Delhi High Court
Sh. J.S. Arora vs Sh. Om Prakash Arya & Ors. on 17 November, 2014
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.M.(M) No.749/2013 & C.M.No.11538/2013 (Stay)
% 17th November, 2014
SH. J.S. ARORA ......Petitioner
Through: Mr.Rajat Aneja, Advocate.
VERSUS
SH. OM PRAKASH ARYA & ORS. ...... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. No one appears for the contesting respondent no.1/plaintiff.
2. By this petition under Article 227 of the Constitution of India, the petitioner impugns the order of the trial court dated 30.5.2013 by which the trial court has dismissed the application filed by the petitioner for being impleaded under Order I Rule 10 of Code of Civil Procedure, 1908 (CPC) as a defendant in the suit. The petitioner claims that he is a purchaser pendente lite of the suit property admeasuring 100 sq. yds. bearing no.VB-103, Virender Nagar, New Delhi.
CM(M) No.749/2013 Page 1 of 3
3. The case of the petitioner is that he purchased the suit property from Sh.Surender Kumar Mahajan on 31.5.1999 after paying a sale consideration of Rs.2 lacs and the usual documents being the Agreement to Sell, General Power of Attorney, Will etc. were executed and the same were also duly registered with the concerned Sub-Registrar. The petitioner claims that he received the original title deed of the suit property on execution of the documents dated 31.5.1999. The petitioner also claims that he is very much a necessary party in this suit because in his absence, his valuable rights in the suit property will stand affected if the suit for specific performance is decreed.
4(i) The trial court has relied upon the judgment of the Supreme Court reported as Suraj Lamp & Industries Ltd. Vs. State of Haryana & Anr. JT 2011 (12) SC 564 to dismiss the application on the ground that the Supreme Court in the case of Suraj Lamp (supra) has held that documents such as the present being the Agreement to Sell, General Power of Attorney, Will etc. executed on 31.5.1999 cannot be looked at.
(ii) I am afraid the trial court has totally misread the judgment of the Supreme Court in the case of Suraj Lamp (supra) because the said judgment applies with respect to documentations executed post 24.9.2001 from when CM(M) No.749/2013 Page 2 of 3 Section 53 A of the Transfer of Property Act, 1882 was amended along with other related sections of the Indian Stamp Act, 1899 etc. I have had also an occasion to examine this aspect in the case of Sh.Ramesh Chand Vs. Suresh Chand & Anr. in RFA No.358/2000 decided on 9.4.2012: 2012 (188) DLT 538, wherein I have referred to the ratio of the judgment of the Supreme Court in the case of Suraj Lamp (supra) and held that the said judgment protects the rights given under the Agreement to Sell, Power of Attorney, Will etc. when the same have been executed prior to 24.9.2001.
5. In fact the petitioner is very much a necessary party because he is a purchaser pendente lite of the suit property, and therefore Order XXII Rule 10 CPC applies read with ratio of the judgment in the case of Dhurandhar Prasad Singh Vs. Jai Prakash University and others AIR 2001 SC 2552, which states that a person upon whom a property devolves during the pendency of the suit can always seek his impleadment in order to protect his interest and to prevent a fraud against him.
6. In view of the above, the impugned order dated 30.5.2013 is set aside and the petitioner will be added as a defendant in the suit. Parties are left to bear their own costs.
VALMIKI J. MEHTA, J NOVEMBER 17, 2014/KA CM(M) No.749/2013 Page 3 of 3