Bhoum Singh & Anr vs Sant Kaur
2017 Latest Caselaw 1182 Del

$~A-36
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Date of Decision: 03.03.2017

+     CM(M) 253/2017 and CM No. 8460-62/2017

      BHOUM SINGH & ANR                     ..... Petitioners
                   Through      Md.Azam Ansari, Advocate with
                   petitioner No.1-in-person.
                   versus
      SANT KAUR                             ..... Respondent
                   Through      Mr. Puneet Agarwal, Advocate.
      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (Oral)

1. By the present petition filed under Article 227 of the Constitution of India, the petitioners seek to impugn the order dated 27.01.2017 by which the application filed by the petitioners for being impleaded under Order 1 Rule 10 CPC was dismissed.

2. The suit is filed by the respondent/plaintiff against one Sh.Manjeet Singh (not impleaded as a party to the present petition) who is her brother for possession, permanent injunction and mesne profits. As per the plaint, the respondent claims to be the owner of property No. WZ 122 Gali No. 7, Shiv Nagar, Janak Puri Delhi. It is urged that she gave the second floor of the property as described in the plaint to her brother/Sh.Manjeet Singh on license. A decree of possession is sought against the said defendant and in addition, a decree of damages and permanent injunction.

3. The applicant/petitioner No. 1 who is the father of the parties whereas petitioner No. 2 is the wife of the defendant-Sh.Manjeet Singh. The case of

the applicants is that they are necessary and proper parties as the property in question was purchased out of the joint funds of petitioner No.1 (father of the parties) and the husband of the respondent i.e. Sh. Chhatter Singh. The property was purchased on 04.02.1994. It is stated that petitioner No.1 paid a sum of Rs. 1,10,000/- whereas the husband of the respondent paid only Rs.50,000/- for purchase of the property. It is further stated that it was specifically agreed by an oral agreement dated 03.02.1994 that till the death of petitioner No. 1 or the defendant, the respondent would not dispose of the property . Hence, it is urged that the petitioners are necessary and proper parties to be impleded in the present suit. It is further urged that the petitioners are staying in the suit property since 1994.

4. By the impugned order, the trial court noted that neither of the parties has pleaded in the pleadings that petitioner No.1./father is also in possession of the suit property. The trial court further noted the submission of the learned counsel for the respondent that the respondent is not claiming any relief against her father and she has no objection if her father resides in the suit property. The trial court dismissed the application.

5. I have heard learned counsel for the parties.

6. Learned counsel for the petitioners has vehemently argued that the petitioners are necessary and proper parties. He submits that petitioner No. 1 is also residing in the suit property, he is 91 years old and that any decree that would be passed against the defendant would also affect him. The claim of having paid a part of the consideration is also reiterated.

7. Order I Rule 10 (2) CPC reads as follows:-

10. Suit in name of wrong plaintiff.- (1) xxx

(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 effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

8. In Mumbai International Airport Pvt. Ltd. vs. Regency Convention Centre & Hotels Pvt. Ltd.; 2010 97) 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."

9. Hence, a proper party is a party whose presence would enable the court to completely, effectively and adequately adjudicate on all matters in dispute.

10. The Supreme Court in the case of Ramesh Hiranand Kundanmal vs. Municipal Corporation of Greater Bombay & Ors., (1992) 2 SCR 1 held as follows:-

"It is true that being lessee of the premises, second respondent Corporation has an answer for the action proposed by the first respondent-Municipal Corporation against the appellant but for the purpose of granting the relief sought for by the appellant by examining the justification of the Notice issued by the Municipal Corporation, it is not necessary for the Court to consider that answer. Hence the presence of the respondent cannot be considered as necessary for the purpose of enabling the Court to effectually and completely adjudicate upon and settle all the question involved in the suit. The appellant is proceeded against by the first respondent-Corporation for the alleged action in violation of the municipal laws. The grievance of the second respondent against the appellant, if any, could only be for violation of the agreement and that is based on a different cause of action. The consolidation of these two in the same suit is neither contemplated nor permissible. [10F-H, 11A]

The courts below failed to note that the second respondent has no direct interest in the subject-matter of the litigation and the addition of the respondent would result in causing serious prejudice to the appellant and the substitution or the addition of a new cause of action would only widen the issue which is required to be adjudicated and settled. By the joining of the party would embarrass the appellant-plaintiff and issues not germane to the suit would be required to be raised. The mere fact that a fresh litigation can be avoided is no ground to invoke the power under the Rule in such cases. [12B-C]"

11. There are two grounds urged to argue that the petitioners are the necessary and proper parties. As far as the first ground is concerned, namely, that petitioner No. 1 is in possession of the property, learned counsel for the respondent has already made a submission that the respondent has no objection in case petitioner No.1 continues to reside in the suit property.

12. The other ground stated is that the substantial part of the consideration is paid by petitioner No. 1. It is for petitioner No. 1 to claim title in the property, if any. The present suit is for possession filed by the respondent against the defendant, an alleged licensee. The suit cannot be converted into a title suit between the respondent and petitioner No.1. That is what the petitioners seeks. It is for petitioner No1 to take steps available to him, in case any right is available to him in the property as per law.

13. The present petition has no merit and is dismissed.

14. All pending applications also stand dismissed.

JAYANT NATH, J MARCH 03, 2017/rb