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2014 DIGILAW 1080 (PNJ)

Rekha Sharma v. Partap Singh Ranga

2014-07-17

RAJIV NARAIN RAINA

body2014
JUDGMENT : Rajiv Narain Raina, J. 1. Plaintiff Partap Singh Ranga and the husband of the petitioner S.C. Sharma are stated to be friends and are both lawyers. The petitioner states that there was an understanding between the two that Ranga would transfer all his interest in the suit property in favour of the petitioner, wife of S.C. Sharma and would deal with litigation pending with respect to the 20th share of a member of The Gurgaon Scheduled Caste and Vimukt Jaties Cooperative Agriculture Thrift and Credit Society Limited, defendant No. 6, to whom, the suit property was allotted by the Social Welfare Department in a scheme to house members of the Scheduled Caste and Vimukt Jaties. To this end, Partap Singh Ranga entered into an agreement to sell dated 23rd November, 2009 passing on membership rights in the society in favour of the petitioner. But the plaintiff and S.C. Sharma fell apart. It is alleged that Ranga and defendants No. 8 to 10, Brahmjit, Krishan Kumar and Mukesh Kumar were in collusion with each other and the plaintiff sought to withdraw the suit to the prejudice of S.C. Sharma. Ranga instituted a suit in the trial Court at Rewari on 21st December, 2012. The subject matter of the suit was for declaration and permanent injunction against the order dated 14th February, 2011 passed by the Director, Welfare Department, (SC & ST), Haryana, Chandigarh whereby it was resolved to permit registration of sale deed by conveying suit property in the share of deceased Lekh Ram in favour of his wife Leelawati which was registered on 22nd February, 2011. Lekh Ram was the original member of the Society whose membership fell in dispute and litigation. Lekh Ram died on 28th November, 2000. This resulted from a civil suit filed in which was decreed and a declaration was given that Lekh Ram was the 20th original member of the Society with subsisting rights in property unit in the society land. Lekh Ram had appointed Ranga as his General Power of Attorney holder by executing a deed on 29th April, 1997 vide GPA dated 13th May, 1997. Thereafter, Lekh Ram entered into an agreement to sell his share to Ranga on 6th May, 1997. He assigned his membership in the society favour of Ranga. Lekh Ram had appointed Ranga as his General Power of Attorney holder by executing a deed on 29th April, 1997 vide GPA dated 13th May, 1997. Thereafter, Lekh Ram entered into an agreement to sell his share to Ranga on 6th May, 1997. He assigned his membership in the society favour of Ranga. On Lekh Rams death, Ranga made a representation to the Society defendant No.6 to substitute his name as a Member. The membership was not transferred. The share of property once transferred to Leelawati set her free to sell the property after the moratorium against sale expired on completion of 15 years from the date of the allotment of membership. Leelawati executed a sale deed in favour of defendants No. 8 to 20 on 22nd February, 2011 for a valuable consideration of Rs. 36 lacs. Order dated 14th February, 2011 and the sale deed's are under challenge in the suit filed by Ranga. 2. It is the case of the petitioner that she paid Rs. 90 lacs to Ranga at the time of entering into an agreement to sell with him on 23rd November, 2009. 3. It was, in these circumstances, that the plaintiff filed an application under Order 1 Rule 10 CPC in the pending suit for impleading her as an added-defendant or a co-plaintiff. Ranga refuted the agreement to sell and prayed that he may be permitted to withdraw the suit. The application has been dismissed by the learned Civil Judge (Senior Division), Rewari vide order dated 11th July, 2014. 4. Ranga made a statement on 21st February, 2014 before the trial court that he wants to withdraw his application under Order 39 Rule 1 and 2 CPC. The application was ordered to be dismissed as withdrawn and the interim order dated 5th January, 2013 earlier granted stood vacated automatically. Vide that order dated 5th January, 2013, parties were directed to maintain status quo regarding construction and alienation of the suit property. The application for impleadment was filed on 3rd January, 2014 and notice was issued for 23rd January, 2014. While that application was pending, the suit was withdrawn. On coming to know of the statement made on 21st February, 2014, the petitioner filed an application under Order 39 Rule 1-2 CPC highlighting collusion inter se the plaintiff and the defendants and prayed for restraint orders with respect to the property. While that application was pending, the suit was withdrawn. On coming to know of the statement made on 21st February, 2014, the petitioner filed an application under Order 39 Rule 1-2 CPC highlighting collusion inter se the plaintiff and the defendants and prayed for restraint orders with respect to the property. Notice was issued on that application in which a prayer was made to issue appropriate directions to dispose of the adinterim injunction application by safeguarding the suit property which was apprehended to be further alienated by defendants No.8 to 10 in collusion with each other in order to defeat the rights of the petitioner. 5. While the application remained pending the petitioner moved this Court in a revision petition seeking protective directions. This Court was, however, not inclined to interfere in the petition in exercise of jurisdiction under Article 227 of the Constitution of India, upon which, the petitioner withdrew the petition. However, the trial Court was directed to decide the application under Order 1 Rule 10 CPC expeditiously. Till then (only), the parties were directed to maintain status quo with regard to the alienation of the property in dispute. That is how the impugned order dated 11th July, 2014 has been passed declining the application under Order 1 Rule 10 CPC. 6. The trial Court has reasoned that when the existence of the agreement to sell is denied by the plaintiff, then he had every right to withdraw the suit as he was a dominus litis and the master of his suit and no one could compel him to restrain himself from withdrawing the suit. Moreover, the issues raised in the suit were entirely different from what were sought to be projected and prayed for by the applicant-petitioner. In these circumstances, it is stated that one of the defendants filed an application under Order 7 Rule 11 CPC for rejection of the plaint for want of jurisdiction which was dismissed on 22nd February, 2013 against which CR No. 2297 of 2013 is pending in this Court and is fixed for 19th September, 2014. In that petition, the petitioner herein has filed an application under Order 1 Rule 10 CPC for being impleaded as party bearing CM-6026-CII-2014 in which notice has been issued to opposite side for 28th March, 2014. 7. Learned counsel for the petitioner submits that this matter may be heard with the aforesaid pending revision petition. In that petition, the petitioner herein has filed an application under Order 1 Rule 10 CPC for being impleaded as party bearing CM-6026-CII-2014 in which notice has been issued to opposite side for 28th March, 2014. 7. Learned counsel for the petitioner submits that this matter may be heard with the aforesaid pending revision petition. The prayer is one of desperation. If the petitioner claims right under the agreement to sell dated 23rd November, 2009 executed between Ranga and the petitioner, she is free to claim her rights in an independent suit for specific performance. As a defendant she would not be entitled to any relief but she cannot lawfully claim that she be substituted as plaintiff instead of Ranga. 8. Order 1 Rule 1 CPC explains who may be joined as plaintiffs. All persons may be joined as plaintiffs in one suit where any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons, whether jointly, severally or in the alternative and if such persons brought separate suits, any common question of law or fact would arise. 9. The right of Ranga to relief is based on challenge to the order passed by the Director, Social Welfare, Haryana permitting sale deed to be executed in favour of Leelawati wife of deceased Lekh Ram who was the original member of the Society. On the other hand, the petitioner claims relief on the basis of an agreement to sell which has been denied by the plaintiff and is thus a triable issue by court when called upon to decide. The petitioner has no demonstrable right to be impleaded as co-plaintiff or in substitution of the plaintiff. However, power exists in the Court to add parties in terms of Order 1 Rule 10(2) CPC provided it prima facie reaches the opinion that the persons before the Court are such a party as may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. A party can then be added as plaintiff or defendant. The cause of action of the plaintiff and the applicant petitioner are wholly different and therefore it cannot be said that the presence of the petitioner is necessary to settle the questions involved in Rangas suit. A party can then be added as plaintiff or defendant. The cause of action of the plaintiff and the applicant petitioner are wholly different and therefore it cannot be said that the presence of the petitioner is necessary to settle the questions involved in Rangas suit. If Ranga has withdrawn his suit, he has not deprived the petitioner of such a right to file a suit for specific performance of the agreement to sell the suit property. 10. If the petitioner entered into an agreement to sell with the plaintiff on 23rd November, 2009 and had incurred a monetary liability to the extent of Rs. 90 lacs, she took no steps to enforce the agreement till she approached the trial Court on 23rd January, 2014 when she says she came to know that Ranga intended to withdraw the suit jeopardising her interest put in peril. Even if it is assumed that she has a direct interest in the lis, then she would still have to contend with the law of limitation and the bars therein with respect to enforcement of the agreement to sell dated 23rd November, 2009. Her entry in the suit, even if allowed, is quite possibly a futile exercise. In the circumstances, the petitioner may not profit from the judgment in Smt. Saila Bala Dassi v. Smt. Nirmala Sundari Dassi and Another, AIR 1958 SC 394 . The principle of direct interest has to be read with a subsisting right to sue though the results may seem harsh on the petitioner. 11. For the above reasons, this Court finds no merit in the petition to justify interference in the order of the trial Court. 12. Dismissed.