Hitesh Bhardwaj & Anr. vs Alaknanda Properties P. Ltd. & ...
2013 Latest Caselaw 5438 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+                             R.S.A. No.146 of 2008

                                    Decided on : 25th November, 2013

HITESH BHARDWAJ & ANR.                ...... Appellants
            Through: Mr. Pankaj Vivek & Mr. Atul Tripathi,
                     Advocates.

                          Versus

ALAKNANDA PROPERTIES P. LTD. & ANR. ...... Respondents
           Through: Mr. Deepak Dhingra & Mr. Deepak
                    Khosla, Advocates.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is a regular second appeal under Section 100 (2) CPC against

the order dated 17.3.2008 passed by the learned Additional District Judge

in R.C.A. No.84/2005 titled M/s. Alaknanda Properties Pvt. Ltd. Vs.

Parmeshwari & Ors. The present appeal is pending in this court for the

last almost five years.

2. The learned counsel for the appellants has contended that the

appellants have a right to maintain the regular second appeal while as this

court has reservations about the said right. In order to appreciate this

issue, it may be relevant to give brief background of the case.

3. M/s. Alaknanda Properties Pvt. Ltd./respondent No.1 herein

originally filed a suit for specific performance and possession on 7.5.1996

against one Parmeshwari/respondent No.2 herein. During the pendency

of the suit, it came to light that respondent No.2 herein had transferred the

interest in the suit property jointly in favour of Hitesh Bhardwaj and

Ramesh Kumari, the present appellants. Both Hitesh Bhardwaj and

Ramesh Kumari were impleaded as defendants in the said suit. Neither

Hitesh Bhardwaj nor Ramesh Kumari are purported to have filed the

written statement (as none was on the record) and consequently, no

evidence was adduced on their behalf although they are purported to have

cross-examined the witnesses of the plaintiff/respondent No.1 (counsel

for the appellants has stated that written statement was filed by them

although the same was not found to be on record at the time of final

arguments. The suit for specific performance was dismissed by the trial

court on 14.9.2005.

4. Feeling aggrieved, M/s. Alaknanda Properties Pvt. Ltd., the

respondent No.1 herein preferred an appeal against the said judgment and

the decree being R.C.A. No.84/2005 titled M/s. Alaknanda Properties

Pvt. Ltd. Vs. Parmeshwari & Ors. Hitesh Bhardwaj, Ramesh Kumari and

Parmeshwari were all shown as respondents in the first appeal. The first

appellate court reversed the finding of the civil judge and passed a decree

17.3.2008 for specific performance in favour of M/s. Alaknanda

Properties Pvt. Ltd./respondent No.1 herein.

5. Vide sale deed dated 28.5.1996, Hitesh Bhardwaj and Ramesh

Kumari, the purchasers from Parmeshwari/respondent No.2 herein

preferred the present regular second appeal. The second appeal is

permissible only if a party is able to show that any substantial question of

law is involved. Although the appeal was filed in the year 2008,

however, for one reason or the other, the appeal was kept alive till it was

brought to the notice of the court on 14.2.2011 by the learned counsel for

respondent No.1 that defendant No.2 in the suit, namely, Hitesh

Bhardwaj (appellant No.1 herein) had sold the property to M/s. Deepak

Resort and it has not been made as a party. This fact was not

controverted by the learned counsel representing the appellant, Hitesh

Bhardwaj and as a matter of fact, time was sought to file appropriate

application in this regard. From 14.2.2011, more than 2 ½ years have

elapsed but no such application has been filed either by Hitesh

Bhardwaj/appellant No.1 or by M/s. Alaknanda Properties Pvt.

Ltd./respondent No.1 to implead M/s. Deepak Resort as a party. On the

last date of hearing, that is, 23.8.2013, the appellants were directed to file

an affidavit giving the details of the date on which the suit property was

purportedly purchased by them and the fact as to whether they had

transferred the interest in the suit property and if so, the date including the

name of the transferee party. This affidavit has been filed although, the

same is not on record. A photocopy of the said affidavit has been handed

over in court.

6. After hearing the learned counsel for the appellants as well as the

learned counsel for respondent No.1, it has transpired that it is not in

dispute that the appellants, Hitesh Bhardwaj and Ramesh Kumari had got

the interest in the property transferred on 28.5.1996 by virtue of a sale

deed purported to have been executed by Parmeshwari, respondent No.2

in the present appeal. It has also not been disputed by the learned counsel

that the appellants have transferred, assigned or parted with their interest

in the suit property on 2.1.2006 in favour of M/s. Deepak Resort. Having

done so, I feel that Order 22 Rule 10 CPC lays down the procedure for

cases where assignment before final order in the suit is passed. Order 22

Rule 10 CPC reads as under :-

"Procedure in case of assignment before final order in suit - (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.

(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1)."

7. In the instant case, it is not disputed by the learned counsel that the

appellants have divested themselves of the interest in the suit property.

The appellants have also not filed any application for substituting in their

own place M/s. Deepak Resorts as the appellant. No such application has

either been filed by the appellants or by the respondents. That being the

position, I feel that as the appellants having already transferred, assigned

or alienated their interest in favour of M/s. Deepak Resort and by virtue

of Order 22 Rule 10 CPC, they are ceased to have an interest and they

cannot maintain the present regular second appeal. Accordingly, the

same is dismissed.

V.K. SHALI, J.

NOVEMBER 25, 2013 'AA'