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2015 DIGILAW 1194 (DEL)

Kamlesh Kaur Sherma v. Hemanshu Malhotra

2015-04-30

HIMA KOHLI

body2015
Judgment :- 1. The present application has been filed by the applicant, Smt. Rajinder Kaur, praying inter alia for impleadment as a co-defendant in the suit proceedings. 2. The plaintiffs have instituted the present suit for recovery of possession, damages, mandatory and permanent injunction in respect of the third floor of the premises bearing No.B-3, East of Kailash, New Delhi (hereinafter referred to ‘as the suit premises’), against three defendants, namely, Mr. Hemanshu Malhotra, defendant No.1, the present occupant, ABN Amro Bank, defendant No.2 and Mr. Kiran Jassal, whose father Shri Satish Jassal was a property dealer and had brokered the purchase of the suit property from Sardar Bahadur Singh, husband of the applicant. 3. The plaintiffs, who are of Indian origin and are citizens of USA claim that in the year 1992, they had met Mr. Satish Jassal, a property dealer, who had introduced them to one Mr. B.K. Uppal, who was in the real estate business. Mr. Uppal had apprised the plaintiffs that the aforementioned property measuring 300 sq. yards, was owned by Sardar Bahadur Singh, who had executed a power of attorney dated 15.11.1991 in his favour, whereunder he had authorized him to sell the suit property to any prospective buyer. In view of the authority granted by Sardar Bahar Singh in favour of Mr. Uppal, negotiations for sale of the third floor of the suit premises had taken place between the parties. At that point in time, after demolishing the existing structure, a new structure was built on the aforesaid property on the basis of a Collaboration Agreement dated 19.10.1991, executed between Sardar Bahadur Singh and M/s Uppal Developers Pvt. Ltd. 4. Under the Collaboration Agreement, the owner and the builder had agreed to raise basement, ground floor, first floor, second floor and third floor on the subject land. The plaintiffs claim that they had booked the third floor of the suit premises with Mr. B.K. Uppal on 22.9.1992. The third floor comprised of two flats and the plaintiffs had agreed to purchase both, the front and the rear flats for a total sale consideration of Rs.12,62,044/-. Two separate agreements dated 23.7.1993 came to be executed between the owner and the plaintiff No.1, apart from two wills, GPA, SPA, possession letter, etc., to perfect the title. The third floor comprised of two flats and the plaintiffs had agreed to purchase both, the front and the rear flats for a total sale consideration of Rs.12,62,044/-. Two separate agreements dated 23.7.1993 came to be executed between the owner and the plaintiff No.1, apart from two wills, GPA, SPA, possession letter, etc., to perfect the title. The plaintiffs claim to have received the vacant peaceful possession of the third floor of the subject premises on 23.7.1993, after paying the entire sale consideration. Thereafter, at the request of the plaintiff No.1, Mr. B.K. Uppal, attorney of Sardar Bahadur Singh had executed a power of attorney in respect of the front and rear flats of the third floor in favour of the plaintiff No.2 and the said document was duly registered on 15.4.1994. Based on the Agreement to Sell, GPA, SPA, possession letter, etc., executed in their favour, the plaintiffs claim to have become the sole and absolute owners of the third floor. 5. It has been averred in the plaint that as the plaintiffs are citizens and permanent residents of USA, they had relied on Mr. Satish Jassal, father of the defendant No.3, to have the suit premises furnished and looked after in their absence. The plaintiffs claim that they had been sending amounts to Mr. Satish Jassal from time to time for payment of property tax in respect of the suit premises and for mutation of their names in the MCD records. Subsequently, the plaintiffs came to know that Mr. Jassal had expired in October, 2005 and when they had arrived in India on 2.7.2007 and had visited the suit premises, they found that a person by the name Mr. Hemanshu Malhotra, defendant No.1 herein, had broken into the flat and was residing there. The plaintiffs also attempted to contact the defendant No.3 to enquire about the status of the defendant No.1, but he gave an evasive reply. Thus the plaintiffs gathered an impression that the defendants No.1 & 3 were hand in glove and they had trespassed into the suit premises. Immediately thereafter, the plaintiffs had lodged a complaint with the local police and had issued a legal notice, calling upon the defendant No. 1 to handover vacant peaceful possession of the suit premises. Thus the plaintiffs gathered an impression that the defendants No.1 & 3 were hand in glove and they had trespassed into the suit premises. Immediately thereafter, the plaintiffs had lodged a complaint with the local police and had issued a legal notice, calling upon the defendant No. 1 to handover vacant peaceful possession of the suit premises. the meantime, they had come to know that ABN Amro Bank, the defendant No.2 is holding the possession of the suit premises and operating its credit card expert branch from there. 6. Based on the aforesaid narrative, the plaintiffs had instituted the present suit in September, 2011 praying inter alia for a decree of possession, recovery of damages, mandatory and permanent injunction, etc., against all the defendants. 7. The suit was registered on 21.10.2011, when summons were issued to the defendants. At the same time, the defendants were directed to maintain status quo with regard to the title and possession of the suit premises. Appearance was entered by the defendant No.3, who has filed a written statement stating inter alia that he has been wrongly impleaded in the present proceedings as he is neither a purchaser, nor a seller of the suit premises and is unaware about the transaction in respect of the suit premises. The defendant No.3 also stated that the suit is bad for non-joinder of necessary parties, namely, Sardar Bahadur Singh, owner of the suit premises and his power of attorney holder, Shri B.K. Uppal, who had allegedly executed all the title documents in favour of the plaintiffs. 8. As for the defendants No.1 & 2, a counsel had appeared for the defendant No.2 on 17.1.2012 and had sought time to file the written statement, but no such written statement came to be filed. The summons issued to the defendant No.1 were returned with a report that he had left the address given in the memo of parties, namely, the suit premises. Subsequently, on 19.7.2013, the interim order dated 21.10.2011 was made absolute and the defendants No.1 & 2 were proceeded against ex parte. Thereafter, the present application came to be filed by the applicant/Smt. Rajinder Kaur on 22.9.2014, stating inter alia that she is a widow of late Sardar Bahadur Singh, owner of the suit premises, who had expired on 9.12.2008. 9. Thereafter, the present application came to be filed by the applicant/Smt. Rajinder Kaur on 22.9.2014, stating inter alia that she is a widow of late Sardar Bahadur Singh, owner of the suit premises, who had expired on 9.12.2008. 9. The applicant has traced the history of ownership of the subject premises and stated that a perpetual lease deed dated 25.2.1971 in respect thereof was executed in favour of Shri Sardar Singh and subsequently, a conveyance deed was executed by the DDA in his favour on 29.9.1996, whereunder he had become the freehold owner of the subject premises. Thereafter, a building comprising of basement, ground with three floors above was constructed upon the subject land. The applicant has asserted that no registered sale deed in respect of any of the floors of the building were executed to her knowledge and after her husband’s demise, the entire premises had devolved in equal share upon her and her daughter, Ms. Daljit Kaur the only two class I heirs. By virtue of a registered Deed of Relinquishment dated 6.4.2009, Ms. Daljit Kaur had relinquished all her rights in the subject premises in favour of the applicant. As a result, the applicant had become the sole and absolute owner thereof. Ms. Daljit Kaur being the only child of the applicant, is stated to be residing alongwith her family with the applicant in the suit premises. 10. The applicant has stated that the third floor of the premises, which is the subject matter of the present suit, has remained in her possession ever since the same was constructed and that some time in the year 2007, someone had approached her to lay a claim on the subject floor and had also approached the local police station. When the applicant came to know about the complaint, as a precautionary measure, her son-in-law (husband of Ms. Daljit Kaur) had submitted an application before the learned Metropolitan Magistrate under Section 441 of the IPC, seeking protection. The applicant claims that thereafter, she was not approached by any party till 19.8.2014, when a person by the name of Mr. Nigam had visited the third floor of the premises and had introduced himself as a Local Commissioner appointed by the court in the present proceedings. At the time of his visit, the Local Commissioner had found the applicant’s son-in-law, Sardar Mewa Singh and Mr. Sunil Kumar Srivastava present there. 11. Nigam had visited the third floor of the premises and had introduced himself as a Local Commissioner appointed by the court in the present proceedings. At the time of his visit, the Local Commissioner had found the applicant’s son-in-law, Sardar Mewa Singh and Mr. Sunil Kumar Srivastava present there. 11. As per the applicant, Mr. Sunil Kumar Srivastava has been residing on the third floor for several years, earlier under the authority of Sardar Bahadur Singh and upon his demise, with her permission. Upon coming to know about the pendency of the present proceedings, the applicant had taken steps to obtain legal advice and thereafter has filed the present application to contest and defend her interest in the suit premises. 12. In support of the averments made in the application, the applicant has filed some documents including copies of the perpetual lease deed dated 25.2.1971 and conveyance deed dated 29.9.1996 of the property, executed in favour of Sardar Bahadur Singh, the relinquishment deed dated 6.4.2009 executed by Ms. Daljit Kaur in favour of the applicant and a copy of the application dated 23.7.2007, filed under Section 441 IPC in the court of Metropolitan Magistrate. Electricity bills in respect for the months of April-June, 2014 in respect of the third floor of the suit premises have also been enclosed with the present application. 13. Counsel for the applicant had submitted that his client is a necessary and a proper party in the present proceedings and if she is not impleaded as a party to the suit, it would result in multiplicity of litigation. He had submitted that the applicant being an owner in occupation of the entire premises including the suit premises (i.e. the third floor), has a clear interest in the property, which she is entitled to protect by placing her defence on record. In support of his submission that the applicant ought to be impleded as a defendant in the suit proceedings, learned counsel for the applicant had relied on the following decisions: i) Om Prakash Charaya vs. Ashok Kamal Capital Builders Pvt. Ltd. reported as 2000(87) DLT 655 and ii) A.K. Chatterjee vs. Ashok Kumar Chatterjee reported as 2009(156) DLT 475 . 14. 14. A reply in opposition to the present application has been filed by the plaintiffs, who have asserted that the applicant does not have any right in the suit premises and the documents filed by them would clearly demonstrate that the third floor was sold to them by Sardar Bahadur Singh during his lifetime. Counsel for the plaintiffs had particularly referred to the will executed by the original owner to state that the said document was executed only to perfect the title of the plaintiffs in the third floor. 15. In the course of arguments, learned counsel for the plaintiffs had also referred to various documents pertaining to the suit premises that he stated had been executed in favour of the plaintiffs and would demonstrate that they are the sole and absolute owners of the said floor and that the present application has been filed with ulterior motives. He had stated that when the Local Commissioner had visited the third floor of the suit premises on 19.8.2014, he had found that it was occupied by a person who had identified himself as Sunil Kumar Srivastava, but surprisingly, the said person has not come forward and sought impleadment in the present proceedings. Learned counsel asserted that the applicant has filed the impleadment application at the instance of the unauthorized occupants whose names were mentioned by the Local Commissioner in his report and had submitted that the application deserves to be dismissed. To substantiate his submission that the applicant is neither a necessary, nor a proper party in the present proceedings, learned counsel for the plaintiffs had relied on the following decisions:- i) Kasturi vs. Iyyamperumal and Ors. reported as AIR 2005 SC 2813 and ii) Mumbai International Airport Private Limited vs. Regency Convention Centre and Hotels Private Limited and Ors. reported as (2010) 7 SCC 417 . 16. Before considering the submissions made by the counsels for the parties, it is necessary to examine the relevant provision of Order I Rule 10(2) of the CPC that empowers the court to strike out or add parties in a suit, which is extracted hereinbelow for ready reference: “10. reported as (2010) 7 SCC 417 . 16. Before considering the submissions made by the counsels for the parties, it is necessary to examine the relevant provision of Order I Rule 10(2) of the CPC that empowers the court to strike out or add parties in a suit, which is extracted hereinbelow for ready reference: “10. (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.” 17. The general rule relating to impleadment of parties is that the plaintiff in a suit, being dominus litis, has the right to choose the parties against whom he proposes to institute a suit. The plaintiff is not obliged to implead a party as a defendant in his suit against whom he does not propose to seek any relief. In other words, the plaintiff cannot be compelled to implead an unwanted party in his suit. However, the rule is subject to the provisions of Order I Rule 10(2) of the CPC. 18. The aforesaid provision clarifies that a court may, at any stage of the proceedings, either upon or even without an application being filed by either party, and on such terms as may appear to it, to be just, issue directions for adding any of the persons as a party, who ought to have been, in the first instance, joined as plaintiff(s) or defendant(s), but were not added or where the court considers the presence of a person before it necessary for enabling it to effectively and completely adjudicate upon and settle the questions involved in the suit. Further, wherever, it appears to be just to the court, it may order the name of any party, improperly joined whether as a plaintiff or a defendant, to be struck out. 19. Further, wherever, it appears to be just to the court, it may order the name of any party, improperly joined whether as a plaintiff or a defendant, to be struck out. 19. In other words, the Court has been given ample discretion to add as a party, any person who is found to be a necessary or a proper party or delete the name of a party who has been improperly joined. The said discretion vested in the court to either allow or reject an application of a person claiming to be a proper party or an improper party depends upon the facts and circumstances of each case. No person has a right to insist that he should be impleaded as a party, nor does he have any right to insist that his name be deleted from a proceeding, if the court thinks otherwise. However, the aforesaid discretion ought to be governed by the rules and must not be arbitrary, vague or fanciful.[Refer: Ramji Dayawala & Sons (P) Ltd. Vs. Invest Import (1981) 1 SCC 80 ] 20. In the case of Mumbai International Airport (P) Ltd. (supra) referred to and relied upon by learned counsel for the plaintiffs, while elaborating the manner in which the courts ought to exercise their judicial discretion for determining as to whether a party is a necessary or a proper party for purposes of adjudication of the dispute raised in a suit, the Supreme Court had made the following pertinent observations:- “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 disputes 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. 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. XXX XXX XXX 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 according to reason and fair play and not according to whims and caprice.” (Emphasis added) 21. In the case of Kasturi (supra), the Supreme Court had reaffirmed the position that only necessary and proper parties can seek impleadment as parties to a suit for the relief of specific performance. The Court had held that necessary parties are those persons in whose absence, a decree cannot be passed by the Court or those persons against whom, there is a right to some relief in respect of the controversies involved in the proceedings and proper parties are those whose presence before the Court would be necessary to enable the Court to completely and effectively adjudicate upon and settle all the questions involved in the suit, though no relief in the suit was claimed against such a person. In the context of a suit for specific performance, the twin tests laid down in the case of Kasturi (supra) for considering as to whether a party is a necessary party or not are: (i) There must be a right to some relief against such party in respect of the controversies involved in the proceedings (ii) no effective decree can be passed in the absence of such party. The Court had however gone on to clarify that a person, who has a direct interest in the subject matter of the suit for specific performance of an agreement of sale, may be impleaded as a proper party on his filing an application for impleadment. 22. The contention of the counsel for the plaintiffs herein that the applicant is neither a necessary, nor a proper party in the present proceedings, has to be examined in the light of the averments made by the applicant in the present application and the submission made by the counsel for the plaintiffs in opposition to this application. 23. The plaintiffs have sought the reliefs of possession, damages, permanent and mandatory injunction in respect of the suit premises which happens to be one of the floors constructed on the property. The defendant No.1 has been described by the plaintiffs as the occupant of the suit premises. However, in the course of the suit proceedings, it has transpired that the said defendant is no longer residing in the suit premises and nor has he participated in the suit or filed a written statement. As for the defendant No.2/Bank, though a counsel had entered appearance for the said Bank, no written statement was filed and finally, both, the defendants No.1 and 2 were proceeded against ex parte on 19.07.2013. 24. The defendant No.3 is stated to be the legal heir of Mr.Satish Jassal. He is the only defendant, who has filed a written statement and he has taken a stand that he is neither the purchaser nor the seller of the suit premises and is unaware about the sale transaction between the plaintiffs and Shri Sardar Bahadur Singh. In fact, the said defendant has taken an objection to the present suit being instituted by the plaintiffs without impleading Shri Sardar Bahadur Singh, the owner of the suit premises or his power of attorney holder, Mr. B.K. Uppal, who had allegedly executed the title documents in favour of the plaintiffs. In fact, the said defendant has taken an objection to the present suit being instituted by the plaintiffs without impleading Shri Sardar Bahadur Singh, the owner of the suit premises or his power of attorney holder, Mr. B.K. Uppal, who had allegedly executed the title documents in favour of the plaintiffs. The defendant No.3 has therefore denied any knowledge as to the possession and ownership of the suit premises. 25. After being apprised of the Local Commissioner’s report, who had found the applicant’s son-in-law and one Sunil Kumar Srivastava in possession/occupation of the suit premises, it was expected of the plaintiffs to have taken necessary steps on their own to implead as defendants, the actual occupants found at the spot, more so when one of the primary reliefs prayed for by them is for a decree of possession of the suit premises. However, no such steps have been taken by the plaintiffs till date. 26. So, on the one hand, the plaintiffs have failed to take steps to implead the parties mentioned by the defendant No.3 in the written statement or those noticed by the Local Commissioner in his report and on the other hand, they are resisting impleadment of the applicant, who claims a title to the entire premises including the suit premises, being the widow of late Shri Sardar Bahadur Singh, from whom the plaintiffs state that they had purchased the suit premises. In this factual matrix, any decision in the present suit, in the absence of the applicant would be an empty formality. As stated above, defendants No.1 and 2 are not contesting the present suit and the defendant No.3 has categorically stated that he has no interest in the title or possession of the suit premises. The plaintiffs cannot be permitted to continue a legal action against the defendant No.3 alone when he apparently denies any interest in the suit premises. 27. If the position remains as it is today, then any decree that this Court may pass in this suit only in the presence of the defendant No.3 and in the absence of the applicant, would be a charade. 27. If the position remains as it is today, then any decree that this Court may pass in this suit only in the presence of the defendant No.3 and in the absence of the applicant, would be a charade. Refusal to implead the applicant would also result in initiation of an independent legal action by her for adjudication of her status vis-a-vis the suit premises, founded on her claim that she is the sole and absolute owner, in possession of the entire premises thus leading to multiplicity of litigation. However, if the applicant is impleaded in the present suit as a co-defendant, the plaintiffs shall not suffer any prejudice. Rather, it will aid the Court to completely and effectively adjudicate upon and settle all the questions involved in the present suit. 28. Tested on the above anvil, quite clearly, the scale would till in favour of the applicant. As the applicant satisfies the twin test prescribed in the case of Kasturi (supra), it has to held that she has a direct and equitable interest in the suit premises and this in itself is considered sufficient ground to return a finding in her favour. Moreover, the proceedings in the suit are at the nascent stage and the plaintiffs have not even filed a replication to the written statement filed by the defendant No.3. If the applicant is impleaded as a defendant in the suit, no prejudice would be caused to the plaintiffs on account of any delay in the disposal of the suit. 29. Accordingly, this Court is of the opinion that the presence of the applicant and her participation in the suit is imperative and she is not only a proper party, but also a necessary party in the present proceedings. Needless to state that the scope of the suit will not be expanded due to the impleadment of the applicant. Her participation in the suit would be for deciding as to whether the plaintiffs are entitled to the reliefs prayed for. The application is therefore, allowed and the applicant is permitted to be arrayed as a defendant in the present suit. 30. The application is disposed of. Amended memo of parties shall be filed by the plaintiffs within one week from today.