Raj Kumari & Anr. v. Sanjay Taneja

1. This petition under Article 227 of the Constitution of India is filed by the legal heirs of the original defendant in the suit impugning the order of the trial court dated 2.4.2013 allowing DDA to be added as a party under Order I Rule 10 of the Code of Civil Procedure, 1908 (CPC) in a suit for specific performance and permanent injunction. 2014:DHC:4852

2. The suit for specific performance and permanent injunction was filed in the year 2005 by the respondent/plaintiff with respect to the property bearing flat no. 350, Pocket C-1, Sector-11, Rohini. Issues were framed in the year 2007 and thereafter respondent/plaintiff completed his evidence. It is thereafter that the subject application under Order 1 Rule 10 CPC was filed by the respondent/plaintiff.

3. Learned counsel for the petitioners/defendant argues that DDA is neither necessary nor a proper party with respect to the issues which presently exist in the suit as to whether or not that specific performance should or should not be granted in a suit for specific performance. It is argued that in the suit the issues are only with respect to the agreement to sell of which enforcement is sought, breach thereof and readiness and willingness of the respondent/plaintiff to perform his part of the contract with connected issues. It is argued that even if the flat is not freehold, it is only after the respondent/plaintiff succeeds in the suit for specific performance that permission will have to be obtained from DDA for selling of the property. Reliance in support of this argument is placed upon the judgment of the Supreme Court in the case of Mrs. Chandnee Widyavati Madden Vs. Dr. C.L. Katial & Ors. AIR 1964 SC 978 and it is argued that agreement to sell are contingent contracts and only after contingent contracts achieve finality by a decree for specific performance, thereafter only the superior lessor is called upon to give permission i.e the role of the superior lessor-DDA comes in only after passing of the decree and not before passing of the decree. Reliance is also placed on behalf of the petitioner to Order XXI Rule 32 CPC as per which after passing of the decree courts in case of refusal of the defendant to apply for necessary permission to the superior lessor, appoints a Local Commissioner to take the necessary permission including for performing the task of execution and registration of the sale deed.

4. I agree with the arguments urged on behalf of the petitioners because in a suit for specific performance, at the present stage, DDA is not a necessary and/or proper party. The role of DDA/superior lessor will only come in if the respondent/plaintiff is first successful in the suit for specific performance. Only after the respondent/plaintiff succeeds in a suit for specific performance, then the issue will arise of execution of the conveyance deed in favour of the respondent/plaintiff by the DDA and the petitioners/defendant and giving of permission by DDA. Therefore, the role of the DDA comes in only after passing of the judgment and decree in favour of the respondent/plaintiff, surely at this stage addition of the DDA will only result in delay of the suit by again taking the case back to the stage when it was filed in 2005, and which will cause serious prejudice to the petitioners/defendant, who want early disposal of the suit and want to lead their evidence especially because they also have filed a counter-claim.

5. In view of the above, the petition is allowed, and the impugned order of the trial court dated 2.4.2013 is set aside. DDA will not be added as defendant in the suit. Parties are left to bear their own costs.

SEPTEMBER 19, 2014 VALMIKI J. MEHTA, J. ib