Delhi District Court
Mahender Singh (Since Deceased) vs ) Asha @ Aysha Siddique on 23 March, 2017
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IN THE COURT OF DR. NEERA BHARIHOKE, ADJ01 (SOUTH),
SAKET COURTS, NEW DELHI
CS No.6571/16/10
Unique Case ID No. DLST01
Mahender Singh (since deceased)
Through Legal Heirs
...............Plaintiff
Versus
1) Asha @ Aysha Siddique
2) Anita Devi
.............Defendants
O R D E R :
1.Vide this order, I shall dispose of application filed U/O.I R.10 CPC on behalf of applicant Pratap Singh for his impleadment in the present suit.
2. The present suit has been filed for declaration and cancellation of Sale Deed executed by defendant no.1 in favour of defendant no.2, for seeking relief of possession & permanent injunction in respect of suit property bearing no.298/4, Mehrauli, New Delhi. CS No.6571/16/10 Mahender Singh Vs. Asha @ Aysha & Anr.
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The cancellation has been sought by averring that the suit property is an ancestral property which fell to family tree of the plaintiffs after partition of the same and that the plaintiffs also have a share in the suit property. Plaintiffs have contended that defendant no.1 could not have sold the suit property or at least not their share in the suit property to defendant no.2 by virtue of said sale deed. The defendants have denied the submissions made by the plaintiffs.
3. The applicant has filed the present application for his impleadment by submitting that plaintiff has claimed right in the suit property as a legal heir of late Lala Ram being his grandson and son of late Prabhu and that the applicant is also legal heir of late Lala Ram being his grandson and son of late Prabhu. Applicant has submitted that therefore he also has a share in the suit property and therefore has a substantial interest in the suit property. Hence the present application has been moved.
4. The application has been opposed by Ld. Counsel for plaintiff on the issue of delay in filing the present application and submits that CS No.6571/16/10 Mahender Singh Vs. Asha @ Aysha & Anr.
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the suit was filed in the year 2010 while the sale deed is of 03.02.2009 and that the prayer of the applicant to be impleaded at this stage is barred by limitation. The applicant has submitted that he was not aware about the proceedings of the present suit and that he came to know about the filing of the present suit only on.18.04 .2015 as detailed in para 9 of the present application and that thereafter he has filed the present application on coming to the knowledge in the year 2015 of the filing of the present suit. He further submitted that the present application is not hit by bar of limitation and has been moved within limitation. He has further submitted that he be allowed to be added as a defendant if not as a plaintiff.
5. Details arguments advanced by both the Ld. Counsels for the parties heard and record perused carefully.
6. The applicant has pleaded ignorance about the filing of the present suit, however, admittedly the possession of the suit property had been handed over by defendant no.1 to defendant no.2 in the year 2009 and the applicant was very well aware CS No.6571/16/10 Mahender Singh Vs. Asha @ Aysha & Anr.
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about the same. Presuming submissions of the applicant to be correct that he was not aware of the filing of the present suit, he cannot be given premium for his idleness that he did not enquire from defendant no. 2 for six years the capacity in which he was in possession of the suit property. It was for the applicant to initiate proper legal proceedings against the defendant in respect of the suit property in case he was aggrieved or any of his legal rights was being infringed. Law cannot come to rescue of those who sleep over their rights.
7. Even otherwise an application under Order 1 Rule 10 CPC is maintainable for impleading necessary party or proper party. The applicant has been unable to satisfy as to why he is a necessary or proper party to the present suit. The law is well settled that a necessary party is one without whom no order can be made effectively and 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 of the question involved in the proceeding.
CS No.6571/16/10 Mahender Singh Vs. Asha @ Aysha & Anr.
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8. In the case of V.N. Verma V. Veena Mahajan 200 (2013) DLT 499, it was observed that the person to be joined must be one whose presence is necessary as party. The test is not whether his presence is necessary for the correct solution of the dispute before the Court but whether the order would affect him or his interest would be prejudiced. Hon'ble Supreme Court in Ramesh Hiranand Kundanmal v. The Municipal Corporation of Greater Bombay & Ors. JT 1992(2) SC 116 observed as :
"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 he 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 as a party is that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which can not be effectually and completely settled unless he is a party."
CS No.6571/16/10 Mahender Singh Vs. Asha @ Aysha & Anr.
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9. It was further observed that "It is therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e. he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. The test is "May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights".
10. The plaintiff has filed present suit for declaration, cancellation of sale deed dated 03.02.2009, for possession and for permanent injunction. The applicant has not been able to satisfy as to why the matter in controversy in the present suit cannot be decided in his absence, which is a necessary prerequisite for allowing a person to be impleaded as a party to the suit. If he has any own independent cause of action against the defendants herein, it is for him to take proper legal recourse and he cannot evade law of limitation by filing the present application at this belated stage of 6 years having elapsed since the execution of the sale deed dated 03.02.2009 in respect of the suit property and the possession having exchanged hands in 2009 and that too in the knowledge of the applicant.
CS No.6571/16/10 Mahender Singh Vs. Asha @ Aysha & Anr.
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11. In view of these observations, it is held that the applicant is not a necessary party to the present suit and the application is accordingly dismissed.
(Announced in open Court on 23.03.2017) (Dr. Neera Bharihoke) ADJ01, South District Saket Courts, New Delhi CS No.6571/16/10 Mahender Singh Vs. Asha @ Aysha & Anr.