Delhi District Court
Rajdeep Sood vs . Raghbir Singh on 7 July, 2012
: 1 :
IN THE COURT OF DR. NEERA BHARIHOKE : ADDITIONAL DISTRICT
JUDGE01 : SOUTH DISTRICT : SAKET COURTS : NEW DELHI
Suit No. 289/11
In the matter of :
Rajdeep Sood Vs. Raghbir Singh
07.07.2012
ORDER :
Vide this order, I shall dispose off the applications filed u/o 6 Rule 17 CPC and u/o 1 Rule 10 CPC by the plaintiff. 2 The plaintiff has filed the present suit for specific performance and permanent injunction by claiming that the physical possession of the flat in question was delivered to him on 28.06.2002. A possession letter was also signed on the same day by the defendant No.1 at Delhi. The plaintiff has submitted that the plaintiff is presently resident of Amritsar and the suit property was not in a position to be used as residence as the same is without any electricity and watter connection. The plaintiff had locked the flat in question under his lock and key after obtaining its possession. 3 On being served, the defendant No.1 filed the WS through his daughter and his general attorney holder Smt. Harjit Kaur wife of Sh.
Contd....P...1 of 11 : 2 :
Ravinder Pal Singh. The said attorney has also claimed personal interest in respect of the suit property on the basis of an alleged Agreement to Sell dated 22.10.2009. The plaintiff has submitted that the alleged Agreement to Sell dated 22.10.2009 is illegal, void, without consideration and has been deviced after having notice and knowledge of the existence of an earlier Agreement to Sell in favour of the plaintiff. The plaintiff has further submitted that the same has been created by the defendant No.1 in criminal connivance with his daughter and his soninlaw with a view to frustrate the rights of the plaintiff in respect of the suit property existing on the basis of a prior Agreement to Sell dated 28.06.2002. She further claimed to be in possession over the suit property.
4 Plaintiff has contended that after going through the contents of the WS, plaintiff immediately visited at the suit property. The plaintiff found that the defendant No.1 along with his agent (Smt. Harjit Kaur) has taken possession of the suit property by breaking open the locks and has locked the suit property with their locks probably on 28.05.2011 i.e. during the pendency of the present suit in order to frustrate the claim of the plaintiff in the present suit.
5 The plaintiff has filed the present application to implead the attorney holder of the defendant No.1 as she is claiming personal rights and Contd....P...2 of 11 : 3 :
interest in respect of the suit property on the basis of an alleged Agreement to Sell dated 22.10.2009.
6 The defendant No.1 through his attorney holder (Harjit Kaur) has also raised plea regarding nonjoinder of her as party. The plaintiff has further submitted that the plaintiff was not having knowledge about the existence of this secret agreement in between the defendant No.1 and his real daughter at the time of filing of the suit, as such the plaintiff could not implead Smt. Harjit Kaur as party (defendant) in the suit. This person is also claiming to be in possession over the suit property. The plaintiff has further submitted that presence of this person and her addition as defendant No.3 in this suit has become essential to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit keeping in view her claims in the WS of defendant No.1.
7 The plaintiff has submitted that the plaintiff has lost the possession over the suit property during the pendency of the case. The defendant No.1 and proposed defendant No.3 have taken physical possession of the suit. The plaintiff has filed the present suit for specific performance and permanent injunction. Now, due to change of possession of the suit property the amendment of the plaint is sought by the plaintiff. It is further submitted by the plaintiff that the addition and incorporation of the relief of the possession Contd....P...3 of 11 : 4 :
in the plaint will not effect the rights of the defendants in any manner because the present suit is at its initial stage and pleadings of the case have not completed as yet. Due to change of possession, the relief of the permanent injunction to protect the possession of the plaintiff has also become meaningless. The defendant No.1 and proposed defendant No.3 have entered into possession of the suit property and are threatening to part away possession of the suit property in favour of a thid party other than the plaintiff.
8 As such, the plaint in resepct of the suit for permanent injunction is also required to be amended keeping in view change in circumstance of the case. The applicant wants to restrain the defendants No.1 & 3 from delivering and parting away the possession of the suit property in favour of any other person except the plaintiff. The plaintiff also wants to amend the plaint by seeking an alternative relief of refund of earnest money of Rs.7 lacs along with interest.
9 Defendant no. 1 has filed his reply and has strongly opposed the present application. He has also submitted that the composite application for amendment of plaint and for impleadment of party is not maintainable. Defendant no. 1 has submitted that plaintiff has not come to court with clean hands and has fabricated the documents and has played a fraud with defendant no. 1 as well as with this court.
Contd....P...4 of 11 : 5 :
10 Detailed arguments were advanced by the plaintiff aand ld. counsels for defendants.
11 Arguments heard. Record perused carefully.
12 Plaintiff has submitted that he came to know about the alleged Agreement to Sell dated 22.10.2009 executed by defendant no. 1 in favour of proposed defendant after defendant No.1 filed the WS through his daughter and his general attorney holder Smt. Harjit Kaur wife of Sh. Ravinder Pal Singh. The said attorney has also claimed personal interest in respect of the suit property on the basis of an alleged Agreement to Sell dated 22.10.2009. The plaintiff has submitted that the alleged Agreement to Sell dated 22.10.2009 is illegal, void, without consideration and has been deviced after having notice and knowledge of the existence of an earlier Agreement to Sell in favour of the plaintiff. The plaintiff has further submitted that the same has been created by the defendant No.1 in criminal connivance with his daughter and his soninlaw with a view to frustrate the rights of the plaintiff in respect of the suit property existing on the basis of a prior Agreement to Sell dated 28.06.2002. She further claimed to be in possession over the suit property.
13 Plaintiff has contended that after going through the contents of the WS, plaintiff immediately visited at the suit property. The Contd....P...5 of 11 : 6 :
plaintiff found that the defendant No.1 along with his agent (Smt. Harjit Kaur) has taken possession of the suit property by breaking open the locks and has locked the suit property with their locks probably on 28.05.2011 i.e. during the pendency of the present suit in order to frustrate the claim of the plaintiff in the present suit.
14 Thus the occasion to make the proposed amendment in the prayer clause as well as the plaint to add to the present plaint the facts brought into the knowledge of the plaintiff has arisen only after the filing of WS. Defendant no. 1 has admitted the execution of the GPA executed in favour of the plaintiff dated 8.10.2002 AND 18.06. 2003 though for reasons explained in his WS. Defendant no. 1 has submitted that the plaintiff has forged the agreement to sell dated 28.06.2002 and other documents. Defendant no. 1 has himself submitted in para no. 13 of the WS that the suit is bad for nonjoinder of necessary parties and has also submitted that he has already sold the suit property to the proposed defendant by way of registered document. 15 Hon'ble Supreme Court of India in the matter of Bharat Karsondas Thakkar Vs M/s Kiran Construction Company and Anrs as reported in 2008 (2) Civil Court Cases 561 (S.C.) , Anil Kumar Singh Vs Shivnath Mishra as reported in 1995 (1) Civil Court Cases 531 (S.C.), Kasturi Vs Iyyamperumal & Ors as reported in 2005 (2) Civil Court Cases Contd....P...6 of 11 : 7 :
379 (S.C.) held that a third party or stranger to the contract is neither a necessary nor a proper party to adjudicate upon the dispute arising in the suit since he was not a party to an agreement to sale in respect of which specific performance had been prayed.
16 However Hon'ble Supreme Court of India in the matter of Durga Prasad Vs Deep Chand, AIR 1954 SC 75, and Vimala Ammal Vs C. Suseela & Ors AIR 1991 Madras 209 , wherein it has been held that in a suit for specific performance of sale agreement, the subsequent purchaser of the property is a necessary party and unless he is impleaded, the decree is nullity and cannot be executed against him.
17 A perusal of the judgments in the matter of Bharat Karsondas Thakkar Vs M/s Kiran Construction Company and Anrs as reported in 2008 (2) Civil Court Cases 561 (S.C.) , Anil Kumar Singh Vs Shivnath Mishra as reported in 1995 (1) Civil Court Cases 531 (S.C.), Kasturi Vs Iyyamperumal & Ors as reported in 2005 (2) Civil Court Cases 379 (S.C.) reveals that the observations made therein, in regard to a third party or stranger to the contract is neither a necessary nor a proper party to adjudicate upon the dispute arising in the suit, are based on the facts wherein the plaintiff in the respective matters had sought impleadment of subsequent Contd....P...7 of 11 : 8 :
purchasers as defendants but the said subsequent purchasers did not become purchasers by personal volition or personal acts of the vendors of the suit property. Further in these matters, the plaintiff had sought declaration of sale deeds in the favour of subsequent purchasers to be declared null and void. As the relief of declaration sought in such suits would have resulted in changing the nature and character of the suit and also because the subsequent purchasers had come into picture without any voluntary part of the vendor/ original owner, the said observations were made by Hon'ble Supreme Court of India.
18 However, in the present suit, the subsequent purchaser purchased the property by personal volition of the defendant. Plaintiff has not sought any relief of declaration of sale deed to be null and void against the proposed defendant. It has been held in Anil Kumar Singh Vs Shivnath Mishra (1995) 3 SCC 147, where the plaintiff merely seeks to add the subsequent purchaser as the defendant without challenging the same in his favour or seeking any other relief against him, the application under Order I Rule 10 CPC needs to be allowed. There is no question of the subsequent purchaser not being a necessary or a proper party in a suit for specific performance of an agreement. A plaintiff may choose to adopt independent proceedings against a subsequent purchaser simultaneously or later. Indeed it would be appropriate in most cases to bring a composite suit. It would avoid Contd....P...8 of 11 : 9 :
multiplicity of proceedings and unnecessary additional expenses. 19 It has been held in Durga Prasad Vs Deep Chand AIR 1954 SC 75, that a subsequent transferee is a necessary party to a suit for specific performance by the purchaser under a prior contract of sale and it could not be said that there would be any misjoinder of parties or of causes of action.
It was further held that subsequent purchaser must join with the vendee in the execution of the sale deed in favour of the plaintiff prior purchaser under the contract of sale, it could not be said that by so adding the subsequent purchaser as a party that the nature of the suit would be altered. 20 The facts of the matter of Durga Prasad Vs Deep Chand (supra), also involved a suit for specific performance by a prior purchaser against his vendor and a subsequent purchaser who had paid the purchased money to the vendor. In the said context, Hon'ble Supreme Court of India held that in case the suit filed by the prior purchaser is decreed, then the form of decree should be such as to direct specific performance of the contract between the vendor and the prior transferee and to direct the subsequent transferee to join in the conveyance so as to pass on the title which reside in hand to the prior transferee. It was observed that the only work required to be performed by the subsequent transferee was to pass on his title to the prior transferee. This decision has been referred to and has not been overruled by Contd....P...9 of 11 : 10 :
Hon'ble Supreme Court of India in the matter of Bharat Karsondas Thakkar Vs M/s Kiran Construction Company & Ors (supra), although the ratio of the said decision was held to be inapplicable to the facts of the case of Bharat Karsondas Thakkar Vs M/s Kiran Construction Company & Ors (supra).
21 Plaintiff in the application under Order VI Rule 17 CPC has sought amendment in the prayer clause i.e suit for permanent injunction is also required to be amended keeping in view change in circumstance of the case. The applicant wants to restrain the defendants No.1 & 3 from delivering and parting away the possession of the suit property in favour of any other person except the plaintiff. The plaintiff also wants to amend the plaint by seeking an alternative relief of refund of earnest money of Rs.7 lacs along with interest which, on identical facts, was allowed in the matter of Durga Prasad Vs Deep Chand (supra) and it was specifically held that the said amendment in the prayer clause did not change the nature/ character of the suit. As such also the plaintiff is entitled to seek the relief of possession as per section 22 of the Specific Relief Act for complete and property adjudication of the case because the posseesion has allegedly been taken by the defendant no. 1 and by the porposed defendant after the filing of the present suit. 22 In view of the law laid down in Durga Prasad Vs Deep Chand (supra) the facts of which are similar to the facts of the present matter, Contd....P...10 of 11 : 11 :
the applications of the plaintiff under Order I Rule 10 and Order VI Rule 17 CPC is allowed. The amended plaint already filed with the application is taken on record. Smt. Harjit Kaur is impleaded as defendant no.3. Plaintiff is directed to take steps for service of defendant no. 3 on filing of PF & RC. To come up for service report of the defendant no. 3 on 05.09.12. Dictated and announced in the open court on 07.07.2012 (Dr. Neera Bharihoke) ADJI(South) Saket Courts 07.07.2012 Contd....P...11 of 11