Full Text
HIGH COURT OF DELHI
Date of Decision: 06.01.2015
DR M.C GUPTA ..... Plaintiff
Through Mr.A.K.Aggarwal and Ms.Surabhi Aggarwal, Advocates.
Through Mr.Varun Sharma, Advocate for D-1, 2 & 4 to 7.
IA No. 9995/2014
JUDGMENT
1. This is an application filed by the plaintiff under Order 12 Rule 6, Order 1 Rule 10(2), Order 6 Rule 16 of the CPC for deletion of defendants No.4 to 7 from the array of defendants and for striking out their written statement.
2. The plaintiff has filed the accompanying suit relating to partition of the property 3C/14, New Rohtak Road, New Delhi. The plaintiff seeks decree of partition by metes and bounds in respect of the suit property and that his share be given to him. As per the plaint the property belonged to the late father of the plaintiff Shri Ram Chandra Gupta. The suit property was part of the property of HUF consisting of Shri Ram Chandra Gupta as a Karta. Shri Ram Chandra Gupta is the late father of the plaintiff and defendants No.1 to 3. Defendants No.4 to 7 are the family members of late 2015:DHC:50 Suresh Chandra Gupta, the deceased brother of the plaintiff.
3. It is stated that a partial partition of the HUF took place on 21.5.1980 and Shri Suresh Chandra Gupta who is now represented by defendants No.4 to 7 severed his status as member of the HUF. He also undertook that he had no claim whatsoever in the HUF property and signed an affidavit to the said effect.
4. Reliance is placed on the written statement filed by defendants No.4 to 7 where they have said that they do not have any claim, right, title or interest in the suit property.
5. On the basis of the above averments in the written statement the plaintiff seeks deletion of defendants 4 to 7 from the array of parties.
6. We may also look at Order I Rule 10 CPC. Order I Rule 10(2) CPC reads as follows:- “(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.”
7. Hence, the Court may at any stage strike out the name of any party who has been improperly joined or such person may be joined whose presence before the Court is necessary in order to enable the Court to fully or completely adjudicate upon and settle the questions.
8. In Mumbai International Airport Pvt. Ltd. vs. Regency Convention Centre & Hotels Pvt. Ltd.; 2007 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. In Ramesh Hiranand Kundanmal vs. Municipal Corporation of Bombay; (1992)2SCC524 the Supreme Court held as follows:- “The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights.”
10. We may also look at the pleadings of the parties. Paragraphs 5 and 8 of the plaint reads as follows:-
5. That on 21.5.1980 through a partial partition of the HUF property Sh.Suresh Chandra Gupta (now Late) severed his status as a member of the HUF. Along with and incidental to the said partial partition agreement he also undertook that no claim whatsoever in the HUF property or in the individual properties of the remaining HUF members shall ever be made by him and/or his legal heirs. He signed an affidavit to affirm his such intention and undertakaing. Sh.Suresh Chandra Gupta died in Jan.1997.
8. That Sh.Suresh Chandra Gupta (now late) having separated from the HUF way back in 1980 and having given the undertaking as mentioned in para 4 above, had already excluded himself and his legal heirs from claiming any right in inter-alia the individual property of late Sh.Ram Chandra Gupta. He died in Jan 1997 leaving behind his widow, one son and two daughters viz. the defendants 7,4, 5 and 6 herein. They are, even though not entitled to any share in the suit property as submitted above, being impleaded herein in anticipation that this Hon’ble Court might deem it just to afford them an opportunity to put forth contrary contentions, if any.
11. The corresponding paragraphs of the written statement of defendants No.4 to 7 read as follows:-
2. To 6. That the contents of paras 2 to 6 of the plaint pertain to the background and history of the suit property. However, the plaintiff is liable to be put to strict proof of the same.......
8. That the contents of para 8 of the plaint are admitted to the extent that defendants Nos. 4 to 7 have no claim, title or interest in the Suit property. Moreover, the affidavit deposed by Mr.Suresh Chandra Gupta as mentioned in the plaint is a matter of record.”
12. A perusal of the full written statement however shows that it is the stand of defendants No.4 to 7 that the suit property stands bequeathed as per last wishes of Shri Ram Chandra Gupta to his two sons, namely, defendants No.1 and 2. It is further stated that Shri Suresh Chandra Gupta the father of defendants No.4 to 6 and husband of defendant No.7 has received House No.2C/16, New Rohtak Road, New Delhi as his share vide Partial Partition Deed dated 21.05.1980. The plaint does not deal with rights of defendant No. 4 to 7 as claimed by them in their written statement.
13. There is obviously a controversy regarding the right of various parties to the family properties. Sh.S.C.Gupta the father of defendants No.4 to 6 and husband of defendant No.7 was a class I heir under the Hindu Succession Act. In view of the controversy raised, in my opinion, the presence of defendant No.4 to 7 would be necessary to adjudicate upon and fully decide the disputes and differences between the parties. The said defendants would certainly be proper parties and their presence would be proper. Accordingly, there is no merit in the present application and the same is dismissed.
JANUARY 06, 2015 JAYANT NATH, J n