Full Text
HIGH COURT OF DELHI
Date of Decision: 13th September, 2018.
JASWIN ARORA ..... Plaintiff
Through: Mr. Kunal Tandon, Advocate.
(M:9818442226)
Through: Mr. Imran Ali and Mr. Kunal Sachdeva, Advocates for D-4.
(M:9212696986)
Mr. Kush Sharma, Ms. Asiya Khan and Mr. Ekant Luthra, Advocates for
D-5/DDA. (M:9311399002)
Mr. Pardeep Gupta, Mr. Parinav Gupta and Mr. Moazzam Ali, Advocates for D-6. (M:9899200863)
Mr. Ravi Kapoor, Ms. Gauri Puri, Mr. Rommel Khan and Ms. Sonakshi Singh, Advs. for D-7.
(M:9953287414)
JUDGMENT
1. The present Original Appeal has been filed challenging the order dated 31st October, 2017 passed by the Joint Registrar in I.A. No.6500/2016. By the said order, the Learned Joint Registrar has allowed impleadment of the subsequent purchasers of the property as Defendants No.6 and 7, in a suit for specific performance filed by the Plaintiff.
2. The background of the present dispute is that the Plaintiff claims to have entered into an agreement to sell in respect of the basement (front and 2018:DHC:5970 rear portion), ground floor and terrace, along with proportionate rights in the land in property bearing no.D-16, Greater Kailash Enclave-I, New Delhi (hereinafter, the ‘suit property’) with Defendants No.1 and 2. On 30th April, 2014, Defendant No.4 entered into an agreement to sell in respect of some part of the suit property, with Defendants No. 1 and 2. A suit came to be filed on 26th September, 2014 and was listed before this Court on 1st October, 2014. On 9th October, 2014 this Court had granted an interim order in the following terms: “Issue notice to the defendants, for the date fixed. Learned counsel for the plaintiff is pressing for an ex parte ad-interim injunction. In view of the statement made in the plaint and the original documents produced by the plaintiff, it appears to the Court that the plaintiff has been able to make out a strong primafacie case for the grant of an ex parte ad-interim injunction in her favour. The balance of convenience also lies in favour of the plaintiff and against the defendants. Till the next date of hearing, the defendants are restrained from selling, alienating, transferring or parting with possession or creating any third party rights and interest in respect of the suit property, i.e. basement, ground floor and terrace rights of the property bearing No.D-16, Greater Kailash Enclave-I, New Delhi. Compliance of Order XXXIX Rule 3 CPC be made within one week.”
3. On 23rd November, 2015, the following order was passed: I.A. NO.20941/2015 (u/o VIII R.l CPC. by D-5 The abovementioned application has been filed by defendant No.5 for condonation of delay of 271 days in filing the written statement. Copy be supplied to learned counsel for the plaintiff within three days. Reply be filed within one week thereafter. List on 14th January, 2015. I.A. No.10019/2015 (u/s 151 CPC by plaintiff) The abovementioned application has been filed by the plaintiff seeking prayer that plaintiff be allowed to fix a sign board at some conspicuous place at the suit property wherein the fact of pendency of the litigation and passing of an interim order on the suit property is mentioned. Defendant Nos.[2] and 3 are yet to be served. No one appeared on behalf of defendant No.4. Defendant No.2 is served by the publication. In view of the reason stated in the application, the same is allowed. The plaintiff is allowed to fix a sign board at the suit property wherein the fact of pendency of the litigation and passing of an interim order on the suit property is mentioned. The application is disposed of. CS (OS) No.3056/2014 List on 14th January, 2016, the date already fixed.”
4. The said order was modified on 6th April, 2018 to the following extent:
5. Defendant No.4 claims to have entered into two agreements to sell on 25th September, 2014 in respect of the portions of the property which he had purchased from Defendants No.1 and 2, i.e., the rear portions of the ground floor and lower ground floor. The sale deeds in respect of the said properties were executed on 20th October, 2014. The said two parties, namely, Mrs. Janki Devi and Mrs. Sapna Devi moved an application being I.A. 6500/2016, seeking impleadment in the suit as Defendants No.6 and 7. This application was decided by the Joint Registrar on 31st October, 2017. The present appeal challenges the said order of the Joint Registrar impleading the Applicants as Defendants No. 6 and 7.
6. Mr. Kunal Tandon, Advocate appearing for the Plaintiff submits that a suit for specific performance cannot be converted to a suit adjudicating title between the parties. It is his submission that the order of the Joint Registrar is contrary to the judgments of the Supreme Court. He specifically relies upon the judgment of the Supreme Court in Kasturi v. Iyyamperumal and Others (2005) 6 SCC 733. It is further submitted by Mr. Tandon, that since the Applicants have claimed to be bona fide purchasers without notice of the previous sale, they are not liable to be impleaded as Defendants under Section 19(b) of the Specific Relief Act, 1963.
7. On the other hand, it is submitted by Ld. Counsel for the Defendant that the Applicants being in possession of the property, and Defendants No.1 and 2 already having been proceeded ex-parte, the Applicants would be the most affected parties by any order that may be passed by this Court. Ld. Counsel relies upon the subsequent judgments of the Supreme Court including Vidhur Impex and Traders Private Limited and Others v. Tosh Apartments Private Limited and Others (2012) 8 SCC 384 and Thomson Press (India) Limited v. Nanak Builders and Investors Private Limited and Others (2013) 5 SCC 397 and two judgments of this Court i.e. Charanjeet Singh Rekhi v. Harish Ahuja and others (2014) 7 High Court Cases (Del) 83, and Dharampal Satyapal Ltd. v Sanmati Trading and Investment Ltd. and Ors. ILR (2014) II Delhi 1204, in support of his case.
8. The legal position in respect of impleadment of a subsequent purchaser in a suit for specific performance is quite well settled. The judgment of the Supreme Court in Kasturi (supra) is clear that if a party does not claim under the vendor, but claims rights adverse to the title of the vendor, such a person does not fall in any of the categories mentioned in sub-Section (a) to (e) of Section 19 of the Specific Relief Act. In Vidhur Impex (supra), the Supreme Court laid down the broad principles governing the impleadment of a subsequent purchaser. The Court held as under:
9. In Thomson Press (supra), while discussing the principle of lis pendens, as contained in Section 52 of Transfer of Property Act, 1882 the Supreme Court observed as under:
10. Mr. Kunal Tandon, Ld. Counsel for the Plaintiff, seeks to distinguish Thomson Press on the ground that the sale was a clandestine transaction, and hence the purchaser was not a bona fide purchaser. Thus, the impleadment had been allowed in the said case.
11. A Division Bench of this Court in Charanjeet Singh Rekhi v. Harish Ahuja and others (2014) 7 High Court Cases (Del) 83 after discussing the entire law on the subject, including Kasturi (supra) held as under: “25....It is thus settled that there cannot be an absolute proposition that in no circumstances can a person claiming title to the suit property be impleaded as a necessary or proper party to a suit for specific performance. The question whether a person is a necessary or a proper party to a suit would have to be decided in the given facts and circumstances of a case. It is relevant to note that the decision in Kasturi case has also been referred to by the Supreme Court in Thomson Press (India) Ltd. case which is a later decision.”
12. The principle that emerges from a review of the case law is that if a person who has purchased the property from the same vendor does not claim a title adverse to the vendor, and the transaction is not clandestine, or in violation of a restraint order, such a person can be impleaded. The Supreme Court in Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and Ors. (1992) 2 SCC 524, while discussing the scope of Order I Rule 10 of the CPC, held as under: “It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidently have that effect. But appears to be a desirable consequence of the rule rather than its main objective. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the answer i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action. Similar provision was considered in Amon v. Raphael Tuck & Sons Ltd., wherein after quoting the observations of Wynn-Parry, J. in Dolfus Mieg et Campagnie S.A. v. Bank of Englan, that their true test lies not so much in an analysis of what are the constituents of the applicants‟ rights, but rather in what would be the result on the subject matter of the action if those rights could be established, Devlin, J. has stated: “The test is „May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights.”
13. In the present case, both the Plaintiff and the proposed Applicants derived title from the same persons i.e. Defendants No.1 and 2. The Plaintiff claims to have an agreement to sell with Defendants No.1 and 2 in respect of the following portions of the suit property: - Basement (Front and Rear portion); - Ground Floor (Front portion); - Terrace rights; - Proportionate rights in the land The proposed Applicants also trace back their purchase to Defendants No.1 and 2, through Defendant No.4 and claim rights in respect of the following portions: - Rear portion of the ground floor and - Rear portion of the basement; Thus, the parties claim rights through the same vendor and some portions of the property are overlapping between the two transactions.
14. The court is not at this stage adjudicating the actual portions purchased by both sets of parties. However, if any decree is passed against Defendants No.1 and 2, who are now ex-parte, since the proposed Applicants claim through the said Defendants, the judgment and decree would be binding on them. The final order which would be passed would undoubtedly affect the rights of the proposed applicants in respect of the overlapping portions of the suit property. Such parties would then be necessary parties as also proper parties to the suit. In the present case, the agreement to sell between the proposed Applicants and Defendant No. 4 was executed two days prior to the filing of the suit i.e. 25th September, 2014. Thus, the transaction was not in violation of the restraint order passed by this Court, though the sale deed was executed thereafter. In fact, as of 20th October, 2014, when the sale deeds were executed, it is not even clear whether Defendants No.1, 2 and 4 were even served with the summons in the suit. In fact, the service report of 19th February, 2015 records that Defendants No.1,[2] and 4 are unserved. This completely changes the character of the sale in favour of the proposed Applicant. The sale cannot be characterized as being clandestine or a result of contumacious conduct. The order passed by the Joint Registrar cannot thus be faulted with.
15. The appeal is accordingly dismissed.
PRATHIBA M. SINGH, J. SEPTEMBER 13, 2018