* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.M.(M) No. 407/2012 & C.M.No.6296/2012 (Stay)
% 31st October, 2014
SH. MOHAN LAL ..... Petitioner
Through Mr.J.S.Lamba with Mr.Ahmad
Shahrooz, Advocates.
versus
MS. KOMAL NIGAN & ORS. ..... Respondents
Through Mr.Anil Kumar Saxena, Advocate.
CORAM:
+ C.M.(M) No. 522/2012 & C.M.No.7939/2012 (Stay)
SH. MOHAN LAL ..... Petitioner
Through Mr.J.S.Lamba with Mr.Ahmad
Shahrooz, Advocates.
versus
TIKAM SINGH NIGAN & ORS. ..... Respondents
Through Mr.Anil Kumar Saxena, Advocate.
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. Both these petitions challenge the similar orders passed by the trial court being the impugned orders of same date 17.1.2012, and therefore I am disposing of these petitions by this common judgment. CM(M) Nos.407/2012 & 522/2012 Page 1 of 5
2. By the impugned order dated 17.1.2012, the application filed by the applicant/petitioner under Order I Rule 10 of Code of Civil Procedure, 1908 (CPC) for impleading him as a defendant in the suit was dismissed.
3. The applicant/petitioner claimed to have purchased 105 sq. yds. of the suit property being part of property no.181/6 (old) and 4/2273 (new) admeasuring 105 sq. yds. in the plot no.21-22, out of khasra no.499 min., situated at Gali no.3, Behari Colony, Village Chandrawali alias Shahdara, Illaqa Shahdara, Delhi-32.
4(i) A reading of the impugned order shows that the basic reason for dismissing the application is that the rights of the petitioner/applicant will not be affected because there is no relief claimed in the suit affecting the rights of the applicant.
(ii) This conclusion of the trial court however is not correct because when we see the second relief clause (b), it is seen that title is claimed to the suit property by the plaintiff in the suit, and who is the respondent no.1 in these two petitions. Therefore, clearly once there is a declaration of title in favour of the plaintiff/respondent no.1 which is effectively sought in prayer clause
(b), the petitioner would be a necessary or at least a proper party to the suit. CM(M) Nos.407/2012 & 522/2012 Page 2 of 5
(iii) In any case, in my opinion, the petitioner instead of filing an application under Order I Rule 10 CPC should have actually filed earlier on application under the correct provision which is Order XXII Rule 10 CPC (which was filed and dismissed vide order dated 17.01.2012 to challenge which the CM(M) No.522/2012 has been filed), inasmuch as the subject suit was filed on 14.12.2005 and the registered sale deed by which the petitioner/applicant states that he has purchased the suit property is dated 12.10.2006 i.e after filing of the suit. The petitioner therefore actually claimed that there is devolution of interest in the suit property by means of the sale deed dated 12.10.2006, and consequently it is the provision of Order XXII Rule 10 CPC which applies. It has been held by the Supreme Court in the case of Dhurandhar Prasad Singh Vs. Jai Prakash University and others AIR 2001 SC 2552 that though a suit can continue after transfer of the right in the suit property during the pendency of the suit, between the existing parties to the suit, yet, if the subsequent transferee seeks to be substituted in place of the existing party from whom the title has devolved, the applicant under Order XXII Rule 10 CPC can be made a party and with respect to which action no period of limitation is provided unlike in case of CM(M) Nos.407/2012 & 522/2012 Page 3 of 5 death of a party and with respect to which provisions of Order XXII Rules 2 & 3 apply.
5. In my opinion on account of the petitioner/plaintiff being added as a defendant in the suit in place of the existing defendants from whom the petitioner/plaintiff claims the right, a fraud against the petitioner will be prevented because the existing defendants are not contesting the suit. Merely because, earlier the existing defendants had moved an application for brining on record the present petitioner, and which was dismissed, will not change the legal position so far as impleading of the petitioner under Order XXII Rule 10 CPC is concerned when taken with the ratio of the judgment of the Supreme Court in the case of Dhurandhar Prasad Singh (supra) and the fact that the petitioner was not heard as a party when the earlier application was dismissed.
6. In view of the above, these petitions are allowed. The present petitioner will stand substituted as a defendant in place of existing defendants in the suit. Parties are left to bear their own costs. Respondent no.1/plaintiff will have liberty in accordance with law to file an amended plaint in terms of the directions which will now be issued by the trial court. CM(M) Nos.407/2012 & 522/2012 Page 4 of 5
7. Parties to appear before the District and Sessions Judge, North-East District, Karkardooma Courts, Delhi on 04.12.2014 and the District and Sessions Judge will now mark the suits for disposal to a competent court in accordance with law.
Trial court record be sent back to the District and Sessions Judge, North-East District, Karkardooma Courts, Delhi.
VALMIKI J. MEHTA, J OCTOBER 31, 2014 KA CM(M) Nos.407/2012 & 522/2012 Page 5 of 5