Delhi High Court
Anil Kumar & Ors vs T K Ahuja & Ors on 18 July, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 18th July, 2017.
+ CM(M) No.720/2017
ANIL KUMAR & ORS ..... Petitioners
Through: Mr. Bijballabh Tiwari & Mr.
Sudhir Kumar, Advs.
Versus
T K AHUJA & ORS ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
CM No.24953/2017 (for exemption)
1. Allowed, subject to just exceptions.
2. The application is disposed of.
CM(M) 720/2017, CM No.24952/2017 (for stay) & CM
No.24954/2017 (for condonation of 20 days delay in re-filing).
3. This petition under Article 227 of the Constitution of India
impugns the order (dated 18th March, 2017 of the Court of Additional
District Judge (ADJ)-13, Central, Tis Hazari Courts, Delhi in Civil Suit
No.15647/2016) of dismissal of the application filed by the three
petitioners viz. Anil Kumar, Pankaj & Jyoti under Order I Rule 10 of the
CPC for impleadment in the suit filed by the respondent no.1 T.K. Ahuja
against the respondents no.2 and 3 viz. Kashmiro (sic Kashmira) Devi
and Kamal Kumar for specific performance of an Agreement of Sale of
immovable property.
4. The counsel for the petitioners has been heard.
5. The petitioners sought impleadment in the suit for specific
performance pleading that they were co-owners of the immovable
CM(M) No.720/2017 Page 1 of 6
property subject matter of the suit along with the respondents no.2 and 3
Kashmiro Devi and Kamal Kumar.
6. The learned ADJ has dismissed the application reasoning that the
petitioners had to await the outcome of the litigation instituted by them
for declaration of their ownership rights in the subject property and till
such declaration was issued, the petitioners were neither necessary nor
proper parties to the suit for specific performance.
7. The law as laid down in Kasturi Vs. Iyyamperumal (2005) 6 SCC
733 with respect to such applications for impleadment in a suit for
specific performance of an Agreement of Sale of immoveable property is
that a person who claims adversely to the vendor is not a necessary
party. It was reasoned that a third party or a stranger to a contract cannot
be added so as to convert a suit of one character into a suit of different
character. It was further held that merely in order to find out who is in
possession of contracted property, a third party or a stranger to a contract
cannot be added in a suit for specific performance of the contract of sale.
It was yet further held that in the event of a decree for specific
performance, the persons claiming adversely to the vendor / seller or
claiming independent title would be at liberty to obstruct execution in
order to protect their possession by taking recourse to the relevant
provisions of CPC or to file an independent suit for declaration of title
and possession. It was thus held that the strangers to the contract of sale,
if are in possession of the property, will have to be sued in execution of a
decree for specific performance for taking possession. The argument that
impleadment should be allowed to avoid multiplicity of litigation was
negatived.
CM(M) No.720/2017 Page 2 of 6
8. Applying the aforesaid principles, the application of the
petitioners for impleadment has been rightly dismissed and the
petitioners are not entitled to impleadment.
9. I may however notice that Supreme Court in Sumtibai Vs. Paras
Finance Co. Regd. Partnership Firm Beawer (Raj.) (2007) 10 SCC 82
though not overruling Kasturi supra held that Kasturi supra cannot be
considered as laying down 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. It was held that if C can show a fair
semblance of title or interest, he can certainly file an application for
impleadment. Accordingly, the sons of the seller, who as per the
documents of title in favour of the seller were co-owners along with the
seller, were ordered to be impleded in a suit for specific performance of
an Agreement of Sale by the seller only.
10. Subsequently in Mumbai International Airport Private Limited
Vs. Regency Convention Centre and Hotels Private Limited (2010) 7
SCC 417 the contention that there was a conflict between Kasturi supra
and Sumtibai supra was negatived and it was held that the two decisions
were dealing with different situations requiring applications of different
facets of Sub-rule (2) of Rule 10 of Order 1. It was explained, (a) that in
Kasturi the Supreme Court held that in suits for specific performance
only the parties to the contract or any legal representative of a party to a
contract or a transferee from a party to a contract are necessary parties;
(b) per contra in Sumtibai the Supreme Court held that a person having
semblance of a title can be considered as a proper party; (c) Sumtibai did
not lay down any proposition that anyone claiming to have any
CM(M) No.720/2017 Page 3 of 6
semblance of title is a necessary party; (d) nor did Kasturi lay down that
no one other than the parties to the contract and their legal
representatives / transferees can be impleaded even as a proper party.
The Supreme Court accordingly on examination of the facts in Mumbai
International Airport Private Limited found that the party seeking
impleadment was neither a purchaser nor the lessee of the suit property
and had no title or interest therein and the plaintiff had not sought any
relief against the applicant. The presence of the applicant was thus held
to be not necessary for passing an effective decree in the suit for specific
performance. The presence of the applicant was held also to be not
necessary for complete and effective adjudication of the matters in issue
in the suit for specific performance. It was found that the applicant
merely expected to get a lease of a property, of an agreement with
respect to which property suit for specific performance had been filed.
11. A Division Bench of this Court in Mehar Chand Sharma Vs.
Manjeet Singh Kohli (2015) 223 DLT 449 (DB) was concerned with an
application for impleadment, in a suit for specific performance, of a
person who was claiming to be the true owner of the property and
disputing the title claiming which the defendant seller had agreed to sell
the same to the plaintiff in the suit. After noticing all the judgments
aforesaid of the Supreme Court it was held that if the applicant had a title
to the property, the applicant would have to establish the said title in
independent proceedings and finding that the applicant had already filed
a suit, it was held that the right if any of the applicant would be decided
in the said suit.
CM(M) No.720/2017 Page 4 of 6
12. In view of the aforesaid position of law, I have enquired from the
counsel for the petitioners / applicants as to what is there to show that the
petitioners / applicants have a "semblance of title", even if along with the
respondents no.2&3 / defendants in the suit.
13. The petitioners themselves along with this petition have filed the
"Agreement to Sell and Purchase" of which specific performance has
been sought by the respondent no.1 / plaintiff T.K. Ahuja. The said
Agreement to Sell is by the respondent no.2 / defendant Kashmiro Devi
only in favour of the respondent no.1 / plaintiff T.K. Ahuja. The
respondent no.2 / defendant Kashmiro Devi in the said Agreement to
Sell has stated that she is the sole and absolute owner / occupier in
possession of entire built up property on land ad-measuring 50 sq. yds.
and being the sole owner thereof agreed to sell the same to the
respondent no.1 / plaintiff T.K. Ahuja.
14. The counsel for the petitioners / applicants, instead of showing
any document of title or anything where the petitioners or any of them
have declared themselves to be co-owners of the subject property, has
referred to the cross-examination of the respondent no.2 / defendant
Kashmiro Devi in another suit filed by the respondent no.2 / defendant
Kashmiro Devi against the petitioners / applicants where, according to
the counsel for the petitioners / applicants, the respondent no.2 /
defendant Kashmiro Devi has admitted the petitioners / applicants to be
having a share in the property.
15. On enquiry it is informed that the said suit was filed prior to the
suit for specific performance but after the date of Agreement to Sell.
CM(M) No.720/2017 Page 5 of 6
16. Such self-serving documents and statements cannot, within the
meaning of Sumtibai supra, be indicative of "semblance of title" in
favour of the petitioners / applicants for the petitioners to be entitled to
impleadment.
17. Moreover, in the present case also, the other suit is already
pending and the danger of multiplicity of proceedings, which was cited
in Sumtibai supra for allowing impleadment, also does not exist.
18. Thus in the facts of the present case, no ground for impleadment
of the petitioners in the suit for specific performance is made out.
Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
JULY 18, 2017
Gsr/pp..
