Delhi High Court
Narayan Dass vs Ashok Kumar @ Agastya & Anr. on 21 October, 2010
Author: V.B.Gupta
* HIGH COURT OF DELHI: NEW DELHI
CM (M) No.1286/2010 & CM No.18317/2010
% Judgment reserved on: 7th October, 2010
Judgment delivered on: 21st October, 2010
Narayan Dass
S/o Tala Ram
R/o IX/6535, Indra Gali,
Gandhi Nagar,
Delhi - 110031 ....Petitioner.
Through: Mr. Gaurav Sethi, Adv.
Versus
1. Ashok Kumar @ Agastya
S/o Narain Dass
R/o Flat No. 227, First Floor,
Gaur Green Avenue,
Ghaziabad, U.P.
2. Madhu Chawla
W/o Ravi Chawla
R/o 203, Surya Niketan,
Vikas Marg,
Delhi - 110092 ....Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE V.B. GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
CM (M) No. 1286/2010 Page 1 of 6
3. Whether the judgment should be reported
in the Digest? Yes
V.B.Gupta, J.
Present petition under Article 227 of the Constitution of India
has been filed by petitioner against order dated 17th August, 2010
passed by Administrative Civil Judge, Karkardooma Courts, Delhi,
vide which application under Order 1 Rule 10 of Code of Civil
Procedure (for short as „Code‟) filed by applicant-Smt. Madhu Chawla
was allowed and petitioner was directed to amend the plaint
accordingly.
2. Brief facts of this case are that, petitioner has filed a suit for
injunction against respondent No.1 (his son) alleging that he
(petitioner) has purchased property No. IX/5810, Subhash Mohalla,
Gandhi Nagar, Delhi -110031 in two parts. Half of the property was
purchased by petitioner from one Ravinder Singh and remaining half
of the property was purchased by him in the name of respondent No.1.
Now, respondent No.1, is threatening to dispossess the petitioner from
property in question without adopting the due process of law.
3. In the written statement filed by respondent No.1, he took a
preliminary objection that the suit is bad for non-joinder of necessary
parties as respondent No.1 has already transferred the ownership/title
of the property in question vide Gift Deed to his wife Smt. Nancy
Mehndiratta. Now, his wife being the sole owner of property in
question has sold the said property to Smt. Madhu Chawla and as such
Smt. Nancy Mehndiratta and Smt. Madhu Chawla are necessary
parties to the suit.
4. In application under Order 1 Rule 10 of the Code filed by
applicant Smt. Madhu Chawla, it is stated that she is the owner of half
part of the property in question having purchased the same from Smt.
Nancy Mehndiratta and petitioner is aware about this fact. The
applicant being the owner of half part of the property in question, is a
necessary party and as such she may be impleaded as defendant in the
suit.
5. It is contended by learned counsel for petitioner that petitioner
has filed a suit for injunction and has claimed relief against respondent
No.1 only. Moreover, applicant in no manner had done any act to
wrongfully dispossess the petitioner and further petitioner is not
having any apprehension against the applicant. As such impugned
order allowing the applicant to become as defendant is patently illegal
and beyond jurisdiction.
6. Trial court in impugned order observed;
"The applicant has also placed on record gift deed
executed by the defendant in favour of his wife. I am
of the view as the applicant has purchased the half
portion of the suit property from the wife of
defendant, the defendant has no interest in the suit
property as he has already sold the half portion of the
suit property and definitely the applicant will be
effected by the decision of this case. It is contended
by the counsel for the plaintiff that the present suit is
for permanent and mandatory injunction. Taking into
consideration the fact that the half portion of the
property has already been sold by the wife of the
defendant to the applicant, the applicant is a necessary
party and she is impleaded as defendant."
7. Order 1 Rule 10 of the Code read as under:-
"10. Suit in the 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 in the name of the right plaintiff,
the Court may at any stage of the suit, if satisfied that
the suit has been instituted through a bona fide
mistake, and that it is necessary for the determination
of the real matter in dispute so to do, order any other
person to be 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 been 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) XXXXXXXXXXXXXX
(4)XXXXXXXXXXXXXXX
(5)XXXXXXXXXXXXXXX
8. The object of the above provision is to enable the Court at any
stage of the suit to add a person as a party when it is unable effectually
and completely to adjudicate upon and settle all the questions involved
in the suit in the absence of that person.
9. In Savitri Devi vs. District Judge, Gorakhpur and Others,
(1999) 2 SCC 577, Apex Court has observed:-
"9. Order 1 Rule 10 CPC enables the court to add any
person as a party at any stage of the proceedings if the
person whose presence before the court is necessary
in order to enable the court to effectively and
completely adjudicate upon and settle all the questions
involved in the suit. Avoidance of a multiplicity of
proceedings is also one of the objects of the said
provision in the Code.
10. In Khemchand Shankar Choudhari v. Vishnu Hari
Patil (1983) 1 SCC 18 this Court held that a transferee
pendente lite of an interest in an immovable property
which is the subject-matter of a suit is a representative
in the interest of the party from whom he has acquired
that interest and has a right to be impleaded as a party
to the proceedings. The Court has taken note of the
provisions of Section 52 of the Transfer of Property
Act, 1882 as well as the provisions of Rule 10 of
Order XXII CPC. The Court said (SCC p. 21, para 6)
"It may be that if he does not apply to be
impleaded, he may suffer by default on
account of any order passed in the
proceedings. But if he applies to be
impleaded as a party and to be heard, he has
got to be so impleaded and heard."
10. Since applicant is the owner of half portion of the property in
question and respondent No.1 has already sold his share to the
applicant, under these circumstances applicant is a necessary party.
Thus there is no ambiguity or illegality in the impugned order passed
by the trial court.
11. Present petition under Article 227 of the Constitution of India is
not maintainable and same is hereby dismissed.
CM No.18317/2010
12. Dismissed.
October 21, 2010 V.B.GUPTA, J.
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