Delhi High Court
R.P. Sharma vs D.K. Kaushik on 24 February, 2015
26
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
CS(OS) 3442/2012
Decided on : 24.02.2015
IN THE MATTER OF:
R.P. SHARMA ..... Plaintiff
Through Ms.Shalini Kapoor, Ms.Promil Seth
& Ms.Kriti Arora, Advocates
versus
D.K. KAUSHIK ..... Defendant
Through Defendant in person
Mr.L.N.Jha, Advocate for applicants
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J.(Oral)
IA No.6610/2014(by the intervenors u/O I R 10 CPC)
1.
The present application has been filed by three intervenors (two
sons and one daughter of the defendant) praying inter alia for
permission to be impleaded in the suit proceedings.
2. The plaintiff has instituted the present suit against the
defendant(father of the applicants) praying inter alia for a decree of
specific performance in respect of premises bearing No. A-9, 2nd Floor,
with roof rights, CC Colony, Rana Pratap Bagh, Delhi. In the alternate,
the plaintiff has sought a decree for a sum of `28,00,000/- against the
defendant.
3. It has been averred in the application that the suit property was
owned by Lt.Sh.Ram Kumar, grandfather of the applicants and the
same is his self-acquired property. Upon Sh. Ram Kumar dying
intestate, the suit property was inherited by the defendant and his
siblings. It is further averred in para 4 of the application that the suit
property was partitioned amongst the legal heirs of Lt.Sh.Ram Kumar,
including the defendant herein by virtue of a Partition Decree dated
19.2.2002, passed in Suit No.182/95, entitled " Smt.Om Prabha & Anr.
Vs. Smt. Savitri Devi & anr". whereafter, the second floor of the suit
property came in the hands of the defendant, being his 1/4th share.
4. The applicants claim that they have a share in the suit property
and the defendant has attempted to sell the same with malafide
intentions. Aggrieved by this action, the applicant No.1 had filed a suit
for permanent injunction against the defendant which was pending
adjudication before the Rohini Courts, Delhi. However, the defendant
No.1 had withdrawn the aforesaid suit in the year 2013. Now, the
applicants seek impleadment in the present suit on the ground that
they are necessary and proper parties as they too have inherited a
share in the second floor of the suit property, which is the subject
matter of the present suit.
5. Counsel for the defendant opposes the present application and
submits that it is the case of the applicants themselves that the suit
property was a self-acquired property of their grandfather, Lt. Sh.Ram
Kumar and upon his demise, the defendant had acquired 1/4th share
therein as one of his legal heirs. In such circumstances, the defendant
had inherited his 1/4th share on per capita basis under Section 19 of
the Hindu Succession Act and he is entitled in law to dispose of the
said share in his individual capacity.
6. The law on the question as to whether in a suit for specific
performance of a contract for sale of a property instituted by a
purchaser against the vendor, a third party to the contract claiming to
have an interest over the contracted property is entitled to be arrayed
as a defendant in the 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,
that no effective decree can be passed in the absence of such a party.
7. 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 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. 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 is added 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.
8. As per the case set up by the applicants herein, they do not seek
addition in the suit on the strength of a contract in respect of which
the present suit for specific performance for the contract of sale has
been instituted by the plaintiff. Instead, they base their claim on their
independent interest as successors-in-title of the suit property. In the
event, the applicants are impleaded in the present suit, it is natural
that the scope of the suit will expand from a suit for specific
performance, to a suit for partition and possession, which is
impermissible in law. Therefore, permission cannot be granted to the
applicants for being impleaded in the suit as it would entirely change
the character of the suit.
9. Apart from the above, on a plain reading of the expression used
in sub-rule(2) of Order I Rule 10 of the CPC which refers to "all the
questions involved in the suit", it is crystal clear that the controversies
that are to be gone into in this suit are those that are raised between
the parties in litigation and not those controversies that may arise
between the applicants and the defendants. As a result, the question
of impleading the applicants in this suit as successors-in-interest of Lt.
Ram Kumar or entertaining their claim on the ground that the suit
property is ancestral in nature, does not arise. Any permission
granted to the applicants for impleadment would only lead to a
complicated litigation, far beyond the scope of the suit instituted by
the plaintiff.
10 The present application is accordingly dismissed with costs of
`5,000/-, as it is clearly misconceived. The applicants are neither
necessary, nor proper parties in a suit for specific performance
instituted by the plaintiff. Their remedies against the defendant, if any,
lie elsewhere, but certainly not in the present proceedings.
(HIMA KOHLI)
FEBRUARY 24, 2015 JUDGE
mk/srb/sk
