Delhi High Court

Mrs. Anjana Vij vs Mr. Krishan Dev & Another on 7 March, 2011

Author: V. K. Jain

         THE HIGH COURT OF DELHI AT NEW DELHI

%                        Judgment Reserved on: 1.3.2011
                         Judgment Pronounced on: 07.03.2011

+ I.A. No.3125/2010 in CS(OS) No. 1564/2008

Mrs. Anjana Vij                                  .....Plaintiff
                               - versus -

Mr. Krishan Dev & Another                        .....Defendant

Advocates who appeared in this case:
For the Plaintiff: Mr. Brajesh K. Srivastava with Mr. Dinesh
                  Kumar.
For the Defendant: Mr. Pankaj Vivek for D-1.
                      Mr. Rajiv Bansal with Ms. R. Veena for
                      D-2.
                      Mr. Ajay Paul for applicants.
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

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

2. To be referred to the Reporter or not?                   Yes

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

V.K. JAIN, J

1.          This is a suit for specific performance of the

agreement to sell dated 20th April, 2006 and for grant of

injunction.           The case of the plaintiff is that vide an

agreement to sell dated 20 th April, 2006, defendant No.1

agreed to sell plot No.50 measuring 100 sq. meters at



CS(OS)No. 1564/2008                                    Page 1 of 21
 Rangapuri,        Vasant   Kunj,   New    Delhi     to   her       for        a

consideration of       Rs.3   lakhs and     received a          sum       of

Rs.2,90,000/- from him leaving a very small amount of

Rs.10,000/- as the balance sale consideration.                 It is also

alleged that the plot, subject matter of the agreement was

initially allotted by the DDA to the father of defendant No.1,

who died on 18th March, 2006 and defendant No.1, claiming

to be the sole successor of his father, entered into the

abovementioned        agreement    with   the     plaintiff.        Since

defendant No.1 failed to execute the sale document in

favour of the plaintiff, she is seeking specific performance of

the agreement and injunction restraining defendant No.1

from selling, transferring or assigning the aforesaid plot to

any person.

2.          In his written statement, defendant No.1 has

alleged that one Sukhbir Singh approached him in March,

2006 and enquired as to whether he had been allotted any

plot by the DDA in its rehabilitation programme. When he

told him that no plot had been allotted to him, Sukhbir

Singh told him that his name figured in the serve list of

1971-72 for allotment of plots and further told him that he

could help in getting a plot allotted to him from the DDA.

CS(OS)No. 1564/2008                                            Page 2 of 21
 Sukhbir Singh took a sum of Rs.10,000/- from him towards

expenses changes. He was then taken by Sukhbir Singh to

one Naresh Kumar, who offered loan to him and also offered

to purchase his entitlement to the plot at the rate of

Rs.90,000/- per sq. meter.        It is further alleged by

defendant No.1 that he agreed to sell his entitlement to

Naresh Kumar whereafter he was taken to the office of Sub-

Registrar and his signatures were obtained on various

papers. He also claims that the contents of the document

were got signed from him but were not explained to him. A

sum of Rs.1,00,000/- was deposited by Sukhbir Singh and

Naresh Kumar in his account.        He was then taken to

Syndicate Bank where his signatures were obtained on

some papers and some money was given to him, which was

taken by Naresh Kumar from him. He has also claimed that

Rishal Singh died on 18 th March, 2006 leaving behind his

widow Smt. Sarabati, five sons and two daughters and he

was not the exclusive owner of plot No.50, Block-A situated

at rehabilitate site Nangal Dewat and his entitlement was

only 1/8 share in the aforesaid plot. It is also alleged that

the allotment of plot No.50 in Block-A was cancelled by the

DDA and they were allotted plot No.11 in Block-1, in Village

CS(OS)No. 1564/2008                                Page 3 of 21
 Rangpuri, New Delhi in lieu of the plot acquird in Village

Nangal Dewat, which belonged to late Shri Rishal Singh.

3.          I.A. No.3125/2010 has been filed by Karambir

Singh, Hanumat Singh, Bhim Singh, Rajesh Kumar and

Sharbati Devi.        Sharbati Devi is the mother of defendant

No.1 whereas the other applicants are his brothers.           It is

alleged in the application that the plaintiff is seeking specific

performance of an agreement to sell with respect to a

property, which is co-owned by the applicants, defendant

No.1 and two other persons namely Shakuntala and Suresh

Bala, who are the sisters of defendant No.1. Their case is

that since late Rishal Singh died intestate, all of them

inherited the aforesaid plot being his Class-I legal heirs.

4.          The application has been opposed by the plaintiff,

who has denied the co-ownership claimed by the applicants.

5.          A perusal of the allotment letter dated 19th June,

2007 issued by the DDA in respect of plot No.50, Block-A, in

Village Rangpuri shows that the allotment was made to the

legal representatives of Rishal S/o Neki (Julahan) resident

of Village and Post Office Nangal Dewat, New Delhi in lieu of

the plot acquired in the aforesaid village.       A perusal of

allotment letter dated 28th July, 2008 issued by the DDA

CS(OS)No. 1564/2008                                    Page 4 of 21
 again to the legal heirs of Rishal S/o Neki Julahan shows

that plot No.11, Block-B-1 in Village Rangpuri was allotted

to them in lieu of the plot No.50, Block A in Village

Rangpuri.

6.          A perusal of the agreement to sell set up by the

plaintiff would show that vide this document defendant No.1

Krishan Dev claimed to be owner in possession of plot No.50

in Block A situated at Vasant Kunj, New Delhi and agreed to

sell the aforesaid plot to the plaintiff for a consideration of

Rs.3 lakhs.

7.          It would thus be seen that no allotment letter had

been issued by DDA in respect of Plot No.50 in Block A in

Village Rangpuri in Vasant Kunj by 20th April, 2006 when

the agreement to sell is alleged to have been executed by

defendant No.1 in favour of the plaintiff. More importantly,

both the allotments were made by the DDA in favour of all

the legal representatives of late Rishal Singh, though they

were not named in the allotment letter. Though the case set

up in the plaint is that defendant No.1 had claimed to be

the sole legal heir of late Rishal Singh, there is no such

statement in the agreement to sell, alleged to have been

executed by him on 20th April, 2006.

CS(OS)No. 1564/2008                                  Page 5 of 21
 8.          It is plaintiff's own case that the allotment was

made by the DDA to Shri Rishal Singh though, in fact, it

was made to his legal heirs and not to him.       It is strange

that despite claiming knowledge of allotment in the name of

late Rishal Singh and also claiming that defendant No.1 had

represented to the plaintiff that he was the sole successor of

late Rishal Singh, no statement to this effect was got

incorporated by the plaintiff in the agreement to sell alleged

to have executed on 20th April, 2006. This is also not the

case of the plaintiff that she had tried to verify the

particulars of the legal heirs of late Rishal Singh and had

come to know that defendant No.1 was his sole legal heir.

Since the allotment was made to all the legal heirs of late

Rishal Singh and this is not the case of the plaintiff that

other legal heirs had relinquished their share in favour of

defendant No.1, prima facie, it is difficult to dispute that

being only one of the legal heirs, defendant No.1 was not

competent to enter into an agreement to sell the aforesaid

plot to the plaintiff.

9.          As a general principle of law, the plaintiff being

dominus litis, it is for him to chose the persons against

whom he wants to litigate and ordinarily he cannot be

CS(OS)No. 1564/2008                                  Page 6 of 21
 compelled to implead a person against whom he did not

seek any relief but, this general rule, as observed by the

Supreme Court in Mumbai International Airport Pvt. Ltd.

v. Regency Convention Centre and Hotels Pvt. Ltd. and

others, AIR 2010 SC 3109, is subject to the provision of

Order 1 Rule 10(2) of the CPC, which provides for

impleadment of proper and necessary parties.              This

provision confers a power on the Court to direct to direct

addition of a person, who ought to have been joined as a

party to the suit but has not been joined, or a person,

whose presence before the Court may be necessary in order

to enable it to effectively and completely adjudicate upon

and settle the questions involved in the suit as a party to

the suit.      A person, who ought to have been joined as a

party to the suit and in whose absence, no effective decree

can be passed by the Court, is a necessary party whereas a

person is a proper party though not a necessary party if his

presence would enable the Court to completely, effectively

and adequately adjudicate upon all the matters in dispute

in the suit even though no relief against him has been

claimed in the suit.

10.         The impleadment of the applicants has been

CS(OS)No. 1564/2008                                Page 7 of 21
 opposed on the ground that being strangers to the

agreement to sell dated 20th April, 2006, they are neither

necessary nor proper parties to the present suit. Reliance

in this regard has been placed on the decision of Supreme

Court in Kasturi v. Iyyamperumal and others, (2005) 6

SCC 733. In that case, the appellant had filed a civil suit

against respondent Nos. 2 and 3 for specific performance of

contract, entered into between him and respondent Nos. 2

and 3. Respondent Nos. 1 and 4 to 11, who were not

parties to the contract and were setting up a claim of

independent title and possession over the contracted

property filed an application to implead them as defendants.

The trial Court allowed them to be added as parties and its

decision was upheld by the High Court. Reversing the

decision of the High Court, Supreme Court held that

stranger to the contract namely respondent Nos. 1 and 4 to

11, who were making claims independent and adverse to the

title of respondent Nos. 2 and 3 were neither necessary nor

proper parties and, therefore, were not entitled to join as

party defendants to the suit for specific performance of

contract for sale. The Supreme Court was of the view that

the persons seeking addition in the suit for specific

performance of the contract for sale who were not claiming

under the vendor but were claiming adverse to the title of

the vendor do not fall in any of the categories enumerated in

sub-sections (a) to (e) of Section 19 of the Specific Relief Act.

During the course of the judgment, Supreme Court, inter

alia, observed as under:-

"11. As noted hereinearlier, two tests are required to be satisfied to determine the question who is a necessary party, let us now consider who is a proper party in a suit for specific performance of a contract for sale. For deciding the question who is a proper party in a suit for specific performance the guiding principle is that the presence of such a party is necessary to adjudicate the controversies involved in the suit for specific performance of the contract for sale. Thus, the question is to be decided keeping in mind the scope of the suit. The question that is to be decided in a suit for specific performance of the contract for sale is to the enforceability of the contract entered into between the parties to the contract. If the person seeking addition is added in such a suit, the scope of the suit for specific performance would be enlarged and it would be practically converted into a suit for title. Therefore, for effective adjudication of the controversies involved in the suit, presence of such parties cannot be said to be necessary at all....

13......They were also not necessary parties as they would not be affected by the contract entered into between the appellant and Respondents 2 and 3. In the case of Anil Kumar Singh v. Shivnath Mishra, (1995) 3 SCC 147, it has been held that since the applicant who sought for his addition is not a party to the agreement for sale, it cannot be said that

in his absence, the dispute as to specific performance cannot be decided. In this case at para 9, the Supreme Court while deciding whether a person is a necessary party or not in a suit for specific performance of a contract for sale made the following observation:

"Since the respondent is not a party to the agreement of sale, it cannot be said that without his presence the dispute as to specific performance cannot be determined.

Therefore, he is not a necessary party." (emphasis supplied)

15....As noted hereinearlier, in a suit for specific performance of a contract for sale, the issue to be decided is the enforceability of the contract entered into between the appellant and Respondents 2 and 3 and whether contract was executed by the appellant and Respondents 2 and 3 for sale of the contracted property, whether the plaintiffs were ready and willing to perform their part of the contract and whether the appellant is entitled to a decree for specific performance of a contract for sale against Respondents 2 and 3. It is an admitted position that Respondents 1 and 4 to 11 did not seek their addition in the suit on the strength of the contract in respect of which the suit for specific performance of the contract for sale has been filed. Admittedly, they based their claim on independent title and possession of the contracted property. It is, therefore, obvious as noted hereinearlier that in the event, Respondents 1 and 4 to 11 are added or impleaded in the suit, the scope of the suit for specific performance of the contract for sale shall be enlarged from the suit for specific performance to a suit for title and possession which is not permissible in law.

15..... As discussed above, in the event any decree is passed against Respondents 2 and 3 and in favour of the appellant for specific performance of the

contract for sale in respect of the contracted property, the decree that would be passed in the said suit, obviously, cannot bind Respondents 1 and 4 to 11. It may also be observed that in the event, the appellant obtains a decree for specific performance of the contracted property against Respondents 2 and 3, then, the Court shall direct execution of deed of sale in favour of the appellant in the event Respondents 2 and 3 refusing to execute the deed of sale and to obtain possession of the contracted property he has to put the decree in execution. As noted hereinearlier, since Respondents 1 and 4 to 11 were not parties in the suit for specific performance of a contract for sale of the contracted property, a decree passed in such a suit shall not bind them and in that case, Respondents 1 and 4 to 11 would be at liberty either to obstruct execution in order to protect their possession by taking recourse to the relevant provisions of CPC, if they are available to them, or to file an independent suit for declaration of title and possession against the appellant or Respondent 3. On the other hand, if the decree is passed in favour of the appellant and sale deed is executed, the stranger to the contract being Respondents 1 and 4 to 11 have to be sued for taking possession if they are in possession of the decretal property.

18. That apart, there is another principle which cannot also be forgotten. The appellant, who has filed the instant suit for specific performance of the contract for sale is dominus litis and cannot be forced to add parties against whom he does not want to fight unless it is a compulsion of the rule of law, as already discussed above. For the reasons aforesaid, we are, therefore, of the view that Respondents 1 and 4 to 11 are neither necessary parties nor proper parties and therefore they are not entitled to be added as party-defendants in the pending suit for specific performance of

the contract for sale."

11. However, in a subsequent decision in Sumtibai

and others v. Paras Finance Co., (2007) 10 SCC 82,

Supreme Court after considering its earlier decision in

Kasturi (supra), inter alia, observed as under:-

"9. Learned counsel for the respondent relied on a three-Judge Bench decision of this Court in Kasturi v. Iyyamperumal (2005) 6 SCC 733. He has submitted that in this case it has been held that in a suit for specific performance of a contract for sale of property a stranger or a third party to the contract cannot be added as defendant in the suit. In our opinion, the aforesaid decision is clearly distinguishable. In our opinion, the aforesaid decision can only be understood to mean that a third party cannot be impleaded in a suit for specific performance if he has no semblance of title in the property in dispute. Obviously, a busybody or interloper with no semblance of title cannot be impleaded in such a suit. That would unnecessarily protract or obstruct the proceedings in the suit. However, the aforesaid decision will have no application where a third party shows some semblance of title or interest in the property in dispute. In the present case, the registered sale deed dated 12-8-1960 by which the property was purchased shows that the shop in dispute was sold in favour of not only Kapoor Chand, but also his sons. Thus prima facie it appears that the purchaser of the property in dispute was not only Kapoor Chand but also his sons. Hence, it cannot be said that the sons of Kapoor Chand have no semblance of title and are mere busybodies or interlopers.

14.....we are of the opinion that Kasturi

case, (2005) 6 SCC 733, is clearly distinguishable. In our opinion it cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in that suit. In our opinion, if C can show a fair semblance of title or interest he can certainly file an application for impleadment. To take a contrary view would lead to multiplicity of proceedings because then C will have to wait until a decree is passed against B, and then file a suit for cancellation of the decree on the ground that A had no title in the property in dispute. Clearly, such a view cannot be countenanced.

12. In the case of Mumbai International Airport Pvt.

Ltd. (supra), Supreme Court, on examination of its earlier

decisions in the case of Kasturi (supra) and Sumtibai

(supra), felt that there was no conflict between the two

decisions since they were dealing with different situations,

requiring application of different facets of sub-Rule 2 of

Section 10 of Order 1 and this had been made clear by the

Court in Sumtibai itself.

13. In Gyanender Prasad Tewari v. Om Prakash

and Another (CM (M) No.1873/2006 decided by this Court

on 26th November, 2007), respondent No.2 before this court

filed a suit for specific performance of an agreement to sell

dated 18th June, 1990 with possession of the plot, subject

matter of the agreement. It was alleged in the plant that

defendant had represented to the plaintiff that he was the

sole and exclusive owner of the suit property on the basis of

registered Will dated 13 th February, 1980 executed by his

father bequeathing the suit property in favour of defendant

and his elder brother and a relinquishment deed had

thereafter been executed by the brother of the defendant in

his favour. The original Will and relinquishment deed were

delivered by the defendant to the plaintiff, who made part

payment of the sale consideration to him. On failure of the

defendant to perform his part of the obligation, a suit for

specific performance of the agreement was filed. In the

written statement filed by him, the defendant claimed that

the documents, which formed the basis of the suit, were

forged and fabricated documents and he was not the sole

and exclusive owner of the suit property. Independent

applications under Order 1 Rule 10 of CPC were filed by the

defendant and his brother G.P. Tiwari for impleadment of

G.P. Tiwari as a defendant on the ground that both of them

were joint owners of the suit property. This Court, after

taking into consideration the decisions of Supreme Court in

Kasturi (supra) and Sumtibai (supra), took a view that

the ownership of suit property was an issue in the suit and,

therefore, the petitioner, who claimed to be co-owner of the

suit property, would be affected by the decision in the suit

and hence was a necessary party. His impleadment as

party to the suit was, accordingly, allowed.

14. In S.S. Bakshi v. P.M. Mathrani (I.A. Nos.11116,

11119, 11121 and 11132/99 in Suit Nos. 225, 226, 227

and 228 of 1998 decided on 19th December, 2000),

applications under Order 1 Rule 10 of CPC were filed for

impleading the applicant Mrs. Sarla Mishra as party to the

suit. In that case, M.P. Mathrani, owner of Bungalow No.9,

Kautilya Marg, Diplomatic Enclave, New Delhi had entered

into five agreements to sell his share in the aforesaid

property to the five plaintiffs. On his failure to complete the

transaction, five suits for specific performance of those

agreements were filed in this Court. The applicant before

the Court was one of the sisters of the defendant. Her

impleadment was opposed by the plaintiff on the ground

that she was a total stranger to the agreement to sell

executed by defendant in favour of the plaintiff and,

therefore, was neither a necessary nor a proper party to the

suit. Rejecting the contention, it was held by this Court

that the applicant, being co-owner having undivided share

in the house, was entitled to be impleaded as a party to the

suit.

15. The learned counsel for the plaintiff has also relied

upon the decision of the Supreme Court in Bharat

Karsondas Thakkar v. Kiran Construction Company,

(2008) 13 SCC 658. In that case the issue before the

Supreme Court was as to whether the appellant, who had

acquired an independent right in the suit property by way of

separate decree but was not a party to the agreement

between respondent No.1 and M/s Modern Development

Corporation could be added as a party in the suit for

specific performance, which respondent No.1 had filed and

whether the decree passed in his favour could be assailed

by respondent No.1 in his suit for specific performance. The

Division Bench of the High Court had allowed the

amendment so as to implead the appellant as a party to the

suit for specific performance, which respondent No.1 had

filed. It had also allowed amendment of the prayer in the

plaint so as to include declarations with respect to the

decree, which had been passed in another suit and for

damages. During the course of the judgment, Supreme

Court, relying upon its earlier decision in Anil Kumar

Singh v. Shivnath Mishra, (1995) 3 SCC 147, held that

respondent No.1 was not entitled to be joined as a party to

the suit and he could file a separate suit to challenge the

consent decree. During the course of the judgment,

Supreme Court, inter alia, observed as under:-

"28. Along with that is the other question, which very often raises its head in suits for specific performance, that is, whether a stranger to an agreement for sale can be added as a party in a suit for specific performance of an agreement for sale in view of Section 15 of the Specific Relief Act, 1963. The relevant provision of Section 15 with which we are concerned is contained in clause (a) thereof and entitles any party to the contract to seek specific performance of such contract. Admittedly, the appellant herein is a third party to the agreement and does not, therefore, fall within the category of "parties to the agreement". The appellant also does not come within the ambit of Section 19 of the said Act, which provides for relief against parties and persons claiming under them by subsequent title."

16. The facts and circumstances of this case are

altogether different from the facts in the case of Kasturi

(supra) and Bharat Karsondas Thakkar (supra). In

neither of these cases, the applicant seeking impleadment

as a party to the suit, claimed to be co-owner of the suit

property, along with the vendor. As noted earlier, the plot in

question was allotted by DDA to all the legal representatives

of late Rishal Singh and not to defendant No.1 alone. No

relinquishment deed in favour of defendant No.1 has even

been claimed by the plaintiff. There is no averment in the

agreement to sell set up by the plaintiff that defendant No.1

was the sole legal heir of late Rishal Singh. Therefore, the

fact situation in this case is altogether different and prima

facie, it appears that defendant No.1 alone had no legal

right to enter into an agreement with respect to the plot,

which had been allotted to all the legal heirs of late Rishal

Singh. In Sumtibai (supra), which is a decision later than

the decision in the case of Kasturi (supra) and has taken

Kasturi (supra) into consideration, Supreme Court was of

the view that if a third party shows some semblance of title

and interest in the property in dispute, he ought to be

impleaded as a party to the suit. In that case, it was found

that sale deed vide which the property was purchased was

executed in favour of not only Kapoor Chand but also his

sons, which indicated that Kapoor Chand had no semblance

of title in the property. In the present case also, the

allotment by DDA being in favour of all the legal

representatives of late Rishal Singh, it is difficult to dispute

that all his legal heirs have a share in the plot, subject

matter of the agreement to sale dated 20th April, 2006.

17. In State of Orissa v. Sudhansu Sekhar Misra,

AIR 1968 SC 647, Supreme Court, inter alia, observed as

under:-

"there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all. "

In Bhavnagar University v. palitana Sugar Mill

(P) Ltd., (2003) 2 SCC 111, Supreme Court, inter alia,

observed as under:-

"It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."

In Bharat Petroleum Corporation Ltd. v. N.R.

Vairamani, (2004) 8 SCC 579, Supreme Court, inter alia,

observed as under:-

"9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes."

18. Since the fact in the case of Sumtibai (supra) as

also in the case of Gyanender Prasad Tewari (supra) and

S.S. Bakshi (supra) were identical whereas the facts in the

case of Kasturi (supra) and Bharat Karsondas Thakkar

(supra) were altogether different, I am of the view that in the

facts and circumstances of this case, it would not be

appropriate to drive the applicants to another litigation by

compelling them to file a fresh suit instead of impleading

them as parties to the suit, when the facts and

circumstances of the case clearly indicate that defendant

No.1 was not the sole owner of the plot, subject matter of

the agreement to sell dated 20th April, 2006 and was only