Harbans Singh vs Neelam Kaushik
2010 Latest Caselaw 3810 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI


+                         RFA 52 OF 2005

%                                   Date of Decision: 16th August, 2010



!    HARBANS SINGH                                .....        Appellant
                                Through:     Mr. Alok Sharma, Advocate.

                                   versus

$      NEELAM KAUSHIK                                       ...Respondent
^                                                      Through:   None.


       CORAM:
*      HON'BLE MR. JUSTICE P.K.BHASIN

1. Whether Reporters of local papers may be allowed to see
   the Judgment?(No)
2. To be referred to the Reporter or not?(No)
3. Whether the judgment should be reported in the digest?(No)

                    JUDGMENT

P.K.BHASIN, J(ORAL)

The appellant is the unsuccessful plaintiff in a suit for specific

performance of agreement dated 2nd May, 1996 executed by the respondent

- defendant in his favour agreeing to sell her property bearing No. 22-D,

AP Block, Pitampura, Delhi. His suit has been dismissed by the trial Court

vide judgment and decree dated 12th October, 2004.

2. The appellant - plaintiff had filed the suit for specific performance

against the respondent - defendant claiming that she had agreed to sell to

him her property no. 22-D, AP Block, Pitam Pura, Delhi, which is a

leasehold property of DDA, for a sum of rupees four lacs and she had

received earnest money of ` 40,000 from him on 02-05-1996. The

balance sale consideration of ` 3,60,000 was to be paid by the appellant -

plaintiff to the respondent - defendant on 17-06-1996. However, the

respondent - defendant instead of executing the Sale Deed filed a suit for

injunction against the appellant - plaintiff in which she denied execution of

the agreement to sell dated 2nd May, 1996 and having received any money

from the appellant - plaintiff. That showed the disinclination of the

respondent - defendant to perform her part of the agreement to sell.

Having, thus, failed to get the sale deed executed from the respondent -

defendant the appellant - plaintiff had to file the suit for specific

performance.

3. The respondent - defendant contested the suit, inter-alia, on the

ground that she had neither executed any agreement to sell the suit property

in favour of the appellant - plaintiff nor had she received any earnest

money from him as was being claimed in the plaint.

4. On the pleadings of the parties, the trial Court had framed the

following issues for trial:

"1. Whether the suit is bad for mis-joinder and non-joinder of parties? OPD

2. Whether the plaintiff has no cause of action and not maintainable in the present form? OPD

3. Whether the suit is barred under the law? OPD

4. Whether the plaintiff is entitled for the decree of specific performance?

OPD

5. Relief."

5. The trial Court after examining the evidence adduced by the parties

including the evidence of handwriting experts examined from both the

sides decided issues no. 1 to 3 in favour of the appellant - plaintiff.

However, issue no. 4 was decided against him and consequently the suit

came to be dismissed. The learned trial Judge came to the conclusion that

the plaintiff had failed to establish that the defendant had executed the

alleged agreement to sell dated 2nd May, 1996.

6. Feeling dissatisfied with the judgment of the trial Court the appellant

- plaintiff filed the present appeal. Notice of the appeal was served upon

the respondent and he entered appearance through counsel on 14 th March,

2006 when the appeal was admitted. However, when the appeal came up

for final hearing no one appeared on behalf of the respondent and,

therefore, only counsel for the appellant was heard.

7. One of the issues framed by the trial Court was regarding non-

joinder of necessary party. Though the learned trial Court has decided this

issue in favour of the plaintiff on the ground that in the written statement it

had not been clearly stated as to who have not been impleaded but during

the course of hearing of the appeal when it came to light that the defendant

though she was claiming herself to be the owner in her written

statement was, in fact, holding only a Power of Attorney from Shri Suresh

Diwan, the actual owner of the suit property. Counsel for the appellant did

not dispute this factual position. In fact, he drew my attention to the plaint

of a suit for injuction which the respondent - defendant had filed against

the appellant herein in which she had herself claimed that she was an

attorney of Shri Suresh Diwan, the owner of the suit property. In these

circumstances, it was put to the learned counsel for the appellant as to how

the appellant could maintain the suit for specific performance against the

attorney only of the owner of the suit property, the reply was that Delhi

Development Authority these days is not insisting that transfer of the

leasehold rights can be effected only when the original lessee approaches it

and it is accepting sale effected through Power of Attorney. However,

without saying anything further on the question of non-impleadment of the

owner of the suit property, learned counsel made a prayer that the

appellant-plaintiff may be permitted to implead Shri Suresh Diwan as one

of the defendants in the suit. In this regard he also submitted that since

appeal is a continuation of the suit Order 1 Rule 10 of the Code of Civil

Procedure can be invoked even by this Court and appellant can be

permitted to implead the actual owner of the suit property, namely, Shri

Suresh Diwan.

8. This Court is inclined to accept the aforesaid prayer made on behalf

of the appellant-plaintiff for permitting him to implead Shri Suresh Diwan

as one of the defendants since the impleadment of Shri Suresh Diwan is

considered to be necessary for an effective and complete adjudication of

the questions involved in the suit. The question whether the respondent-

defendant had signed the receipt-cum-Agreement to Sell relied upon by the

appellant-plaintiff or not would be of relevance only in case the original

owner of the suit property of which she claims herself to be an attorney is

before the Court since in the event of it being found that he had appointed

the respondent-defendant as his attorney authorizing her to sell his property

and that she had in fact agreed to sell the suit property to the appellant-

plaintiff in exercise of her authority as his attorney the liability to execute

the Sale Deed would be of Shri Suresh Diwan only as he is the vendor and

he only can execute the sale deed and take sale permission from DDA.

This Court is, therefore, of the view that after allowing the request of the

appellant-plaintiff for impleadment of Shri Suresh Diwan this case needs to

be sent back to the trial Court for a fresh trial after impleadment of Shri

Suresh Diwan.

9. The impugned judgment is accordingly set aside and the matter is

remanded back to the trial Court where the appellant-plaintiff shall file the

amended plaint impleading Shri Suresh Diwan as defendant No.2 and he

shall also be entitled to make consequential changes in the amended plaint.

10. The case shall now be taken up by the trial Court on 31 st August,

2010, at 2.00 p.m.

P.K. BHASIN,J August 16, 2010 nk