Dinesh Sharma vs Laxmi Narayan & Anr.
2014 Latest Caselaw 3590 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+               CM(M) 1163/2013 & CM No.17104/2013

%                                                    AUGUST 07, 2014

DINESH SHARMA                                                 ......Petitioner
                          Through:       Mr.Sudhanshu Tomar, Advocate.

                          VERSUS

LAXMI NARAYAN & ANR.                                        ...... Respondents

                 Through:                Mr.Sanjay Singh with Mr.Vijay
                                         Kumar Raki, Advocates.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. Challenge by means of this petition under Article 227 of the

Constitution of India is to the impugned order of the trial court dated

24.8.2013 which has dismissed the application filed by the petitioner under

Order 1 Rule 10 CPC for being added as a defendant in a suit for possession

filed by the respondent no.1 herein against the respondent no.2 herein.

2. A reference to the written statement filed by respondent no.2 in the

suit shows that respondent no.2 in preliminary objection no.3 has stated that

he was not the tenant in the suit shop; the suit shop was in the tenancy of one

Dinesh Kumar Sharma; and Dinesh Kumar Sharma was already in

possession of the suit shop. Dinesh Kumar Sharma is the present

petitioner/applicant under Order 1 Rule 10 CPC.

3. In a suit for possession such as the present, in case the

petitioner/applicant would be in physical possession of the property, there is

every threat that after taking a decree of possession against the existing

defendant/respondent no.2, the respondent no.1 can in execution physically

throw out the petitioner/applicant in execution of the decree by surprising

the petitioner/applicant by the filing of execution. The execution will

naturally be only against the respondent no.2 herein, who is the present

defendant. The respondent no.2/present defendant has shown a clear-cut

disinterest in the subject matter of the suit by categorically stating that he is

not the tenant and he is not in possession of the suit premises, and which are

in possession of the applicant. Clearly, therefore the applicant is a necessary

party and merely because the respondent no.1 may say that no relief is

claimed against the present petitioner will not change the fact that there is

every likelihood and a threat that the petitioner/applicant can by surprise be

thrown out in execution of the decree against the respondent no.2.

4. No doubt, in one way the petitioner/applicant can be said to be

claiming independent title, and it can also be argued by the respondent no.1

that a person such as the petitioner/applicant, can take benefit of the

provisions of Order 21 Rules 96 to 106 which are available, however,

merely because such a right would be available to the petitioner cannot mean

that in the facts of the present case where the existing defendant/respondent

no.2 has pleaded total disconnection with the suit property as also the subject

matter of the suit, the applicant/petitioner should not be added as a party,

inasmuch as, actually the relief of possession is only in name against the

respondent no.2, but effectively will be against the petitioner/applicant.

5. In this view of the matter, the petition is allowed and the impugned

order of the trial court dated 24.8.2013 is set aside. The petitioner/applicant

will be added as the defendant no.2 in the suit, and will be allowed to file his

written statement and contest the suit on merits. The suit will be thereafter

heard and disposed of in accordance with law.

VALMIKI J. MEHTA, J AUGUST 07, 2014 KA