R.L. Jain vs K. Guha And Ors.
1997 Latest Caselaw 10 Del

JUDGMENT

Lokeshwar Prasad, J.

(1) This order shall govern the disposal of an application (IA 4245/95), filed on behalf of defendant No. 5 under Order I, Rule 10(2) read with Section 151 of the Code of Civil Procedure, 1908 ( hereinafter referred to as the CPC'), for deleting its name from the array of parties. The facts relevant for the disposal of the above mentioned interlocutory application lie in a narrow compass. Shri R.L. Jain, the plaintiff, has filed the present suit for specific performance of Agreement to sell relating to property No. H-1520, Chitranjan Park, New Delhi and mesne profits against the defendant Mrs. K. Guha and five others. The applicant M/s. Good Year India Limited has been imp leaded as one of the defendants in the suit by the plaintiff Shri R.L. Jain. The applicant M/s. Good Year India Ltd. (defendant No. 5) has filed the above mentioned application (IA 4245/95) stating therein that the plaintiff has filed the present suit for the specific performance of an alleging agreement by defendant No. 1 to sell property No. H-1520, Chitranjan Park, New Delhi and that the applicant/defendant No. 5 has nothing to do with the suit property or any portion thereof. It is further stated in the above said application that the applicant has also nothing to do with the agreement to sell or the other documents alleged to have been executed by defendant No. 1 and/or defendant No. 2.It is stated by the applicant/defendant No. 5 that the disputes in the suit, filed by the plaintiff Shri R.L. Jain are between the plaintiff and the other remaining defendants and that the applicant/defendant No. 5 has nothing to do with the disputes as defendant No. 2 is no longer an employee of the applicant and the demised premises are no longer leased to the applicant,the tenancy having been terminated on 21st August, 1991. It is further stated by the applicant / defendant No. 5 that the plaintiff has no cause of action against the applicant/defendant No. 5 who has been unnecessarily dragged in the present litigation. It is stated that the presence of the applicant/defendant No. 5 is not at all necessary in the present proceedings. It has been prayed that the name of the applicant/defendant No. 5 be ordered to be deleted from the array of defendants.

(2) Reply to the above mentioned application has been filed on behalf of the plaintiff. In the reply to the application, filed on behalf of the plaintiff, it has been stated that the suit premises viz. ground floor of house No. 1520, Chitranjan Park, New Delhi was leased out to defendant No. 5 for company lease by defendant Nos. I and 2 and that the above said lease is still subsisting. It is stated that the lease was further attorney by way of attornment letter, executed and signed by defendants I and 2 in favour of the plaintiff for the payment of monthly rent of the demised premises to the plaintiff w.e.f. 1.6.1991 and defendant No. 5, the applicant was duly informed about the above said attomment vide letter dated 25.5.1991 addressed to defendant No. 5 by the plaintiff. It is stated that it was also stipulated in the attomment letter that possession of the demised premises was to be given to the plaintiff as and when vacated by defendant No. 5. In the reply filed on behalf of the plaintiff, it has been stated that the physical vacant possession of the demised premises was never handed over by defendant No. 5 to the plaintiff. It is stated that defendant No. 5 / applicant is liable to pay the monthly rent of the demised premises (subject matter of the suit) to the plaintiff w.e.f. 1.6.1991 and is also bound to hand over the vacant and physical possession of the demised premises to the plaintiff. In the reply, filed on behalf of the plaintiff, it has been stated that the applicant/ defendant No. 5 is a necessary party in the present proceedings and that the present application filed by the applicant/defendant No. 5 deserves to be dismissed.

(3) I have heard the learned Counsel for the parties at length and have also carefully gone through the documents and the material on record. In the present case, in so far as the above mentioned application is concerned, the only question requiring consideration of this Court at this stage as to whether the applicant/ defendant No. 5 is a necessary party in the present proceedings. As per the case of the applicant/defendant No. 5, the applicant is not a necessary party because it has nothing to do with the suit property or any portion thereof and also with the agreement to sell and the other documents alleged to have been executed by defendants I and or/ 2 and the disputes in the present proceedings are between the plaintiff and the other remaining defendants other than an applicant/defendant No. 5 On the other hand it was vehemently argued by the learned Counsel for the plaintiff that the applicant/defendant No. 5 is a necessary party in the present proceedings and therefore it has been rightly imp leaded as one of the defendants by the plaintiff.

(4) On a perusal of the averments made in the plaint, it is apparent that the present suit has been filed by the plaintiff not merely for the relief of specific performance of the agreement to sell relating to immovable property No. H-1520, Chitranjan Park, New Delhi but other reliefs have also claimed by the plaintiff therein. It is specifically stated that the applicant/defendant No. 5 took the ground floor of the above said house on company lease at a monthly rent of Rs. 2,548.00 from defendants 1 and 2 and took the physical possession of the demised property from the above said defendants on 2nd April, 1985. It is also stated that when defendant No. 2 felt that he was not in a position to pay monthly interest to the plaintiff on the amount advanced by the plaintiff, he (defendant No. 2) alongwith his wife gave three attornment letters in the name of three tenants in May, 1991 for payment of monthly rent to the plaintiff w.e.f. 1.6.1991 and also to hand over vacant possession of the premises in question to the plaintiff as and when vacated. The above said three attomment letters were duly sent by the plaintiff under registered post to the three tenants and the same were duly received by them including defendant No. 5/ applicant. It is also specifically averred that the tenants, including defendant No. 5, have neither vacated the ground floor nor have paid the rent to the plaintiff. It is also stated that defendant No. 2 also gave one letter of authority addressed to defendant No. 5, the applicant, to pay the amount of loan with interest accrued thereon from the accumulation in his various funds accounts and terminal benefits admissible to him from defendant No. 5 . But defendant No. 5 in response neither paid any amount nor promised to pay, alleging that nothing was due and payable to defendant No. 2. As per the averments made in the plaint defendant No. 5, the applicant, is still liable to pay and meet the liability and hand over vacant possession of the ground floor to the plaintiff. It is also stated that the Managing Director of defendant No. 5 when contacted personally assured the plaintiff that possession of the ground floor would be given to the plaintiff as per attomment letter. In para 26 of the plaint specific averment has been made by the plaintiff that the ground floor of the demised premises is still on company lease with defendant No. 5 at a monthly rent of Rs. 2,548.00 and the same is in the occupation of defendant No. 2. Moreover, in the present proceedings a specific relief has been claimed by the plaintiff against defendant No. 5 in terms of Clause(d) para 42 of the plaint which runs as under: "Pass a decree against defendant No. 5 directing defendant No. 5 to pay the rent @ Rs. 2,548.00 p.m. from 1.6.1991 to date and onwards till the vacant possession of ground floor is given to the plaintiff and further the defendant No. 5 be directed to pay the accumulations, terminal benefit and other dues of the defendant No. 2 held with the defendant No. 5 before his retirement/ termination as per letter of authority dated 27.5.1991."

(5) In the presence of the above facts, it is somewhat difficult to agree with the submissions of the learned Counsel for the applicant/defendant No. 5 that the applicant/defendant is not a necessary party in the present proceedings. In my opinion, the applicant/ defendant No. 5, in view of the averments made in the plaint and the relief claimed therein is a necessary party to the present proceedings.

(6) For the above reasons, the above mentioned application (IA 4245/95) filed on behalf of the applicant/defendant No. 5 deserves to be dismissed. Accordingly, the same is dismissed with no order as to costs.

(7) Nothing stated herein above shall amount to expression of any opinion on the merits of the case, pending trial, before this Court. I.A. stands disposed of in above terms.