Deependra v. Sant Prashad

1 The present petition has been filed under Article 227 of the constitution of India read with Section 151 of the CPC against the order dated 30"" July, 2013 passed by learned SCJ-cum-RC (South) in appUcation filed tmder Order XV Rule 1CPC directing joinder of"South Delhi Municipal Corporation (SDMCf through its Commissioner as defendant No. 2and accordingly the plaintiff to file amended memo ot parties and amended plaint, ifany.

2 Brieffacts as per petition are that: i) The petitioner/plaintiff is self employed Architect working in Delhi and is the only son of the respondent/defendant who is aretired government employee. ii) On 13"' March, 1961, the grandfather ofpetitioner/plamtiffLate Sh. Gopal Chand had purchasedaresidential plotbearingNo.B-10, Green CM(M)No.974/2013 2013:DHC:7426 Park Extension, New Delhi-n0016 measuring 280 sq. yds. from the UrbanImprovementHousingandConstructionCo.Pvt. Ltd. videduly registered SaleDeedfromtliefunds ofthefamily HUF. iii) The building plans for the said plot were duly sanctioned and atwo and ahalfstoriedbuildingwas constructed. Thatvide orderdated19 January, 1974, the Zonal Appellate Confroller of Estate Duty, Northern Zone, NewDelhiheldthat the funds utilized inthe purchase and constniction ofthe said property were part offrmds ofHUF and held that the property belonged to the HUF. iv) Stoi Gopal Chand died on 26-^ November, 1968 leavmg behmd his two sons namely Sh. Soami Prasad Gupta and tlie defendant Sh. Sant Prashad. V) Vide oral partitiondated28«'May, 1979the HUF was partitionedinto two parts equally includmg the entire immovable property No.B-10, Green Park, Extn. New Delhi, by metes and boimds into two HUFs being 'SoamiPrashadGuptaHUF' and 'SantPrashadHUF'. Theoral partition was then recorded in writing vide memorandum ofpartition dated 30" May, 1979 which was upheld by the Income Tax Officer Distt. VIII (8) New Delhivide its orderdated 22°''December, 1982. vi) That in the year 1996, Sh. Soami Prashad Gupta HUF and his four sons sold their 50% share ofthe property on 3"" January, 1996 to M/s. S.P.M. Developers Pvt. Ltd. as aresuh they have no nghts, titles or interest in the propertyNo.B-10, Green ParkExtn. New Delhi. At the same time, M/s. Sant Prashad HUF, being the absolute owner of 50% of property entered into acollaboration agreement on 3"" January, 1996 with M/s. S.P.M. Developers Pvt. Ltd. to reconstruct a new Pase 2 of[9] CM(M)^0.974/2013 buildmg on the plot with the final ownership in the new bmldmg as follows: A,!/, Prashad HUE: complete ground floor and Rear Basement inthe new buildingwith 37.5% landrights, M/s SPM Developers Pvt. Ltd.;Complete First and Second Floor, Terrace and Front Basement inthe new building alongwi 62% land rights. vii) The property was thus reconstructed consisting of Front Basement, Rear Basement, Ground Floor, First Floor, and SecondFloor. As per collaboration Agreement dated 3'^ January, 1996, the Ground Floor and Rear Basement came to the share of'SantPrashad HUF' and the HUF became the absolute owner thereof. viii) The name of Sant Prashad HUF was duly mutated in the records of the Mumcipal Corporation of Delhi as absolute owner and m possession ofthe entire Gromid Floor andRearBasementofproperty bearingNo.B-10, GreenParkExtn. New Dellu.110016. ix) Till the year 2005 it was only the petitioner/plaintiff and the respondent/defendantwho constituted the SantPrashad HUF and that they were the only two coparceners constituting the said Hindu Undivided Family with the defendant as the Karta of the HUF (hereinafter referred to as the 'said HUF ). x) The said HUF had been earning some income and had been assessed to Income Tax for few years till 2004-05, however, thereafter, the HUF did not cam any revenue and the defendant who was the Karta, was unable to bear the expenses of maintaining the family from properties owned by the HUF. Page 3 of[9] CM(M)No.974/2013 ^ Xi) On August, 2005, an oral family settlemert took place between the parties wherein boththe parties out ofnatural love and affection, for family peace, mutually agreed to dissolve the HUF. It was agreed thatallthejewelleryandthe entirebalancetn thebankaccountsofthe hot will be utilized by the respondent/defendant for himself. The petitioner/plaintiffwillbetheexclusiveandabsoluteownerofthesaid immovable suitproperty as describedin ScheduleAofthe plaint. xii) Later the said family settlemert was duly recorded in the memorandum of family settlement dated 20'" August, 2005 duly executed by both the parties. That as a result, the respondent/defendant had no claim, right, lien or interest m the entire said immovable suit property and the same vests absolutely mthe petitioner/plaintiff. xiii) The above stated family settlement was duly acted uponby boththe parties to the extentthat the HOT stood dissolved and after2005, no income tax returns have been filed by the HUF till date. The entire bank balance and jewellery of the HOT was also utilized by the respondent/defendant. The petitioner/plaintiff became the absolute exclusive owner inpossession ofthe said immovable suit property. xiv) However,the nameofthepetitioner/plaintiffhas notbeenrecordedm the Municipal Corporation of Delhi as the absolute owner m possessionofthe saidsuitpropertysince therespondent/defendanthas been denying the right and claim ofthe plaintiff That on 20'" July, 2012, the respondent/defendant refused to close tlie bank accoimts of the HUF and fiirther refiised the absohite ownership and title of the petitioner/plaintiffto the suit property. CM(M)No.974/2013 "Apparently,the pleadingsare lacunic. Firstly, they do not constitute as to why tlie plaintiffs claim was denied as late as on 20^ July, 2012 even when the MoFS was recorded much earUer on 20 Augu^st. 2005. Wliat efforts tlie plaintiff made for ^ mutated in municipal records between 20 August 2005 and 20'" July, 2012 are conspicuously absent m pleadings. Secondly, the defendant's admission also does not tlirow any light on the kind misunderstanding which arose between tlie parties. Thirdly, the plaintiff appears to be declaration oftitle without pleadings qua denial ot it by the municipal authorities. The plaint gives to understand that the plaintiffs claim might have been refused by the municipal authorities. This fact, i correct, has not found place in the pleadings. In my considered view, the parties are not at issue however one of a necessary and proper party is omitted to be sued as aco-defendant. The same is the concerned municipal corporation. 1am ofthe considered view that presence of the South Delhi Municipal Corporation is necessary m order to enable this Court to effectually and completely adjudicate upon and settle the question qua cl^Henge to title of the plaintiff. Exercising powers of Order 1 Rule 10(2) CPC, this Court hereby directs joinder ot SDMC tlirough its Commissioner as defendant No.2^ Plaintiffto file amended memo ofparties and amended plaint, ifany, within aperiod ofone month from today upon which summons be issued to the newly added defendant No.2."

3. The said order has been challengedby the petitioner before this Court.

4. Notice was issued to the respondent.

5. The respondent has filed an affidavit. Relevant paras 2to 5are read as under; Faee 6 of[9] CM(M)No.974/2013 ^ S' -♦ XV) Thus aggrieved, the petitioner/plaintiff filed the smt for declaratron againstthe respondent/defendanton September,2012 m the court of competent jurisdiction. Notice was issued to the respondent/defendant on 24" September, 2012 by the learned Trial Court, where aiier, the parties had several meetings between themselves and they resolved their differences and they also personally appeared before the Court on 2?"' November, 2012. The petitioner/plaintiff also sought amendment of the suit which was allowedby the learnedTrialCourton 3'^ April, 2013. xvi) Therespondent/defendantthenfileditswrittenstatementon20*'May, 2013 admitting the claim of the petitioner/plaintiff and there was no issue of fact or of law. The misunderstandings between the parties regardingthe family settlementwas settledandthelearnedTrial Court proceeded mider Order 15 Rule 1CPC and after hearing part arguments directed the petitionerto file the originals documents vide order dated 25^ July,2013. xvii) On 30" July, 2013, the original documents were filed by the petitioner/plaintiffand arguments were concluded. Thejudgmentwas reservedby the learnedTrial Court. However, the learned TrialCourt later passed the impugned order dated 30«' July. 2013 thereby it was heldthatthe Mmiicipal Corporation ofDelhi is anecessary and proper party to the suit and thereby directedjoinderofCommissioner, MCD South as defendantNo.2 exercising powers under Order 1Rule 10 (2) CPC holding that consequences of non-prosecution shall follow in case ofnon-compliance. The operative portion ofthe order is read as under Pa^e 5 of[9] CM(M)No.974/2013 ^. \v "2 The Respondent submits before tliis Coifft that he is a retired Central Government employee. The plaintiff is the only son of the respondent/defendant The parties had entered into aFamily Settlement recorded on 20 08 2005 through which the HUF was dissolved and the petitioner became the sole and exclusive owner of the Sential house No.B-10, Green Park Extension New DeUii. That however, there was certam betweenthe parties regardingthetime from which'he Famdy Settlementwillbe made effective. The said misunderstmdi g is now cleared. True copy of the Memorandiun of Family Settlement dated 20.08.2005 is Amiexure R-1.

3 The respondent states that the petitioner/plaintiff has not approached the MCD for 0^^2005 at Memorandum of Family Settlement dated 20^08J005 as respondent was unable to agree to ^ve is 1 affidavit to the MCD due to tlie misunderstandmg which had existed between the parties at the said time.

4 That the respondent had appeared in person before the Court of learned SCJ in Civil Suit No.180 of 2012 wtoem die petitioner had also appeared mperson and that the matt was finally settled between the parties before the Coiirt. The answering respondent is now not disputmg the sole ownership of the petitioner/plaintiff m the property in question.

5 That the matter has been settled between the parties and that the Municipal Corporation ofDelhi will be unable to assist the learned SCJ in ascertaining the title and ownership ofthe property in question."

6. The primary object ofOrder 1, Rule 10(2) CPC is to bring before the Court at the same time the persons interested in the dispute so that all the controversies in the suit may be finally determined once and for all in the presence ofthe parties without delay, inconvenience andexpenses ofseveral actions, trials and inconclusive adjudication. Notwitlistandmg the fact that the said provision confers wide discretion but such discretion has to be CM(M)No.C74/20J[3] P'<geTof[9] exercised judicially and on sound legal principle. In AnU Kumar vs. Shivnath, reported in 1995(3) SCC 147, considering the provisions of Order 1, Rule 10(2) CPC, the Supreme Court has held that;- " Though the Court may have power to strike out the name of aparty improperly joined or add aparty eitlier on application or without application of either party, but tlie condition precedent is that the Court must be satisfied that tlie presence of the party to be added would be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit. The object of the rule is to bring on record all the persons who are parties to the dispute relating to the subject-matter so that the dispute may be determined in their presence at the same time without any protraction, inconvenience and to ^ avoid multiphcity ofproceedings."

7. It is settled law that aperson cannot be allowed to be added as one of the parties only because he has relevant evidence to give on some of the questions involved. What makes aperson anecessary party is not merely that he has relevant evidence to give on some ofthe questions involved, but it should make him as necessary witness. The third party cannot be considered to be anecessary party for deciding the mam issue framed mthe suit. Mere ground that inclusion ofthe proposed third party would not alter the structure ofthe suit may not entitle the paity to ask the Court to implead the third party as adefendant unless the Court found that it would not be possible to completely and effectively adjudicate the controversy raised before the Court. The main object ofthe rule is not to prevent multiplicity of actions or avoid fresh litigation, but to consider whether the person is directly orlegally inthe action.

8. No doubt, the Court is empowered to implead aperson under Order 1 Rule 10(2) CPC when aperson is either necessary or proper party. In the CM(M)No.974/20J[3] Page 8of[9] present case, no relief has been sought against tlie MCD. All the original documents are placed on the record. There was no issue before the Court why the requisite name is notmutatedin the municipal record between 20"" August, 2005 and 20^^,July, 2012.

9. In die present case, the MCD is directly empowered to take appropriate action against the parties to the suit in accordance with law if any provision is breached. Tlius, the MCD is neither anecessary party nor a proper party. The findings of tlie learned trial Court in tliis regard are quashed.

10. The matter is remanded back to the learned trial Court to reconsider the application in question under Order XV Rule 1CPC filed by the plaintiff.

11. In view ofthe abovesaid direction, the present petition is disposed of along with the pending application.

12. No costs.