Delhi High Court
Gunjan Kumar vs Vipin Parwanda & Anr on 21 April, 2015
Author: Hima Kohli
Bench: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.A. 252/2014 in CS(OS) 2509/2010 and
I.A. 22868/2014 (under Section 5 of Limitation Act)
Decided on 21.04.2015
IN THE MATTER OF:
GUNJAN KUMAR ..... Plaintiff
Through: Mr. M. Dutta, Advocate
versus
VIPIN PARWANDA & ANR ..... Defendants
Through: Mr. Mukesh Kaushik, Advocate for
the appellant/applicant in O.A. 252/2014 and
I.A. 22868/2014.
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J. (Oral)
1. The present Chamber Appeal has been filed by Ms. Sonia Grover(daughter of the defendants No.1 and 2) against the order dated 02.09.2014, passed by the Joint Registrar, whereby the impleadment application filed by her was dismissed (I.A. 8628/2014).
2. A brief background of the case is necessary.
3. The plaintiff has instituted the accompanying suit for possession and injunction against the defendants (parents of the applicant) in respect of the ground floor of premises No.A-139, Kalkaji Extension, Delhi. The plaintiff's case is that the defendants No.1 and 2 had represented themselves to be the co-owners of the suit premises. As O.A. 252/2014 in CS(OS) 2509/2010 Page 1 of 9 per the averments made in the plaint, the parties had entered into an Agreement to Sell dated 01.11.2009, in respect of the suit premises, whereunder the plaintiff had agreed to purchase the same for a sale consideration of `22,50,000/-. Thereafter, the sale deed was executed by the defendants in favour of the plaintiff in respect of the suit premises and on the said date, after adjusting the earnest money of `12,50,000/- paid by the plaintiff, the balance sum of `10 lacs was also received by the defendants.
4. It is the case of the plaintiff that at the time of executing the sale deed, though it was recorded in the document that actual physical possession of the suit premises had been handed over by the vendors to the vendee, but the defendants had expressed some difficulty in handing over possession on account of the applicant's final school examinations and they had promised the plaintiff that they would hand over vacant peaceful possession to her immediately after their daughter's examinations were over. However, when the defendants continued occupying the suit premises and failed to hand over peaceful possession thereof to the plaintiff, she was compelled to institute the accompanying suit in December, 2010.
5. Summons were issued in the suit on 10.12.2010 and vide order dated 18.02.2011, the defendants were directed to maintain status O.A. 252/2014 in CS(OS) 2509/2010 Page 2 of 9 quo in respect of the title and possession of the suit premises. Though the defendants were served with the summons in the suit, they did not enter appearance and as a result, they were proceeded against ex parte vide order dated 20.5.2011. After the aforesaid order was passed, the plaintiff filed her affidavit by way of evidence. The ex parte evidence of the plaintiff was closed on 11.01.2013. On the said date, the defendant No.1 turned up and he was granted permission to cross-examine the plaintiff's witness but he did not conduct any cross- examination. With these orders, the suit was directed to be placed before the Court on 20.3.2013.
6. In the meantime, on 21.01.2013, the defendants filed applications under Order IX Rule 7 CPC and Section 5 of Limitation Act, praying inter alia for setting aside the ex parte order dated 20.05.2011. Notice was issued on the said applications and the same were finally allowed vide order dated 20.03.2013. On the said date, last opportunity was granted to the defendants to file their written statement on or before 02.04.2013 and the case was directed to be placed before the Joint Registrar for admission and denial of documents. However, the defendants failed to avail of the liberty granted to them to file their written statement. As a result, on 10.09.2013, the Joint Registrar closed their right to file the written O.A. 252/2014 in CS(OS) 2509/2010 Page 3 of 9 statement. On 13.01.2014, permission was granted to the defendants to conduct admission and denial of the documents filed by the plaintiff but counsel for the defendants refused to do so. As a result, the documents filed by the plaintiff were deemed to be admitted by the defendants and the case was directed to be placed before the Court for further proceedings.
7. On 31.03.2014, a Chamber Appeal, registered as O.A. 51/2014 was filed by the defendants against the order dated 10.09.2013 passed by the Joint Registrar, closing their right to file the written statement. Notice was issued on the said Chamber Appeal and the plaintiff has filed a reply in opposition thereto. Appropriate orders have been passed in the said appeal separately.
8. Coming back to the applicant herein, she alongwith her brother, Mr. Abhinav Parwanda had filed an application for impleadment under Order I Rule 10 CPC, registered as I.A. 8628/2012. It was recorded in the order dated 13.05.2014, that despite opportunities being granted to the applicants to address arguments on the maintainability of the said application, none had been appearing on their behalf. In the interest of justice, the said application was adjourned to 08.07.2014 and thereafter to 02.09.2014. Finally, by the impugned order dated 02.09.2014, the aforesaid application was dismissed by the learned O.A. 252/2014 in CS(OS) 2509/2010 Page 4 of 9 Joint Registrar who had observed that it was not maintainable in view of the fact that the applicants had themselves agreed by virtue of clause 3 of the Memorandum of Family Settlement dated 23.10.2009, executed between them and the defendants No.1 and 2(their parents) that they would sell the suit premises and the sale proceeds would be divided between them. It was therefore observed that the applicants were neither necessary, nor proper parties in the suit and the said application was dismissed. At the same time, liberty was granted to the applicants to pursue their remedies in accordance with law.
9. Counsel for the appellant/Ms. Sonia Grover submits that at the time of passing the impugned order, the learned Joint Registrar had erred in interpreting the terms and conditions of the Memorandum of Settlement dated 23.10.2009 and had failed to appreciate the fact that the appellant has a share to the extent of 20% in the suit premises and therefore, she has a stake in the said premises. It is further stated that though it was recorded in the Memorandum of Settlement that the suit premises had to be sold, but it was nowhere recorded as to the manner in which the said premises was to be sold and that appellant's consent had not been obtained by her parents before executing the sale deed in favour of the plaintiff.
O.A. 252/2014 in CS(OS) 2509/2010 Page 5 of 9
10. Counsel for the respondent/plaintiff vehemently opposes the present Chamber Appeal and submits that the appellant is neither a necessary, nor a proper party in the present proceedings. He explains that as per the title documents dated 11.07.1994, the DDA had executed a conveyance deed in respect of the suit premises in favour of the defendants No.1 and 2 and subsequently, they were the ones who had got the property converted from leasehold to freehold. He submits that in such circumstances, it cannot be urged by the counsel for the appellant that she has any right, title or interest in the suit premises and in any case if she has any claim against her parents on the basis of a Memorandum of Settlement, then it is for her to seek her remedies against them in an independent proceeding. However, she cannot be permitted to intervene in the plaintiff's suit and expand the scope of the said suit from one for possession and injunction to a suit for partition/recovery of monies against the defendants.
11. The law on the question as to whether the scope of a suit for eviction/possession of a property purchased by the plaintiff from the defendants can be expanded to include a third party claiming to have an interest over the said property and seeking impleadment as a co-defendant in the said suit, is well settled. As held in the case of Kasturi Vs. Iyyamperumal and others reported as AIR 2005 SC O.A. 252/2014 in CS(OS) 2509/2010 Page 6 of 9 2813, the twin tests that must be satisfied for determining the question as to who is a necessary party in a suit for specific performance are that firstly, there must be a right to some relief against such a party in respect of the controversies involved in the proceedings and secondly, no effective decree can be passed in the absence of such a party.
12. In the aforecited case, the Supreme Court had carefully considered the provisions of Section 19 of the Specific Relief Act and opined that the guiding principle for impleadment is that the presence of a party is absolutely necessary to adjudicate the controversies involved in a suit for specific performance of a contract for sale, as, the only question that is required to be adjudicated in such a suit is the enforceability of the contract entered into between the contracting parties. It was held that an applicant whose interest is adverse to the defendant ought not to be impleaded in a suit for specific performance for the reason that if a person seeking addition in such a suit, it is natural that the scope of the said suit would be enlarged far beyond the relief sought by a contracting party.
13. In the case at hand, the appellant/intervener does not seek impleadment in the suit on the basis of a contract between the plaintiff and the defendants in respect of the suit premises, which is the O.A. 252/2014 in CS(OS) 2509/2010 Page 7 of 9 foundation of the present suit for eviction and possession instituted by the plaintiff. Instead, the appellant/intervener bases her claim on an independent interest arising out of a Memorandum of Settlement dated 23.10.2009, purportedly executed between her, her brother and the defendants No.1 and 2. The consequence of permitting the appellant impleadment in the present suit, would be that the nature of the suit will change drastically and it would be converted from a suit for eviction and possession to a suit for partition and declaration, which is impermissible in law. Therefore, no permission can be granted to the appellant for impleadment in the suit, as it would change its entire character.
14. Apart from the above, on a bare reading of Order I Rule 10(2) of the CPC which refers to "all the questions involved in the suit", it is clear that the controversies raised by the appellant here are entirely different from those required to be examined in the suit instituted by the plaintiff and quite clearly, the said controversies do not involve the plaintiff. Rather, they are confined to the appellant/intervener and the defendants(her parents). Since the appellant is not a party to the sale deed, it cannot be urged that without her presence, the dispute raised in the suit cannot be determined.
15. Resultantly, the question of impleading the appellant/intervener O.A. 252/2014 in CS(OS) 2509/2010 Page 8 of 9 in this suit or entertaining her plea of impleadment based on the purported Memorandum of Family Settlement dated 23.10.2009, executed by her, her brother and the defendants does not arise. Any permission granted by the Court to the appellant/intervener for impleadment would only lead to unnecessarily complicating the litigation, which is far beyond the scope of the suit instituted by the plaintiff [Refer: Anil Kumar Singh Vs. Shivnath Mishra, (1995) 3 SCC 147]. It is therefore held that the appellant is neither a necessary, nor a proper party in the present proceedings; nor is her presence considered necessary for a complete and final decision on the questions involved in the suit.
16. The Chamber Appeal is dismissed, while upholding the impugned order dated 02.09.2014, passed by the Joint Registrar. Needless to state that if the appellant/intervener has a remedy in law, it is for her to seek the same in an independent proceeding.
(HIMA KOHLI)
APRIL 21, 2015 JUDGE
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O.A. 252/2014 in CS(OS) 2509/2010 Page 9 of 9