Gurvir Inder Singh vs Virender Sahlot & Ors
2012 Latest Caselaw 1019 Del

$~R-36
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of Judgment: 14.02.2012

+     CM(M) 1223/2007 & CM No. 12248/2007


      GURVIR INDER SINGH                             ..... Petitioner
                    Through             Mr.S.C.Rana and Mr.P.N.Bhan,
                                        Advocates
              versus
      VIRENDER SAHLOT & ORS.              ..... Respondent
                     Through Mr.Subodh Pathak and Mr.Ravi
                             Krishan Chandna, Advocates

       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1. Order impugned is the order dated 17.07.2007 vide which the

application filed by the applicant Virender Sahlot seeking his

impleadment under Order 1 Rule 10 read with section 151 of the Code

of Civil Procedure, 1908, as an intervener in the pending suit for

partition filed between the plaintiff and the defendant had been allowed.

This is the grievance of the petitioner/plaintiff before this Court.

2. Record shows that a suit for partition had been filed by the

plaintiffs i.e. Gurvir Inder Singh and another against Indrani Singh; the

other parties were siblings. The property in dispute is suit property

bearing No.B-21, West End, Diplomatic Enclave Extension, New Delhi.

In the course of the proceedings an application under Order 1 Rule 10 of

the Code had been filed by the applicant Virender Sahlot. His

contention was that the plaintiff Gurvir Inder Singh had signed a Special

Power of Attorney dated 27.09.2005 and a Memorandum of

Understanding dated 13.09.2005 in his favour qua this suit property;

further submission was that the applicant had in fact filed a suit for

specific performance alongwith an application under Order 39 Rules

1&2 before this Court seeking specific performance of this agreement

which had been entered into between himself and Gurvir Inder Singh,

this was in Suit NO. CS(OS) 1455/2005. Further contention is that an

order of status quo had been passed on his interim application and the

matter is pending adjudication before the concerned Court. Further

submission in the application is that the present Suit which is an inter se

suit between the plaintiff and the defendant will also affect rights of the

present plaintiff and as such he seeks intervention/impleadment in the

present proceedings.

3. Needless to state that the reply filed by the plaintiff had opposed

this application but the impugned order has allowed the prayer made

by Virender Sahlot.

4. Petitioner before this Court is the plaintiff in the trial court.

Admittedly, this is a Suit for Partition; this is a partition claimed by

brothers against their sisters qua an inherited suit property. To deal with

an application under Order 1 Rule 10 of the Code, the Court has to see

whether the applicant is a "necessary" or a "proper" i.e. a person who

would be able to throw light on the controversy in question who can

then be termed either as a necessary or a proper party depending upon

the facts of the case. However, a party who is only going to create a

further confusion by being added as a party cannot fall in either of the

two categories. This Court is of the view that Virender Sahlot is of one

such category.

5. Admittedly, the applicant Virender Sahlot had filed a suit for

specific performance in which he has also obtained an interim relief of

status quo for the said property; as such his apprehension that the suit

property would be partitioned between the siblings without notice to

him and would jeopardize his interest; in fact has been protected, by

the status quo order. The applicant has availed of his independent

remedy through the Suit for Specific Performance; his title/interest in

the suit property is yet to be adjudicated upon. In these circumstances

of this case he cannot be termed either as a "necessary" or a "proper"

party in the present suit for partition. Impugned order suffers from an

illegality. It is accordingly set aside.

6. Reliance by the respondent on the judgment reported in (1983) 1

SCC 18, Khemchand Shankar Choudhari versus Vishnu Hari Patil is

misplaced. This was a case where admittedly the transferee pendent lite

had a sale deed in his favour which is not so in this case; right and title

of the applicant is yet to be adjudicated upon.

7. Petition is accordingly allowed and disposed of.

INDERMEET KAUR, J FEBRUARY 14, 2012 nt