pendens is not a necessary party in a suit for specific performance.

(4) However, a transferee lis pendens may pursue the appeal against a decree of specific performance against the vendor, as a legal representative/ inter-meddler of the estate of the vendor. But, having regard to the nature of decree that is required to be passed in a suit for specific performance, as held in Lala Durga Prasad (supra) and Dwarka Prasad (supra), the vendor would have to be impleaded as a party in the appeal and on his death, on non-substitution of his heirs /legal representatives, the appeal would abate.

AOR Pratibha Jain represented the Appellants.

Factual Background

A Suit was instituted by the first Respondent namely Gopal against the first Appellant namely Kishorilal (now deceased), inter alia, for declaration and injunction and, later, by way of amendment, for specific performance of agreement to purchase the suit scheduled property. During the pendency of suit, Brajmohan and Manoj (Appellants in connected Appeal), purchased the said property from the deceased, vide sale-deed in the year 1992. The suit was decreed in 2000 and being aggrieved, the deceased and the transferees lis pendens jointly filed an Appeal before the Madhya Pradesh High Court, Gwalior Bench. During its pendency, Kishorilal died in 2005 and therefore, his legal representatives (LRs) i.e., four in number, were substituted as Appellants No. 1(1), 1(2), 1(3) and 1(4), respectively.

In 2007, Murarilal [Appellant No. 1(2)] died and on his death, remaining Appellants filed an Application in 2010 for deletion of Murarilal from the array of parties on the ground that interest of Kishorilal in the suit property is already represented by Brajmohan and Manoj and other LRs of Kishorilal. On deletion of his name and non-substitution of LRs, an application was filed by the Respondent-Gopal to dismiss the Appeal as having abated. However, this application was dismissed by the High Court. Thereafter, an application was filed under Order 22 Rules 4 and 11 read with Order 1 Rule 10 of the Code of Civil Procedure, 1908 (CPC) to implead heirs of Murarilal as Respondents. On this application, an objection was filed by the Respondent-Gopal. However, the application was allowed. The application of the Appellants to recall the High Court’s Order was rejected and hence, the case arose before the Apex Court.

Reasoning

The Supreme Court after hearing the contentions of the counsel, noted, “On summation of facts what becomes clear is that out of four heirs of Kishorilal, three remained on record. The fourth, namely, Murarilal, died and was not substituted within time. Though, later, his heirs and legal representatives were also brought on record as proforma respondents in the appeal. In that context, we shall address the issues.”

The Court reiterated that the principle of Res Judicata applies also as between two stages in the same litigation to the extent that a Court, whether the Trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings.

“However, what is important is that this does not preclude the appellate court or a higher court to test the correctness of that decision”, it added.

The Court reaffirmed that the vendor is a necessary party in a suit for specific performance of an agreement for sale, notwithstanding that vendor has transferred his interest in the subject matter of the agreement to a third party.

“Reason being that the transferee/ third party cannot be subjected to special covenants, if any, between the vendor and the plaintiff-purchaser. Besides that, the object of the decree of specific performance is to put the person who has agreed to purchase the property in the same position which he would have obtained in case the contracting parties i.e., vendor and the purchaser had, pursuant to the agreement, executed a deed of sale and completed it in every way”, it further said.

The Court was of the view that once the High Court had taken the view that Appeal had not abated on non-substitution of heirs of Murarilal i.e., Appellant No.1(2), as other heirs of Kishorilal were on record besides Appellants 2 and 3, it was not open for the High Court to revisit the issue later, because such an exercise was hit by principle of res judicata which applies with equal force to different stages of the same proceeding as it does to a separate subsequent proceeding.

“The argument on behalf of respondent that order dated 09.05.2011 specifically mentions that deletion was at the risk of the appellant and, therefore, the issue was kept open does not cut much ice, because in the subsequent orders dated 04.03.2013 and 09.05.2013, the High Court specifically held that appeal had not abated”, it remarked.

The Court, therefore, held that the Appeal had not abated on non-substitution of the heirs of Murarilal within time.

“So far as the direction in the order dated 09.05.2011 to delete appellant No.1 is concerned, it was a pure clerical/ typographical error inasmuch as the prayer made was to delete appellant No.1(2) i.e., Murarilal from the array of parties as other LRs of Kishorilal sufficiently represented his interest. Such a mistake could be corrected at any stage in exercise of powers under Sections 151 and 152 of CPC. Therefore, the plaintiff-respondent cannot take advantage of the aforesaid mistake”, it observed.

Conclusion

The Court also noted that the High Court was well within its jurisdiction in allowing impleadment of his heirs as proforma Respondents in exercise of powers under Order 1 Rule 10 of CPC.

“As we have already concluded that appeal had not abated on non-substitution of legal heirs of deceased Murarilal i.e., appellant No.1(2), there was no question of setting aside abatement. … In view of our conclusion that the appeal had not abated, the High Court had the discretion to allow impleadment of Murarilal’s heirs and for such impleadment, it was not required to condone the delay or to set aside abatement. Issue (iv) is decided accordingly”, it concluded.

Accordingly, the Apex Court allowed the Appeals and set aside the impugned Orders.

Cause Title- Kishorilal (D) Thr. LRs & Ors. v. Gopal & Ors. (Neutral Citation: 2026 INSC 48)

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