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[Cites 7, Cited by 0]

Delhi District Court

Vide This Order I Proceed To Dispose Off ... vs . on 17 April, 2014

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   IN THE COURT OF MS. POONAM CHAUDHARY, ADJ­03, SAKET COURT, 
                           NEW DELHI

                                     CS No. 564/2012
In the matter of :­
 Virender 


                      Vs.


Laxmi & Ors. 


Date:­17.04.2014


   1.

Vide this order I proceed to dispose off the application under order 1 rule 10 CPC moved by the applicant for impleading the applicant Smt. Chandro Devi as a party to the suit. It is alleged that plaintiff has filed the present suit for specific performance and permanent injunction alleging that he had entered into an agreement to sell with the defendant No.1 for purchase of 1/12th share of defendant No.1 in the suit property bearing No. 511/1/12 (3­14), 512/1/(2­8) & 1493 (4­16), total land 10 bighas and 8 biswas situated at V & PO Aya Nagar, New Delhi 47 (herein after referred to as suit property). It is further alleged that plaintiff has claimed that defendant No. 1 failed to perform her part of the contract and thus, plaintiff was constrained to file the present suit.

2. It is further alleged that one Deshu was the owner of the entire land who died intestate leaving behind his wife/ applicant as one of the LR's along with other heirs. It is further alleged that plaintiff had also alleged that he had purchased the suit property from defendant No.1 whereas defendant No. 1 denied the receipt of payment and stated that she did not execute document. It is also submitted that defendant No. 1 was not the absolute owner of the entire property, thus she had no right 2 to sell the same. It is further stated that applicant has vested interest in the suit property and her valuable right would be effected in case she is not impleaded as a party to the suit. It is also stated that in case the applicant is not allowed to be impleaded as a party it would lead to multiplicity of litigation and applicant would suffer irreparable loss and injury. It is prayed that applicant be impleaded as a party in the suit.

3. Reply has been filed by the plaintiff opposing the application on the ground that the applicant has no cause of action as she has nothing to do with the suit property. It was also alleged that the applicant was neither in possession nor the owner of the suit property. It was also alleged that the applicant had filed collusive suit with the other defendants bearing Suit No. 815/2011 in respect of the suit property. It was also alleged that the application of applicant order 1 rule 10 CPC was dismissed in the suit bearing No. 291/12 titled "Virender Vs. Laxmi & Ors". It was further alleged that applicant is neither the necessary nor a proper party.

4. On merits it is alleged that defendant No. 1 is the absolute owner of the suit property. It is reiterated that the applicant is not co­owner of the suit property and has no vested interest in the same. It was further alleged that the application is liable to be dismissed.

5. The applicant in support of her contentions placed reliance upon judgment titled as S S Bakshi Vs. P M Mathrani, 118 (2005) Delhi Law Times 597 wherein it is held as under:­ " Civil Procedure Code, 1908­ Order 1 Rule 10­­ Impleadment of party: Suit for specific performance of agreement for sale : Entitlement of applicant to be impleaded as defendant: Necessary parties are those without whom Court will not proceed to any judgment : Plaintiff(s) seeks to be put in possession of specific portion of property by alleging partition of property between children of M. P. : Applicants claims to be co­owners of property and deny partition : Applicant would be necessary party to suit."

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6. On the other hand non applicant/ plaintiff placed reliance upon judgment (2013) 5 Supreme Court Cases 397, titled "Thomson Press (India ) Ltd. Vs. Nanak Builders & Investors Pvt. Ltd. & Ors" wherein it was held that " transfer pendente­lite was neither illegal nor void but remained subservient to rights eventually determined by the court in pending litigation. Impleadment/ addition of party­­ Held, Order 22 rule 10 is an enabling provision­­ Hence, independent of order 1 rule 10 Court can add transfree pendentelite as a party­defendant­ even if application is made under order 1 rule 10 CPC".

7. Ld. Counsel for non­applicant/ plaintiff also placed reliance upon judgment Kasturi vs. Iyyamperumal & Ors, Civil Appeal No. 2831 (2005) 6 Supreme Court Cases 733 wherein it is held as under:­ "A. Civil Procedure Code, 1908­ Order 1 Rule 10 (2)­ Suit for specific performance of contract - Necessary parties thereto­ Held, are only the parties to the contract or parties claiming under them, or a person who had purchase the contracted property form the vendor with or without notice of the contract - Person who claims independent title and possession adversely to title of vendor is not a necessary party, since an effective decree can be passed in his absence and no relief can be claimed against such party - Specific Relief Act, 1963­ S. 19. B. Civil Procedure Code, 1908 - Order 1 Rule 10 (2)­ Necessary party­ who is­ Tests for, held, are that (1) there must be right to some relief against such party in respect of controversies involved in the proceedings , or , (2) no effective decree can be passed in his absence."

8. Reliance was also placed by Ld. Counsel for plaintiff on the judgment Ramesh Singh Vs. Satish Chand Singhal, 2007 (144) DLT 644, wherein it is held as under :­ "Civil Procedure Code, 1908­­ Order 1 Rule 10 (2)­­ Necessary party - Scope­­ Held, necessary parties are those persons in whosse absence no decree can be passed by court or whose presence before court would be necessary in order to enable the court to effectually and completely 4 adjudicate upon and settle all the question involved in the suit".

9. The plaintiff has filed the present suit for specific performance and permanent injunction alleging that he had entered into an agreement to sell with defendant No. 1 for purchase of 1/12 th of her share in the suit property. It is further stated that defendant No. 1 agreed to sell her entire 1/12th share in the suit property and plaintiff made part payment, the remaining amount was to be paid at the time of execution of the title documents. It is further alleged that defendant No. 1 handed over the vacant possession of the portion shown in the site plan of the suit property to the plaintiff. It is also alleged that defendant No. 2 however, appeared and started claiming ownership of the entire property. It was also stated that defendant No. 2 & 3 being colonizers wanted to grab the suit property, hence, the plaintiff having no other alternative filed the present suit for specific performance and permanent injunction.

10. Defendant No.1 filed WS stating that she had entered into an agreement to sell with the plaintiff in respect of 1/12 th of her share in the suit property and plaintiff gave bayana amount to defendant No.1. It was also alleged that plaintiff taking advantage of illiteracy of defendant No.1 obtained her signature on agreement to sell, will, Possession letter, affidavit without paying the entire sale consideration amount. It was further alleged that the suit had been filed to harass the defendants as plaintiff has paid only Rs. 1,10,000/­ to defendant and obtained her signatures by fraud on a receipt of Rs. 5 lakhs. It was further averred that defendant has been ready to perform her part of contract but plaintiff refused to honour the agreement.

11. Defendant No. 2 did not contest the suit and was proceeded ex­ parte vide order dated 16.11.2010.

12. Defendant No. 3 also contested the suit taking preliminary objection that the suit was not maintainable. It was alleged that defendant No.1 had no right to sell the land in question. It was also alleged that defendant No. 1 was neither the owner, nor in possession of 5 the suit property and had no right to convey the same. It was also alleged that defendant No.1 was lured by plaintiff to enter into an agreement to sell but defendant No. 1 later on learnt that the land had already been sold by the family members of defendant No.1, thus, defendant No.1 refused to executed any further documents. It was further alleged that plaintiff was never in possession of the suit property and wants to grab the suit property. It was further alleged that defendant No.3 has no concern with the land in question after its sale in the year 1992.

13. I have heard Ld. Counsels for parties and perused the record. I am of the view that the applicant who is claiming to be the owner in the suit property, is a necessary party to the present suit, as she alleged that no partition was taken place, thus, her valuable rights would be affected and suit cannot be effectively adjudicated without her presence.

14. Order 1 rule 10 CPC provides that "The court may at any stage of proceeding, strike out or add parties whose presence before the court is necessary to effectively and completely adjudicate upon the question involved in the suit."

15. In the judgments relied upon by the Ld. Counsel for non applicant/ plaintiff it was held that the necessary party was one in whose absence effective decree cannot be passed. In the judgment Ramesh Singh vs. Satish Chand Singhal, (SUPRA), it has been also held that necessary party is one whose presence us necessary before the court to completely and effectively adjudicate upon and settle all the question involved in the suit.

16. Ld. Counsel for non applicant/ plaintiff submitted that in a suit for specific performance applicant did not have any direct interest because she was not a party to the contract and an effective decree could be passed in her absence. However, in this regard it is pertinent to note that no partition has taken place as admitted by the defendant No.1. The applicant claimed to be co­owner in the suit property. The non­applicant 6 / plaintiff has yet to perfect his title, thereafter, he will step into the shoes of co­parcener.

17. Thus, as it is admitted by defendant No.1 in WS that no partition has been effected between the parties, the rights of the applicant would be effected, as plaintiff is not entitled to joint possession with the other co­ owner till he files a suit for partition. But, if the purchase is complete, he could bring a suit for partition. Moreover, it will lead to multiplicity of litigation in case applicant is not impleaded as a party.

18. The next contention of Ld. Counsel for non applicant is that the application of applicant to be impleaded as party was dismissed in a suit filed by non applicant/plaintiff against the defendants and others as such this application is liable to be dismissed. However, in this regard it is pertinent to note that the said suit was under section 6 of the Specific Relief Act whereas the present suit is for specific performance of contract.

19. For the foregoing reasons I am of the view that as applicant is a person whose right would be effected by the decision of the present suit and is a necessary party to the suit as plaintiff has alleged that possession of 1/12 th share of defendant No.1 was handed over to him, on the basis of the agreement to sell. Defendant stated in its WS that suit property was not partitioned. I accordingly, allow the application. Amended memo of parties be filed. To come up for filing of amended memo of parties on 12.05.2014.

[POONAM CHAUDHARY] ADJ - 03, SOUTH DISTRICT, SAKET COURTS COMPLEX, NEW DELHI : 17.04.2014