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2013 DIGILAW 2442 (DEL)

Kusum Jain & Ors. v. D. D. A. & Anr.

2013-12-20

G.P. MITTAL

body2013
G.P. Mittal, J.:-- 1. This is an application under Order 1 Rule X read with Section 151 of the Code of Civil Procedure, 1908, (CPC) for impleading the applicant as a Respondent in the instant writ petition. 2. In order to decide the application, it would be appropriate to extract the provisions of Order 1 Rule 10 CPC hereunder:- “10. Suit in name of wrong plaintiff.- (1) .............. (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. (3) .............. (4) .............. (5) ..............” 3. The law with regard to impleadment of the parties is quite liberal in the sense that a party can be added at any stage of the proceedings. The only embargo is that the presence of the party who is sought to be impleaded must be necessary in order to enable the Court to effectively and completely adjudicate upon and settle the question involved in the lis. It is also well settled that the Petitioner is the dominus litus. Thus, unless a person who moves an application for impleadment satisfies the Court that he has a direct interest in the lis, he/she cannot be impleaded as a party. 4. Before adverting to the grounds on which the impleadment is sought by the applicant, it would be fruitful to recapitulate a few facts leading to the filing of the instant writ petition. 5. A Perpetual Sub-Lease Deed in respect of property No. A-3/3, Vasant Vihar, New Delhi was registered in favour of Late Ram Kanwar Jain on 24.04.1971. Thereafter, the said Shri Ram Kanwar Jain expired. On the death of Late Shri Ram Kanwar Jain, the property was mutated on 21.04.1998 in favour of his widow Late Smt. Bimla Devi Jain. 5. A Perpetual Sub-Lease Deed in respect of property No. A-3/3, Vasant Vihar, New Delhi was registered in favour of Late Ram Kanwar Jain on 24.04.1971. Thereafter, the said Shri Ram Kanwar Jain expired. On the death of Late Shri Ram Kanwar Jain, the property was mutated on 21.04.1998 in favour of his widow Late Smt. Bimla Devi Jain. According to the averments made in the writ petition, Late Smt. Bimla Devi Jain appointed one Late Shri Dharam Chand Jain as her attorney. It is the case of the Petitioners that sometime in the year 1995, Late Smt. Bimla Devi Jain applied to the DDA for conversion of the property in question from leasehold to freehold. It is further the case of the Petitioners that Late Smt. Bimla Devi Jain acting through her attorney Late Shri Dharam Chand Jain entered into agreement to sell dated 05.07.1995 and agreed to sell the property for a total sale consideration of Rs. 70 lacs to the Petitioners. An amount of Rs. 18 lacs was paid in advance and the balance sale consideration was to be paid at the time of registration of the Sale Deed after conversion of the property from leasehold to freehold. Shri Dharam Chand Jain, attorney of Late Smt. Bimla Devi Jain also expired on 09.12.1995. In the year 1996, Petitioner No. 2 (Ms. Glory Promoters (P) Ltd.) filed a suit for specific performance of the earlier said agreement against Late Smt. Bimla Devi Jain being C.S. (OS) No. 1329/1996. 6. In the meanwhile, the applicant herein (Mr. P.C. Srivastava) who is a tenant in the property, on or about 27.11.1989 made certain complaints to Respondent No. 1 (claimed to be false by the Petitioners) alleging that Late Smt. Bimla Devi Jain had sold the demised property to Late Shri Dharam Chand Jain. The property was inspected by Respondent No. 1. According to the Petitioner, the lease in favour of Late Smt. Bimla Devi Jain was thereby determined on account of the alleged false and frivolous complaints made by the applicant herein. 7. It is further the case of the Petitioners that after verifying all aspects on 02.04.1992, the DDA allowed restoration of the lease on 01.05.1992, subject to the deposit of restoration charges. Thereafter, in the year 1995, Late Smt. Bimla Devi Jain applied for conversion of the property from leasehold to freehold. 7. It is further the case of the Petitioners that after verifying all aspects on 02.04.1992, the DDA allowed restoration of the lease on 01.05.1992, subject to the deposit of restoration charges. Thereafter, in the year 1995, Late Smt. Bimla Devi Jain applied for conversion of the property from leasehold to freehold. It is alleged that in the year 1997 (during pendency of the civil suit) Late Smt. Bimla Devi Jain, who was living in United States visited India and a settlement was arrived at between Petitioner No. 2 and Late Smt. Bimla Devi Jain. As per the terms of the settlement, Late Smt. Bimla Devi Jain registered a General Power of Attorney and a Will dated 13.11.1997 in favour of her two daughters, namely, Mrs. Saroj Jain and Mrs. Kusum Jain. Late Smt. Bimla Devi Jain agreed to register the Sale Deed in favour of Petitioner No. 2 after conversion of the property from leasehold to freehold and after execution of the Conveyance Deed in her favour by Respondent No. 1 (DDA). It is alleged that a Conveyance Deed dated 05.03.1999 was executed in favour of Late Smt. Bimla Devi Jain by the DDA. 8. Thereafter, Respondent No. 1 DDA converted the property from leasehold to freehold on 05.03.1999, after a lapse of four years and after verification of complaints made by the applicant Mr. P.C. Srivastava. 9. After conversion of the property from leasehold to freehold, Late Smt. Bimla Devi Jain through her attornies along with Petitioner No. 2 moved an application under Order 23 Rule 3 CPC for recording of compromise in Civil Suit No. 1329/1996. Vide order dated 23.08.1999, the application was allowed and the suit was disposed of in terms of the compromise reached between the parties on 20.08.1999. 10. According to the Petitioners, on 10.04.2003, the property was mutated in favour of Smt. Kusum Jain and Smt. Saroj Jain. On 06.10.2004, they executed and registered a Sale Deed in favour of Petitioner No. 2 which was also duly registered. 11. It is the case of the Petitioners that in the year 2005, Petitioner No. 2 filed a Petition for eviction against the applicant (Mr. P.C. Srivastava) under Section 14 (1) (f) & (g) of the Delhi Rent Control Act, 1958 (DRCA) which is still pending before the Court of learned Additional Rent Controller, Saket, New Delhi. 12. 11. It is the case of the Petitioners that in the year 2005, Petitioner No. 2 filed a Petition for eviction against the applicant (Mr. P.C. Srivastava) under Section 14 (1) (f) & (g) of the Delhi Rent Control Act, 1958 (DRCA) which is still pending before the Court of learned Additional Rent Controller, Saket, New Delhi. 12. It is averred that an application was also moved by the applicant herein in Suit No. 1329/1996 for setting aside of the decree. The said application was dismissed by an order dated 25.03.2009 with costs of Rs. 25,000/-. It is alleged that the applicant Mr. P.C. Srivastava continued with his complaints to the DDA. The DDA sought clarification about the death of Late Smt. Bimla Devi Jain. In the meanwhile, Petitioner No. 2 also filed an Eviction Petition against the applicant under Section 14(1) (e) of DRCA, which is also pending. 13. The sum and substance of the grievance made by the Petitioners in the writ petition is that the Conveyance Deed dated 05.03.1999 was cancelled by the DDA by letter dated 18.06.2012. The Petitioners made a representation dated 30.07.2012 and requested for revocation of the decision to cancel the Conveyance Deed. The action of the DDA in cancelling the Conveyance Deed is claimed to be illegal and arbitrary by the Petitioners. 14. The Petitioners made a representation dated 30.07.2012 and requested for revocation of the decision to cancel the Conveyance Deed. The action of the DDA in cancelling the Conveyance Deed is claimed to be illegal and arbitrary by the Petitioners. 14. In the instant application under Order 1 Rule 10 CPC, the applicant who as stated above, is a tenant in premises bearing No. A-3/3, Vasant Vihar, New Delhi seeks his impleadment being a necessary party on the grounds that the Petitioners with mala fide intentions want to construct multi-storey apartments on the property in question and then to sell those units in black market; that father of Petitioner No. 1 got allotment of Plot No. A-3/3, Vasant Vihar, New Delhi on 19.01.1971 being a member of the Government Servant Co-operative House Building Society and as per the terms of sub-lease executed in his favour, he was (or for that matter his successors) not entitled to sell, transfer or otherwise part with the possession of the whole or any part of the plot; that the father of Petitioner No. 1 never utilised the premises for himself since the inception of the construction and let out the entire house to the applicant and after sometime he developed a motive to sell out the property in black market; that Late Smt. Bimla Devi Jain also filed an Eviction Petition under Section 14D of the DRCA against the applicant. It is also the case of the applicant that some false and fictitious documents were executed between the Petitioners and a collusive suit for Specific Performance of Contract dated 20.04.1995 was filed against Late Smt. Bimla Devi Jain and other successors of Late Ram Kumar Jain, who were necessary parties to the suit but were not impleaded therein. 15. In the application, it is also averred that on 08.10.2004, a Sale Deed of the property was executed by Mrs. Kusum Jain for herself and being the Attorney of her sister Mrs. Saroj Jain on her behalf as well in favour of M/s. Glory Promoters Pvt. Ltd. through it’s Director Mr. Lalit Mohan Madan. Mr. Lalit Mohan Madan filed another Eviction Petition under Section 14(1)(f) & (g) of the DRCA against the applicant. Kusum Jain for herself and being the Attorney of her sister Mrs. Saroj Jain on her behalf as well in favour of M/s. Glory Promoters Pvt. Ltd. through it’s Director Mr. Lalit Mohan Madan. Mr. Lalit Mohan Madan filed another Eviction Petition under Section 14(1)(f) & (g) of the DRCA against the applicant. The applicant states that in the year 2006, the applicant brought to the notice of the President of India, Vice Chairman of the DDA and other higher authorities the scam going on in respect of the properties allotted by the DDA in South Delhi. The applicant also refers to certain letters written by some Members of Parliament to the Union Minister for Urban Development regarding malfunctioning of the DDA. 16. The sum and substance of the impleadment application made is that since the applicant is a tenant in the premises, he has a direct interest in the property and is therefore a necessary party. 17. The application has been opposed by the Petitioners by way of filing a written reply to the application. It is urged that the applicant has accepted Petitioner No. 2 as the landlord and has paid rent upto 31.03.2011 without any protest. It is stated that the applicant has no right to be heard in the present application as the outcome of the present writ petition would have no effect on the applicant, who is merely a tenant in the premises in question. 18. It may be true that the action for cancellation of the Conveyance Deed might have been taken by the DDA on the basis of the complaints made by the applicant. However, at the same time, the matter of cancellation of Conveyance Deed or it’s restoration is only between the DDA and the Petitioners and the applicant in that sense does not have any direct interest in the instant writ petition. It has to be borne in mind that the Petitioner is the dominus litus and cannot be forced to add a party against whom he does not want to fight unless it is a compulsion of the rule of law. 19. In Kasturi v. Iyyamperumal & Ors., (2005) 6 SCC 733 , an agreement to sell was entered into between the Appellants and Respondents No. 2 and 3. A suit for specific performance was filed by the Appellants against the earlier said Respondents. 19. In Kasturi v. Iyyamperumal & Ors., (2005) 6 SCC 733 , an agreement to sell was entered into between the Appellants and Respondents No. 2 and 3. A suit for specific performance was filed by the Appellants against the earlier said Respondents. Respondents No. 1 and 4 to 11 set up claim of independent title and possession over the subject matter of the agreement to sell and filed an application to get themselves impleaded as Defendants in the Suit. The Trial Court allowed the application on the ground that as Respondent No. 1 and 4 to 11 were claiming title and possession of the contracted property, they must be having direct interest in the subject matter of the suit and therefore, must be entitled to be added as a party (Defendants) in the suit as their presence would be necessary to decide the controversy raised in suit. The High Court in Revision confirmed this order. Aggrieved by the order passed by the High Court, the Appellant approached the Supreme Court. Allowing the Appeal, the Supreme Court held that Respondents No. 1 and 4 to 11 were neither necessary nor proper parties in the suit for specific performance. In paras 18 and 19, the Supreme Court observed as under:- “18. That apart, there is another principle which cannot also be forgotten. The appellant, who has filed the instant suit for specific performance of the contract for sale is dominus litis and cannot be forced to add parties against whom he does not want to fight unless it is a compulsion of the rule of law, as already discussed above. For the reasons aforesaid, we are, therefore, of the view that Respondents 1 and 4 to 11 are neither necessary parties nor proper parties and therefore they are not entitled to be added as party-defendants in the pending suit for specific performance of the contract for sale. 19. The learned counsel appearing for Respondents 1 and 4 to 11, however, contended that since Respondents 1 and 4 to 11 claimed to be in possession of the suit property on the basis of their independent title to the same, and as the appellant had also claimed the relief of possession in the plaint, the issue with regard to possession is common to the parties including Respondents 1 and 4 to 11, therefore, the same can be settled in the present suit itself. Accordingly, it was submitted that the presence of Respondents 1 and 4 to 11 would be necessary for proper adjudication of such dispute. This argument which also weighed with the two courts below although at the first blush appeared to be of substance but on careful consideration of all the aspects as indicated hereinearlier, including the scope of the suit, we are of the view that it lacks merit. Merely in order to find out who is in possession of the contracted property, a third party or a stranger to the contract cannot be added in a suit for specific performance of the contract for sale because Respondents 1 and 4 to 11 are not necessary parties as there was no semblance of right to some relief against Respondent 3 to the contract. In our view, the third party to the agreement for sale without challenging the title of Respondent 3, even assuming they are in possession of the contracted property, cannot protect their possession without filing a separate suit for title and possession against the vendor. It is well settled that in a suit for specific performance of a contract for sale the lis between the appellant and Respondents 2 and 3 shall only be gone into and it is also not open to the Court to decide whether Respondents 1 and 4 to 11 have acquired any title and possession of the contracted property as that would not be germane for decision in the suit for specific performance of the contract for sale, that is to say in a suit for specific performance of the contract for sale the controversy to be decided raised by the appellant against Respondents 2 and 3 can only be adjudicated upon, and in such a lis the Court cannot decide the question of title and possession of Respondents 1 and 4 to 11 relating to the contracted property.” 20. In P.M.A. Hakeem, Chairman, Maharashtra State Road Transport Corporation & Ors. In P.M.A. Hakeem, Chairman, Maharashtra State Road Transport Corporation & Ors. v. UP Co-operative Spinning Mills Federation Limited & Ors., 2002 (4) BomCR 564 , the Bombay High Court held that a party seeking to be impleaded as a party to the suit must demonstrate that it has a direct and substantial interest in the subject matter of the suit and that such interest would be affected directly by the decree that may be passed in the suit or that it’s presence as a party to the suit must be necessary for answering the issues arising in the suit. These factors must demonstrably exist before the party applying can be allowed to be impleaded as a party to the suit. 21. Herein, the applicant has no direct interest in the controversy raised in the instant writ petition. The applicant would be a tenant whether under the initial owner or his successor by whatever mode the transfer takes place. Thus, the applicant has no direct or substantial interest in the controversy whether the cancellation of the Conveyance Deed in favour of Petitioner No. 1 be held illegal or whether the Petitioner be entitled to restoration. Hence, the applicant is not a necessary party to the instant writ petition. 22. It may be mentioned that while dismissing the applicant’s prayer for setting aside of the decree for specific performance and his impleadment, the learned Single Judge while imposing costs of Rs. 25,000/- observed that the application has been filed by the applicant who was a tenant at an extremely low rate of rent in the property only to build a defence and thereby delay the proceedings, if any, for his eviction. The relevant portion of the order passed by the learned Single Judge is extracted hereunder:- “I find the present application to be an attempt on the part of the applicant who is a tenant at an extremely low rate of rent in the property to build a defence and thereby delay the proceedings, if any, for his eviction. Such applications cannot be entertained. Even if the averments of the applicant are true, the grievance, if any, would be of the sons of Mrs. Bimla Devi Jain. The applicant cannot take up cudgels on their behalf. The applicant has already lodged complaints with respect to under valuation and on that ground, this application cannot be entertained. Such applications cannot be entertained. Even if the averments of the applicant are true, the grievance, if any, would be of the sons of Mrs. Bimla Devi Jain. The applicant cannot take up cudgels on their behalf. The applicant has already lodged complaints with respect to under valuation and on that ground, this application cannot be entertained. The judgments relied upon by the counsel for the applicant are not found to be applicable. On enquiry from the senior counsel for the applicant, as to how the sale/compromise is motivated against the applicant, it is stated that the plaintiff as owner is now pursuing eviction of the applicant. The only inference is that Mrs. Bimla Devi Jain was probably unable to aggressively eviction of the applicant -- the applicant is prejudiced that upon sale, the purchaser i.e. the plaintiff is taking steps for eviction of the applicant. A tenant cannot stop the owner from selling the property. The applicant has not laws to challenge the sale or even any irregularity therein. No right of the applicant has been effected by compromise decree and no fraud can be said to have been played. I may record that the counsel for the plaintiff has appeared on advance copy having been furnished. He states that Mrs. Bimla Devi Jain died in March, 2003 in USA. The applicant has taken up time of this Court. The application is found to be in abuse of process of the court and dismissed with costs of Rs. 25,000/- payable to Delhi Legal Services Authority. If the applicant fails to furnish proof of payment of costs to the Registry of this Court within 15 days. The Registry to put up the file for appropriate action against the applicant.” 23. It is evident that the instant application has also been preferred by the applicant only to stall the proceedings taken by the Petitioners. In pursuance of the directions given by this Court, the applicant has placed on record his Income Tax Returns for Assessment Year 2012-13 showing that he returned an income of about Rs. 30 Lakhs. Since the costs of Rs. 25,000/- imposed by the learned Single Judge did not deter the applicant in his misadventure to move frivolous application, this Court is bound to dismiss such application on suitable terms. The application is frivolous and is accordingly dismissed with costs of Rs. 30 Lakhs. Since the costs of Rs. 25,000/- imposed by the learned Single Judge did not deter the applicant in his misadventure to move frivolous application, this Court is bound to dismiss such application on suitable terms. The application is frivolous and is accordingly dismissed with costs of Rs. 2,00,000/- to be deposited with “Welfare Fund for Children and Destitute Women” at Jail Road, Tihar, New Delhi, within a period of 12 weeks. If the cost is not paid by the applicant within 12 weeks, the matter shall be listed before the Registrar for taking execution of the order. W.P.(C) 5160/2012 24. List before the Registrar for completion of pleadings on 03.01.2014. 25. List before the Court on 26.02.2014.