Gunjan Kumar vs Vipin Parwanda & Anr
2015 Latest Caselaw 3188 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+         O.A. 252/2014 in CS(OS) 2509/2010 and
          I.A. 22868/2014 (under Section 5 of Limitation Act)

                                                   Decided on 21.04.2015
IN THE MATTER OF:
GUNJAN KUMAR                                          ..... Plaintiff
                          Through: Mr. M. Dutta, Advocate

                          versus

VIPIN PARWANDA & ANR                             ..... Defendants
                   Through: Mr. Mukesh Kaushik, Advocate for
                   the appellant/applicant in O.A. 252/2014 and
                   I.A. 22868/2014.

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

1. The present Chamber Appeal has been filed by Ms. Sonia

Grover(daughter of the defendants No.1 and 2) against the order

dated 02.09.2014, passed by the Joint Registrar, whereby the

impleadment application filed by her was dismissed (I.A. 8628/2014).

2. A brief background of the case is necessary.

3. The plaintiff has instituted the accompanying suit for possession

and injunction against the defendants (parents of the applicant) in

respect of the ground floor of premises No.A-139, Kalkaji Extension,

Delhi. The plaintiff's case is that the defendants No.1 and 2 had

represented themselves to be the co-owners of the suit premises. As

per the averments made in the plaint, the parties had entered into an

Agreement to Sell dated 01.11.2009, in respect of the suit premises,

whereunder the plaintiff had agreed to purchase the same for a sale

consideration of `22,50,000/-. Thereafter, the sale deed was executed

by the defendants in favour of the plaintiff in respect of the suit

premises and on the said date, after adjusting the earnest money of

`12,50,000/- paid by the plaintiff, the balance sum of `10 lacs was

also received by the defendants.

4. It is the case of the plaintiff that at the time of executing the

sale deed, though it was recorded in the document that actual physical

possession of the suit premises had been handed over by the vendors

to the vendee, but the defendants had expressed some difficulty in

handing over possession on account of the applicant's final school

examinations and they had promised the plaintiff that they would hand

over vacant peaceful possession to her immediately after their

daughter's examinations were over. However, when the defendants

continued occupying the suit premises and failed to hand over peaceful

possession thereof to the plaintiff, she was compelled to institute the

accompanying suit in December, 2010.

5. Summons were issued in the suit on 10.12.2010 and vide order

dated 18.02.2011, the defendants were directed to maintain status

quo in respect of the title and possession of the suit premises. Though

the defendants were served with the summons in the suit, they did not

enter appearance and as a result, they were proceeded against ex

parte vide order dated 20.5.2011. After the aforesaid order was

passed, the plaintiff filed her affidavit by way of evidence. The ex

parte evidence of the plaintiff was closed on 11.01.2013. On the said

date, the defendant No.1 turned up and he was granted permission to

cross-examine the plaintiff's witness but he did not conduct any cross-

examination. With these orders, the suit was directed to be placed

before the Court on 20.3.2013.

6. In the meantime, on 21.01.2013, the defendants filed

applications under Order IX Rule 7 CPC and Section 5 of Limitation

Act, praying inter alia for setting aside the ex parte order dated

20.05.2011. Notice was issued on the said applications and the same

were finally allowed vide order dated 20.03.2013. On the said date,

last opportunity was granted to the defendants to file their written

statement on or before 02.04.2013 and the case was directed to be

placed before the Joint Registrar for admission and denial of

documents. However, the defendants failed to avail of the liberty

granted to them to file their written statement. As a result, on

10.09.2013, the Joint Registrar closed their right to file the written

statement. On 13.01.2014, permission was granted to the defendants

to conduct admission and denial of the documents filed by the plaintiff

but counsel for the defendants refused to do so. As a result, the

documents filed by the plaintiff were deemed to be admitted by the

defendants and the case was directed to be placed before the Court for

further proceedings.

7. On 31.03.2014, a Chamber Appeal, registered as O.A. 51/2014

was filed by the defendants against the order dated 10.09.2013

passed by the Joint Registrar, closing their right to file the written

statement. Notice was issued on the said Chamber Appeal and the

plaintiff has filed a reply in opposition thereto. Appropriate orders

have been passed in the said appeal separately.

8. Coming back to the applicant herein, she alongwith her brother,

Mr. Abhinav Parwanda had filed an application for impleadment under

Order I Rule 10 CPC, registered as I.A. 8628/2012. It was recorded in

the order dated 13.05.2014, that despite opportunities being granted

to the applicants to address arguments on the maintainability of the

said application, none had been appearing on their behalf. In the

interest of justice, the said application was adjourned to 08.07.2014

and thereafter to 02.09.2014. Finally, by the impugned order dated

02.09.2014, the aforesaid application was dismissed by the learned

Joint Registrar who had observed that it was not maintainable in view

of the fact that the applicants had themselves agreed by virtue of

clause 3 of the Memorandum of Family Settlement dated 23.10.2009,

executed between them and the defendants No.1 and 2(their parents)

that they would sell the suit premises and the sale proceeds would be

divided between them. It was therefore observed that the applicants

were neither necessary, nor proper parties in the suit and the said

application was dismissed. At the same time, liberty was granted to

the applicants to pursue their remedies in accordance with law.

9. Counsel for the appellant/Ms. Sonia Grover submits that at the

time of passing the impugned order, the learned Joint Registrar had

erred in interpreting the terms and conditions of the Memorandum of

Settlement dated 23.10.2009 and had failed to appreciate the fact that

the appellant has a share to the extent of 20% in the suit premises

and therefore, she has a stake in the said premises. It is further

stated that though it was recorded in the Memorandum of Settlement

that the suit premises had to be sold, but it was nowhere recorded as

to the manner in which the said premises was to be sold and that

appellant's consent had not been obtained by her parents before

executing the sale deed in favour of the plaintiff.

10. Counsel for the respondent/plaintiff vehemently opposes the

present Chamber Appeal and submits that the appellant is neither a

necessary, nor a proper party in the present proceedings. He explains

that as per the title documents dated 11.07.1994, the DDA had

executed a conveyance deed in respect of the suit premises in favour

of the defendants No.1 and 2 and subsequently, they were the ones

who had got the property converted from leasehold to freehold. He

submits that in such circumstances, it cannot be urged by the counsel

for the appellant that she has any right, title or interest in the suit

premises and in any case if she has any claim against her parents on

the basis of a Memorandum of Settlement, then it is for her to seek

her remedies against them in an independent proceeding. However,

she cannot be permitted to intervene in the plaintiff's suit and expand

the scope of the said suit from one for possession and injunction to a

suit for partition/recovery of monies against the defendants.

11. The law on the question as to whether the scope of a suit for

eviction/possession of a property purchased by the plaintiff from the

defendants can be expanded to include a third party claiming to have

an interest over the said property and seeking impleadment as a

co-defendant in the said suit, is well settled. As held in the case of

Kasturi Vs. Iyyamperumal and others reported as AIR 2005 SC

2813, the twin tests that must be satisfied for determining the

question as to who is a necessary party in a suit for specific

performance are that firstly, there must be a right to some relief

against such a party in respect of the controversies involved in the

proceedings and secondly, no effective decree can be passed in the

absence of such a party.

12. In the aforecited case, the Supreme Court had carefully

considered the provisions of Section 19 of the Specific Relief Act and

opined that the guiding principle for impleadment is that the presence

of a party is absolutely necessary to adjudicate the controversies

involved in a suit for specific performance of a contract for sale, as,

the only question that is required to be adjudicated in such a suit is

the enforceability of the contract entered into between the contracting

parties. It was held that an applicant whose interest is adverse to the

defendant ought not to be impleaded in a suit for specific performance

for the reason that if a person seeking addition in such a suit, it is

natural that the scope of the said suit would be enlarged far beyond

the relief sought by a contracting party.

13. In the case at hand, the appellant/intervener does not seek

impleadment in the suit on the basis of a contract between the plaintiff

and the defendants in respect of the suit premises, which is the

foundation of the present suit for eviction and possession instituted by

the plaintiff. Instead, the appellant/intervener bases her claim on an

independent interest arising out of a Memorandum of Settlement

dated 23.10.2009, purportedly executed between her, her brother and

the defendants No.1 and 2. The consequence of permitting the

appellant impleadment in the present suit, would be that the nature of

the suit will change drastically and it would be converted from a suit

for eviction and possession to a suit for partition and declaration,

which is impermissible in law. Therefore, no permission can be

granted to the appellant for impleadment in the suit, as it would

change its entire character.

14. Apart from the above, on a bare reading of Order I Rule 10(2) of

the CPC which refers to "all the questions involved in the suit", it is

clear that the controversies raised by the appellant here are entirely

different from those required to be examined in the suit instituted by

the plaintiff and quite clearly, the said controversies do not involve the

plaintiff. Rather, they are confined to the appellant/intervener and the

defendants(her parents). Since the appellant is not a party to the sale

deed, it cannot be urged that without her presence, the dispute raised

in the suit cannot be determined.

15. Resultantly, the question of impleading the appellant/intervener

in this suit or entertaining her plea of impleadment based on the

purported Memorandum of Family Settlement dated 23.10.2009,

executed by her, her brother and the defendants does not arise. Any

permission granted by the Court to the appellant/intervener for

impleadment would only lead to unnecessarily complicating the

litigation, which is far beyond the scope of the suit instituted by the

plaintiff [Refer: Anil Kumar Singh Vs. Shivnath Mishra, (1995) 3 SCC

147]. It is therefore held that the appellant is neither a necessary,

nor a proper party in the present proceedings; nor is her presence

considered necessary for a complete and final decision on the

questions involved in the suit.

16. The Chamber Appeal is dismissed, while upholding the impugned

order dated 02.09.2014, passed by the Joint Registrar. Needless to

state that if the appellant/intervener has a remedy in law, it is for her

to seek the same in an independent proceeding.

                                                     (HIMA KOHLI)
APRIL 21, 2015                                          JUDGE
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