Delhi District Court
Mamta Dhangar vs Ashu Kumar on 8 July, 2024
In the Court of Sh. Fahad Uddin,
ASCJ-cum-JSCC-cum-Guardian Judge,
East, KKD Courts, Delhi.
Civil Suit No. 1048/2022
Smt. Mamta Dhangar .....Plaintiff.
Versus
Mr. Ashu Kumar .....Defendant.
08.07.2024
ORDER
1. Vide this order, I shall decide the present application filed on behalf of the applicant (Shyam Devi) under Order 1 Rule 10 R/w Sec. 151 CPC seeking impleadment as a defendant in the present case. The brief facts necessary to decide the said application may be described as under:-
2. The present suit has been filed by the plaintiff ( Mamta Dhangar W/o Late Devender) against the defendant (Ashu Kumar) for possession, damages and permanent injunction on the ground that the husband of the plaintiff namely Sh. Devender had entered into an agreement to sell and purchase of property bearing number 17A 2nd & 3rd floor, Gali No. 1, Krishan Kunj Extension Laxmi Nagar, Delhi- 110092 area measuring 31.35 square meter from the previous owner namely Smt. Gurvinder Kaur W/o Sh. Malkit Singh in the month of March, 2022 and accordingly after taking the entire consideration amount from the husband of the plaintiff, the physical possession of the said property bearing no. 17A Second and Third Floor, Gali No. 1, Krishan Kunj Extension Laxmi Nagar, Delhi-110092 was handed over by the erstwhile owner to the husband of the plaintiff in the month of March, 2022. The proper transfer documents of the said property could not be executed by the erstwhile owner in favour of the husband of the plaintiff namely Sh. Devender as prior to executing the Civil Suit No. 1048/2022 Mamta Dhangar Vs. Ashu Kumar Page 1 of 14 said transfer documents in favour of the husband of the plaintiff, the husband of the plaintiff ( Sh. Devender) expired on 23.06.2022 and ultimately the erstwhile owner Smt. Gurvinder Kaur W/o Sh. Malkit Singh executed a fresh documents in the presence of marginal witnesses such as Agreement to sell, registered GPA, registered Will, possession letter, receipt and affidavit all dated 17.08.2022 in favour of the plaintiff. The husband of the plaintiff namely Sh. Devender expired on 23.06.2022 leaving behind his wife/plaintiff and others LRs. The defendant was inducted as a tenant by the husband of the plaintiff in property bearing no. 17A Third Floor, Gali No. 1, Krishan Kunj Extension Laxmi Nagar, Delhi-110092 area measuring 31.35 square meter since 01.04.2022 for 11 months commencing w.e.f 01.04.2022 till 28.02.2023 at monthly rent of Rs. 6500/- excluding other charges. The said tenanted premises was let out to the defendant for residential purpose only and the suit property consist of one room, kitchen and combined latrine bathroom.
3. The plaintiff had met with the defendant in the month of July, 2022 and asked the defendant to pay the payment of rent since the month of July, 2022 onwards but the defendant did not pay the same on the pretext that the payment of rent is being paid by the defendant to the mother of the husband of the plaintiff namely Smt. Shyam Devi. However, the plaintiff asked from Smt. Shyam Devi who had told the plaintiff that she did not receive any payment of rent from the defendant. The plaintiff is the owner of the said property and the defendant is only a tenant in respect of Third Floor of the said property and as per law the defendant is the tenant under the land lordship of the plaintiff and accordingly the defendant is liable to pay rent to the plaintiff only. The defendant was directed to pay the rent at the rate of Rs. 6500/- per month excluding other charges since the month of October, 2022 onwards to the plaintiff only by way of legal notice dated 12.09.2022 which was served upon the defendant through WhatsApp as well as speed post sent to the defendant on 13.09.2022. But the Civil Suit No. 1048/2022 Mamta Dhangar Vs. Ashu Kumar Page 2 of 14 defendant despite service of said legal notice neither gave reply of the legal notice nor paid the payment of rent at the rate of Rs. 6500/- excluding other charges to the plaintiff till date. The plaintiff again met with the defendant on 10.10.2022 with regard to the payment of rent but the defendant denied the same and due to this conduct of the defendant, the plaintiff terminated the tenancy of the defendant orally and asked the defendant to vacate the tenanted premises and hand over the physical possession of the same within 01 month. The defendant neither made any payment of rent to the plaintiff nor vacated and handed over the physical possession of the same to the plaintiff. The defendant was warned by way of legal notice that in case the payment of rent was not made by the defendant to the plaintiff since the month of October, 2022 onward to the plaintiff, then the plaintiff shall have right to terminate the tenancy of the defendant with regard to the tenanted premises and as such the plaintiff has already terminated the tenancy of defendant on 10.10.2022 and the defendant is living illegally in the tenanted premises without making the payment of rent to the plaintiff and despite termination of his tenancy. The defendant has no right to live in the property as the plaintiff is the owner of the suit property and the defendant is not making the payment of rent to the plaintiff. The tenancy of the defendant has already been terminated by the plaintiff and the defendant is in occupation of the suit property illegally and unauthorizedly without having any right over the same. Hence, in this background the present suit for possession, damages and permanent injunction has been filed by the plaintiff against the defendant as prayed for in the plaint.
4. Written statement has been filed on behalf of the defendant in the present case wherein the defendant stated that the suit of the plaintiff is not maintainable as there is no relationship of landlord and tenant between the plaintiff and defendant at any point of time. There is a dispute regarding ownership of suit property between the plaintiff as well as Smt. Shyam Devi (mother of late Sh. Devender who was the landlord ) and Civil Suit No. 1048/2022 Mamta Dhangar Vs. Ashu Kumar Page 3 of 14 both are claiming themselves as owner of the suit property. After the death of Late Sh. Devender, the mother of late Sh. Devender namely Smt. Shyam Devi is also one of the legal heirs. The plaintiff has no locus standi to file the present suit against the defendant as the plaintiff is neither the owner nor the landlady of the defendant. The defendant was inducted as a tenant in the suit property by the husband of the plaintiff namely Late Sh. Devender and mother in law of the plaintiff namely Smt. Shyam Devi w.e.f. 01.04.2022 at the rent of Rs. 6500/- per month excluding other charges. During the life time of Late Sh. Devender, the defendant was paying rent to late Sh. Devender and after the death of Sh. Devender, the defendant started to pay monthly rent at the rate of Rs. 6500/- to the mother of late Sh. Devender namely Smt. Shyam Devi. Further no payment of rent is due upon the defendant as the defendant is paying regular rent to Smt. Shyam Devi. Smt. Shyam Devi is claiming herself as the owner of the suit property and due to this reason, the defendant was paying rent to Smt. Shyam Devi. The property documents placed on record on behalf of the plaintiff are forged and fabricated. The defendant denied that the erstwhile owner Smt. Gurvinder Kaur W/o Sh. Malkit Singh executed fresh documents all dated 17.08.2022 in favour of the plaintiff and stated that as per the knowledge of the defendant, Sh. Devender became the absolute owner of the suit property in the month of March, 2020. The plaintiff was never the owner of the suit property at any point of time and the document on the basis of which, the plaintiff is claiming herself as owner of the suit property are false, forged, fabricated and manipulated. The defendant was inducted as a tenant by the husband of the plaintiff as well as mother of Late Sh. Devender together. After the death of Late Sh. Devender the defendant is regularly paying rent to the mother of Late Sh. Devender i.e. Smt. Shyam Devi. When there is no relationship of landlord and tenant between the plaintiff and the defendant, then the question of termination of tenancy does not arise at all at any point of time. The plaintiff is not the absolute owner of property and the defendant is regularly paying the rent to Smt. Shyam Devi and no Civil Suit No. 1048/2022 Mamta Dhangar Vs. Ashu Kumar Page 4 of 14 dues of rent is pending upon the defendant. The plaintiff has prepared a false and frivolous story and as such the suit of the plaintiff is liable to be dismissed.
5. Replication has also been filed in the present case on behalf of the plaintiff wherein the plaintiff denied the case of the defendant as stated in the WS and reiterated and reaffirmed her own case as per the plaint. Previously, the husband of the Plaintiff was landlord and after his death, the Plaintiff became landlord of the property in question. The plaintiff stated that the plaintiff is the absolute owner of property in question and Smt. Shyam Devi is not a necessary party to be impleaded in the present case. Smt. Shyam Devi is not the owner of the property in question but the plaintiff is the absolute owner of the property in question. From the version of the defendant itself, after the death of Late Sh. Devender, the plaintiff is landlord and she is entitled to get eviction of the defendant and to get recovered the rent of the property in question from the defendant. Rest of the submissions made by the plaintiff in the replication are not being repeated herein for the sake of brevity. Suffice it to say that the plaintiff prayed for decree of the suit as per the plaint.
6. During the course of proceedings the present application under Order 1 Rule 10 R/w Sec. 151 CPC was moved on behalf of the applicant Smt. Shyam Devi seeking impleadment as defendant in the present case on the ground that initially Sh. Devender was the owner of the suit property by virtue of GPA, Agreement to sell, possession letter, Deed of Will and affidavit all dated 16.03.2020 and after his death his legal heirs, Smt. Shyam Devi, the plaintiff and minor child namely Lakshita became co-owners of the suit property. The plaintiff has not disclosed the said fact before this court due to a malafide intention and as such the applicant is the necessary party in the present case and if the application of the applicant seeking impleadment as a defendant is not allowed, then the applicant shall suffer irreparable loss and injury Civil Suit No. 1048/2022 Mamta Dhangar Vs. Ashu Kumar Page 5 of 14 which cannot be compensated in terms of money and hence it has been prayed by the applicant that she be impleaded as a defendant in the present suit. Prayed accordingly.
7. Reply to the said application of the applicant Shyam Devi has been filed on behalf of the plaintiff wherein it has been submitted that the documents filed by the applicant are forged and fabricated after procuring the same with a malafide intention to grab the property of the plaintiff. The applicant is not a necessary party for the adjudication of the present suit as the present suit has been filed by the plaintiff against the tenant to get his eviction from the suit property. Even if it is presumed that the applicant is the co-owner of the property in question then even also, the plaintiff is competent to file the present case against the tenant to get his eviction from the suit property. The applicant has no concern with the suit property and the present application has been filed by the applicant after procuring forged and fabricated documents in collusion with the defendant. The erstwhile owner had executed certain documents with regard to the property in question including registered Will as well as registered GPA in favour the plaintiff. The applicant being the co-owner of the property has other efficacious remedies available to her and the right of the applicant cannot be decided by this Court. The present suit has been filed with regard to the Third Floor of the property against the defendant who is in occupation of the same as a tenant under the landlordship of the plaintiff. No transfer documents could be executed by the erstwhile owner in favour of Sh. Devender as prior to executing the transfer document with regard to the property in question, the said Sh. Devender expired on 23.06.2022 and ultimately, the erstwhile owner executed the transfer documents in favour of the plaintiff which are valid documents. The applicant is malafidely claiming that she is the co-owner of the property in question. Further the applicant is not a necessary party in the present case as per law. The present suit has been filed against a tenant and the applicant has no right over the suit property in question. Accordingly, the plaintiff Civil Suit No. 1048/2022 Mamta Dhangar Vs. Ashu Kumar Page 6 of 14 prayed for dismissal of the application filed by the applicant Smt. Shyam Devi under Order 1 Rule 10 R/w Sec 151 CPC before this Court.
8. Replication to the said reply has also been filed by the applicant Smt. Shyam Devi wherein she stated that the documents annexed by the applicant with the application are genuine documents and the documents filed by the plaintiff regarding ownership are false, forged and fabricated documents. The true facts are that Smt. Gurvinder Kaur had executed GPA dated 16.03.2020, receipt dated 16.03.2020, possession letter dated 16.03.2020, Agreement to sell and affidavit dated 16.03.2020 in favour of Late Sh. Devender and accordingly she cannot transfer the property in the name of plaintiff in the year 2022 i.e. after the death of Late Sh. Devender. The plaintiff with the collusion of Smt. Gurvinder Kaur had prepared forged documents which are illegal and against the law. Since beginning the tenancy of the defendant was created by Late Sh. Devender and the applicant ( Smt. Shyam Devi) and since beginning the defendant was paying the rent to Late Sh. Devender and after his death to the applicant (Smt. Shyam Devi) and the rent agreement is also executed between the defendant and the applicant for the said purpose. Hence, it has been prayed by the applicant that she is a necessary party for adjudication of the present suit.
9. Submissions heard. Record perused. The documents filed on behalf of the plaintiff as well as the applicant Shyam Devi are also gone through.
10. At this stage order 1 rule 10 CPC may be reproduced as under:-
(2) Court may strike out or add parties.- The Court may at any stage of the proceedings, either upon or without the application of either party and on such terms as may appear to the Court to be just, order that the name of any party improperly joined , whether as plaintiff or defendant be struck out and that the name of any person Civil Suit No. 1048/2022 Mamta Dhangar Vs. Ashu Kumar Page 7 of 14 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.
11. A party seeking to be impleaded as a party to a suit must demonstrate that it has a direct and substantial interest in the subject matter of the suit and that such interest would be affected directly by the decree that may be passed in the suit or that its presence as a party to the suit must be necessary for answering the issues arising in the suit. These factors must demonstrably exist before the party applying can be allowed to be impleaded as a party to the suit. A necessary party is one without whom no order can be effectively made. A proper is one whose presence is necessary for a complete and final decision of question involved in the proceedings. General rule in regard to impleadment of parties is that the plaintiff in a suit , being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. A person who is not a party has no right to be impleaded against the wishes of the plaintiff. But the court is given the discretion to add as a party any person who is found to be a necessary party or proper party. Rule 10 (2) CPC is not about the right of a non- party to be impleaded as a party but about the judicial discretion of the Court to strike out or add parties at any stage of a proceeding. In exercising its judicial discretion under the said rule, the Court will of course act according to reason and fair play and not according to whims and caprice.
Civil Suit No. 1048/2022 Mamta Dhangar Vs. Ashu Kumar Page 8 of 1412. In the case of " Kranti Arora Vs. DIGJAM LTD "[ CM (M) No. 51983 of 2018 in RFA (OS) No. 7/2011 decided on 08.07.2022] by the Hon'ble High Court of Delhi , it was observed that:-
Dominus litis is the person to whom a suit belongs and is master of a suit and is having real interest in the decision of a case. The plaintiff being dominus litis cannot be compelled to fight against a person against whom he does not claim any relief. The plaintiff in a suit is required to identify the parties against whom he wants to implead as defendants and cannot be compelled to face litigation with the persons against whom he has no grievance. A third party is entitled to be impleaded as necessary party if that party is likely to suffer any legal injury due to outcome of the suit. The doctrine of dominus litis should not be over stretched in impleading the parties. The court can order a person to be impleaded as necessary party if his presence is required to decide real matter in dispute effectively. Merely because the, plaintiff does not choose to implead a person is not sufficient for rejection of an application for being impleaded. The provisions of Order 1 Rule 10(2) CPC are having wide amplitude in operation.
The Supreme Court in various decisions had interpreted scope and ambit of legal provisions as contained in Order I Rule 10(2) CPC. The Supreme Court in Ramesh Hirachand Kundanmal V Municipal Corporation of Greater Bombay, (1992) 2 SCC 524 interpreted legal provision as contained in Order I Rule 10(2) CPC and held as under:- Sub-rule (2) of Rule 10 gives a wide discretion to the Court to meet every case of defect of parties and is not affected by the inaction of the plaintiff to bring the necessary parties on record. The question of impleadment of a party has to be decided on the touchstone of Order 1 Rule 10 which provides that only a necessary or a proper party may be added. A necessary party is one without whom no order can be made effectively. 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 on the question involved in the proceeding. The addition of parties is Civil Suit No. 1048/2022 Mamta Dhangar Vs. Ashu Kumar Page 9 of 14 generally not a question 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.
The Supreme Court in Anil Kumar Singh V Shivnath Mishra, (1995) 3 SCC 147 interpreted Order 1 Rule 10(2) CPC and held as under:- By operation of the above-quoted rule though the court may have power to strike out the name of a party improperly joined or add a party either on application or without application of either party, but the condition precedent is that the court must be satisfied that the presence of the party to be added, would be necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit. To bring a person as party- defendant is not a substantive right but one of procedure and the court has discretion in its proper exercise. The object of the rule is to bring on record all the persons who are parties to the dispute relating to the subject-matter so that the dispute may be determined in their presence at the same time without any protraction, inconvenience and to avoid multiplicity of proceedings.
13. The Supreme Court in Bibi Zubaida Khatoon V Nabi Hassan, (2004) 1 SCC 191 laid down broad principles which should govern disposal of an application for impleadment which are as under:
(i). The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the suit.
(ii). A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the Court.Civil Suit No. 1048/2022 Mamta Dhangar Vs. Ashu Kumar Page 10 of 14
(iii). A proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.
(iv). If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff.
(v). In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation.
(vi). However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the Court or the application is unduly delayed then the Court will be fully justified in declining the prayer for impleadment.
14. In the present case, the Plaintiff (Mamta Dhangar) has filed the present suit for possession, damages and permanent injunction against the defendant (Ashu Kumar) on the ground that the husband of the Plaintiff namely Sh. Devender had entered into an agreement to sell and purchase the property bearing no. 17 A, 2nd and 3rd floor, Gali no.1, Krsihan Kunj, Extension, Laxmi Nagar, Delhi-92 measuring area 31.35 sq mtrs from the previous owner namely Smt. Gurvinder Kaur W/o Sh. Malkit Singh in the month of March 2022 and after taking the entire consideration amount from the husband of the plaintiff, the physical possession of the said property was handed over by the erstwhile owner to the husband of the plaintiff namely Sh. Devender in the month of March 2022. Further the proper transfer documents of the said property Civil Suit No. 1048/2022 Mamta Dhangar Vs. Ashu Kumar Page 11 of 14 could not be executed by the erstwhile owner in favour of the husband of the Plaintiff namely Sh. Devender as prior to executing the transfer documents in favour of husband of Plaintiff, the said Sh. Devender expired on 23.06.2022 and ultimately the erstwhile owner Smt. Gurvinder Kaur W/o Sh. Malkit Singh executed a fresh documents such as registered GPA , registered Will, possession letter, receipt and affidavit all dated 17.08.2022 in favour of the plaintiff and the husband of the plaintiff (Sh. Devender) expired on 23.06.2022 leaving behind his wife i.e. the plaintiff and other Lrs. Due to non-payment of rent by the defendant, the plaintiff terminated the tenancy of the defendant orally and also asked the defendant to vacate the rented premises and hand over the physical possession of the same to her within one month and also filed the present suit for recovery of possession, damages and permanent injunction as prayed for in the plaint.
15. On the other hand, in the written statement, the defendant has clearly stated that there is no relationship of landlord and tenant between the Plaintiff and defendant at any point of time. The Plaintiff has no locus-standi to file the present suit as the Plaintiff is neither the owner nor the landlady of the defendant. The defendant was inducted as a tenant in the suit property by the husband of the plaintiff namely Sh. Devender and mother in law (Smt. Shyam Devi) w.e.f 01.04.2022 at the rent of Rs 6,500/- p.m excluding other charges and during the life time of late Sh. Devender, the defendant was paying rent to him and after his death, the defendant started to pay monthly rent @ Rs 6500/- to the mother of later Sh. Devender namely Smt. Shyam Devi. Further in her application under order 1 rule 10 CPC, the applicant Shyam Devi has stated that Sh. Devender was the owner of the property by virtue of GPA, Agreement to sell, possession letter, deed of will and affidavit all dated 16.03.20 and after his death all his legal heirs i.e. Smt. Shyam Devi (Mother of Sh. Devender, Plaintiff and Minor child namely Lakshita became co-owner in the suit property). Further, it is the case of the Civil Suit No. 1048/2022 Mamta Dhangar Vs. Ashu Kumar Page 12 of 14 applicant (Shyam Devi) that when Smt. Gurvinder Kaur had executed GPA dated 16.03.20, receipt dated 16.03.20, possession letter dated 16.03.20, Agreement to sell dated 16.03.20, affidavit dated 16.03.20 in favour of late Sh. Devender in the year 2020, then she again cannot transfer the property in the name of Plaintiff in the year 2022 i.e. after the death of Sh. Devender. The Plaintiff with the collusion of Smt. GURVINDER Kaur had prepared the forged documents which are illegal and against the law. The applicant Shyam Devi has also filed the said documents executed by Smt. Gurvinder Kaur in favour of Late Sh. Devender all dated 16.03.20 as well as rent agreement dated 06.03.2023 executed between the applicant Shyam Devi and the defendant Ashu Kumar qua the suit property in support of her submissions. Further in the WS it is the case of the defendant that he was inducted as a tenant by the husband of the Plaintiff as well as mother of late Sh. Devender together and the documents on the basis of which the Plaintiff is claiming herself as owner of the property are false, forged and fabricated and as per the knowledge of the defendant, Sh. Devender had become the absolute owner of the suit property in the month of March 2020. There is no relationship of landlord and tenant between the Plaintiff and the defendant and hence the question of termination of tenancy does not arise at all at any point of time.
16. Hence in the said fact and circumstances, after going through the respective cases of the Plaintiff, defendant and the applicant (Shyam Devi), this court is of the view that the applicant (Shyam Devi) is a necessary and proper party for the adjudication of the present suit as she has categorically denied the later documents executed by Smt. Gurvnder Kaur in favour of the Plaintiff executed in the year 2022 being forged documents, illegal and against the law and has placed on record, the rent agreement dated 06.03.23 executed between the applicant (Shyam Devi) and the defendant qua the suit property and it is also the version of the defendant that he was inducted as a tenant by the husband of the plaintiff as well as his mother and after the Civil Suit No. 1048/2022 Mamta Dhangar Vs. Ashu Kumar Page 13 of 14 death of Sh. Devender, he was paying regular rent to the mother of late Sh. Devender i.e. Shyam Devi. Hence, the applicant Shyam Devi seems to have a right, interest in the suit property which needs to be adjudicated by the Court in the present case and accordingly, she seems to be a necessary and proper party for the adjudication of the present suit. Accordingly, due to these reasons, this Court deems fit to allow the application of the applicant (Shyam Devi) U/o 1 rule 10 r/w section 151 CPC seeking impleadment as a defendant in the present case and Smt. Shyam Devi is impleaded as defendant no.2 in the present case and is directed to file her WS in the present case positively by the NDOH.
17. Let amended memo of parties be also filed by the Plaintiff impleading Smt. Shyam Devi as defendant no.2 in the present case on the NDOH.
18. With these observations/directions, the application of the applicant U/o 1 rule 10 r/w section 151 CPC is allowed/disposed of.
Now put for further proceedings in the present case on 28.08.2024.
Announced in the open Court on 08.07.2024.
(Fahad Uddin) ASCJ-cum-JSCC-cum-Guardian Judge East, KKD Courts, Delhi/08.07.2024 Civil Suit No. 1048/2022 Mamta Dhangar Vs. Ashu Kumar Page 14 of 14