Mohit Kumar vs Quality Printers Pvt. Ltd.& Ors.
2014 Latest Caselaw 5332 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CM(M) No. 957/2014

%                                               29th October , 2014

MOHIT KUMAR                                                  ......Petitioner
                          Through:       Petitioner in person.

                          VERSUS

QUALITY PRINTERS PVT. LTD.& ORS.              ...... Respondents

Through: Mr. Amit S. Chadha, Sr. Adv. with Mr. Kunal Sinha, Mr. Abhishek Sharma and Mr. Sahil, Advs. for R-1 and 2.

Mr. Sanjeev Agarwal and Mr. Ekansh Agarwal, Adv. for R-3.

Mr. Rajeev Sharma, Adv. for R-4.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

Caveat No. 938/2014

Counsel appears for the caveator. Caveat stands discharged.

CM No. 17630/2014 (Exemption)

Exemption allowed subject to just exceptions.

CM stands disposed of.

CM(M) No. 957/2014 & CM No. 17629/2014(stay)

1. This petition under Article 227 of the Constitution of India is filed by

the plaintiff in the suit impugning the order of the trial court dated 1.10.2014

by which the trial court has rejected an application under Order 1 Rule 10 of

the Code of Civil Procedure, 1908 (CPC) filed by the petitioner/plaintiff

whereby the petitioner/existing sole plaintiff wanted to add the other two co-

owners as defendants to the suit.

2. The subject suit is a suit for declaration, possession, mandatory and

permanent injunction in which the plaintiff has claimed the reliefs that the

sale deeds executed with respect to the suit lands by the attorney holder of

his father are null and void because the plaintiff's father late Dr. Swami

Rama had never executed any power of attorney. The subject suit has been

filed in the year 2000 ie the suit is pending now since about 14 years. The

suit land comprises of approximately 15,000 sq. yds. situated in different

khasra nos of Village Asola, Tehsil, Mehrauli, New Delhi.

3. A reading of the impugned order shows that the defendant nos. 1 and

2 in the suit, respondents no.1 and 2 herein, had earlier taken an objection in

the written statement that the suit is bad for non-joinder of necessary parties

being the other legal heirs of late Dr. Swami Rama, however, subsequently

that objection with respect to mis-joinder/non-joinder of parties was

withdrawn in terms of the statement recorded on behalf of defendant nos. 1

and 2 on 30.8.2014. On the basis of the original objection in the written

statement an issue with respect to mis-joinder/non-joinder was framed on

10.5.2014, however, in view of the statement on behalf of defendants no.1

and 2 recorded on 30.8.2014 this issue was deleted. It may be noted that no

other defendants in the suit ie the defendant nos. 3 and 4, respondent nos. 3

and 4 herein, had raised any objection as to suit being defective because of

mis-joinder/non-joinder of parties.

4. The fact of the matter therefore is that one co-owner ie the existing

plaintiff being the son of late Dr. Swami Rama is questioning the execution

of the sale deeds of the year 1996 executed by the attorney holder of the

father in favour of defendant no.1/respondent no.1. The father late Dr.

Swami Rama during his life time had however never challenged the

registered sale deeds executed by his attorney in favour of defendant no.1.

Even today, besides the plaintiff no other legal heir of late Dr. Swami Rama

is challenging the sale of the suit property in favour of defendant nos. 1 and

2 in the suit because such persons have neither joined themselves as co-

plaintiffs, and in spite of that, the present petitioner/plaintiff is adamant in

adding the other legal heirs of late Dr. Swami Rama as defendants to the suit

who have evinced no interest in taking up the cause and course of action

which the petitioner/plaintiff is taking up. To complete the narration, it may

be stated that the sale deeds executed in favour of defendant no.1 pertain to

land approximately of 15.8 bigas ie about 15 ½ thousand sq. yds. situated in

the revenue estate of village Asola, Tehsil Mehrauli, Delhi.

5. In addition to the reasoning given by the trial court that the issue of

mis-joinder/non-joinder no longer survives because no such issue exists and

no such objection is taken with respect to the suit being bad for mis-

joinder/non-joinder of parties, I may note that as per Section 21 of the

Limitation Act, 1963 a person will be added as a party to the suit only on the

date on which a person is made a party or on the date when an application is

filed to make such a person a party. If rights have to be claimed by the

proposed defendants who are the other co-owners, their rights would have

had to be claimed by them within three years of arising of the cause of action

of the sale deeds of the year 1996 and in any case within three years of their

having come to know of the execution of the sale deeds of the year 1996 in

favour of defendant no.1, but the proposed defendants and the other legal

heirs have never filed any suit or questioned the title of defendant no.1 to the

suit properties. In the guise of making other legal heirs as defendants in the

suit, the rights which they could have claimed and which are time barred

cannot now sought to be done in the year 2014 more so when there is no

objection of non-maintainability of the suit on the ground of mis-

joinder/non-joinder of the other co-owners, and as stated above the other

legal heirs are only proposed to be added as defendants in the suit and not as

plaintiffs and which is obviously because the other legal heirs of late Dr.

Swami Rama do not want to side with the petitioner/plaintiff.

6 Petitioner who appears in person sought to place reliance upon the

Constitution Bench judgment of the Supreme Court in the case of

Kanakarathanammal Vs. S. Loganatha Mudaliar and another AIR 1965

Supreme Court 271 to argue that the other co-owners are necessary parties

and for which purpose reliance is placed upon para 15 of the said judgment

and which reads as under:-

"15. It is unfortunate that the appellant's claim has to be rejected on the ground that she failed to implead her two brothers to her suit, though on the merits we have found that the property claimed by her in her present suit belonged to her mother and she is one of the three heirs on whom the said property devolves by succession under s. 12 of the Act. That, in

fact, is the conclusion which the trial Court had reached and yet no action was taken by the appellant to bring the necessary parties on the record. It is true that under O. 1 r. 9 of the Code of Civil Procedure no suit shall be defeated by reason of the misjoinder or non-joinder of parties; but there can be no doubt that if the parties who are not joined are not only proper but also necessary parties to it, the infirmity in the suit is bound to be fatal. Even in such cases, the Court can under O. 1 r. 10, sub-rule 2 direct the necessary parties to be joined, but all this can and should be done at the stage of trial and that too without prejudice to the said parties' plea of limitation. Once it is held that the appellant's two brothers are co-heirs with her in respect of the properties left intestate by their mother, the appellant suit filed by the appellant partakes of the character of a suit for partition, and in such a suit clearly the appellant alone would not be entitled to claim any relief against the respondents. The estate can be represented only when all the three heirs are before the Court. If the appellant persisted in proceeding with the suit on the basis that she was exclusively entitled to the suit property, she took the risk and it is now too late to allow her to rectify the mistake. In Naba Kumar Hazra & Anr. v. Radheshyam Mahish & Ors. the Privy Council had to deal with a similar situation. In the suit from which that appeal arose, the plaintiff had failed to implead co-mortgagors and persisted in not joining them despite the pleas taken by the defendants that the co-mortgagors were necessary parties in the end, it was urged on his behalf that the said co-mortgagors should be allowed to be impleaded before the Privy Council. In support of this plea, reliance was placed on the provisions of O. 1 r. 9 of the Code. In rejecting the said prayer, Sir George Lowndes, who spoke for the Board observed that "they are unable to hold that the said Rule has any application to an appeal before the Board in a case where the defect has been brought to the notice of the party concerned from the very outset of the proceedings and he has had ample opportunity of remedying it in India."

7 Clearly, the judgment which is relied upon by the petitioner/plaintiff

will have no application to the facts of the present case because the

observations which have been made in para 15 in the judgment in the case of

Kanakarathanammal (supra) are with respect to suits where persons are

necessary parties such as a suit for partition etc, and therefore, since the

present suit is not a suit for partition inter se the legal heirs of late Dr. Swami

Rama, it cannot be said that the observations of para 15 of the judgment in

the case of Kanakarathanammal (supra) apply to the facts of the present

case. Also the observations made in para 15 will have no application in the

facts of the present case because once the other co-owners are not interested

to pursue the course of action to challenge the sale deeds of the year 1996

executed in favour of defendant no.1 by the attorney holder of late Dr.

Swami Rama, the existing petitioner/plaintiff can always independently

pursue the suit which will not be hit by an misjoinder/non-joinder issue

because the petitioner/plaintiff as a co-owner can always without the co-

owner claim the reliefs claimed in the suit.

8 Learned counsels appearing for respondents inform this Court that in

many proceedings various learned Single Judges of this Court have passed

strictures against the petitioner/plaintiff, and which aspect is strongly

contested by the petitioner/plaintiff. Since however this aspect is not

relevant in the present matter, I am not touching upon the same. However, it

cannot be disputed by the petitioner that there are binding directions which

have been passed in proceedings which were pending before this Court that

the suit had to be disposed of within six months from 26.3.2014 in terms of

the order dated 21.3.2014 in Transfer Petition no. 28/2012 and Transfer

Petition no. 14/2013. Thus the petitioner is unnecessarily delaying and

dragging his own suit

9 In view of the above, the present petition is completely lacking in

substance and an endeavour to malafidely delay and drag the suit filed by the

petitioner/plaintiff himself and thus cause harassment and prejudice to the

respondents/defendants. The present petition is accordingly dismissed with

actual costs and which costs will be the costs for today's hearing incurred by

the respondents. Certificate of fees on behalf of the respondents be filed

within a period of one week from today. Payment of costs by the petitioner

to the respondents which have been imposed by this judgment will be a

condition precedent for the petitioner to continue with the suit in the trial

court.

OCTOBER 29, 2014                             VALMIKI J. MEHTA, J.
ib