Mukesh Sondhi And Ors. vs Hemant J. Sondhi And Ors.
2014 Latest Caselaw 3122 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Order delivered on: July 16, 2014

+            I.A. No.1178/2010 in CS (OS) No.1749/2009

      MUKESH SONDHI AND ORS.             ..... Plaintiffs
                 Through Mr.Shantanu Singh, Advocate

                         versus

      HEMANT J. SONDHI AND ORS.           ..... Defendants
                   Through Mr.Ishaan Chawla, Advocate for
                            D-3
                            Ms. Leena Tuteja, Advocate for
                            D-1 and none for D-2

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (Oral)

1. By way of this order I propose to decide application being I.A. No.1178/2010 under Order 1 Rule 10 CPC filed by the defendant No.3 for deletion of his name from the array of parties in the suit filed for recovery by the plaintiffs against the defendants.

2. It is stated in the application that the plaintiff Nos. 1, 2 and 3 are brothers/sisters of the defendant No.1. The defendant no.2 is wife of the defendant No.1. The defendant No.3 is the father of the defendant No.2. It is further stated that the suit for recovery has been filed by the plaintiffs against the defendants on the pretext that during the lifetime of the mother of the plaintiffs and the defendant Nos. 1 and 2, sold her self-acquired property bearing

No. 219, Sector-28, Faridabad, measuring 166.66 sq. ft. (hereinafter referred to as "the suit property").

The case of the plaintiff is that as per the Sale Deed, the property was valued at Rs.8.75 lacs, however the value of the property at the time of sale was approximately Rs.38 lacs and thus, there was undervaluation of the property in the sale deed.

3. It is stated by the defendant No.3 that since defendant No.3 is neither a necessary nor a proper party to the suit, his name ought to be deleted from the array of parties. It is also stated that there is no cause of action as against the defendant No.3 in favour of the plaintiffs. The mere allegation is that an amount of Rs.16 lacs has been handed over to him by defendant No.1 on 30th August, 2007, the fact which is denied by defendant No.3. But there is no averment in the plaint as to how the remaining amount of Rs.27.20 lacs is recoverable from him who specifically stated that is 78 years old and suit for recovery is with respect to recovery of their shares in the sale consideration by the plaintiffs and that the defendant No.3 has no role and was not part of any sale transaction. In case the name of the defendant No.3 is not deleted from the array of parties, irreparable loss and injury would be caused to the defendant No.3.

4. Reply to application on behalf of the defendant No.3 was filed by the plaintiffs wherein it was stated that the defendant No.3 is a proper and necessary party to the suit as he has received an amount of Rs.16,00,000/- which was to be divided equally among plaintiff and defendant No.1 and the youngest brother and without

which no proper adjudication was possible. It is further stated that the amount of Rs.27,20,000/- is being prayed for in the plaint as the defendants are jointly and severally liable to pay the amount to the plaintiffs as the property valued was even more than Rs.27,20,000 therefore, the amount is recoverable. It is argued by Mr. Ishaan Chawla, learned counsel that defendant No.3 had a pivotal role in sale transaction as the amount received after the sale is either presently with defendant No.3 or in his knowledge in whose possession it is. It is argued by Mr. Chawla that cause of action arises with respect to the amount from the sale of the self acquired property of the deceased mother and the amount is to be shared by the plaintiff and defendant Nos.1 and 2 only. The defendant No.3 has nothing to do with the property or to play any role in this regard. He is also not claiming any right or share in the property.

5. Order 1 Rule 10 Civil Procedure Code, 1908 appears necessary which provides thus:

"Order 1 Rule 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 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 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 improperly joined, whether as plaintiff or defendant, be struck out, and 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 plaintiff 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 Indian Limitation Act, 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.

6. In Saroj Devi vs. Mukesh Kumar and Ors., 2007 (1) ILR (Raj) 606 in para 5 to 7, it was observed that:

"5. It is well settled that the question of impleadment of a party is to be decided on the touchstone of Order 1 Rule 10 which provides that only a necessary of a proper party may be added. Mere interest of a party in the fruits of litigation cannot be a true test for his being impleaded as a party. The object of the rule is not to change the scope or character of the suit by adding new parties and to enable them to litigate their own independent claims but simply to hold them to avoid unnecessary litigation which might otherwise become necessary."

6. The object of order Order 1 Rule 10 CPC was explained by the Supreme Court in Amit Kumar Shaw v. Farida Khatoon, AIR 2005 SC 2209 , thus :

The object of Order 1 Rule 10 is to discourage contests on technical pleas, and to save honest and bona fide claimants from being non-suited. The power to strike out or add parties can be exercised by the court at any stage of the proceedings. Under this rule, a person may be added as a party to a suit in the following two cases :

(1) When he ought to have been jointed as plaintiff or defendant, and is not joined so, or

(2) When, without his presence, the question in the suit cannot be completely decided."

7. In their Lordships of the Supreme Court observed thus:

"From a plain reading of the expression "all the questions involved in the suit" used in Order 1 Rule l0 (2) CPC it is abundantly clear that the legislature clearly meant that only the controversies raised as between the parties to the litigation must be gone into, that is to say, controversies with regard to the right which is set up and the relief claimed on one side and denied on the other and not the controversies which may arise between the plaintiffs or the defendants inter se or questions between the parties to the suit and a third party.

It was further field that "there must be a right to some relief against such party in respect of controversies involved in the proceedings, or (2) no effective decree can be passed in his absence."

7. From the above said facts and well considered law on this aspect, it is clear that the defendant No.3 in the present case is

not necessary and proper party. At the best, the plaintiffs are to record their share from defendant Nos.1 and 2. The defendant No.3 is not necessary party as he neither sold the suit property nor he was claiming any interest and right in the suit property. He was not involved in the controversies. The plaintiffs even otherwise are not precluded to summon him as witness if any document is to be proved in his hand writing. He cannot drag, in the present proceeding any cause of action. The suit against him is not maintainable. Thus, he is deleted from the array of parties as defendant No.3. His application is accordingly allowed I.A. No. 1178/2010 is disposed of.

CS (OS) No.1749/2009

8. List the matter before Joint Registrar on 1st October, 2014 for further proceedings.

(MANMOHAN SINGH) JUDGE JULY 16, 2014