Full Text
HIGH COURT OF DELHI
Date of Decision: 10.10.2023
ASHOK KUMAR SHARMA ..... Petitioner
Through: Mr. Rajiv K. Garg, Mr. Ashish Garg and Mr. Govind Singh, Advocates
Through: Mr. R. M. Sinha, Mr. P.M. Sinha and Ms. NandiniHarsh, Advocates
JUDGMENT
1. This petitionfiled under Article227 of Constitutionof India impugns theorder dated 12.07.2023 passedby the Civil Judge-02, Shahdara District, Karkardooma Courts, Delhi(‘TrialCourt’)in civil suit no. 1469/2019, titled as ‘Usha Kush v. Shiv Dutt’, whereby the Trial Court dismissed the applicationfiled by thePetitioner herein under order IRule 10(2)of Code of Civil Procedure, 1908 (‘CPC’) seeking impleadment.
1.1. The Petitioneris a stranger to the suit. The Respondent No. 1 is the plaintiff and the Respondent No. 2 is the defendant in the civil suit.
1.2. The civil suit has been filed by RespondentNo. 1 against Respondent No. 2, a tenant, for seeking a decree for possession, arrears of rent, permanent injunction and mesne profits with respect to property no. B- 101/2, Village Uldhanpur, Kanti Nagar Extn., Delhi (‘suit property’).
2. Learned counselfor the Petitioner states that Respondent No. 1 i.e., the plaintiff, has instituted the civil suit by claiming ownership. He states that Respondent No. 1 is relying upon the registered gift deed dated 16.03.2012 executed by the Petitioner herein in favour of the father of Respondent No. 1, who in turn has executed a registered Will dated 28.04.2014 in her favour.
2.1. He states that a substantial suit was filed by the Petitioner seeking cancellation ofthe said gift deed on 08.03.2016and though, the suit stands dismissed by theconcerned Courton 09.09.2019, the Petitioner herein has filed a first appeal challenging the said dismissal and the same is pending consideration before this Court in RFA No. 1086/2019.
2.2. He states that the Respondent No. 2 was inducted as tenant by the Petitioner herein in the subject property and the said tenant had been remitting the rent to the Petitioner.
2.3. He states that prior to institutingthesuit for eviction, the Respondent No. 1 had issued a legal notice dated 11.07.2018 to both the Petitioner herein and Respondent No. 2 calling upon them to render accounts with respect to payment of rent until 11.07.2018.
2.4. He states that despite having issued a notice to the Petitioner, the Respondent No. 1 without impleading the Petitioner filed the civil suit on 29.11.2019 for recovery of arrears of rent and possession only against Respondent No. 2.
2.5. He states that Petitioner herein was not aware about the pendency of the present proceedings; and in the month of May, 2022, during the pendency of thesaid suit, Respondent No. 2 has vacated the suit property and handed over thepossessionofthe suit property to the Petitioner herein. Further, in fact, the Petitioner has proceeded to induct a new tenant in the premisesat therent of Rs. 4,000/-per month. He states that in May, 2022, the Petitioner herein learn about the pendency of the suit.
2.6. He states that though the civil suit filed by the Petitioner seeking declaration of cancellation of gift deed dated 16.03.2012 and permanent injunction was dismissed videorder dated 09.09.2019,heis still a necessary and a properpartyin theseproceedings in view of thependency of the RFA No. 1086/2019 before this Court, as a decree for possession, if granted, would affect theright of the Petitionerherein. Hestates that theRespondent No.2 havingvacated thesuit property, theproceedings are likely to proceed ex-parte.
3. In reply, learned counsel for the Respondent states that the Respondent No. 1 instituted the civil suit on 29.11.2019 i.e., only after a Court of competent jurisdiction had dismissed the civil suit filed by the Petitioner herein challenging the gift deed dated 16.03.2012.
3.1. He states that with the said suit having been dismissed, there is no obligation in law or in fact on the Respondent No. 1 to implead Petitioner herein in the civil suit.
3.2. He states that in the civil suit filed by the Respondent No. 1 herein, the relief of decree of possession and the arrears of rent is only sought against Respondent No. 2 and there is no relief which has been sought against the Petitioner.
3.3. He states that theRespondentNo. 1 is a dominuslitis and Petitioner is neither a necessary nor a proper party in the suit.
4. This Courthas considered thesubmissionsoftheparties and perused the record.
5. Thereis no disputethatRespondentNo. 2 was occupying the portion of the suit property,which was gifted to Shri Bhagwat Parsad Sharma i.e., father ofRespondent No.1, by virtueofthe gift deed dated 16.03.2012. The Petitioner herein is the daughter of late Shri Bhagwat Parsad Sharma and also thebeneficiary under theregistered Will dated 28.04.2014 executed by her father.
6. The Petitionerherein havinglost in the civil suit seeking cancellation of the gift deed, thedevolutionoftitle of suit propertyby operation oflaw in favour ofRespondentNo. 1 stands complete and there is no eclipse on her rights, title or interest.
7. In thesecircumstances, theinstitution of the suit civil on 29.11.2019 by Respondent No. 1 for recovery ofpossessionfrom RespondentNo. 2 was well within her legal rights.
8. The non-impleadment of Petitioner in pursuance to the legal notice dated 11.07.2018 is of no consequence as in the said legal notice, the RespondentNo. 1 had merely sought renditionofaccountsfrom Respondent No. 2 for the past rental collected until 11.07.2018, which is not a subject matter of the civil suit.
9. This Court also finds theplea that the Petitioner herein was unaware about the pendency of the suit till May, 2022, farfetched. In fact, it is apparent thatthePetitioner herein has taken over the possession of the suit propertyfrom RespondentNo. 2 despite having full notice of the pendency of the proceedings and has therefore, tried to over reach the said suit. An honest litigant would have taken over the possession after seeking permissionfrom theTrialCourt.However, Petitionerand Respondent No.2 havewrongfully surrendered and acceptedpossession during the pendency of the suit. The Respondent No.2 and the Petitioner shall both remained bound by theoutcomeofthe decree passed in thesuit for possession, arrears of rent, damages and injunction, filed by the Respondent No.1 in view of Section 52 of Transfer of Property Act, 1882.
10. The findingof theTrial Court that Petitioner is seeking to convert a suit for possessioninto suitfor title, is correct in thefacts of this case as the issueof the titleof thePetitioner wasnot a questionarisingfor consideration in this suit. The Respondent No.1’s title to the suit property stands crystallised in view of the gift deed dated 16.03.2012, registered Will dated 28.04.2014and thedecreedated 09.09.2019dismissing the suit filed by the Petitioner seeking declaration and possession.
11. Lastly, theRespondent No. 1 is a dominuslitis and if the Respondent No. 1 does not wish to implead the Petitioner as a party in the suit, this Court is of the view that the Petitioner is neither a necessary or a proper party. In this regard, it would beinstructiveto refer to the division Bench of this Court in Kranti Arora v. Digjam Ltd. & O.P. Khaitan (HUF), 2022 SCC OnLine Del 2023, wherein the Court has held as under:
12. Accordingly, thepresentpetition is withoutanymerit and the same is dismissed.