DELHI WAKF BOARD v. LAL CHAND CHARITABLE TRUST

1. Order impugned before this court is the order dated 06.06.2012, wherein the appUcation filed by the two petitioners Delhi Wakf Board and Hafiz Ala-am Jamal seeking impleadment in the present proceedings had been declined.

2. Record shows that the present suit has been filed by Lai Chand Charitable Trust against two respondents i.e. Union of India and Municipal Corporation of Delhi.

3. It is a suit for possession and injunction. The averments made in the plaint reflect that the plaintiff claims himself to be the owner of Khasra NO. 48, village Yakutpur, Greater Kailash, Phase I, New Delhi. The defendants are in illegal possession and occupation of the suit property; accordingly, a prayer has been made that a decree of possession be passed in favour of the plaintiff and against defendants. A second prayer for permanent injunction has also been made; the defendants be restrained from making any illegal encroachment on the said land.

4. Written statement was filed by the defendants.

5. After issues were framed, evidence was led by the respective parties. This court has been informed that the suit is now at the stage of evidence.

6. An application under Order I Rule 10 of Code of Civil Procedure (herein after refeiTed to as the said Code) has been filed by both these petitioners on 19.04.2012, seeking impleadment in the present proceedings. The case of both the petitioners being different, their applications are also being considered separately.

7. The application preferred by Delhi Wakf Board ( herein after referred to as the DWB) is to the effect that it has an interest in the subject matter of the present suit as all along he has been staking his claim upon this suit land i.e. Khasra No. 48, village Yakutpur, Greater Kailash, Phase I, New Delhi; this is evident from the fact that he had earlier filed a suit for mandatory injunction claiming himself to be in possession of the suit land and with a prayer to restrain the MCD from disturbing his possession. In this suit, an application when filed under Order I Rule 10 of the Code had been filed by the predecessor in the interest of the present respondent (DLF) which had been dismissed. Thereafter, the DLF filed a suit for possession, which has also been dismissed. An appeal against the said order is admittedly pending. Submission being bordered on his plea that all along the respondent was aware of the interest of the present applicant in the suit property and as such, he is both a necessary and a proper party. In para 18 and 19 of the said application, it has been averred that the applicant learnt about the pendency of the said suit "only recently" this application has been filed bonafide and without any delay.

8. Reply to the said appHcation has been filed by the respondent. The V corresponding paras ofthe reply to para No 18 and 19 have been perused. There is no denial to the specific submission made by the applicant that he learnt about the present suit proceedings only recently. Only submission being that he is not a necessary party. The fact that the earlier litigations had been filed was also not disputed.

9. The application filed by the second petitioner i.e Hafiz Akram Jamal has also been dismissed by the impugned order. His submission is that he is also a necessary and proper party as he is in possession of the suit property being a tenant of the DWB. Admittedly, he has no independent interest in the suit property. He derives his interest in the suit property only though the DWB. > 9'

10. The arguments of the learned counsel for the petitioners have been rebutted by the learned counsel for the respondent. His submission is that although admittedly there were interse litigations between the parties, neither of the petitioners are necessary or proper parties. Submission being that the present suit is a suit seeking possession based on a claim of title in the suit property; submission being that there are sale deeds in favour of the respondent upon which, he is relying and even presuming that the petitioner i.e. DWB is made a party, it would not affect the reliefs, which the respondent is claiming and he being the dominus litiis of the litigation is entitled to choose the party against whom, he seeks relief To support his submissions, reliance is being placed upon Orseph Mathai and others v. M. Abdul Khadir AIR 2002 SC 110, Smarbai M. Siddiq and others v. Ramesh

Convention Centre and Hotels Pvt. Ltd. and others AIR2010 SC 3109. The first and foremost submission being bordered on the powers of this court under Article 227 of the Constitution of India; submission being that unless and until there is a patent illegality or en-or on the face of record, no interference is called for by the court under its power of super intendance. > The second legal submission being bordered on the point that the general rule with regard to the impleadment of parties is no doubt that the plaintiff is the dominus litus and he is the person to chose against whom he wishes to litigate. He cannot be forced to seek relief against an improper party. Relevant would it be to extract Order I Rule 1 of the Code which reads as under jf "All persons may bejoined in one suit as plaintiffs wliere- (a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons, whetherjointly, severally or in the alternative; and (b) if such persons brought separatesuits, any common question of law or fact would arise."

11. There is no doubt that the general principal is that it is the plaintiff, who is the master of his suit and it is for him to decide whom he wishes to array as a necessary party. However, when the presence of a party is necessary for a complete and effectual adjudication of the suit, even if no relief is sought against him, he is a proper party; he would become a necessary party without whose presence, no effective and complete adjudication of the case can be made and no relief can be granted.

12. It is in the light of this test, that the aforenoted averments and facts have to be appreciated.

13. It is not in dispute that in the year 1981, DWB had filed a suit for injunction of the same land i.e. Khasra No. 48, village Yakutpur, Greater Kailash, Phase I, New Delhi claiming themselves to be in possession. Permanent injunction had also been sought in these proceedings. DLF, who is admittedly predecessor in interest of the present respondent had filed an application under Order 1 Rule 10 of the Code. The averments in this application have been perused. The stand of the DLF was that the DLF was in possession and was the owner of land i.e. Khasra No. 48 and accordingly sought impleadment. This application was dismissed.