Delhi High Court
Maya Bhattacharjee (Thr Legal ... vs Anila Dasgupta (Thr Legal ... on 5 October, 2016
$~A-44.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 05.10.2016
+ CM(M) 1024/2016
MAYA BHATTACHARJEE
(THR LEGAL REPRESENTATIVES) ..... Petitioner
Through Mr. P K Maitra, Advocate
versus
ANILA DASGUPTA
(THR LEGAL REPRESENTATIVES) ..... Respondent
Through Mr. S K Bhaduri, Advocate
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
1. By the present petition the petitioner seeks to impugn the order dated
14.09.2016 by which his application under Order 1 Rule 10 CPC seeking to
implead the Land & Development Office, Ministry of Urban Development,
Govt. Of India, as a defendant, was dismissed.
2. At the outset, it may be pointed out that the petitioner has not placed
on record a copy of plaint. However, from the part record of this court, it is
revealed that the petitioner has filed the present suit for specific performance
of alleged agreement to sell dated 10.05.1985 for property bearing No.J-
1840, Chittaranjan Park, New Delhi. The stand of the petitioner is that an
oral agreement to sell this property was annual at with to the petitioner for a
total price of Rs.2,05,240/- out of which the petitioner claims to have paid
vide demand draft dated 21.08.1985 a sum of Rs.50,000/- to the respondent.
The respondent has denied existence of any agreement to sell and has denied
CM(M) 1024/2016 Page 1 of 6
that any consideration amount or earnest money or advance of any amount
was ever received by her from the petitioner. It further stated that the
husband of the petitioner was inducted as a tenant in a portion of the suit
property and on the death of her husband the petitioner has filed this false
and vexatious suit against the respondent a widow lady staying in Calcutta
with a view to usurp the property in suit.
3. The petitioner moved the present application under Order 1 Rule 10
CPC way back in 1991 when the matter was pending before this court. It
was averred in the application that the petitioner apprehends that the L&DO
will give permission to the respondent to sell or transfer the suit premises to
a person who is not an East Pakistan displaced person for the benefit of
which class the colony of Chitranjan Park has been set up by the Govt. Of
India. Hence, it is stated that the said L&DO be impleaded as defendant
no.2 in the suit.
4. The trial court by the impugned order noted that the suit is based on a
private agreement between the petitioner and respondent regarding specific
performance of contract for sale. L&DO has no role to play in the agreement
between two private individuals and dismissed the said application with
costs.
5. Learned counsel appearing for the petitioner has strenuously argued
that in SLP bearing no. 336/1991 vide order dated 25.10.1990 the Supreme
Court had noted that the dismissal of SLP shall not stand in the way of the
petitioner herein applying for interim order in the pending suit. He also
relies upon an order passed on 23.04.1991 whereby an injunction order was
passed against L&DO for granting permission to respondent to sell or
transfer the suit property. However, the background of these orders is not
sought to be explained.
CM(M) 1024/2016 Page 2 of 6
6. Learned counsel appearing for respondent has however pointed out
that along with the present suit the petitioner has filed an application for stay
being IA No. 1290/1987. This court where the matter was then pending, on
07.12.1987 dismissed the stay application holding that it is difficult to
believe, at this stage, the existence of any agreement to sell as alleged in the
plaint by the petitioner especially with regard to the price and the mode of
payment. They may have been roving talks but no concluded agreement to
sell appears to have been entered into. He points out that subsequently the
petitioner filed an IA No. 6171/1991 being a fresh application for stay along
with an application under Order 1 Rule 10 CPC being IA No. 1083/1991.
He submits that in this fresh application for stay, this court on 23.04.1991
erroneously passed an order restraining defendant no.2 from granting
permission to defendant no.1 to sell or transfer the suit property. There is no
defendant no.2 in the suit and the court has wrongly accepted the contentions
of the petitioner as L&DO was proposed to be impleaded as defendant no.2,
though the application for impleadment was pending.
7. I may note that though the suit is filed way back in 1987, evidence is
yet to commence.
8. We may see whether the L&DO would be a necessary and proper
party.
9. Order I Rule 10(2) CPC reads as follows:-
"(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
CM(M) 1024/2016 Page 3 of 6
effectually and completely to adjudicate upon and settle all the
questions involved in the suit, be added."
10. Hence, the Court may at any stage strike out the name of any party
who has been improperly joined or such person may be joined whose
presence before the Court is necessary in order to enable the Court to fully or
completely adjudicate upon and settle the questions.
11. In Mumbai International Airport Pvt. Ltd. vs. Regency Convention
Centre & Hotels Pvt. Ltd.; 2007 SCC 417 the Supreme Court held as
follows:-
"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 dispute 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.
.............
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 accordingly to reason and fair play and
not according to whims and caprice."
12. In Ramesh Hiranand Kundanmal vs. Municipal Corporation of
Bombay; (1992)2SCC524 the Supreme Court held as follows:-
"The only reason which makes it necessary to make a person
a party to an action is so that he should be bound by the
result of the action and the question to be settled, therefore,
must be a question in the action which cannot be effectually
and completely settled unless he is a party. The line has
been drawn on a wider construction of the rule between the
direct interest or the legal interest and commercial interest.
It is, therefore, necessary that the person must be directly or
legally interested in the action in the answer i.e., he can say
that the litigation may lead to a result which will affect him
legally that is by curtailing his legal rights."
13. Hence, a proper party is a party whose presence would enable the
court to completely, effectively and adequately adjudicate on all matters in
dispute. In the present case, there is an alleged agreement to sell between the
petitioner and the respondent. The presence of L&DO is not necessary to
adjudicate upon any of the issues which are raised in the present suit.
Merely because some permission may be given to the respondents, who are
the LRs of original owner of the suit property to effect sale of property to a
third party, cannot be a ground to implead the said L&DO. The grant of
permission by L&DO does not in any manner dilute the stand of the
petitioner i.e. that there exist an oral agreement to sell between him and the
original owner of the property and the original owner/LRs are in default of
the agreement to sell etc. In fact, this application appears to be an attempt to
over reach the order of this court whereby an injunction application filed by
the petitioner was dismissed on 07.12.1987. This court had dismissed IA
No.1290/1987 filed by the petitioner under Order 39 Rule 1 & 2 CPC
holding that it is difficult to believe at this stage the existence of any
agreement to sell as alleged in the plaint especially in regard to the price and
the mode of payment of the same. Order noted that at best there may have
been roving talks but not a concluded agreement to sell. Hence, the
application is dismissed. To overcome this order, it appears that the present
application under Order 1 Rule 10 CPC was filed. L&DO would neither be a
necessary nor proper party. The present petition is without any merit. Hence,
the same is dismissed.
JAYANT NATH, J.
OCTOBER 05, 2016/'raj'
