Delhi High Court
Gurmauj Saran Baluja vs Mrs. Joyce C. Salim And Others on 22 November, 1988
Equivalent citations: AIR1990DELHI13, 37(1989)DLT114, AIR 1990 DELHI 13
Author: D. P. Wadhwa
Bench: D.P. Wadhwa
ORDER D. P. Wadhwa, J.
1. This appeal by the plaintiff is directed against the order dt. 26-10-1987 of the learned single Judge allowing an application of one Kaka Singh filed under 0. 1, R. 10 read with S. 151 of the Civil P.C. 1908 (for short 'the Code'), for impleading him as a defendant in the suit.
2. The plaintiff on 10-5-1983 filed a suit for specific performance of two agreements and, in the alternative, for recovery of Rs.13,74,000/- as damages against four defendants. He had entered into these two agreements with the first defendant, who is the wife of the second defendant. The plaintiff contended that defendant 1, being the owner of plots Nos. 452A and 452B in Block S, Greater Kailash, Part 11, New Delhi, entered into two separate agreements to sell these two plots to the plaintiff for certain consideration and also received earnest money of Rs.15,000/- each in respect of these two plots from the plaintiff. Both these agreements were entered into the March 1972, one on 15-3-1972 and the other on 27-3-1972. The third and the fourth defendants were described as developers of the colony in which these two plots are situated. At the time when these agreements were entered into, the sale deeds had not been registered in the name of the first defendant by the colonizer, i.e. defendants 3 and 4. It was stated that this was so because of certain restrictions placed on the colonizer by the Municipal Corporation of Delhi and also because of the Urban Land (Ceiling and Regulation) Act 1976, though it was stated that the colonizer had received full consideration from the first defendant. The plaintiff then contends that in a suit filed by the second defendant against his wife, the first defendant, and in which the third defendant was also imp leaded as a party, a declaration was made by this court that the real owner of the two plots in question was the husband, i.e. the second defendant, and that the wife had no right, title, or interest in these plots and she was restrained from selling these plots to any person and at the same time the third defendant was also directed to execute sale deeds of these two plots in favor of the husband and also to deliver peaceful and vacant possession of the same to the husband, the second defendant herein. This was suit No. 130 of 1972 and it was decreed on 21-4-1976. It was stated that the decree in this suit was passed ex parte. The plaintiff, therefore, challenged this decree as well in the present suit. It is not necessary to refer to other averments in the plaint. The plaintiff prayed for a decree of specific performance, for a declaration that the ex parte decree passed in suit No. 130/72 was collusive and was not binding on the plaintiff; requiring defendants 3 and 4 to executive sale deeds directly in favor of the plaintiff and restraining these defendants from executive sale deeds in favor of defendant 2 in pursuance of the decree in suit No. 130/72 and also restraining them from handing over possession of the plots to defendant 2; and in, case the court holds that defendants 3 and 4 should execute the sale deeds in favor of either of the defendants 1 and 2 then requiring either of the defendants 1 and 2 or both to execute the sale deeds in favor of the plaintiff after receiving the balance consideration; and lastly, restraining defendants 1 and 2 by means of permanent injunction from transferring, assigning or selling or otherwise disposing of the plots or handling over possession of the same to any third party or to make any constructions thereon.
3. Along with the suit, the plaintiff also filed an application under 0. 39, Rr. 1 and 2 and S. 151 of the Code. On this application, defendants 1 and 2 were restrained from alienating, selling or transferring the plots to any person in any manner whatsoever and from giving possession of the same to any person or to make any construction thereon during the pendency of the suit.
4. Only defendant 2 is contesting the suit. Defendant I has been proceeded ex parte. Defendants 3 and 4 though appearing in the suit at times, did not file written, statements and are, in fact, not participating in the proceedings.
5. On pleadings of the parties, the following issues were framed:-
"1. Whether the suit is barred by limitation? OPD 2
2. Whether the suit is barred by the doctrine of res judicata in view of the decree passed in suit No. 130/72? OPD 2
3. Whether the defendant 1 is the owner of the plots in question? OPD
4. Whether there is an agreement to sell between the plaintiff and defendant 1? OPD 2
5. Whether the agreement to sell as entered into between the plaintiff and defendant 1 cannot be enforced against defendant 2 and is not binding against him? OPD 2
6. Whether defendant 1 was a benamidar of defendant 2 and defendant 2 was the actual owner, if so to what effect with respect to agreement to sell between defendant 1 and the plaintiff? OPD 2
7. Whether the plaintiff is entitled to a decree of specific performance of the agreement to sell? OPP
8. Whether the plaintiff was always ready and willing to perform his part of the agreement? OPP
9. In case a decree of specific relief cannot be passed in favor of the plaintiff, then to what amount the plaintiff is entitled to as damages as prayed for in the plain? OPP
10. Relief"
6. On 29-1-1987, when the case was fixed for evidence all the parties sought adjournment. This was perhaps on account of the fact that a day before Kaka Singh, intervener, filed an application under 0. 1, R. 10, read with S. 151 of the Code(IA 557/87) which ultimately resulted in passing of the impugned order.
7. Kaka Singh alleged that the plots were purchased by the second defendant benami in the name of his wife the first defendant. He also referred to suit No. 130/72 filed by the second defendant against the first defendant and the third defendant. He said it was only on coming to know of the suit that the first defendant executed the two agreements in favor of the plaintiff. Though the first defendant contested that suit it was, however, decree against her. After passing of the decree in suit No. 130/72, the second defendant entered into an agreement on 23-1-1980 to sell plot No. 452A to one Premlata Soni or to her nominee. Premlata, Soni nominated Kaka Singh as her nominee. Thereafter, Kaka Singh and defendant 2 entered into a separate though identical agreement in respect of sale of plot No. 452A which agreement, it was stated, was registered with the Sub-Registrar, New Delhi on 26-2-1980. Since defendant 2 wanted to wriggle out that agreement to sell, Kaka Singh filed a suit for specific performance in this court, it being suit No. 144/81. The suit was, however, compromised while it was still at initial stages. Defendant 2 made a statement that the suit be decreed and he undertook that after he obtained a sale deed in his favor from the third defendant he would transfer the plot to Kaka. Singh. Because of the, applicability of the Urban Land (Ceiling and Regulation) Act 1976, clearance had to be obtained and for which purpose Kaka Singh met all the expenses. Meanwhile, the plaintiff filed the present suit without making Kaka Singh a party. Kaka Singh then said that when he filed an application for execution of the decree in his suit No. 144/81, defendant 2 informed the court therein about the stay obtained by the plaintiff in the present suit. That application was, therefore, consigned to the record room. In order to explain the delay in filing his application to intervene, Kaka Singh stated that defendant 2 had told him that he was contesting the suit and was watching his interest too. At a later stage, it is stated, defendant 2 demanded some money from Kaka Singh for the purpose of watching his interest. Kaka Singh also found that defendant 2 did not bring to the notice of this court in the present suit the fact that there was an agreement to sell in respect of plot No. 452A by defendant 2 in favor of Kaka Singh and also that suit No. 144/81 had been decreed against defendant 2. Kaka Singh, therefore, said that he was not only directly interested in respect of the subject-matter of the suit, particularly plot No. 452A, but also his presence was necessary before the court in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit. He, therefore, prayed that he be added as a party in the suit.
8. This application was contested by the plaintiff but was allowed by a detailed order of the learned single Judge which is impugned in the present appeal. On the same day when this order was passed, the learned single Judge, by a separate order, directed the plaintiff to file amended memo of parties and the amended plaint.
9. Only the intervener Kaka Singh has appeared to oppose the present appeal. He has raised a preliminary objection that the appeal is not maintainable under S. 10 of the Delhi High Court Act 1966. Sub-s. (1) of S. 10 which is relevant provides that where a single Judge of the High Court of Delhi exercises ordinary original civil jurisdiction, an appeal shall lie from the Judgment of the single Judge to a Division Court of that High Court. The question that arises for consideration is if the impugned order is a 'judgment' so as to be appealable. No advantage can be drawn from the provisions of 0. 43 of the Code, which provides for appeals from various orders, an order under 0. 1, R. 10 of the Code not being one of the appealable orders. It has now been authoritatively held by the Supreme Court that as far as S. 10 of the Delhi High Court Act 1966 is concerned, Order 43 of the, Code is not exhaustive. Though appeals from orders mentioned in 0. 43 would be maintainable, the reverse is not true. In Shah Babulal Khimji v. Jayaben D. Kania , the Supreme Court was examining the scope, ambit and meaning of the word 'judgment' appearing in Cl. 15 of the Letters Patent of the Bombay High Court and the corresponding clauses in the Letters Patent of other High Courts. The court observed that the significance of the word 'judgment' assumed a special importance in those High Courts which had ordinary civil jurisdiction, depending on the valuation of the suit or the action and that those High Courts were Calcutta, Bombay, Madras as, also Delhi and Jammu & Kashmir. The principles laid down by the, Supreme Court can be gathered from paras 106 and 115 of the judgment and these are as under:-
"106. Thus, the only point which emerges from this decision is that whenever a trial Judge decides a controversy which affects valuable rights of one of the parties, it must be treated to be a judgment within the meaning of the Letters Patent."
"115. Thus, in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. Similarly, orders passed by the trial Judge deciding question of admissibility or relevancy of a document also cannot be treated as judgments because the grievance on this score can be corrected by the appellate court in appeal against the final judgment."
In Jugal Kishore Paliwal v. S. Sat Jit Singh , the question before the Supreme Court was if an order allowing amendment of the written statement was appealable under S. 10 of the Delhi High Court Act 1966. The Division Bench of this Court had held that the appeal was not maintainable. The Supreme Court held that the High Court was wrong in refusing to go into the merits of the case on the ground that the appeal was not maintainable. It referred to its decision in Shah Babulal Khimji's case (supre) wherein various parameters and conditions had been laid down under which an appeal could lie from a single Judge to the Division Bench. The Supreme Court further observed as under: -
"In the instant case as the amendment of the written statement was sought at the time of framing issues and it vitally affects the right of the parties and seeks to work some injustice to the plaintiff, it merits serious consideration by the appellate court on the question whether or not a amendment should be allowed. It would certainly not be a purely interlocutory order against which no appeal before the LPA bench would be maintainable."
Reference may also be made to a Bench decision of this court in Satish Chander Yadav v. Lt. Col. Gaj Singh Yadav (FAO(OS) No. 55/85, decided on 13-8-1985). In this case an appeal was filed before the Division Bench against an order of the single Judge framing two issues described as preliminary issues. It was contended that the appeal was not competent. The court, however, observed that the order deciding to try the suit in a particular manner, after framing two preliminary issues and postponing the a settlement of other issues, did amount to a judgment, and so it was appealable. In the present case the effect of the impugned order is that it enlarges the scope of the suit and directs the plaintiff to add a party against his wishes resulting in filing an amended plaint containing consequential amendments on the addition of a party. The addition of the party would also amount to a de novo trial as far as the party added is concerned. It cannot, therefore, be said that the impugned order is not a judgment. It does affect vital and valuable right of the plaintiff and decides matters of moment. The plaintiff has complained that the order has worked serious injustice to him. We would, therefore, hold that the order is a 'judgment' within the meaning of sub-s. (1) of S. 10 of the Delhi High Court Act 1966 and is, therefore, appealable.
10. Mr. Sood, learned counsel for the appellant-plaintiff, submitted that the court had no jurisdiction to add Kaka Singh, the intervener, as a defendant in the suit.
11. The court may strike out or add parties as provided in sub-rule (2) of R. 10 of 0.1 of the Code. The relevant portion of this sub rule is as under: -
"(2) Court may strike out or add parties.
x x x x x x x x x x 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 effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.''
12. Mr. Sood said it was for the plaintiff to choose his defendants and no defendant could be foisted upon him without his consent so as to broaden the scope of his suit, which, he said, had been done in the present case. In support of his submission, he referred to the following observations made in a Division Bench decision of this Court in Bhagat Behari Lal v. J. J.Singh (RFA No. 170-D of 1965, decided on 19-2-1979):
"The plaintiff is the dominus litis. He has, therefore, the choice of limiting the scope of his suit either to the execution of contract alone only against the executant or to broaden the scope by making other persons as parties either with a view to bind them to the contract or to claim partition against them. He cannot be compelled to choose either of the courses by the defendant."
13. We do not think Mr. Sood is quite right in his submission. His right to choose his defendants is circumscribed by the provisions of R. 10 of 0. 1 of the Code. His right to choose his defendants is not absolute. Reference in this connection may be made to the statement of law as to the practice prevalent in England as contained in para 226, Vol. 37, Halsbury's Laws of England, Fourth Edition, which reads as under : -
"226. Intervention by persons who are not parties. The general rule of practice is that the plaintiff is entitled to choose the person or persons as defendants against whom he wishes to pursue his claim for the relief or remedy he seeks, and that he cannot be compelled to proceed against other persons whom he has no desire to sue. Nevertheless, the court has power to add a person who is not a party to the action as originally constituted as a defendant against the will of the plaintiff, either on the application of the defendant or of the non-party. An application by any person to be added as a party must, except with the leave of the court, be supported by an affidavit showing his interest in the matters in dispute in the cause or matter or the question or issue to be determined as between him and any party to the cause or matter.
A person having no legal but only a commercial interest in the outcome of the litigation between the plaintiff and the original defendant cannot be added as a party either for the convenience of the court or otherwise. On the other hand, a person may be added as a defendant, either on his own application Or the application of the defendant, where his proprietary or pecuniary rights are or may be directly affected by the proceedings either legally or financially by any order which may be made in the action, or where the intervener may be rendered liable to satisfy any judgment either directly or indirectly."
14. This would be the position in our law as well.
15. In Razia Begum. v. Sahebzadi Anwar Begurn , the Supreme Court was concerned with the question of addition of parties. That was a suit for declaration and the Supreme Court laid down various principles. Two of these principles would be relevant for the purpose of the present case, and these are:-
"(1) That the question of addition of parties under R. 10 of 0. 1 of the Civil P.C. is generally not one of initial jurisdiction of the court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case; ...........";
(2) That in a suit relating to property, in order that a person may be added as a "party, he should have a direct interest as distinguished from a commercial interest, in the subject-matter of the litigation."
16. In the present case, we find that Kaka Singh has a direct interest in the subject matter of the suit. The decision on issue No. 3 might as well even knock out the basis of his suit against the second defendant for specific performance of his contract of sale (suit No. 144/81 decree on 9-3-1982). The contract of sale in favor of Kaka Singh is prior to the institution of the suit by the plaintiff. We may test the argument of Mr. Sood from another angle. A transferee pendente lite of the property in suit may not be a necessary party as he would be bound by the decree-passed in the suit on account of the doctrine of lis pendence as contained in S. 52 of the T.P. Act. Provisions of S. 52 are applicable in a suit for specific performance of a contract of sale of immovable property, but in spite of the fact that in such a suit a plaintiff is protected by lis pendence the court does at times protect him further by an injunction restraining the defendant from transferring the property during the pendency of the suit, particularly where the court prima facie finds that a valid contract of sale exists. But the transferee pendente lite can be added as a proper party if his interest in the subject matter of the suit is substantial and not just peripheral. Kaka Singh now says that plot. No. 452A was agreed to be transferred to him by the second defendant on the basis of a valid decree obtained by the second defendant against the first and third defendants which decree is sought to be challenged by the plaintiff in the present suit. Obviously, therefore, Kaka Singh is not only interested in the property in suit but also his interest extends to upholding the decree in suit No. 130/72 filed by the second defendant against his wife, the first defendant, and the third defendant. As noted above, in this suit the second defendant was held to be the owner of the two suit plots. We, therefore, feel that Kaka Singh is certainly a proper party in the suit. We do not think that it is the requirement of sub-rule (2) of R. 10 of Order 1 of the Code that a party sought to be added as a defendant must be interested in whole of the subject matter of the suit, i.e. in all the issues involved in the suit. Of course, as noted above, his interest must be direct and substantial and not merely commercial as was pointed out in Razia Begum's case (supra). The court is only to see" that the presence of the party sought to be added is necessary in order to enable the court to effectually and completely adjudicate upon and settle all the questions involved in this suit. The crucial issue in the present case would be as to who is the owner of the suit plots, whether it is the wife or the husband. Kaka Singh, the intervener, is undeniably vitally interested in this issue. Facts of the case, as set out above, would also show that Kaka Singh should be before the court to avoid multiplicity of proceedings.
17. Mr. Sood referred to a few reported decisions at the Bar where the courts refused to add a defendant but since ultimately this is a question of judicial discretion to be exercised in the facts and circumstances of each case, we need not refer to those decisions and particularly because of the view which we have taken. The contention of the plaintiff that the application which resulted in the impugned order was filed after a great deal of' delay was raised before the learned single Judge who negatived the same while accepting the explanation of Kaka Singh as to why he' could file the application only at the stage when the case was ripe for trial. We would not like, without more, to interfere in the discretion exercised by the learned single Judge, which is judicial. There is no requirement of law that such an application must be made at any particular stage of the trial though in a given case delay in moving, an application might be one of the considerations for the decision. Sub rule (2) of R. 10 of 0. 1 of the Code provides that the court can add a defendant at any stage of the proceedings.
18. This appeal, therefore, fails and is dismissed. There will, however, be no order as to costs.
19. Appeal dismissed.