D.V. Singh And Another vs Municipal Corporation Of Delhi & ...
2014 Latest Caselaw 839 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                      Order Reserved on: 16 th January, 2014
                       Pronounced on:     13 th February, 2014

+                      CS(OS) 2984/2011

D.V. SING H AND A NOT HE R                              ..... Plaintiffs

                               Through:    Mr.Anand Yadav, Advocate

                                      versus

MUNICIPAL CO RPO RATIO N OF DELHI & A NOT HE R
                                      ..... Defendants

                               Through:    Ms.Shyel    Tehan     and
                                           Ms.Manzira      Dasgupta,
                                           Advocates for D-1/MCD

                                           Mr.A.P.Aggar wal, Adv for
                                           D-2.

                                           Mr.Ravi Kant Chadha, Sr.
                                           Advocate with Mr. R.K.
                                           Gautam,       Adv    for
                                           defendant/applicant.

       CORAM:

        HON'BLE MR. JUSTICE SANJEEV SACHDEVA

SANJEEV SACHDEVA, J.

IA No.12765/2013 (under Order 1 rule 10)

1. This is an application on behalf of M/s Swatantra Coop

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House Building Society for being impleaded as

defendant in the present suit.

2. Order 1 rule 10 of the Code of Civil Procedure lays

down as under:

10. Suit in name of wrong plaintiff.-- (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2) Court may strike out or add parties.--The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or

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defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.

(4) Where defendant added, plaint to be amended.--Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.

(5) Subject to the provisions of the 1Indian Limitation Act, 1877 (15 of 1877), Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.

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3. Under Order 1 rule 10(2) any person whose presence

is necessary for the purposes of enabling the Court to

effectually and completely adjudicate upon and settle

all the questions involved in the suit can be added as

a defendant. The power to add a party can be

exercised at any stage of the proceedings.

4. The plaintiffs have filed the presen t suit for declaration

and permanent injunction primarily against defendant

No.1, i.e., MCD. The plaintiffs and defendant No.2

claim to be owners of free hold plot No.25 (New)

Category II, Group B measuring 399.93 Sq.Yards,

Kalindi Colony in Revenue Estate of Village Kilokri,

Delhi.

5. Case of the plaintiff it that the said plot was allotted

and sold to the mother of the plaintiff and defendant

No. 2 by Swatantra Coop House Building Society

(applicant herein) vide sale deed dated 07.10.1965.

The society had purchased an area of 2046 acres of

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land in the year 1955-57. The land purchased was not

in any geometrical dimensions and zigzag shape. A

layout plan was prepared by the society and the same

was passed by the defendant MCD vide resolution

dated 01.10.1958 and as per the said resolution, 108

residential plots were approved. Since the land was

irregular, the society had been representing to the

MCD and other concerned authorities for adjustment

of pocket and boundaries belonging to CRRI, Ministry

of Transport and to exchange land belonging to the

society with the land belonging to CRRI and others.

6. The society sought for permission from the MCD ,

which permission was granted vide resolution dated

08.05.1964, to make boundary wall of the colony

regular. Society was granted permission to construct

on the plots in the colony except plots No. 1, 2, 10 -

15 in Block B and Plots No. 18 - 25 in Block 'E' for

want of approach road. As per plaintiff, the society

once again approached the corporation for allowing =======================================================================

building activities on the plots and vide resolution

No.588 dated 25.08.1965, the Municipal Corporation

of Delhi permitted the society to carry on building

activities subject to certain conditions.

7. The plaintiff has relied on various resolutions of the

society. As per the plaintiff, an additional area of 0.88

acres became available to the society for planning i.e.

area of 0.46 acres which was left out from planning

earlier in the original plan and 0 .42 acres which was

specifically acquired.

8. The plaintiff further contends that after adjustment of

area with CRRI. As some area was exchanged with

CRRI, certain plots that were shown in the area

handed over to CRRI ceased to exist and in their place

some additional land became available. As per the

original layout plan there were no plots on the

additional land. The original plot E - 25 being on the

area handed over to CRRI no longer existed and in its

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place plot E - 25 (new) was shown in the area

received from CRRI in the revised layout plan in the

society.

9. As per the plaintiff, on 07.10.1965, the mother and the

predecessor of the plaintiffs and defendant No.2 were

sold plot No. E - 25 (New), and she was put in

possession on execution and registration o f the sale

deed. She continues to remain in possession of the

same without any interruption or disturbance.

10. Plaintiff have referred to various letters and resolutions

passed by the society seeking revision of the layout

plan.

11. It is the case of the plaintiff that the society had

allotted and sold the said plot E - 25(new) to the

mother of the plaintiffs and accordingly, the plaintiff s

are the owner and in possession of the said plot.

12. The plaintiffs in the plaint ha ve referred to certain

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proceedings that took place with regard to the sanction

of the building plan for construction on the plot sold

and for possession of the plot purchased. The plaintiff

has placed reliance on various orders passed in the

said proceeding s relating to sanction of the building

plan which culminated in an order being passed by the

Supreme Court in the said proceedings.

13. The plaintiff contend s that some officers of the

defendant MCD had come to the site and had tried to

take forcible possession of the said plot and

dispossess the plaintiffs in April and May, 2011. It is

in these circumstances that the plaintiff has filed the

present suit seeking a declaration that the plaintiffs

and defendant No.2 be declared as owners and in

possession of the said plot having purchased the

same by virtue of sale deed executed by the Society.

14. The defendant MCD has filed the written statement to

the suit and has submitted that in the process of

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straightening out boundaries, Plot No. E - 25 went to

the share of CRRI and thus ceased to exist. The

defendant MCD has referred to the various revised

layout plans submitted by the society and has

contended that there was no plot E - 25 (new) that

was carved out by the society. It is further the case of

the defendant MCD that plot No. E - 25 was

mentioned in the resolution No.158 by mistake.

15. As per the stand of the defendant MCD, the society

had made the mother of the plaintiff aware through a

circular that there was an exchange contemplated

between the society and C RRI on account of which the

sanction and allotment would only be conditional on

the sanction of layout plan being received from the

defendant MCD. The circular issued by the society

also made it clear that in case the MCD rejected the

revised layout plan or passed it with modifications, the

allottees would not be allotted new plots but would get

a refund of deposits after deduction of expenses. It =======================================================================

would be only to those person who accepted the

conditions that the allotment would be made. As per

the defendants, the mother of the plaintiff accepted

these conditions and gave an undertaking to the said

effect and, accordingly, the conditional allotment of a

plot was made in her favour.

16. As per the written statement of MCD, the society h ad

claimed that plots be aring No. C - 35 and C - 36 were

substituted for plots No. E - 25 and C - 23 which

ceased to exist on account of straightening of the

boundaries. The defendant MCD has further referred

to the proceedings qua the sanction of the building

plan to contend that no plot bearing No . E - 25 (new)

was ever sanctioned or authorised to the society and

as such, the sale of the same by the society to the

plaintiff could not take place and being a conditional

sale, the plaintiff was not entitled to the said plot.

17. The society was not impleaded as a defendant in the

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suit. The present application has been moved by the

society for impleadment. The applicant has contended

that the entire controversy with regard to the said plot

stands finally concluded by the jud gment of the

Supreme Court in Civil Appeal No. 4246/2000. The

applicant/society has contended that the applicant

ought to have been impleaded as a party to the suit

and the presence of the applicant is necessary in

order to enable the court to effectively and completely

adjudicate upon several questions involved in the suit.

18. Learned counsel for the plaintiff opposes the

application on the ground that the applicant is neither

a necessary nor a proper party as once the society

has sold the plot and executed a sale deed in favour of

the plaintiffs, the role of the society is over. Learned

counsel further contends that the person who has

signed and filed the present application is not

authorised by virtue of a resolution of the society

authorising him to file the said application. =======================================================================

19. No doubt under normal circumstances a

transferor/seller is not a necessary party in a suit by

the transferee to enforce its rights under a transfer

deed against third parties but the facts in the present

case are peculiar.

20. The entire case of the plaintiff revolves round the

various resolutions passed by the society with regard

to the acquisition of land, preparation of th e layout

plan. The disputes pertain to the land allotted to the

society, its demarcations, the plots originally

sanctioned and allotted. The dispute also pertains to

location of the area sold to the Plaintiffs by the society.

The plaintiff has relied on various letters and

resolutions of the society. The controversy also

revolves around the fact whether the area th at is

allegedly sold and handed over to the Plaintiffs by the

society was sanctioned or not and whether the

allotment to the mother of the plaintiffs by the society

was conditional or not and whether the said allotment =======================================================================

lapsed on account of subsequent event s. In my view

these questions cannot be completely and effectively

adjudicated upon in the absence of the society. The

presence of the society and its role at various stages

would have to be examined at the time of the

adjudication of the various disputes that are arising in

the present suit.

21. As the presence of the society is necessary to

effectively and completely adjudicate upon the various

questions that arise for consideration in the present

suit, the application is allowed, The applicant society

M/s Swatantra Coop House Building Society is

impleaded as Defendant No. 3 to the suit.

22. The discretion to add a party can be exercised by a

court either suo motu or on an application of a party to

the suit or a person who is not a party. The court can

add anyone as a plaintiff or as a defendant if it finds

that he is a necessary party or proper party. [M UMBAI

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INTERNA TIONA L A IRPOR T PVT L TD . VS R EGENCY

C ONVENTION C EN TRE AND H OTE LS P RIVATE L IMITED 2010

(7) SCC 417].

23. In view of the finding above that the applicant society

is a necessary party, the argument of the plaintiff that

there is no resolution authorising the filing of the

present application is not being dealt with and is left

open.

24. Nothing stated herein shall amount to an expression of

opinion on merits of the dispute between the parties.

25. No costs.

SANJEEV SACHDEVA, J

FEBRUARY 13, 2014 sv

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