Delhi High Court
Smt. Raj Kumari & Anr. vs Sanjay Taneja on 19 September, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No. 441/2013
% 19th September, 2014
SMT. RAJ KUMARI & ANR. ......Petitioners
Through: Ms. S.Nagoria, Advocate.
VERSUS
SANJAY TANEJA ...... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This petition under Article 227 of the Constitution of India is filed
by the legal heirs of the original defendant in the suit impugning the order of
the trial court dated 2.4.2013 allowing DDA to be added as a party under Order
I Rule 10 of the Code of Civil Procedure, 1908 (CPC) in a suit for specific
performance and permanent injunction.
CMM 441/2013 Page 1 of 4
2. The suit for specific performance and permanent injunction was
filed in the year 2005 by the respondent/plaintiff with respect to the property
bearing flat no. 350, Pocket C-1, Sector-11, Rohini. Issues were framed in the
year 2007 and thereafter respondent/plaintiff completed his evidence. It is
thereafter that the subject application under Order 1 Rule 10 CPC was filed by
the respondent/plaintiff.
3. Learned counsel for the petitioners/defendant argues that DDA is
neither necessary nor a proper party with respect to the issues which presently
exist in the suit as to whether or not that specific performance should or should
not be granted in a suit for specific performance. It is argued that in the suit the
issues are only with respect to the agreement to sell of which enforcement is
sought, breach thereof and readiness and willingness of the
respondent/plaintiff to perform his part of the contract with connected issues. It
is argued that even if the flat is not freehold, it is only after the
respondent/plaintiff succeeds in the suit for specific performance that
permission will have to be obtained from DDA for selling of the property.
Reliance in support of this argument is placed upon the judgment of the
Supreme Court in the case of Mrs. Chandnee Widyavati Madden Vs. Dr. C.L.
Katial & Ors. AIR 1964 SC 978 and it is argued that agreement to sell are
CMM 441/2013 Page 2 of 4
contingent contracts and only after contingent contracts achieve finality by a
decree for specific performance, thereafter only the superior lessor is called
upon to give permission i.e the role of the superior lessor-DDA comes in only
after passing of the decree and not before passing of the decree. Reliance is
also placed on behalf of the petitioner to Order XXI Rule 32 CPC as per which
after passing of the decree courts in case of refusal of the defendant to apply for
necessary permission to the superior lessor, appoints a Local Commissioner to
take the necessary permission including for performing the task of execution
and registration of the sale deed.
4. I agree with the arguments urged on behalf of the petitioners
because in a suit for specific performance, at the present stage, DDA is not a
necessary and/or proper party. The role of DDA/superior lessor will only come
in if the respondent/plaintiff is first successful in the suit for specific
performance. Only after the respondent/plaintiff succeeds in a suit for specific
performance, then the issue will arise of execution of the conveyance deed in
favour of the respondent/plaintiff by the DDA and the petitioners/defendant and
giving of permission by DDA. Therefore, the role of the DDA comes in only
after passing of the judgment and decree in favour of the respondent/plaintiff,
surely at this stage addition of the DDA will only result in delay of the suit by
again taking the case back to the stage when it was filed in 2005, and which
CMM 441/2013 Page 3 of 4
will cause serious prejudice to the petitioners/defendant, who want early
disposal of the suit and want to lead their evidence especially because they also
have filed a counter-claim.
5. In view of the above, the petition is allowed, and the impugned order of
the trial court dated 2.4.2013 is set aside. DDA will not be added as defendant
in the suit. Parties are left to bear their own costs.
SEPTEMBER 19, 2014 VALMIKI J. MEHTA, J.
ib
