Delhi High Court
Pankaj Gautam vs Parma Devi & Anr. on 16 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.779/2016
% 16th August, 2018
PANKAJ GAUTAM ..... Appellant
Through: Mr. Himanshu Upadhyaya,
Advocate (M. No.9811254646).
versus
PARMA DEVI & ANR. ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. No one is present for the respondents in spite of the
matter having been passed over.
2. This Regular First Appeal under Section 96 of the Code
of Civil Procedure, 1908 CPC is filed by the plaintiff in the suit
impugning the Judgment of the Trial Court dated 19.3.2016 by which
trial court has dismissed the suit for specific performance filed by the
appellant/plaintiff by deciding issue nos.1 and 2 framed as preliminary
issues.
3. The following issues were framed in the suit for specific
performance:-
"1) Whether the suit is maintainable as framed and presented before
the court?.... OPP
2) Whether the suit is barred under any provisions of law; provisions
of CPC in general and the provisions of Specific Relief Act, in
particular?........OPD.
3) Whether the plaintiff is entitled to a decree of specific performance
of agreement to sell dated 28.07.2015, as prayed for?.......OPP.
4) Whether the plaintiff is entitled to a decree of possession of entire
property, as prayed for?.......OPP.
5) Relief."
4. Issue nos.1 and 2 have been decided against the
appellant/plaintiff by holding that the appellant/plaintiff has
unnecessarily joined the respondent no.2/defendant no.2 and therefore
being not a necessary party the suit is liable to be dismissed on this
count. The suit was also held to be liable to be dismissed by deciding
issue no.2 against the appellant/plaintiff by reference to Section 17 of
the Specific Relief Act, 1963 that there is no indication of the
defendant no.1 being the sole owner of the suit property.
5. As per Order XIV Rule 2 CPC, all issues have to be
decided together. A suit can be disposed of on a preliminary issue only
if the preliminary issue is a legal issue and the same would relate to a
bar of law to the suit or lack of jurisdiction of the court. Issue nos.1
and 2 which have been decided by the impugned judgment cannot by
any stretch of imagination be said to be either legal issues or such
issues which will show bar to the suit by any law or lack of
jurisdiction of the trial court. Non-existing of sole ownership of the
respondent no.1/defendant no.1 is not a legal issue but a triable issue
and suit of the appellant/plaintiff cannot be dismissed without trial and
giving opportunity to the appellant/plaintiff to prove that it is only the
respondent no.1/defendant no.1 who is the sole owner of the suit
property and with whom the Agreement to Sell was entered into.
6. So far as issue no.1 being decided against the
appellant/plaintiff is concerned, it is noted that addition of the
unnecessary party is different than non-joinder of a necessary party.
At best the respondent no.2/defendant no.2 will be an unnecessary
additional party but that aspect neither can cause lack of jurisdiction of
the court nor the same is any bar of law for decision of the suit. In any
case since this issue is not a legal issue but a factual issue which will
require trial, therefore, the same could not have been disposed of as a
preliminary issue.
7. In view of the aforesaid discussion, the present appeal is
allowed. Impugned Judgment of the Trial Court dated 19.3.2016 is set
aside. Suit will now be decided by the trial court after giving
opportunities to the parties in accordance with law to prove their
respective cases by leading evidence.
8. Parties to appear before the District & Sessions Judge,
South West, Dwarka Courts, New Delhi on 26th September, 2018 and
the District & Sessions Judge will now mark the suit for disposal to a
competent court in accordance with law.
9. Appeal is disposed of in terms of the aforesaid
observations.
AUGUST 16, 2018 VALMIKI J. MEHTA, J
Ne
