Tejbir Singh vs Smt. Rawel Kaur
2014 Latest Caselaw 1791 Del

$~03.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+        CS(OS) 1515/2007
%                                        Judgment dated 02.04.2014
         TEJBIR SINGH                                     ..... Plaintiff
                            Through :    Mr.Manjeet Singh, Adv.

                            versus

         SMT. RAWEL KAUR                                    ..... Defendants
                      Through :          Mr.Gurbaksh Singh and Ms.Richa
                                         Samhita, Advs. for the applicant,
                                         Smt.Darshan Kaur, in I.A. 5552/2014

         CORAM:
            HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J (ORAL)

I.A. 5552/2011

    1.   Plaintiff has filed the present suit for specific performance of an
         Agreement to Sell dated 17.1.2006 with respect to the property bearing
         no.31, Nanang Colony, Janak Puri, New Delhi, measuring approximately
         198.6 sq. yards.
    2.   Present application has been filed by one, Smt.Darshan Kaur, under Order
         I Rule 10(2) for being impleaded as a party to the present proceedings.
    3.   Learned counsel for the applicant submits that the applicant is in fact the
         owner of the suit property as the suit property was purchased by the
         applicant's late husband. Counsel further submits that the applicant is in
         possession and control of the aforesaid property, however, having regard
         to her age and on account of death of her husband, she has been residing
         in Bhubaneswar, Orissa, along with her son. Counsel contends that the
         applicant has even employed a guard, Sh.Lal Chand, in the subject

CS(OS) 1515/2007                                                  Page 1 of 6
       property.
 4.   Learned counsel for the applicant has relied upon Mumbai International
      Airport Private Limited v. Regency Convention Centre & Hotels Private
      Limited and Ors., reported at 2010 (6) SCALE 273 in support of his
      submission that in case the applicant is not impleaded as a party in the
      present suit, her interest is likely to be directly affected if any relief is
      granted to the plaintiff in the suit. Para 12.2 of the judgment reads as
      under:
               12.2) If the owner of a tenanted property enters into an agreement
               for sale of such property without physical possession, in a suit for
               specific performance by the purchaser, the tenant would not be a
               necessary party. But if the suit for specific performance is filed
               with an additional prayer for delivery of physical possession from
               the tenant in possession, then the tenant will be a necessary party in
               so far as the prayer for actual possession."

 5.   Learned counsel for the applicant further submits that since the plaintiff
      has sought possession of the suit property and the applicant is in
      possession of the suit property, the applicant would be a proper and
      necessary party.
 6.   Learned counsel for the plaintiff/non-applicant has opposed the present
      application and submits that the applicant is not a necessary and proper
      party as being a suit for specific performance, a stranger claiming
      independent title and possession, cannot be impleaded as a party. In
      support of this contention, counsel has relied on a decision rendered by a
      three Judge Bench of the Supreme Court in Kasturi v. Iyyamperumal and
      Others, reported at AIR 2005 Supreme Court 2813. Counsel further
      submits that the judgment in Kasturi (supra) would be applicable to the
      facts of the present case. Counsel has placed reliance on paras 18 to 20 of
      the judgment, which read as under:


CS(OS) 1515/2007                                                   Page 2 of 6
              "18. The learned counsel appearing for the respondent Nos.1 and 4

to 11, however, contended that since the respondent Nos.1 and 4 to 11 claimed to be in possession of the suit property on the basis of their independent title to the same, and as the appellant had also claimed the relief of possession in the plaint, the issue with regard to possession is common to the parties including respondent Nos.1 and 4 to 11, therefore, the same can be settled in the present suit itself. Accordingly, it was submitted that the presence of respondent Nos.1 and 4 to 11 would be necessary for proper adjudication of such dispute. This argument which also weighed with the two courts below although at the first blush appeared to be of substance but on careful consideration of all the aspects as indicated hereinearlier, including the scope of the suit, we are of the view that it lacks merit. Merely, in order to find out who is in possession of the contracted property, a third party or a stranger to the contract cannot be added in a suit for specific performance of the contract for sale because the respondent Nos.1 and 4 to 11 are not necessary parties as there was no semblance of right to some relief against the respondent No.3 to the contract. In our view, the third party to the agreement for sale without challenging the title of the respondent No.3, even assuming they are in possession of the contracted property, cannot protect their possession without filing a separate suit for title and possession against the vendor. It is well settled that in a suit for specific performance of a contract for sale the lis between the appellant and the respondent Nos.2 and 3 shall only be gone into and it is also not open to the Court to decide whether the respondent Nos.1 and 4 to 11 have acquired any title and possession of the contracted property as that would not be germane for decision in the suit for specific performance of the contract for sale, that is to say in a suit for specific performance of the contract for sale the controversy to be decided raised by the appellant against respondent Nos.2 and 3 can only be adjudicated upon, and in such a lis the Court cannot decide the question of title and possession of the respondent Nos.1 and 4 to 11 relating to the contracted property.

19. It was also argued on behalf of respondent Nos. 1 and 4 to 11 that to avoid multiplicity of suits it would be appropriate to join the respondent Nos.1 and 4 to 11 as party-defendants as the question relating to the possession of the suit property would be finally and effectively settled. In view of our discussions made hereinabove, this argument also which weighed with the two courts below has no

substance. In view of the discussions made hereinearlier, the two tests by which a person who is seeking addition in a pending suit for specific performance of the contract for sale must be satisfied. As stated hereinearlier, first there must be a right to the same relief against a party relating to the same subject-matter involved in the proceedings for specific performance of contract for sale, and secondly, it would not be possible for the Court to pass effective decree or order in the absence of such a party. If we apply these two tests in the facts and circumstances of the present case, it would be evident that the respondent Nos.1 and 4 to 11 cannot satisfy the above two tests for determining the question whether a stranger/third party is entitled to be added under Order 1 Rule 10 of the CPC only on the ground that if the decree for specific performance of the contract for sale is passed in absence of respondent Nos.1 and 4 to 11, their possession over the contracted property can be disturbed or they can be dispossessed from the contracted property in execution of the decree for specific performance of the contract for sale obtained by the appellant against respondent Nos.2 and 3. Such being the position, in our view, it was not open to the High Court or the trial court to join other cause of action in the instant suit for specific performance of the contract for sale, and therefore, the two Courts below acted illegally and without jurisdiction in allowing the application for addition of parties in the pending suit for specific performance of contract for sale filed at the instance of respondent Nos.1 and 4 to

11. The Learned counsel for the respondent Nos.1 and 4 to 11 however urged that since the two courts below had exercised their jurisdiction in allowing the application for addition of parties, it was not open to this Court to interfere with such order of the High Court as well as of the trial court. We are unable to accept this contention of the Learned counsel for the respondent Nos.1 and 4 to

11. As discussed hereinearlier, it is open to the Court to interfere with the order if it is held that two courts below had acted without jurisdiction or acted illegally and with material irregularity in the exercise of their jurisdiction in the matter of allowing the application for addition of parties filed under Order 1 Rule 10 of the CPC. The question of jurisdiction of the Court to invoke Order 1 Rule 10 of the CPC to add a party who is not made a party in the suit by the plaintiff shall not arise unless a party proposed to be added has direct interest in the controversy involved in the suit. Can it be said that the Respondent Nos.1 and 4 to 11 had any direct interest in the subject-matter of the instant suit for specific

performance of the contract for sale? In our view the Respondent Nos.1 and 4 to 11 had no direct interest in the suit for specific performance because they are not parties to the contract nor do they claim any interest from the parties to the litigation. One more aspect may be considered in this connection. It is that the jurisdiction of the court to add an applicant shall arise only when the Court finds that such applicant is either a necessary party or a proper party.

20. It may be reiterated here that if the appellant who has filed the instant suit for specific performance of contract for sale even after receiving the notice of claim of title and possession by the respondent Nos. 1 and 4 to 11 does not want to join the respondent Nos. 1 and 4 to 11 in the pending suit, it is always done at the risk of the appellant because he cannot be forced upon to join the respondent Nos.1 and 4 to 11 as party- defendants in such suit. In the case of Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and Ors. , on the question of jurisdiction this Court clearly has laid down that it is always open to the court to interfere with an order allowing an application for addition of parties when it is found that the courts below had gone wrong in concluding that the persons sought to be added in the suit were necessary or proper parties to be added as defendants in the suit instituted by the plaintiff appellant. In that case also this Court interfered with the orders of the courts below and rejected the application for addition of parties. Such being the position, it can no longer be said that this Court cannot set aside the impugned orders of the courts below on the ground that jurisdiction to invoke power under Order 1 Rule 10 of the CPC has already been exercised by the two courts below in favour of the respondent Nos. 1 and 4 to

11."

7. I have heard learned counsel for the parties and also considered their rival submissions. The only ground raised in this application for being impleaded as a party to the present suit is that the applicant claims to be the owner of the subject property. No documents in support of the plea have been filed along with application nor any particulars have been furnished. Applying the law laid down in the Kasturi case (supra), it may

be noticed that merely to find out who is in possession of the impugned property or the dispute with regard to the applicant and the defendant seller cannot be decided in the present proceedings for specific performance of the contract of sale between the plaintiff and the defendant. It may also be noticed that the present suit has been pending since the year 2007. There is no explanation for the delay in filing the present application except that the applicant had no knowledge about the present suit. This explanation is not convincing and more so because of the fact that the applicant is not a stranger as she is the real sister of the defendant and it is inconceivable that she would have no knowledge about the present proceedings which are pending. In my view, this application is an attempt only to delay the matter and frustrate the hearing of the suit, which is pending since the year 2007.

8. Accordingly, present application stands dismissed.

G.S.SISTANI, J APRIL 02, 2014 msr /pdf