Sanjeev Malik` vs S Mohanjit Singh (Deceased Thr ...
2015 Latest Caselaw 7271 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                Judgment Reserved on: September 09, 2015
%                               Judgment Delivered on: September 23, 2015

+                  CM(M) 657/2015


      SANJEEV MALIK                                          ..... Petitioner
                   Through:            Mr.Rahul Srivastava, Advocate with
                                       Mr.Neelmani Pant, Advocate.

                                     versus

      S MOHANJIT SINGH
      (DECEASED THR LRS) & ANR                   ..... Respondents
                    Through: Mr.Raman Kapoor, Senior Advocate
                             instructed by Mr.Gaurav M.Liberhan,
                             Advocate for R-1.
                             Mr.Pradyuman Dubey, Advocate for
                             R-2/HPCL.


CORAM:
HON'BLE MS. JUSTICE PRATIBHA RANI

PRATIBHA RANI, J.

CM(M) No.657/2015

1. Aggrieved by rejection of his prayer for impleadment in Civil Suit No.40/2009 (Old. No.1058/2000), the petitioner Sanjeev Malik has invoked the extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India praying for setting aside the orders dated 14.11.2014 whereby the

application under Order I Rule 10 (2) r/w Section 151 CPC for his impleadment has been dismissed and order dated 31.03.2015 whereby the application seeking review of the order dated 14.11.2014 has also been dismissed.

2. The petitioner seeks his impleadment in Civil Suit No.40/2009 (Old No.1058/2000) filed by S.Mohanjit Singh (deceased) in the year 2000 against M/s.HPCL seeking possession of the property leased out to M/s.HPCL (earlier known as ESSO Standard Eastern Inc.) in the year 1964 on the basis of registered lease deed.

3. With a view to deal with the rival contentions, it is necessary to note the brief background of the case now pending between legal heirs of Late S.Mohanjit Singh and M/s.HPCL. Suit No.40/2009 (Old No.1058/2000) was filed by S.Mohanjit Singh against M/s.HPCL (earlier known as ESSO Standard Eastern Inc.) claiming to be the owner in respect of an open piece of land measuring 200 X 125 X 198 X 125 ft. situated at Mile 11/1, Mathura Road, New Delhi. In para 3 of the plaint, it was pleaded that M/s. ESSO Standard Eastern Inc. was inducted as tenant in respect of the open space measuring 200 X 125 X 198 X 125 ft. vide registered lease deed dated 21.11.1964. The lease was further extended for a period of ten years but thereafter no fresh lease deed was executed or registered and the tenancy w.e.f. 01.11.1974 became month to month. The tenancy was terminated vide notice dated 01.12.1999. Despite notice, the defendant/M/s.HPCL failed to handover the actual physical possession. It was also pleaded that there was some typographical mistake in the earlier notice, hence fresh notice dated 03.03.2000 was sent clarifying the position. The prayer made in the suit was for recovery of the possession of the

land measuring 2763 sq.yds. as shown red in the site plan annexed with the plaint as well for recovery of mesne profits/damages.

4. The suit was contested by M/s.HPCL by filing the written statement claiming that the tenancy of M/s.HPCL in respect of the suit premises is a permanent tenancy. It was also pleaded that a large amount of money has been invested for construction of petrol pump which has been done with the express approval of the plaintiff S.Mohanjit Singh and the company had always made known its desire to continue the lease and plaintiff had been accepting rent and even agreed for enhancement of rent.

5. The grievance of the petitioner is that in the civil suit filed by Late S.Mohanjit Singh in the year 2000 against M/s.Hindustan Petroleum Corporation Ltd. (earlier known as ESSO Standard Eastern Inc.) for possession, his impleadment is necessary as the petitioner is authorized dealer of M/s.HPCL and running a petrol pump on that plot of land.

6. Learned counsel for the petitioner has submitted that the petitioner is owner of the said piece of land which was initially purchased by S.Mohanjit Singh in the year 1964. The said plot of land was assigned and transferred by S.Mohanjit Singh as his contribution to the partnership firm M/s.Globe Service Station as all the parties to the partnership firm had to contribute ₹50,000/- each into the firm. There were six partnership deeds executed upto 21.01.1977 when the firm was dissolved and a fresh deed of partnership was executed inducting Mr.Vasdev Mariwala as new partner in the running business firm. Thereafter vide dissolution deed dated 20.10.1977 the partnership between S.Mohanjit Singh and Mr.Vasdev Mariwala was dissolved and on the same day, S.Mohanjit Singh transferred the partnership business alongwith

dealership to Mr.Vasdev Mariwala. The suit property situated at 11/1, Mathura Road was always property of the partnership firm. Thereafter a deed of partnership was executed between S.Mohanjit Singh and the petitioner Sanjeev Malik on 16.07.1986. It is urged on behalf of the petitioner that the plot of land was a contribution by late S.Mohanjit Singh to the partnership firm and after his exit as partner, it became the property of the partnership firm of which now the petitioner is the owner in possession.

7. As per the petitioner, he came to know about the pendency of that suit only in September, 2012 and thereafter he filed an application seeking his impleadment. He also filed an application for intervention in SLP (C) No.2794/2007 filed by M/s.HPCL impugning the order passed by this Court in CM(M) No.2162/2006.

8. Learned counsel for the petitioner has submitted that the petitioner is owner and in possession of the land in respect of which suit for possession has been filed, hence is a necessary and proper party. It has been further submitted that the grounds on which his application has been dismissed by the learned Trial Court are based on wrong interpretation of the Supreme Court order dated 7th August, 2013. While filing an application in SLP (C) No.2794/2007, the prayer was as intervener only and not for impleadment. Learned counsel for the petitioner has also contended that a civil suit (copy of which has been placed on record as Annexure-P20) has also been filed by the present petitioner in respect of the said property impleading legal heirs of Late S.Mohanjit Singh as defendants No.1 & 2 and M/s.HPCL as defendant No.3 seeking a decree for declaration, permanent and mandatory injunction.

9. Mr.Raman Kapoor, learned Senior Counsel for the respondent No.1 and Mr.Pradyuman Dubey, Advocate for respondent No.2/M/s.HPCL have submitted that Suit No.40/2009 (Old. No.1058/2000) is at final stage. The grounds on which the impleadment has been sought before the learned Trial Court are the same on which the impleadment was sought in SLP (C) No.2794/2007 by the petitioner which prayer has been rejected by the Supreme Court by specifically recording that the application for impleadment is rejected. Learned counsel for the respondents have further submitted that the petitioner is claiming himself to be the owner of the suit property whereas he is only authorised dealer of M/s.HPCL. In a suit for possession filed by S.Mohanjit Singh against the lessee i.e. M/S.HPCL, the petitioner is neither necessary nor proper party hence his prayer has been rightly rejected by the learned Trial Court.

10. The limited question arising for consideration before this Court is whether the learned Trial Court has rightly declined the impleadment of the petitioner in a civil suit filed by the lessor against the lessee in respect of the suit property. It may be noted there that rights and obligations of the parties in Civil Suit No. No.40/2009 (Old No.1058/2000) are governed by registered lease deed dated 21.11.1964 entered into between S.Mohanjit Singh and ESSO Standard Eastern Inc. (now M/s.HPCL).

11. The fact that the petitioner is an authorized dealer of M/s.HPCL is an admitted fact even in the civil suit filed by the petitioner against the legal heirs of Late S.Mohanjit Singh and M/s.HPCL. The averments made to this effect in para 6 of the plaint (copy of which has been placed on record as Annexure-P20) are as under :-

'6. That the plaintiff is the authorized dealer of the defendant No.3 (Hindustan Petroleum Corporation Ltd.) to sell its petroleum products from and at the suit premises. The dealership is operative presently under agreement dated 05.04.2006 for a period of fifteen years.' The prayers made in the suit filed by the present petitioner are as under:-

'(i) Pass a decree of declaration in favour of the plaintiff and against the defendants to the effect that the plaintiff is the sole owner of the suit property No.11/1, comprised of Khasra No.113/1 & 113/2, measuring 2777 sq. yds. approx., known as 18 KM, Mathura Road, Badarpur, New Delhi 44, which has been clearly described in site plan filed with the plaint, by virtue of partnership deed dated 06.11.1964 and subsequent partnership deeds and the dissolution deed dated 19.10.2002;

(ii) pass a decree of declaration in favour of the plaintiff and against the defendants to the effect that Late Sardar Mohanjit Singh had transferred his rights in the suit property in fovour of the plaintiff and aginst the defendants to the effect that Late Sardar Mohanjit Singh had transferred his rights in the suit property in favour of partnership firm, M/s. Globe Service Station vide partnership deed dated 06.11.1964 and had no right to execute the alleged lease deed dated 21.11.1964 in favour of defendant No.3 after execution of partnership deed dated 06.11.1964 and that the alleged lease deed dated 21.11.1964 is forged, bogus, invented, manipulated, invalid, illegal, null and void, malafide and without authority and hence not binding on the plaintiff and defendants No.1 & 2 have no right, title, claim or interest of any kind in the suit property and in any capacity whatsoever, as heirs of Late Sardar Singh or otherwise;

(iii) pass a decree of permanent injunction in favour of the plaintiff and against the defendants No.1 & 2, thereby restraining them, their agents or attorney (s) or any person acting through or on their behalf from selling, transferring, alienating, disposing

off the suit property to any third party or creating any third party interest or encumbrance and/or dealing with its in any manner whatsoever on the false pretext of claiming themselves be the owners/landlords of the suit suit property under the alleged lease deed dated 21.11.1964 as LRs of Late Sardar Mohanjit Singh and also restraining them from interfering in any manner with the peaceful possession, use and enjoyument of the plaintiff over the suit property and running his business of the firm, M/s. Globe Service Station as sole proprietor;'

12. As already noted, in Civil Suit No.40/2009 (Old.No.1058/2000) also the case of the parties is that the suit property was leased out to M/s.HPCL (earlier known as ESSO Standard Eastern Inc.) as per the terms and conditions of registered lease deed dated 21.11.1964. Whether the petitioner is a necessary and property party just for the reason that he is authorized dealer of the lessee, requires consideration. For that purpose, it is necessary to refer to the legal position on the subject. In the decision reported as Kasturi vs. Iyyamperumal & Ors. (2005) 6 SCC 733 while elaborating the manner in which the Courts ought to exercise their judicial discretion for determining whether a party is necessary or property party for purpose of adjudication of the disputes, it was held as under:-

'15. That apart, from a plain reading of the expression used in sub- rule (2) Order 1 Rule 10 of the CPC "all the questions involved in the suit" it is abundantly clear that the legislature clearly meant that the controversies raised as between the parties to the litigation must be gone into only, that is to say, controversies with regard to the right which is set up and the relief claimed on one side and denied on the other and not the controversies which may arise between the plaintiff/appellant and the defendants inter se or questions between the parties to the suit and a third party. In our view, therefore, the court cannot allow adjudication of collateral

matters so as to convert a suit for specific performance of contract for sale into a complicated suit for title between the plaintiff/appellant on one hand and Respondent Nos. 2 & 3 and Respondent Nos. 1 and 4 to 11 on the other. This addition, if allowed, would lead to a complicated litigation by which the trial and decision of serious questions which are totally outside the scope of the suit would have to be gone into. As the decree of a suit for specific performance of the contract for sale, if passed, cannot, at all, affect the right, title and interest of the respondent Nos. 1 and 4 to 11 in respect of the contracted property and in view of the detailed discussion made hereinearlier, the respondent Nos. 1 and 4 to 11 would not, at all, be necessary to be added in the instant suit for specific performance of the contract for sale.'

13. In the case reported as Mumbai International Airport Pvt. Ltd. vs. Regency Convention Centreand Hotels Pvt. Ltd. & Ors. (2010) 7 SCC 417 the facts and circumstances in which impleadment was sought but declined and the principles governing impleadment have been discussed as under:-

'5. In pursuance of the lease of the airport in its favour, the appellant claims to have undertaken several developmental activities to make it a world class airport. The appellant alleges that it was expecting that the litigation initiated by the first respondent would end and it would be able to get the said 31,000 sq.m. land also as it was in dire need of land for developing the airport. According to the appellant, the Mumbai airport is surrounded by developed (constructed) areas with very limited opportunities to acquire any land and the site constraints limit the possibilities for development and therefore it was necessary to make optimum use of the existing land in the airport for the purpose of modernisation and upgradation; and therefore, the disputed land which was lying idle, was required for modernisation. It therefore filed an application seeking impleadment as an additional defendant in the pending suit filed by the first respondent against AAI, contending that its interest was likely to be directly affected if any relief is granted to the first

respondent-plaintiff in the suit. The appellant alleged that the Information Memorandum proposing to privatise the management did not exclude the area which was the subject-matter of the suit; and that the suit plot could not however be leased to the appellant in view of the interim order in the pending suit of the first respondent. The appellant therefore claimed that it had, or would have, an interest in the suit land; and at all events, it was interested in acquiring it by lease depending upon the decision in the suit and therefore it was a necessary party and in any event a proper party.

6. xxx xxx

7. xxx xxx

8. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I Rule 10(2) of Code of Civil Procedure (`Code' for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:

Court may strike out or add parties.

(2) 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.

The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the question involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party. 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.'

14. From the pleadings of the parties in Civil Suit No.40/2009 (Old No.1058/2000) it is apparent that jural relationship between the parties emanates from the registered lease deed executed between the parties as per which S.Mohanjit Singh was landlord and M/s.HPCL was tenant. The petitioner Sanjeev Malik is allegedly running a petrol pump as authorized dealer of M/s.HPCL on the suit property. The grounds on which intervention was sought by the petitioner before the Supreme Court are almost identical as raised in application under Order I Rule 10 CPC. It is necessary to mention

here that despite the fact that the petitioner claimed himself to be owner of the plot of land in respect of which suit for possession and mesne profits/damages had been filed by S.Mohanjit Singh, the Supreme Court not only rejected the prayer of the petitioner for impleadment but also issued the following directions:-

'Since the suit is pending for the last thirteen years, we expect the trial Court to give priority to the trial of this suit.

However, the direction issued by this Court to the petitioner on 14.08.2012 directing the petitioner to pay damages/mesne profits at the rate of ₹2,00,000/- per month from 30.4.2000 to 31.08.2012 shall continue during the pendency of the suit.

However, this order passed by us is interim in nature and will not affect the calculation of mesne profits after the suit is finally disposed of.'

15. In the Civil Suit No.40/2009 (Old No.1058/2000) filed by the landlord S.Mohanjit Singh seeking the decree for possession and damages for use and occupation of the property let out to M/s.HPCL, the petitioner is neither a necessary nor proper party for the reason that rights of the parties in the said suit are to be determined under the lease deed executed between the parties in the year 1964.

16. The impleadment has been sought by the petitioner in Suit No.40/2009 (old No.1058/2000) which is at its final stage and despite the directions being given for expeditious disposal of the said suit not only by this Court in CM(M) No.3161/2005 but also by the Apex Court in SLP (C) No.2794/2007, the same is still pending disposal due to the various applications filed by the present

petitioner knowing fully well that his prayer for intervention/impleadment on identical grounds has not been entertained even by the Supreme Court while issuing directions to M/s.HPCL to pay the damages/mesne profits @ ₹2 lacs per month from 30.4.2000 to 31.8.2012 to the legal heirs of late S.Mohanjit Singh.

17. If the principles relating to impleadment are kept in view, then in a suit for possession filed by the lessor against the lessee, the authorized dealer of the lessee is neither a necessary nor a proper party. The learned Trial Court while rejecting the prayer of the petitioner for impleadment has considered all the contentions in right perspective and exercised its judicial discretion applying the legal principles on the subject.

18. Since the impugned order does not suffer from any illegality, irregularity or perversity, no interference is called for by this Court in exercise of its extra ordinary jurisdiction under Article 227 of Constitution of India.

19. The petition is hereby dismissed.

CM No.12662/2015

Dismissed as infructuous.

(PRATIBHA RANI) JUDGE SEPTEMBER 23, 2015 'st'