Delhi District Court
Resident Welfare Association vs Sh. Vishwanath Tiwari on 10 March, 2014
IN THE COURT OF Ms. JYOTI KLER, ADDITIONAL SENIOR CIVIL JUDGE
CUMJUDGE SMALL CAUSE COURTCUM GUARDIAN JUDGE, SOUTH
EAST DISTRICT, SAKET COURT COMPLEX,
NEW DELHI
Suit No: 91/13
Case ID No. 02406C0118062011
IN THE MATTER OF :
Resident Welfare Association
"Krishna Apartments",
Through its Registered Office at
Flat No.5, Krishna Apartments,
Situated at Plot No. 20B/21A,
Krishna Nagar,
New Delhi - 110029 .....Plaintiff
VERSUS
Sh. Vishwanath Tiwari
S/o Sh. Moti Ram Tiwari,
R/o Wooden Structure Admeasuring 15X11"
Basement, Plot No. 20B/21A,
Krishna Apartments,
Krishna Nagar,
New Delhi - 110029. .....Defendant
Sh. Ved Prakash Yadav
S/o Sh. Shiv Chand Yadav,
R/o Village Ksahna, P.O. Aut,
District Mandi, Himachal Pradesh .....Proposed Defendant
ORDER
1. Vide this order I shall decide an application under Order I Rule 10 read with Section 151 CPC filed by Sh. Ved Prakash Yadav (hereinafter CS No.91/13 Resident Welfare Association 'Krishna Apartments' Vs. Vishwanath Tiwari 1/6 referred as "the proposed defendant").
2. This is a suit for Possession, Mesne Profits and Permanent Injunction instituted by the Resident's Welfare Association of Krishna Apartments situated at Krishna Nagar (hereinafter referred as "the plaintiff") against Sh. Vishwanath (hereinafter referred "the defendant").
3. The plaintiff seeks to recover the possession of a portion of the basement floor situated at plot No. 20B/21A, Krishna Nagar, Safdarjung Enclave, New Delhi - 110029. The disputed portion is shown in Red shade in the site plan filed with the plaint.
4. It is averred in the plaint that the defendant is the licensee of the plaintiff in the disputed portion and he is not vacating the same despite repeated requests.
5. The defendant, in his written statement, took the plea that he is the tenant of the disputed portion and he is paying monthly rent in the sum of Rs.1,000/ to the landlord Ved Prakash, who is the proposed defendant herein.
6. In the present application, the proposed defendant has averred that he is the necessary party to the present suit as he is the owner of the disputed portion and the plaintiff wants to grab it illegally. He alleged that he was the sole and absolute owner of the plot No. 20B/21A, Krishna Nagar, Delhi which he purchased by way of a sale deed on 03.05.2002. He entered into a collaboration agreement with M/s Vimal Properties for reconstruction and development of the said plot on 06.10.2011. As per the collaboration agreement, M/s Vimal Properties would built up the property and thereafter owner and the builder, i.e. the proposed defendant and M/s Vimal Properties respectively, would be having equal share in the total built up and unbuilt area CS No.91/13 Resident Welfare Association 'Krishna Apartments' Vs. Vishwanath Tiwari 2/6 as well as on the roof top. It was further agreed that the property shall be divided horizontally and half portion each would fall to the share of both the parties to the collaboration agreement. After building the property, all the flats were sold along with one car parking in the basement with each flat. It is averred by the proposed defendant that the basement is measuring 2000 square feet and only 480 square feet of the basement i.e. (60 sqaure feet to each of the flat owners) was sold and the proposed defendant remained owner of the rest of the portion.
7. It is prayed in the application that that the proposed defendant, being a necessary party, be impleaded in the present suit, which cannot be effectively agitated otherwise.
8. Reply to the application was filed by the plaintiff. Plaintiff has alleged that at the time of collaboration agreement the building was divided into two portions. Portion A fell into the share of the proposed defendant while portion B to the share of the builder. It is averred that the defendant is in possession of that portion of the basement which falls at side B. Hence, the proposed defendant is not the owner of the said property and he has no right, title or interest and therefore he is not a necessary party.
9. Arguments on the application have been heard. Record perused.
10. Order 1 Rule 10 reads as under: "10. Suit in name of wrong plaintiff - (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted int he name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bonafide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be CS No.91/13 Resident Welfare Association 'Krishna Apartments' Vs. Vishwanath Tiwari 3/6 substituted or added as plaintiff upon such terms as the court thinks just.
(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 who ought to have bee 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.
(3) No person shall be added as a plaintiff suing without a next friend or as the 'next friend of a plaintiff under any disability without his consent (4) Where defendant added, plaint to be amended Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.
(5) Subject to the provisions of the Indian Limitation Act, 1977 (15 of 1977) section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons."
11. It is the settled principle of law that the plaintiff is the dominus litus and he is free to choose as to against whom he wants to contest. Court would interfere in his freedom only when it is of the view that some other person is to be impleaded for effective adjudication and for preventing multiplicity of proceedings.
12. In the present case, the plaintiff has opposed the application vehemently. He filed three site plans, copy of which were supplied to the CS No.91/13 Resident Welfare Association 'Krishna Apartments' Vs. Vishwanath Tiwari 4/6 proposed defendant and none of the site plan has been disputed by him. According to the site plan filed on 03.03.2014, the disputed portion in possession of the defendant is situated at side B of the basement. The disputed portion was shown in red shade in the site plan filed on 18.05.2011 at the same side. 8 flats bearing No. 2 & 4, 6 & 8, 10 & 12 and 13 & 16 are situated over side B of the basement as per the third site plan filed on 03.03.2014. As per the memorandum of settlement executed between the proposed defendant and the builder, these above said flats fell to the share of the builder Sh. R.K. Jain. A copy of this memorandum of settlement was filed in the Court on 03.11.2011 by the plaintiff along with his reply to the present application. Proposed defendant did not deny the memorandum.
13. It is thus apparent that side B of the basement fell to the share of builder Sh. R.K. Jain. Defendant was in possession of a portion of side 'B' i.e. the disputed portion. The proposed defendant has no legal or equitable interest in side B of the basement and therefore, cannot be said to be a necessary party.
14. It is for the plaintiff to prove his case at the strength of his own pleadings. No other person can be allowed to participate in the proceedings at the prejudice of the plaintiff without first assessing as to whether he is a necessary or a proper party. Only capacity in which the proposed defendant claims to be a necessary party is that he is the owner of the entire basement which is not the case as per the documents on record, filed by the plaintiff, and not denied specifically by the proposed defendant.
15. A copy of the writ petition filed by the proposed defendant in the Hon'ble High Court of Delhi with prayer to quash proceedings qua him in FIR CS No.91/13 Resident Welfare Association 'Krishna Apartments' Vs. Vishwanath Tiwari 5/6 bearing No. 207/11 PS Safdarjung Enclave were placed on record by the plaintiff and genuinity of it was not denied by the proposed defendant. In the said writ petition as well, the proposed defendant has alleged that he is the owner of side A of the plot built on the plot No. 20B/21A, Krishna Nagar, Safdarjung Enclave, New Delhi.
16. In view of the aforesaid documents, it now does not lie in the mouth of the proposed defendant to say that he is owner of the entire basement. This being the case, the proposed defendant is neither a necessary nor a property party in the present suit as he has no right, title or interest in the disputed portion. Hence, the application is devoid of merits. It is therefore dismissed and stands disposed off.
Announced in the open court.
on 10.03.2014 (JYOTI KLER)
ASCJ/JSCC /Gdn.JUDGE
SOUTHEAST, SAKET COURTS, NEW DELHI
CS No.91/13 Resident Welfare Association 'Krishna Apartments' Vs. Vishwanath Tiwari 6/6