Full Text
HIGH COURT OF DELHI
Order Reserved on: 16th January, 2014 Pronounced on: 13th February, 2014
D.V. SINGH AND ANOTHER ..... Plaintiffs
Through: Mr.Anand Yadav, Advocate
Through: Ms.Shyel Tehan and Ms.Manzira Dasgupta, Advocates for D-1/MCD
Mr.A.P.Aggarwal, Adv for D-2.
Mr.Ravi Kant Chadha, Sr.
Advocate with Mr. R.K.
Gautam, Adv for defendant/applicant.
IA No.12765/2013 (under Order 1 rule 10)
JUDGMENT
1. This is an application on behalf of M/s Swatantra Coop 2014:DHC:863 House Building Society for being impleaded as defendant in the present suit.
2. Order 1 rule 10 of the Code of Civil Procedure lays down as under:
10. Suit in name of wrong plaintiff.— (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. (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) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. (4) Where defendant added, plaint to be amended.—Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant. (5) Subject to the provisions of the 1Indian Limitation Act, 1877 (15 of 1877), Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.
3. Under Order 1 rule 10(2) any person whose presence is necessary for the purposes of enabling the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit can be added as a defendant. The power to add a party can be exercised at any stage of the proceedings.
4. The plaintiffs have filed the present suit for declaration and permanent injunction primarily against defendant No.1, i.e., MCD. The plaintiffs and defendant No.2 claim to be owners of free hold plot No.25 (New) Category II, Group B measuring 399.93 Sq.Yards, Kalindi Colony in Revenue Estate of Village Kilokri, Delhi.
5. Case of the plaintiff it that the said plot was allotted and sold to the mother of the plaintiff and defendant No. 2 by Swatantra Coop House Building Society (applicant herein) vide sale deed dated 07.10.1965. The society had purchased an area of 2046 acres of land in the year 1955-57. The land purchased was not in any geometrical dimensions and zigzag shape. A layout plan was prepared by the society and the same was passed by the defendant MCD vide resolution dated 01.10.1958 and as per the said resolution, 108 residential plots were approved. Since the land was irregular, the society had been representing to the MCD and other concerned authorities for adjustment of pocket and boundaries belonging to CRRI, Ministry of Transport and to exchange land belonging to the society with the land belonging to CRRI and others.
6. The society sought for permission from the MCD, which permission was granted vide resolution dated 08.05.1964, to make boundary wall of the colony regular. Society was granted permission to construct on the plots in the colony except plots No. 1, 2, 10 – 15 in Block B and Plots No. 18 – 25 in Block ‘E’ for want of approach road. As per plaintiff, the society once again approached the corporation for allowing building activities on the plots and vide resolution No.588 dated 25.08.1965, the Municipal Corporation of Delhi permitted the society to carry on building activities subject to certain conditions.
7. The plaintiff has relied on various resolutions of the society. As per the plaintiff, an additional area of 0.88 acres became available to the society for planning i.e. area of 0.46 acres which was left out from planning earlier in the original plan and 0.42 acres which was specifically acquired.
8. The plaintiff further contends that after adjustment of area with CRRI. As some area was exchanged with CRRI, certain plots that were shown in the area handed over to CRRI ceased to exist and in their place some additional land became available. As per the original layout plan there were no plots on the additional land. The original plot E – 25 being on the area handed over to CRRI no longer existed and in its place plot E – 25 (new) was shown in the area received from CRRI in the revised layout plan in the society.
9. As per the plaintiff, on 07.10.1965, the mother and the predecessor of the plaintiffs and defendant No.2 were sold plot No. E – 25 (New), and she was put in possession on execution and registration o f the sale deed. She continues to remain in possession of the same without any interruption or disturbance.
10. Plaintiff have referred to various letters and resolutions passed by the society seeking revision of the layout plan.
11. It is the case of the plaintiff that the society had allotted and sold the said plot E – 25(new) to the mother of the plaintiffs and accordingly, the plaintiffs are the owner and in possession of the said plot.
12. The plaintiffs in the plaint have referred to certain proceedings that took place with regard to the sanction of the building plan for construction on the plot sold and for possession of the plot purchased. The plaintiff has placed reliance on various orders passed in the said proceedings relating to sanction of the building plan which culminated in an order being passed by the Supreme Court in the said proceedings.
13. The plaintiff contends that some officers of the defendant MCD had come to the site and had tried to take forcible possession of the said plot and dispossess the plaintiffs in April and May, 2011. It is in these circumstances that the plaintiff has filed the present suit seeking a declaration that the plaintiffs and defendant No.2 be declared as owners and in possession of the said plot having purchased the same by virtue of sale deed executed by the Society.
14. The defendant MCD has filed the written statement to the suit and has submitted that in the process of straightening out boundaries, Plot No. E – 25 went to the share of CRRI and thus ceased to exist. The defendant MCD has referred to the various revised layout plans submitted by the society and has contended that there was no plot E – 25 (new) that was carved out by the society. It is further the case of the defendant MCD that plot No. E – 25 was mentioned in the resolution No.158 by mistake.
15. As per the stand of the defendant MCD, the society had made the mother of the plaintiff aware through a circular that there was an exchange contemplated between the society and CRRI on account of which the sanction and allotment would only be conditional on the sanction of layout plan being received from the defendant MCD. The circular issued by the society also made it clear that in case the MCD rejected the revised layout plan or passed it with modifications, the allottees would not be allotted new plots but would get a refund of deposits after deduction of expenses. It would be only to those person who accepted the conditions that the allotment would be made. As per the defendants, the mother of the plaintiff accepted these conditions and gave an undertaking to the said effect and, accordingly, the conditional allotment of a plot was made in her favour.
16. As per the written statement of MCD, the society had claimed that plots bearing No. C – 35 and C – 36 were substituted for plots No. E – 25 and C – 23 which ceased to exist on account of straightening of the boundaries. The defendant MCD has further referred to the proceedings qua the sanction of the building plan to contend that no plot bearing No. E – 25 (new) was ever sanctioned or authorised to the society and as such, the sale of the same by the society to the plaintiff could not take place and being a conditional sale, the plaintiff was not entitled to the said plot.
17. The society was not impleaded as a defendant in the suit. The present application has been moved by the society for impleadment. The applicant has contended that the entire controversy with regard to the said plot stands finally concluded by the judgment of the Supreme Court in Civil Appeal No. 4246/2000. The applicant/society has contended that the applicant ought to have been impleaded as a party to the suit and the presence of the applicant is necessary in order to enable the court to effectively and completely adjudicate upon several questions involved in the suit.
18. Learned counsel for the plaintiff opposes the application on the ground that the applicant is neither a necessary nor a proper party as once the society has sold the plot and executed a sale deed in favour of the plaintiffs, the role of the society is over. Learned counsel further contends that the person who has signed and filed the present application is not authorised by virtue of a resolution of the society authorising him to file the said application.
19. No doubt under normal circumstances a transferor/seller is not a necessary party in a suit by the transferee to enforce its rights under a transfer deed against third parties but the facts in the present case are peculiar.
20. The entire case of the plaintiff revolves round the various resolutions passed by the society with regard to the acquisition of land, preparation of the layout plan. The disputes pertain to the land allotted to the society, its demarcations, the plots originally sanctioned and allotted. The dispute also pertains to location of the area sold to the Plaintiffs by the society. The plaintiff has relied on various letters and resolutions of the society. The controversy also revolves around the fact whether the area th at is allegedly sold and handed over to the Plaintiffs by the society was sanctioned or not and whether the allotment to the mother of the plaintiffs by the society was conditional or not and whether the said allotment lapsed on account of subsequent events. In my view these questions cannot be completely and effectively adjudicated upon in the absence of the society. The presence of the society and its role at various stages would have to be examined at the time of the adjudication of the various disputes that are arising in the present suit.
21. As the presence of the society is necessary to effectively and completely adjudicate upon the various questions that arise for consideration in the present suit, the application is allowed, The applicant society M/s Swatantra Coop House Building Society is impleaded as Defendant No. 3 to the suit.
22. The discretion to add a party can be exercised by a court either suo motu or on an application of a party to the suit or a person who is not a party. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. [MUMBAI INTERNATIONAL AIRPORT PVT LTD.
VS REGENCY CONVENTION CENTRE AND HOTELS PRIVATE LIMITED 2010 (7) SCC 417].
23. In view of the finding above that the applicant society is a necessary party, the argument of the plaintiff that there is no resolution authorising the filing of the present application is not being dealt with and is left open.
24. Nothing stated herein shall amount to an expression of opinion on merits of the dispute between the parties.
25. No costs.
SANJEEV SACHDEVA, J FEBRUARY 13, 2014 sv