Sh. Mohan Lal vs Ms. Komal Nigan & Ors.
2014 Latest Caselaw 5427 Del

     *         IN THE HIGH COURT OF DELHI AT NEW DELHI

+           C.M.(M) No. 407/2012 & C.M.No.6296/2012 (Stay)

%                                                          31st October, 2014

SH. MOHAN LAL                                                 ..... Petitioner
                           Through       Mr.J.S.Lamba with Mr.Ahmad
                                         Shahrooz, Advocates.
                           versus

MS. KOMAL NIGAN & ORS.                                    ..... Respondents

                  Through                Mr.Anil Kumar Saxena, Advocate.
CORAM:

+           C.M.(M) No. 522/2012 & C.M.No.7939/2012 (Stay)


SH. MOHAN LAL                                                 ..... Petitioner
                           Through       Mr.J.S.Lamba with Mr.Ahmad
                                         Shahrooz, Advocates.
                           versus

TIKAM SINGH NIGAN & ORS.                                  ..... Respondents
                  Through                Mr.Anil Kumar Saxena, Advocate.

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. Both these petitions challenge the similar orders passed by the trial

court being the impugned orders of same date 17.1.2012, and therefore I am

disposing of these petitions by this common judgment.

2. By the impugned order dated 17.1.2012, the application filed by the

applicant/petitioner under Order I Rule 10 of Code of Civil Procedure, 1908

(CPC) for impleading him as a defendant in the suit was dismissed.

3. The applicant/petitioner claimed to have purchased 105 sq. yds. of the

suit property being part of property no.181/6 (old) and 4/2273 (new)

admeasuring 105 sq. yds. in the plot no.21-22, out of khasra no.499 min.,

situated at Gali no.3, Behari Colony, Village Chandrawali alias Shahdara,

Illaqa Shahdara, Delhi-32.

4(i) A reading of the impugned order shows that the basic reason for

dismissing the application is that the rights of the petitioner/applicant will

not be affected because there is no relief claimed in the suit affecting the

rights of the applicant.

(ii) This conclusion of the trial court however is not correct because when

we see the second relief clause (b), it is seen that title is claimed to the suit

property by the plaintiff in the suit, and who is the respondent no.1 in these

two petitions. Therefore, clearly once there is a declaration of title in favour

of the plaintiff/respondent no.1 which is effectively sought in prayer clause

(b), the petitioner would be a necessary or at least a proper party to the suit.

(iii) In any case, in my opinion, the petitioner instead of filing an

application under Order I Rule 10 CPC should have actually filed earlier on

application under the correct provision which is Order XXII Rule 10 CPC

(which was filed and dismissed vide order dated 17.01.2012 to challenge

which the CM(M) No.522/2012 has been filed), inasmuch as the subject suit

was filed on 14.12.2005 and the registered sale deed by which the

petitioner/applicant states that he has purchased the suit property is dated

12.10.2006 i.e after filing of the suit. The petitioner therefore actually

claimed that there is devolution of interest in the suit property by means of

the sale deed dated 12.10.2006, and consequently it is the provision of Order

XXII Rule 10 CPC which applies. It has been held by the Supreme Court in

the case of Dhurandhar Prasad Singh Vs. Jai Prakash University and

others AIR 2001 SC 2552 that though a suit can continue after transfer of

the right in the suit property during the pendency of the suit, between the

existing parties to the suit, yet, if the subsequent transferee seeks to be

substituted in place of the existing party from whom the title has devolved,

the applicant under Order XXII Rule 10 CPC can be made a party and with

respect to which action no period of limitation is provided unlike in case of

death of a party and with respect to which provisions of Order XXII Rules 2

& 3 apply.

5. In my opinion on account of the petitioner/plaintiff being added as a

defendant in the suit in place of the existing defendants from whom the

petitioner/plaintiff claims the right, a fraud against the petitioner will be

prevented because the existing defendants are not contesting the suit.

Merely because, earlier the existing defendants had moved an application for

brining on record the present petitioner, and which was dismissed, will not

change the legal position so far as impleading of the petitioner under Order

XXII Rule 10 CPC is concerned when taken with the ratio of the judgment

of the Supreme Court in the case of Dhurandhar Prasad Singh (supra) and

the fact that the petitioner was not heard as a party when the earlier

application was dismissed.

6. In view of the above, these petitions are allowed. The present

petitioner will stand substituted as a defendant in place of existing

defendants in the suit. Parties are left to bear their own costs. Respondent

no.1/plaintiff will have liberty in accordance with law to file an amended

plaint in terms of the directions which will now be issued by the trial court.

7. Parties to appear before the District and Sessions Judge, North-East

District, Karkardooma Courts, Delhi on 04.12.2014 and the District and

Sessions Judge will now mark the suits for disposal to a competent court in

accordance with law.

Trial court record be sent back to the District and Sessions Judge,

North-East District, Karkardooma Courts, Delhi.

VALMIKI J. MEHTA, J OCTOBER 31, 2014 KA