Kamlesh Kaur Sherma & Anr vs Hemanshu Malhotra And Ors
2015 Latest Caselaw 3496 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       CS(OS) 2621/2011

                                      Reserved on:      18.02.2015
                                      Date of decision: 30.04.2015
IN THE MATTER OF:
KAMLESH KAUR SHERMA & ANR                          ..... Plaintiffs
                  Through: Mr. S.D. Singh, Advocate with
                  Mr. Rahul Kumar Singh and Mr. Jitender Singh,
                  Advocates

                        versus

HEMANSHU MALHOTRA AND ORS                        ..... Defendants
                  Through: Defendant No.1 is ex parte.
                  Ms. Isha Abrol, Advocate for D-2.
                  Ms. Arti Bansal, Advocate with Ms. Rishika
                  Katyal, Advocate for D-3.
                  Mr. Saurabh Suman Sinha, Advocate for the
                  applicant in I.A. 18742/2014.

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J.

I.A. 18742/2014 (by the applicant, Smt. Rajinder Kaur under Order I Rule 10 CPC)

1. The present application has been filed by the applicant, Smt.

Rajinder Kaur, praying inter alia for impleadment as a co-defendant in

the suit proceedings.

2. The plaintiffs have instituted the present suit for recovery of

possession, damages, mandatory and permanent injunction in respect

of the third floor of the premises bearing No.B-3, East of Kailash, New

Delhi (hereinafter referred to „as the suit premises‟), against three

defendants, namely, Mr. Hemanshu Malhotra, defendant No.1, the

present occupant, ABN Amro Bank, defendant No.2 and Mr. Kiran

Jassal, whose father Shri Satish Jassal was a property dealer and had

brokered the purchase of the suit property from Sardar Bahadur Singh,

husband of the applicant.

3. The plaintiffs, who are of Indian origin and are citizens of USA

claim that in the year 1992, they had met Mr. Satish Jassal, a property

dealer, who had introduced them to one Mr. B.K. Uppal, who was in

the real estate business. Mr. Uppal had apprised the plaintiffs that the

aforementioned property measuring 300 sq. yards, was owned by

Sardar Bahadur Singh, who had executed a power of attorney dated

15.11.1991 in his favour, whereunder he had authorized him to sell

the suit property to any prospective buyer. In view of the authority

granted by Sardar Bahar Singh in favour of Mr. Uppal, negotiations for

sale of the third floor of the suit premises had taken place between the

parties. At that point in time, after demolishing the existing structure,

a new structure was built on the aforesaid property on the basis of a

Collaboration Agreement dated 19.10.1991, executed between Sardar

Bahadur Singh and M/s Uppal Developers Pvt. Ltd.

4. Under the Collaboration Agreement, the owner and the builder

had agreed to raise basement, ground floor, first floor, second floor

and third floor on the subject land. The plaintiffs claim that they had

booked the third floor of the suit premises with Mr. B.K. Uppal on

22.9.1992. The third floor comprised of two flats and the plaintiffs had

agreed to purchase both, the front and the rear flats for a total sale

consideration of `12,62,044/-. Two separate agreements dated

23.7.1993 came to be executed between the owner and the plaintiff

No.1, apart from two wills, GPA, SPA, possession letter, etc., to perfect

the title. The plaintiffs claim to have received the vacant peaceful

possession of the third floor of the subject premises on 23.7.1993,

after paying the entire sale consideration. Thereafter, at the request

of the plaintiff No.1, Mr. B.K. Uppal, attorney of Sardar Bahadur Singh

had executed a power of attorney in respect of the front and rear flats

of the third floor in favour of the plaintiff No.2 and the said document

was duly registered on 15.4.1994. Based on the Agreement to Sell,

GPA, SPA, possession letter, etc., executed in their favour, the

plaintiffs claim to have become the sole and absolute owners of the

third floor.

5. It has been averred in the plaint that as the plaintiffs are citizens

and permanent residents of USA, they had relied on Mr. Satish Jassal,

father of the defendant No.3, to have the suit premises furnished and

looked after in their absence. The plaintiffs claim that they had been

sending amounts to Mr. Satish Jassal from time to time for payment of

property tax in respect of the suit premises and for mutation of their

names in the MCD records. Subsequently, the plaintiffs came to know

that Mr. Jassal had expired in October, 2005 and when they had

arrived in India on 2.7.2007 and had visited the suit premises, they

found that a person by the name Mr. Hemanshu Malhotra, defendant

No.1 herein, had broken into the flat and was residing there. The

plaintiffs also attempted to contact the defendant No.3 to enquire

about the status of the defendant No.1, but he gave an evasive reply.

Thus the plaintiffs gathered an impression that the defendants No.1 &

3 were hand in glove and they had trespassed into the suit premises.

Immediately thereafter, the plaintiffs had lodged a complaint with the

local police and had issued a legal notice, calling upon the defendant

No. 1 to handover vacant peaceful possession of the suit premises. In

the meantime, they had come to know that ABN Amro Bank, the

defendant No.2 is holding the possession of the suit premises and

operating its credit card expert branch from there.

6. Based on the aforesaid narrative, the plaintiffs had instituted the

present suit in September, 2011 praying inter alia for a decree of

possession, recovery of damages, mandatory and permanent

injunction, etc., against all the defendants.

7. The suit was registered on 21.10.2011, when summons were

issued to the defendants. At the same time, the defendants were

directed to maintain status quo with regard to the title and possession

of the suit premises. Appearance was entered by the defendant No.3,

who has filed a written statement stating inter alia that he has been

wrongly impleaded in the present proceedings as he is neither a

purchaser, nor a seller of the suit premises and is unaware about the

transaction in respect of the suit premises. The defendant No.3 also

stated that the suit is bad for non-joinder of necessary parties,

namely, Sardar Bahadur Singh, owner of the suit premises and his

power of attorney holder, Shri B.K. Uppal, who had allegedly executed

all the title documents in favour of the plaintiffs.

8. As for the defendants No.1 & 2, a counsel had appeared for the

defendant No.2 on 17.1.2012 and had sought time to file the written

statement, but no such written statement came to be filed. The

summons issued to the defendant No.1 were returned with a report

that he had left the address given in the memo of parties, namely, the

suit premises. Subsequently, on 19.7.2013, the interim order dated

21.10.2011 was made absolute and the defendants No.1 & 2 were

proceeded against ex parte. Thereafter, the present application came

to be filed by the applicant/Smt. Rajinder Kaur on 22.9.2014, stating

inter alia that she is a widow of late Sardar Bahadur Singh, owner of

the suit premises, who had expired on 9.12.2008.

9. The applicant has traced the history of ownership of the subject

premises and stated that a perpetual lease deed dated 25.2.1971 in

respect thereof was executed in favour of Shri Sardar Singh and

subsequently, a conveyance deed was executed by the DDA in his

favour on 29.9.1996, whereunder he had become the freehold owner

of the subject premises. Thereafter, a building comprising of

basement, ground with three floors above was constructed upon the

subject land. The applicant has asserted that no registered sale deed

in respect of any of the floors of the building were executed to her

knowledge and after her husband‟s demise, the entire premises had

devolved in equal share upon her and her daughter, Ms. Daljit Kaur

the only two class I heirs. By virtue of a registered Deed of

Relinquishment dated 6.4.2009, Ms. Daljit Kaur had relinquished all

her rights in the subject premises in favour of the applicant. As a

result, the applicant had become the sole and absolute owner thereof.

Ms. Daljit Kaur being the only child of the applicant, is stated to be

residing alongwith her family with the applicant in the suit premises.

10. The applicant has stated that the third floor of the premises,

which is the subject matter of the present suit, has remained in her

possession ever since the same was constructed and that some time in

the year 2007, someone had approached her to lay a claim on the

subject floor and had also approached the local police station. When

the applicant came to know about the complaint, as a precautionary

measure, her son-in-law (husband of Ms. Daljit Kaur) had submitted

an application before the learned Metropolitan Magistrate under

Section 441 of the IPC, seeking protection. The applicant claims that

thereafter, she was not approached by any party till 19.8.2014, when

a person by the name of Mr. Nigam had visited the third floor of the

premises and had introduced himself as a Local Commissioner

appointed by the court in the present proceedings. At the time of his

visit, the Local Commissioner had found the applicant‟s son-in-law,

Sardar Mewa Singh and Mr. Sunil Kumar Srivastava present there.

11. As per the applicant, Mr. Sunil Kumar Srivastava has been

residing on the third floor for several years, earlier under the authority

of Sardar Bahadur Singh and upon his demise, with her permission.

Upon coming to know about the pendency of the present proceedings,

the applicant had taken steps to obtain legal advice and thereafter has

filed the present application to contest and defend her interest in the

suit premises.

12. In support of the averments made in the application, the

applicant has filed some documents including copies of the perpetual

lease deed dated 25.2.1971 and conveyance deed dated 29.9.1996 of

the property, executed in favour of Sardar Bahadur Singh, the

relinquishment deed dated 6.4.2009 executed by Ms. Daljit Kaur in

favour of the applicant and a copy of the application dated 23.7.2007,

filed under Section 441 IPC in the court of Metropolitan Magistrate.

Electricity bills in respect for the months of April-June, 2014 in respect

of the third floor of the suit premises have also been enclosed with the

present application.

13. Counsel for the applicant had submitted that his client is a

necessary and a proper party in the present proceedings and if she is

not impleaded as a party to the suit, it would result in multiplicity of

litigation. He had submitted that the applicant being an owner in

occupation of the entire premises including the suit premises (i.e. the

third floor), has a clear interest in the property, which she is entitled to

protect by placing her defence on record. In support of his submission

that the applicant ought to be impleded as a defendant in the suit

proceedings, learned counsel for the applicant had relied on the

following decisions:

i) Om Prakash Charaya vs. Ashok Kamal Capital Builders Pvt.

Ltd. reported as 2000(87) DLT 655 and

ii) A.K. Chatterjee vs. Ashok Kumar Chatterjee reported as 2009(156) DLT 475.

14. A reply in opposition to the present application has been filed by

the plaintiffs, who have asserted that the applicant does not have any

right in the suit premises and the documents filed by them would

clearly demonstrate that the third floor was sold to them by Sardar

Bahadur Singh during his lifetime. Counsel for the plaintiffs had

particularly referred to the will executed by the original owner to state

that the said document was executed only to perfect the title of the

plaintiffs in the third floor.

15. In the course of arguments, learned counsel for the plaintiffs had

also referred to various documents pertaining to the suit premises that

he stated had been executed in favour of the plaintiffs and would

demonstrate that they are the sole and absolute owners of the said

floor and that the present application has been filed with ulterior

motives. He had stated that when the Local Commissioner had visited

the third floor of the suit premises on 19.8.2014, he had found that it

was occupied by a person who had identified himself as Sunil Kumar

Srivastava, but surprisingly, the said person has not come forward and

sought impleadment in the present proceedings. Learned counsel

asserted that the applicant has filed the impleadment application at

the instance of the unauthorized occupants whose names were

mentioned by the Local Commissioner in his report and had submitted

that the application deserves to be dismissed. To substantiate his

submission that the applicant is neither a necessary, nor a proper

party in the present proceedings, learned counsel for the plaintiffs had

relied on the following decisions:-

i) Kasturi vs. Iyyamperumal and Ors. reported as AIR 2005 SC 2813 and

ii) Mumbai International Airport Private Limited vs. Regency Convention Centre and Hotels Private Limited and Ors. reported as (2010) 7 SCC 417.

16. Before considering the submissions made by the counsels for the

parties, it is necessary to examine the relevant provision of Order I

Rule 10(2) of the CPC that empowers the court to strike out or add

parties in a suit, which is extracted hereinbelow for ready reference:

"10. (2) Court may strike out 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 party improperly joined, whether as plaintiff or defendant, be struck out, and that 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."

17. The general rule relating to impleadment of parties is that the

plaintiff in a suit, being dominus litis, has the right to choose the

parties against whom he proposes to institute a suit. The plaintiff is

not obliged to implead a party as a defendant in his suit against whom

he does not propose to seek any relief. In other words, the plaintiff

cannot be compelled to implead an unwanted party in his suit.

However, the rule is subject to the provisions of Order I Rule 10(2) of

the CPC.

18. The aforesaid provision clarifies that a court may, at any stage

of the proceedings, either upon or even without an application being

filed by either party, and on such terms as may appear to it, to be

just, issue directions for adding any of the persons as a party, who

ought to have been, in the first instance, joined as plaintiff(s) or

defendant(s), but were not added or where the court considers the

presence of a person before it necessary for enabling it to effectively

and completely adjudicate upon and settle the questions involved in

the suit. Further, wherever, it appears to be just to the court, it may

order the name of any party, improperly joined whether as a plaintiff

or a defendant, to be struck out.

19. In other words, the Court has been given ample discretion to

add as a party, any person who is found to be a necessary or a proper

party or delete the name of a party who has been improperly joined.

The said discretion vested in the court to either allow or reject an

application of a person claiming to be a proper party or an improper

party depends upon the facts and circumstances of each case. No

person has a right to insist that he should be impleaded as a party, nor

does he have any right to insist that his name be deleted from a

proceeding, if the court thinks otherwise. However, the aforesaid

discretion ought to be governed by the rules and must not be

arbitrary, vague or fanciful.[Refer: Ramji Dayawala & Sons (P) Ltd. Vs.

Invest Import (1981) 1 SCC 80]

20. In the case of Mumbai International Airport (P) Ltd. (supra)

referred to and relied upon by learned counsel for the plaintiffs, while

elaborating the manner in which the courts ought to exercise their

judicial discretion for determining as to whether a party is a necessary

or a proper party for purposes of adjudication of the dispute raised in

a suit, the Supreme Court had made the following pertinent

observations:-

"15. A "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a `necessary party' is not impleaded, the suit itself is liable to be dismissed. A `proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes

of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.

XXX XXX XXX

22. Let us consider the scope and ambit of Order 1 Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice." (Emphasis added)

21. In the case of Kasturi (supra), the Supreme Court had

reaffirmed the position that only necessary and proper parties can

seek impleadment as parties to a suit for the relief of specific

performance. The Court had held that necessary parties are those

persons in whose absence, a decree cannot be passed by the Court or

those persons against whom, there is a right to some relief in respect

of the controversies involved in the proceedings and proper parties are

those whose presence before the Court would be necessary to enable

the Court to completely and effectively adjudicate upon and settle all

the questions involved in the suit, though no relief in the suit was

claimed against such a person. In the context of a suit for specific

performance, the twin tests laid down in the case of Kasturi (supra) for

considering as to whether a party is a necessary party or not are: (i)

There must be a right to some relief against such party in respect of

the controversies involved in the proceedings (ii) no effective decree

can be passed in the absence of such party. The Court had however

gone on to clarify that a person, who has a direct interest in the

subject matter of the suit for specific performance of an agreement of

sale, may be impleaded as a proper party on his filing an application

for impleadment.

22. The contention of the counsel for the plaintiffs herein that the

applicant is neither a necessary, nor a proper party in the present

proceedings, has to be examined in the light of the averments made

by the applicant in the present application and the submission made

by the counsel for the plaintiffs in opposition to this application.

23. The plaintiffs have sought the reliefs of possession, damages,

permanent and mandatory injunction in respect of the suit premises

which happens to be one of the floors constructed on the property. The

defendant No.1 has been described by the plaintiffs as the occupant of

the suit premises. However, in the course of the suit proceedings, it

has transpired that the said defendant is no longer residing in the suit

premises and nor has he participated in the suit or filed a written

statement. As for the defendant No.2/Bank, though a counsel had

entered appearance for the said Bank, no written statement was filed

and finally, both, the defendants No.1 and 2 were proceeded against

ex parte on 19.07.2013.

24. The defendant No.3 is stated to be the legal heir of Mr.Satish

Jassal. He is the only defendant, who has filed a written statement and

he has taken a stand that he is neither the purchaser nor the seller of

the suit premises and is unaware about the sale transaction between

the plaintiffs and Shri Sardar Bahadur Singh. In fact, the said

defendant has taken an objection to the present suit being instituted

by the plaintiffs without impleading Shri Sardar Bahadur Singh, the

owner of the suit premises or his power of attorney holder, Mr. B.K.

Uppal, who had allegedly executed the title documents in favour of the

plaintiffs. The defendant No.3 has therefore denied any knowledge as

to the possession and ownership of the suit premises.

25. After being apprised of the Local Commissioner‟s report, who

had found the applicant‟s son-in-law and one Sunil Kumar Srivastava

in possession/occupation of the suit premises, it was expected of the

plaintiffs to have taken necessary steps on their own to implead as

defendants, the actual occupants found at the spot, more so when one

of the primary reliefs prayed for by them is for a decree of possession

of the suit premises. However, no such steps have been taken by the

plaintiffs till date.

26. So, on the one hand, the plaintiffs have failed to take steps to

implead the parties mentioned by the defendant No.3 in the written

statement or those noticed by the Local Commissioner in his report

and on the other hand, they are resisting impleadment of the

applicant, who claims a title to the entire premises including the suit

premises, being the widow of late Shri Sardar Bahadur Singh, from

whom the plaintiffs state that they had purchased the suit premises. In

this factual matrix, any decision in the present suit, in the absence of

the applicant would be an empty formality. As stated above,

defendants No.1 and 2 are not contesting the present suit and the

defendant No.3 has categorically stated that he has no interest in the

title or possession of the suit premises. The plaintiffs cannot be

permitted to continue a legal action against the defendant No.3 alone

when he apparently denies any interest in the suit premises.

27. If the position remains as it is today, then any decree that this

Court may pass in this suit only in the presence of the defendant No.3

and in the absence of the applicant, would be a charade. Refusal to

implead the applicant would also result in initiation of an independent

legal action by her for adjudication of her status vis-à-vis the suit

premises, founded on her claim that she is the sole and absolute

owner, in possession of the entire premises thus leading to multiplicity

of litigation. However, if the applicant is impleaded in the present suit

as a co-defendant, the plaintiffs shall not suffer any prejudice. Rather,

it will aid the Court to completely and effectively adjudicate upon and

settle all the questions involved in the present suit.

28. Tested on the above anvil, quite clearly, the scale would till in

favour of the applicant. As the applicant satisfies the twin test

prescribed in the case of Kasturi (supra), it has to held that she has a

direct and equitable interest in the suit premises and this in itself is

considered sufficient ground to return a finding in her favour.

Moreover, the proceedings in the suit are at the nascent stage and the

plaintiffs have not even filed a replication to the written statement filed

by the defendant No.3. If the applicant is impleaded as a defendant in

the suit, no prejudice would be caused to the plaintiffs on account of

any delay in the disposal of the suit.

29. Accordingly, this Court is of the opinion that the presence of the

applicant and her participation in the suit is imperative and she is not

only a proper party, but also a necessary party in the present

proceedings. Needless to state that the scope of the suit will not be

expanded due to the impleadment of the applicant. Her participation

in the suit would be for deciding as to whether the plaintiffs are

entitled to the reliefs prayed for. The application is therefore, allowed

and the applicant is permitted to be arrayed as a defendant in the

present suit.

30. The application is disposed of. Amended memo of parties shall

be filed by the plaintiffs within one week from today.

                                                         (HIMA KOHLI)
APRIL    30, 2015                                            JUDGE
rkb/sk