Manjeet Singh Kohli vs Mirajuddin & Anr
2015 Latest Caselaw 5672 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Order delivered on: 6th August, 2015

+              O.A. No.294/2015 in CS(OS) No.872/2010

       MANJEET SINGH KOHLI                                ..... Plaintiff
                   Through          None

                         versus

       MIRAJUDDIN & ANR                                 ..... Defendants
                    Through         None for the defendants.
                                    Mr.Ajay Bahl, Adv. for the
                                    applicant/appellant.

       CORAM:
       HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

1. The abovementioned Chamber Appeal has been filed by the applicant/appellant Pt. Meher Chand Sharma against the common order dated 15th July, 2015 passed by the Joint Registrar. By the said order, two applications being I.A. Nos.15615/2012 and 1389/2013 filed by the said applicant in two separate suits being CS(OS) Nos.872/2010 and 1505/2012 for being impleaded as necessary and proper party in the aforesaid two suits were dismissed. Another chamber appeal filed by the applicant/appellant is listed today before another Bench as informed by the learned counsel.

2. The facts mentioned in the applications were recorded in para 2 of the impugned order. The same reads as under:-

"2. In the applications, it has been stated that grand- father of the applicant namely Pt. Maharaj Kishan was the registered owner of the suit lands alongwith other lands as per the revenue records. The applicant has submitted that Mohd. Ashfaq alleged to have purchased to the suit lands of Mohd. Haneef and Mohd. Haneef had purchased the same from Mohd. Raziuddin Sheikh who had allegedly purchased the same from Pt. Maharaj Kishan and Pt. Deena Nath (grand-father of applicant). It has been stated that as per the revenue records, Pt. Maharaj Kishan was the owner till 1929 when the orders was passed by the Collector for demarcation of the land. It was further stated that the grand-father of the applicant had not sold any portion of his land to any person during his life time and applicant has become the owner thereof by Law of Inheritance. It was further stated that the grand- father of the applicant had not sold any portion of his land to any person during his life time and he has become the owner bearer by Law of Inheritance. It has been stated that no documents have been filed by defendant nos. 1 to 8 regarding the ownership of the suit land and the only motive of filing the suit is to obtain collusive decree under the order of the court. It has further been stated that applicant has filed suit for declaration, mandatory and permanent injunctions bearing CS(OS) No. 3526/2012. The applicant came to know about the present suit after making great efforts. A prayer has been made for impleadment in the suits as necessary party as his legal rights are being affected."

3. The applications were strongly opposed by the defendants as well as by the plaintiff. The contention of the plaintiff was that the applicant/appellant has no right in the suit property. He is not even in possession thereof. The suit land has already been probated. The applicant/appellant can file a separate suit seeking appropriate remedy.

4. Defendant No.1, who also opposed the prayer, stated that the applicant/ appellant is an agent of defendant No.9 and is working on his instructions and in connivance with him. The reply filed by defendant No.1 was adopted by defendants No.2 to 8.

5. The contention of defendant No.9 was that the applicant/ appellant is claiming independent title adverse to the title of the vendor and therefore does not fall in any of the categories of Section 19 of the Specific Relief Act. He is not the proper and necessary party to the suit, as he has no legal right of ownership in the suit land and particularly, for being impleaded in the suit for specific performance for title/possession.

6. In the case of Kasturi Vs. Iyyamperumal and Others, (2005) 6 Supreme Court Cases 733, it was held that suit for specific performance of contract are only the parties to the contract or parties claiming under them, or a person who had purchased the contracted property from the vendor with or without notice of the contract. Person who claims independent title and possession adversely to title of vendor is not a necessary party, since an effective decree can be passed in his absence and no relief can be claimed against such party.

7. In another case titled as Sumtibai & Ors. Vs. Paras Finance Co. Regd., AIR 2007 Supreme Court 3166, it was held that it cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in that suit. The Court of its opinion that if the third

party can show a fair semblance of title or interest, he can certainly file an application for impleadment.

8. In the case of Mumbai International Airport Pvt. Ltd. Vs. Regency Convention Centre and Hotels Pvt. Ltd. and Ors., AIR 2010 Supreme Court 3109, it was held that when the third party neither claims any right or remedy against the first party in a suit for specific performance between the first and second party, the third party cannot be impleaded as a necessary or proper party.

9. The Joint Registrar after discussing the entire law on the subject, while dismissing the applications, has come to the following conclusion in para 19 of the order which reads as under:-

"19. In my considered opinion, the application filed by the applicant is devoid of any merits and is liable to be dismissed on the following grounds:-

(a) The applicant does not fall in any of the categories mentioned in Section 19 of The Specific Relief Act 1963, which provides the category of persons against whom a contract for specific performance can be enforced. The list provided under section 19 of The Specific Relief Act 1963 is exhaustive in nature and the party claiming adverse to the tile of vendor does not fall in any of the categories enumerated in Clause (a) to (e) of Section 19. The applicant in the present case is claiming independent title adversely to the title of the vendor. Hence, the ratio laid down by the Hon'ble Supreme Court in Kasturi's case (Supra) would squarely apply to the present case.

(b) The judgments relied upon by ld. counsel for applicant are distinguishable on the facts as perusal of these cases would show that the applicant in these cases were either a transferee pendentalite or subsequent purchasers and the applicants did not have an interest adverse to the vendor. The applicants were deriving their

titles from the parties to the suit which is not the case of the applicant.

(c) The applicant is claiming an independent title to the suit property and impleadment of the applicant would enlarge the scope of the suit of the plaintiff which is for specific performance and would convert it into a suit for declaration and title which is not permissible under law.

(d) The plaintiff has already filed a suit bearing CS(OS)No. 3526/2012 which is pending adjudication before this Hon'ble Court for safe guarding his rights. Hence, the impleadment of applicant in the present case would not serve any purpose more particularly when the plaintiff, who is dominus-litus has vehemently opposed the impleadment in the present case.

(e) The question to be decided in the suit for specific performance of the contract for sale is to the enforceability of the contract entered into between the parties to the contract. An effective decree can be passed in the suit of the plaintiff even in the absence of applicant. Hence, applicant is neither necessary nor proper party to the suit and therefore, he cannot be added as a party to the suit."

10. I have heard the learned counsel for the applicant/appellant. After having gone through the pleadings in the application and the impugned order, I find no infirmity in the impugned order dated 15th July, 2015. The present appeal is accordingly dismissed.

(MANMOHAN SINGH) JUDGE AUGUST 06, 2015