Raj Rani Sharma vs Gayatri Kukreja & Others
2009 Latest Caselaw 4582 Del

* IN THE HIGH COURT           OF    DELHI   AT   NEW    DELHI

        Judgment Reserved on: October 20, 2009

     Judgment Pronounced on: November 10, 2009

+                  FAO (OS) 315 of 2009
                        &
              C.M. Nos. 10316 & 10317 of 2009

RAJ RANI SHARMA                                ..... Appellant
                         Through: Mr. Ramesh Chandra,
                         Senior Advocate, with Ms. Geeta
                         Mehrotra & Mrs. R. Ratnam,
                         Advocates

                         versus


GAYATRI       KUKREJA    & OTHERS            ..... Respondents

Through: Mr. Jayant Bhushan, Senior Advocate, with Mr. K.B. Upadhyay & Mr. Gautam Talukdar, Advocates CORAM:

HON'BLE MR. JUSTICE VIKRAMAJIT SEN HON'BLE MR. JUSTICE SUNIL GAUR

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported in the Digest?

SUNIL GAUR, J

C.M. No. 10316 of 2009

1. There is delay of twenty three days in filing the

accompanying Appeal. The reasons put forth for the delay is

FAO (OS) 315 of 2009 Page 1 that the Counsel for the Appellant had fallen ill.

2. This application is not opposed by the learned Senior

Counsel for the respondents, and rightly so.

3. Application is allowed and the delay in filing of the

Appeal is condoned.

4. Application stands disposed of.

FAO (OS) 315/2009 & C.M. No. 10317/2009

1. Appellant herein- Raj Rani Sharma, is the Plaintiff in

whose suit, Sh. Paras Nath Pathak (Respondent No.3), has

been added as a Defendant vide impugned Order of May 14,

2009.

2. Appellant in her suit has sought declaration that she is

the bona fide purchaser of property bearing No. B-47, Upkar

Cooperative Housing Society (Regd.), Plot No. 18, Mayur

Vihar, Phase-I Extension, Delhi (hereinafter referred to as

the 'suit property').The stand of the Respondent- Upkar

Co-operative Group Housing Society (hereinafter referred to

as the 'Respondent-Society') in the suit proceedings is that

the Appellant/ Plaintiff has no right or title in the suit

property, as she had allegedly purchased the same from

Respondent/ Defendant No.1- Smt. Gayatri Kukreja, who

herself had no right or title in the suit property and the

added Defendant/ Respondent No.3 is a bona fide member

of the Respondent-Society and the suit property is proposed

FAO (OS) 315 of 2009 Page 2 to be allotted to him.

3. Learned Single Judge has noted in the impugned Order

that the Appellant/ Plaintiff is yet to prove that she is the

bona fide purchaser and has found Respondent No.3/ added

Defendant to be a necessary and proper party to the suit

and thus, the application of Respondent No.3 under Order I

Rule 10 of the CPC has been allowed.

4. We have heard learned Counsel for the parties and

have perused the record of this case.

5. The submission advanced by the learned Senior

Counsel for the Appellant is that the Plaintiff is a dominus

litis of his case and Respondent No.3 has no right to impose

himself in the suit filed by the Plaintiff/ Appellant. In support

of the submission that no one can be added as a party

against the wishes of the Plaintiff, reliance has been placed

upon the case of 'Ramesh Hiranand Kundanmal v. The

Municipal Corporation of Greater Bombay & Others' JT

1992 (2) S.C. 116.

6. Per contra, learned Senior Counsel for the

Respondents refutes the aforesaid contention advanced on

behalf of the Appellant and asserts that the Court is

empowered to join a person whose presence is necessary

for adjudication of the subject matter of the dispute and the

aforesaid decision relied upon by the Appellant's Counsel

FAO (OS) 315 of 2009 Page 3 has no application to the instant case.

7. The question of impleadment of a party is to be

decided on the touch stone of Order I Rule 10 CPC, which

provides that only a necessary or proper party may be

added. A necessary party is one, without whom no Order

can be made effectively. A proper party is one, in whose

absence an effective Order can be made but whose

presence is necessary for a complete and final decision on

the question involved in the suit proceedings.

8. In the light of the clear language of the aforesaid Rule

10 of Order I of the CPC, it is not open to the Appellant to

contend that a person cannot be added as a Defendant

even in a case where his presence is necessary to enable

the Court to decide the matter effectively. In the case of

Ramesh Hiranand Kundanmal (Supra), it is not ruled by the

Apex Court that it is the choice of the Plaintiff to implead or

not to implead any person in a suit brought by him. What

has been reiterated by the Apex Court is that the Court is

empowered to join a person, whose presence is necessary

for complete adjudication of the disputes raised before it. In

the facts of the aforesaid case, it was found that the newly

added party had no interest in the subject matter of the suit

and the demolition of the structure in pursuance of the

Notice by the Municipal Authority did not affect the legal

FAO (OS) 315 of 2009 Page 4 rights of the newly added party. Whereas, in the instant

case declaration sought by the Appellant / Plaintiff directly

affects Respondent No.3, to whom Respondent- Society

intends to allot the suit premises.

9. In any case, respondent No.3 is a proper party for

resolution of disputes in the suit proceedings. Impleadment

of Respondent No.3 does not enlarge the scope of disputes

raised in the suit proceedings.

10. In this view of the matter, we do not find any infirmity

in the impugned Order. This Appeal is bereft of merit and is

hereby dismissed. Pending application is rendered

infructuous and is disposed of as such.

11. Costs are made easy.

(SUNIL GAUR) JUDGE

(VIKRAMAJIT SEN) JUDGE November 10, 2009 rs

FAO (OS) 315 of 2009 Page 5