Delhi District Court
Sunita Sood vs . Jagdeshwar Sharma on 28 March, 2012
IN THE COURT OF SH. PRANJAL ANEJA
CIVIL JUDGE01, EAST, KKD COURTS, DELHI
Suit. No381/10
In the matter of:
Sunita Sood Vs. Jagdeshwar Sharma
Order
1.This order shall dispose off the application u/o 1 rule 10 CPC filed on behalf of the applicants namely Ravinder Kumar Goyal and Ankur Kakkar.
2. It is stated in the present application that on 05/03/10 Smt. Vijay Laxmi Sharma (LR of the deceased defendant) W/o Sh. Vinod Kumar Sharma has entered a Memorandum of Understanding with both the applicants for a sum of Rs. 1,35,00,000/ as the price of the plot no. 65, measuring 179 sq yards, situated at Saini Enclave, Delhi. That both the applicants have paid Rs. 5,00,000/ in cash as advance for Suit No.381/10 Page No.1/21( Ist application13 pgs. + 2nd application 8 pgs) consideration for executing the MOU to Smt. Vijay Laxmi Sharma and the balance amount of Rs. 10,00,000/ shall be paid at the time of registration of necessary documents. It is further stated that a legal notice dated 05/07/10 was sent by Smt. Vijay Laxmi Sharma after completion of litigation in the suit titled as Smt. Sunita Sood Vs. Jagdishwar Sharma which was replied by the counsel for the applicants. That it has come to the notice of the applicants through reliable sources that Smt. Vijay Laxmi Sharma is going to compromise with Smt. Sunita Sood, plaintiff without full filing the requirement of the applicant. That if such compromise takes place then the applicants will suffer irreparable loss. That if any compromise takes place without considering the applicants, then the same may be cancelled as null and void as per MOU dated 05/03/10. Thus the said Smt. Vijay Laxmi Sharma as failed to comply with the terms and conditions of the MOU and her intentions have became malafide. On these Suit No.381/10 Page No.2/21( Ist application13 pgs. + 2nd application 8 pgs) grounds it is necessary that the applicants be made a necessary party to the present suit.
3. Reply has been filed on behalf of the plaintiff. It is noted that the said reply is unsigned, though it is stated in the reply that the present application is not maintainable in view of the provision as contained in section 41(e) and (h) of the Specific Relief Act as it shows fresh cause of action upon which only a fresh suit is maintainable. The applicants can never be necessary party. The alleged agreement MOU is also not enforceable as the same is unregistered and hit by section 17 (1) (a) of the Registration Act and also exceeds the pecuniary jurisdiction of the suit.
4. Reply has also been filed by Smt. Vijay Laxmi Sharma stating that the present application is not maintainable as there is no cause of action in favour of the applicants. That the applicants cannot be impleaded as defendants as there is no privity of Suit No.381/10 Page No.3/21( Ist application13 pgs. + 2nd application 8 pgs) contract between the applicants and the plaintiff and the application cannot be moved on the basis of the MOU entered between the LR Smt. Vijay Laxmi Sharma and the applicants. If the applicants wants relief against the LR Smt. Vijay Laxmi Sharma then they have to file a separate suit after success completion of the present litigation and therefore the present application is pre mature and unwarranted.
5. I have the parties and perused the judicial record.
6. The present suit is in the nature of a suit for Specific Performance of an agreement to sell pertaining to property no. 65, measuring 179.7 sq yard, Saini Enclave, Shahdra Delhi. The said agreement to sell was entered into between the plaintiff and the defendant who has now expired and his LRs have been substituted on record. One of the LRs is Smt. Vijay Laxmi Sharma. Vide the present application the applicants wants to be impleaded as necessary party in the present suit on the ground that they have entered a MOU Suit No.381/10 Page No.4/21( Ist application13 pgs. + 2nd application 8 pgs) with the said Smt. Vijay Laxmi Sharma regarding the purchase of above mentioned property and have also given some amount as an advance. The applicants want themselves to be impleaded as a party for the reason that they have come to know from reliable sources that the said Smt. Vijay Laxmi Sharma is going to settle / compromise with the plaintiff Smt. Sunita Sood and as a consequence of which the applicants would suffer irreparable loss. The applicants further submit that in case any compromise is entered between the plaintiff and Smt. Vijay Laxmi Sharma, the same be cancelled as null and void. It is very much clear from the facts of the case that the plaintiff had filed the present suit for Specific Performance of Agreement against the defendant. One of the LR of the defendant Smt. Vijay Laxmi Sharma has entered into an agreement / MOU with the applicants in order to sell the suit property. The applicants have also filed a copy of the said MOU dated 25/03/10 and it is pertinent to mention that the said MOU Suit No.381/10 Page No.5/21( Ist application13 pgs. + 2nd application 8 pgs) mentions that the present suit regarding Specific Performance is pending which is being defended by Smt. Vijay Laxmi Sharma. Thus, it is clear that the applicants had knowledge about the pendency of the present suit at the time of entering an MOU with the LR Smt. Vijay Laxmi Sharma. It is to be made clear that the parties would be bound by the principle of lis pendence as contained in Section 52 of the Transfer of Property Act. The applicants have got a separate cause of action as they have entered an independent MOU with the LR Smt. Vijay Laxmi Sharma. The applicants can never be said to be a proper or necessary party in the present suit as they have no concern whatsoever with the agreement to sell between the plaintiff and the defendant for which the present suit for Specific Performance has been filed. The applicants have no right, title or interest in the suit property as on date and moreover they would be bound by the principles of lis pendence as contained in Section 52 of the Transfer of Suit No.381/10 Page No.6/21( Ist application13 pgs. + 2nd application 8 pgs) Property Act as they had knowledge about the pendency of the present litigation. The rights of the applicants, whatsoever, would be subservient to the rights of the parties to the suit. The counsel for the LR of the defendant Smt. Vijay Laxmi Sharma has relied upon Mumbai International Airport Pvt. Ltd. VS. Regency Convention Center and Hotels Pvt. Ltd. and others, AIR 2010 SC 3109 wherein the Hon'ble Supreme Court has held that the fact that a person is likely to secure a right / interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for Specific Performance. Their Lordships also held that if the person is not found to be a proper or necessary party, the Court has no jurisdiction to implead him, against the wishes of the plaintiff. This ruling is applicable to the present case. The applicants in the present case can neither be said to be a necessary party nor a proper party as even in their absence an effective Suit No.381/10 Page No.7/21( Ist application13 pgs. + 2nd application 8 pgs) decree can be passed by the Court in which the plaintiff has to prove whether she is entitled to Specific Performance of Agreement against the defendant or not. The applicants have no concern with the matter in issue involved in the present suit. The applicants have raised a contention that if any compromise/ settlement is arrived between the plaintiff and the LR of the deceased defendant Smt. Vijay Laxmi Sharma, the same may be cancelled as null and void as per MOU dated 05/03/10. It is made clear that this contention of the applicant cannot be sustained as an MOU/ agreement to sell the suit property with a third party i.e. applicants cannot be a bar to a settlement or compromise decree between the parties to the suit as the applicants / third party do not have any right, title or interest in the suit property as on date. The said MOU may at the most give the applicants right to get a sale deed executed in respect of the suit property.
7. The applicants have relied upon:
(i) Gurmauj Saran Baluja Vs. Mrs. C. Salim and others, Suit No.381/10 Page No.8/21( Ist application13 pgs. + 2nd application 8 pgs) AIR 1990 Delhi 13.
(ii)L.S. Sadapapon Vs. K.S. Sabarinathan, AIR 2002 Madras 278.
(iii)Tej Kaur Vs. Jeet Singh, AIR 1998 Rajasthan 201.
(iv)Arun Kumar Aggarwal Vs. Radha Arun & Another, 2004(2) RCR (civil).
(v)Kiran Tandon Vs. Allahabad Development Authority and Another, 2004(3) RCR (civil).
(vi)Iqbal Singh and Another Vs. Joginder Pal Jain, 2011 (4) RCR (civil).
(vii) Raghunath Sahoo Vs. State of Orissa, 2011(1) RCR (civil).
(viii) Vijayalakshmi Vs. Sherly, 2011(3) RCR (civil).
8. In AIR 1990 Delhi 13, the Hon'ble High Court of Delhi held that an order passed by single judge directing plaintiff to implead a person as defendant u/o 1 rule 10 CPC amounts to judgment and an appeal is maintainable u/s 10 (1) of the Suit No.381/10 Page No.9/21( Ist application13 pgs. + 2nd application 8 pgs) Delhi High Court Act, though not covered u/o 43 CPC. Also the Hon'ble Court held that the addition of party as a defendant can be made at any stage of proceedings. It was also held that 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 settled all the question in the suit. Further it was held in para 16 of the judgment that "A transferee pendentalite of the property in the 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 section 52 of the TP Act. Provisions section 52 are applicable in a suit for Specific Performance of a contract of sale of immovable property, but inspite 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, Suit No.381/10 Page No.10/21( Ist application13 pgs. + 2nd application 8 pgs) particularly where the Court prima facie finds that a valid contract of sale exists. But the transferee pendentalite can be added as a proper party if his interest in the subject matter of the suit is substantial and not just peripheral." In the case in hand the applicants have merely entered into an agreement / MOU in respect of the suit property with the LR of the deceased defendant Smt. Vijay Laxmi Sharma and have acquired not right, title or interest in the suit property what to say of any substantial right / interest. Thus the above ruling is of no help to the applicants, rather it goes against them.
9. In AIR 2002 Madras 278, the suit property was mortgage with the coperative society and there was auction held in that matter and sale was not confirmed. The facts of the case thus differs from those of the case in hand. In AIR 1998 Rajasthan 201, the Hon'ble Court dealt with a matter in which there were co owners or co parceners of the suit Suit No.381/10 Page No.11/21( Ist application13 pgs. + 2nd application 8 pgs) property and dealt with a issue relating to the effect of an adjudication upon them which differs from the facts of the case in hand. In 2004(2) RCR (civil), the Hon'ble High Court reiterated the settled principles involved in deciding an application u/o 1 rule 10. The rulings 2004 (3) RCR (civil) decided by Hon'ble Supreme Court of India and 2011(4) RCR (civil) decided by Hon'ble Punjab and Haryana High Court, dealt with transposition of parties which is not an issue in the case in hand. In 2011(1) RCR (civil) the Hon'ble Orissa High Court reiterated the well settled principles of dominus litis. Lastly in 2011(3) RCR (civil), the Hon'ble Kerla High Court held that the purchaser of property subsequent to the institution of suit and before attachment u/o 38 rule 8 CPC was effected, can be impleaded as defendants in the suit. In the above case the defendants had agreed to sell and infact executed the sale deed prior to the date of attachment before judgment u/o 38 rule 8 CPC. But in the case in hand only an MOU / Suit No.381/10 Page No.12/21( Ist application13 pgs. + 2nd application 8 pgs) agreement has been entered between the applicants and LR of deceased defendant Smt. Vijay Laxmi Sharma, hence the facts of the case cited differs from those of the case in hand. Thus, none of the rulings relied upon by the applicants support their case.
10.In view of the above discussion the present application deserves no merit and is accordingly dismissed.
Announced in the open court on (PRANJAL ANEJA) 28 day of March 2012.
th CJ01, East KKD Courts/ Delhi.
Suit No.381/10 Page No.13/21( Ist application13 pgs. + 2nd application 8 pgs) IN THE COURT OF SH. PRANJAL ANEJA CIVIL JUDGE01, EAST, KKD COURTS, DELHI Suit. No381/10 In the matter of:
Sunita Sood Vs. Jagdeshwar Sharma Order
1. This order shall dispose off the application u/o 1 rule 10 CPC filed on behalf of the applicant namely Sangram Singh Cheema to be impleaded as a party to the present suit.
2. It is stated in the present application that the defendant Sh.
Jagdeshwar Sharma died during the pendency of the suit and his LRs were brought on record who are contesting the suit. That Smt. Vijay Laxmi Sharma, one of the legal heir of deceased defendant finalized a DE with the applicant regarding property no. 65, Saini Enclave, Delhi measuring about 180 sq yard for a total consideration of Rs. 1.05 crore against which the Suit No.381/10 Page No.14/21( Ist application13 pgs. + 2nd application 8 pgs) applicant paid Rs. 2 lac in cash on 19/08/09 and Rs. 8 lac vide cheque dated 24/08/09. that before receiving the said amount the said Smt. Vijay Laxmi Sharma through her husband Sh. Vinod Sharma informed that the property is free from all encumbrances, free hold and undisputed. On believing the assurance given by them, the applicant finalized the deal and after receiving the aforesaid earnest money, Smt. Vijay Laxmi Sharma executed a receipt in presence of two witnesses and assured to execute a detailed agreement to sell in favour of the applicant. That after 4 to 5 days of issuing cheque of Rs. 8 lac to Smt. Vijay Laxmi Sharma, the applicant came to know that a litigation is pending regarding the said property and so the applicant immediately stopped the payment of said cheque . On asking Smt. Vijay Laxmi Sharma, she admitted about the pending litigation and assured the applicant that the said matter will be resolved shortly. Believing the version of Smt. Vijay Laxmi Sharma , the applicant has not initiated any legal action till today and even did not ask for the remaining Rs. 2 lacs paid as advance to her. The applicant has come to know that Smt. Vijay Laxmi Sharma through her husband are searching another Suit No.381/10 Page No.15/21( Ist application13 pgs. + 2nd application 8 pgs) buyer and want to create third party interest. That the applicant is ready and willing to perform his part of the contract but Smt. Vijay Laxmi Sharma has been taking time on one pretext or the other. That since the applicant has executed a receipt against the earnest money and thus it becomes necessary to implead the applicant in the present suit as co defendant as the applicant is ready to perform his part of the contract.
3. Reply has been filed on behalf of the plaintiff. It is noted that the said reply is unsigned, though it is stated in the reply that the present application is not maintainable in view of the provision as contained in section 41(e) and (h) of the Specific Relief Act as it shows fresh cause of action upon which only a fresh suit is maintainable. The applicant can never be necessary party. The present application exceeds the pecuniary jurisdiction of the Court and needs to be dismissed.
4. Reply has also been filed by Smt. Vijay Laxmi Sharma, LR of Suit No.381/10 Page No.16/21( Ist application13 pgs. + 2nd application 8 pgs) the deceased defendant that the advance of Rs. 1 lac has been returned by receipt dated 15/10/09 duly signed by the applicant. The cheque of Rs. 8 lacs has been dishonored. There is nothing subsisting between the parties as the agreement to sell was yet to be executed and the consideration if any had been returned. Thus the application may be dismissed.
5. I have the parties and perused the judicial record.
6. The present suit is in the nature of a suit for Specific Performance of an agreement to sell pertaining to property no. 65, measuring 179.7 sq yard, Saini Enclave, Shahdra Delhi. The said agreement to sell was entered into between the plaintiff and the defendant who has now expired and his LRs have been substituted on record. One of the LRs is Smt. Vijay Laxmi Sharma. Vide the present application the applicant wants to be impleaded as necessary party in the present suit on the ground that he had finalized a deal with the defendant regarding purchase of the suit property for Suit No.381/10 Page No.17/21( Ist application13 pgs. + 2nd application 8 pgs) Rs. 1.05 crores and also paid earnest money. Before receiving the earnest money Smt. Vijay Laxmi Sharma through her husband Sh. Vinod Sharma informed the applicant that the property is free from all encumbrance and is undisputed and on this assurance applicant finalized the deal. The applicant wants himself to be impleaded as a party for the reason that having come to know about the pending litigation he stopped the payment of cheque of Rs. 8 lac given as earnest money to Smt. Vijay Laxmi Sharma and asked her about the matter to which she admitted the pending litigation and assured the matter would be resolved shortly. Now the applicant has come to know that Smt. Vijay Laxmi Sharma through her husband are searching some buyer and want to create third party interest. The applicant further states that he is ready and willing to perform his part of contract and therefore he is a necessary party to be impleaded in the present suit.
7. It is very much clear from the facts of the case that the plaintiff had filed the present suit for Specific Performance Suit No.381/10 Page No.18/21( Ist application13 pgs. + 2nd application 8 pgs) of Agreement against the defendant. One of the LR of the defendant Smt. Vijay Laxmi Sharma has received some advance / earnest money from the applicant as a consideration to sell the suit property. It is observed that the applicant has got a separate cause of action as he paid certain amount / earnest money to Smt. Vijay Laxmi Sharma and entered a deal in order to purchase a suit property. The applicant has himself stated that the husband of Smt. Vijay Laxmi Sharma told him that the property is undisputed and also that now Smt. Vijay Laxmi Sharma and her husband are going to create third party interest in the suit property. The husband of the LR Smt. Vijay Laxmi Sharma is not a party to the present suit and moreover separate cause of action arises against Smt. Vijay Laxmi Sharma and her husband and the applicant can never be said to be a proper or necessary party in the present suit as he has no concern whatsoever with the agreement to sell dated 16/01/1981 between the plaintiff and the defendant for which the present suit for Specific Performance has been filed. It is to be made clear that the Suit No.381/10 Page No.19/21( Ist application13 pgs. + 2nd application 8 pgs) parties would be bound by the principle of lis pendence as contained in Section 52 of the Transfer of Property Act.
The applicant has no right, title or interest in the suit
property as on date and moreover not even an
agreement to sell has been entered into between the applicant and Smt. Vijay Laxmi Sharma. The rights of the applicant, whatsoever, would be subservient to the rights of the parties to the suit. The counsel for the LR of the defendant Smt. Vijay Laxmi Sharma has relied upon Mumbai International Airport Pvt. Ltd. VS. Regency Convention Center and Hotels Pvt. Ltd. and others, AIR 2010 SC 3109 wherein the Hon'ble Supreme Court has held that the fact that a person is likely to secure a right / interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for Specific Performance. Their Lordships also held that if the person is not found to be a proper or necessary party, the Court has no jurisdiction to Suit No.381/10 Page No.20/21( Ist application13 pgs. + 2nd application 8 pgs) implead him, against the wishes of the plaintiff. This ruling is applicable to the present case. The applicant in the present case can neither be said to be a necessary party nor a proper party as even in their absence an effective decree can be passed by the Court in which the plaintiff has to prove whether she is entitled to Specific Performance of Agreement against the defendant or not. The applicant has no concern with the matter in issue involved in the present suit.
8. In view of the above discussion the present application deserves no merit and is accordingly dismissed.
Announced in the open court on (PRANJAL ANEJA) 28 day of March 2012.
th CJ01, East KKD Courts/ Delhi.
Suit No.381/10 Page No.21/21( Ist application13 pgs. + 2nd application 8 pgs)