Aero System Vs Jagannath Sharma and Another

Sultan Singh, J.

(1) This is an application under Order 1. Rule 10 read with Section 151 of the CPC on behalf of Anil Kumar Rampal son of Shri Kundan Lal Rampal for impleading him as a party to the suit.

(2) The plaintiff has filed the suit for various reliefs virtually amounting to specific performance of an agreement dated 20th August, 1969, between the plaintiff and defendant No. 2 on the allegations that the President of India granted a sub-lease of plot No. 15, Block B, West End Colony, New Delhi, to Shri K.L Rampal, defendant No. 2, that defendant No. 2 entered into a registered agreement dated 20th August, 1969, with the plaintiff, whereby it was agreed that the plaintiff would construct a building, and after completion he would obtain a completion certificate and inform defendant No. 2 and on being informed of obtaining such certificate the defendant No. 2 within 30 days, time being presence of the contract, pay of the plaintiff a lumpsum amount of Rs. 5 lakhs plus interest and refund of security amount of Rs. 51000.00 and in case defendant No. 2 fails to pay the said amount within the stipulated period, he would execute a conveyance deed transferring his rights in the land and building ; that the plaintiff in accordance with the agreement, constructed the building and obtained a completion certificate dated 16th October, 1973, and informed defendant No. 2 by its letter dated 18th October, 1973, requiring him to pay the amount due as above; that defendant No. 2 failed to pay the amount and he expressed his inability to pay as per letter dated 10th April, 1974 ; that defendant No. 2, thus, ceased to have any right title or interest in the said plot or the building thereon. The plaintiff is stated to be in possession of the land and the plot and no part of the consideration remains to be paid by the plaintiff to defendant No. 2. It is further stated that the plaintiff has also been in possession of all documents relating to the property in question. Sometime in 1976, it appears that defendant No. 2 was adjudged insolvent by the insolvency Court at Dehra Dun and Shri Jagan Nath Sharma, defendant No. 1, was appointed as Official Receiver. The Official Receiver is alleged to have asked the plaintiff to deliver possession of the property to him, but the plaintiff refused. The plaintiff, thereafter, served a notice dated 21st January, 1977, through his counsel and filed the present suit for various reliefs amounting to specific performance of the agreement dated 20th August, 1969.

(3) Nobody appears to have put in appearance on behalf of either defendant No. 1 or defendant No. 2. I am informed that defendant No. 1 has since ceased to be an Official Receiver or defendant No. 2 and that one Shri Tej Parkash, Advocate, has been appointed as Official Receiver of the estate of defendant No. 1. Infact, I find on record an application (I.A. No. 4207 of 1977) on behalf of Shri Tej Parkash, Official Receiver, Dehra Dun under Order 9, Rule 7 and Section 151 of the CPC for setting aside the order proceeding ex-parte against defendants Nos. 1 and 2. At the moment I am not concerned with this application. (I.A. No. 4207 of 1977).

(4) Anil Kumar Rampal son of defendant No. 2 has filed the present application under Order I, Rule 10, read with Section 151 of the CPC for impleading him as a party on the allegation that he and defendant No. 2 constitute a Hindu undivided family, assessed to Income Tax ; that a deed of declaration dated 12th December, 1963, was executed by defendant No. 2 Constituting the said Hindu undivided family ; and that on the basis of the said declaration the plot in question has been the property of the HUF. It is alleged that the said Huf of defendant No. 2 and the applicant were assessed to Income Tax for the assessment year 1964-65. The applicant has filed copies of the declaration dated 12th December, 1963, and the assessment order dated 16th September, 1955, passed by the Income Tax Officer, A-2, District New Delhi, for the assessment year 1964-65 pertaining to the Huf K.L. Rampal and Sons. It is further alleged that the applicant is a coparcener of the Huf and that the payment for the plot in suit was made from the funds of the said Huf ; that defendant No. 2 had no right to enter into the alleged agreement dated 20th August, 1969 and the said agreement is illegal that the applicant was major at the time when the said agreement dated 20th August, 1969 is alleged to have been entered into without his knowledge and consent; that defendant No. 2 had no right to execute any special power of attorney dated 20th August, 1969, as alleged in favor of the plaintiff; and that the applicant came to know of the present suit on 14th October, 1977, for the first time ; that he is a necessary and in any case a proper party to the present suit and that he should be imp leaded as a defendant so that the court could adjudicate upon the matter in dispute.

(5) The plaintiff in reply has alleged that on 20th August, 1969, the applicant declared in writing that defendant No. 2 was the absolute owner of the plot in question ; that the same was purchased by his father out of his own money ; that he had not contributed in any manner whatsoever towards the purchase price of the said plot ; and that his father had absolute right to sell the plot of land. The other allegations were also denied by the plaintiff. A photostat copy of the letter, alleged to have been written to the plaintiff by the applicant on 20th August, 1969, along with a photostat copy of another letter dated 20th August, 1969, alleged to have been written by defendant No. 2 to the plaintiff declaring that the leasehold rights of the plot in question were purchased by him out of his own money and that his children have no claim over the same. The applicant in his rejoinder has denied the contents of the said two letters alleged to have been written by him and his father defendant No. 2. The applicant has also denied the execution of the said letter dated 20th August, 1969, by him to the plaintiff.

(6) The learned counsel for the applicant has contended that the applicant has an interest in the property, that his interest is inherent-he being one of the coparceners of the Joint Hindu family consisting of defendant No. 2 and the applicant ; that the declaration was given by defendant No. 2 in the year 1963 before the Income tax authorities; and the Income tax authorities by order dated 16th September, 1965, recognised the status of the Huf K..L. Rampal and Sons on the basis of the said declaration. It is further urged that the present agreement between the plaintiff and defendant No. 2 is alleged to have been executed on 20th August, 1969, and as such there cannot be any doubt about genuineness of the declaration and the order for the assessment year 1964-65.

(7) Mr. Aggarwal, learned counsel for the applicant has relied upon the judgment Balmukand Vs. Kamla Wati and Others, , in which the Supreme Court has laid down that no part of the joint Hindu Family property could be parted with or agreed to be parted with by the Manager on the ground of alleged benefit to the family when the transaction is opposed by an adult member of the family. The applicant in the present case opposes the agreement in question dated 20th August, 1969, and he also alleged that the property belongs to the joint Hindu family.

(8) The learned counsel for the plaintiff, on the other hand, has contended that there is no privity of contract between the plaintiff and the applicant ; that the agreement dated 20th August, 1969, was entered into only by defendant No. 2 and the present suit concerns with the specific performance of that agreement ; that the applicant has nothing to do with the agreement, and, Therefore, he should not be imp leaded against the wishes of the plaintiff. The learned counsel for the plaintiff has relied upon the case. E. Ajay Kumar Vs. Tulsabai and Another, , where it has been held that a stranger to a contract for sale of which specific performance is sought, cannot be a party to the suit. This judgment does not appear to be of any help to the plaintiff; and in the present case the applicant is not a stranger but a member of the joint Hindu family consisting of the applicant and defendant No. 2. In Rashikial Shankarlal Soni v. Netverlal Shankarlal Upadhyaya and others, it was held that in a suit for specific performance of agreement for sale vender''s sisters being not a party to the agreement, but claiming right to the suit property, were not a necessary party and that their presence was not necessary to adjudicate upon the questions involved in the case. In this case the vender''s sisters'' claim was that they were entitled to inherent the suit property under Hindu Law and that the agreement of sale was not binding on them and, Therefore, they were entitled to be imp leaded as party to the suit. It appears that the facts of this case are not applicable to the present controversy between the plaintiff and the applicant. The applicant has inherent right, in case it is proved that the property in question is the joint family property. In Banarsi Dass Durga Prashad Vs. Panna Lal Ram Richhpal Oswal and Others, , it was observed that a court should not add a person as a defendant in a suit when the plaintiff is opposed to such an addition and that the plaintiff cannot be compelled to fight against a person against whom he does not wish to fight and against whom he does not claim any relief. As against this court, in Vaish Cccp. Bank v. S.P. Jain, C.R. No. 130 of 1975 decided en 18th April, 1975, by S. Rangarajan, J., reported in 1975 RLR 77, after referring to the said judgment of the Punjab and Haryana High Court, held that the provisions of Order I, Rule I of the code of the Civil Procedure, give power to the court to order adding of a party, whose presence before the court is necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit. The test adopted by the statute is on its language a functional one and is to be decided merely from the point of view of the plaintiff in the action being dominous lites and for that reason being able to successfully oppose the addition of any other party regardless of the above consideration.

(9) In Razia Begum Vs. Sahebzadi Anwar Begum and Others, , it was held that in a suit relating to property in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the subject-matter of the litigation.

(10) The learned counsel for the applicant, in reply to the authorities cited by the plaintiff has relied upon C.M.V. Krishnamachari Vs. M.D. Dhanalakshmi Ammal and Others, . It has been held that in applying Order I, rule 10(2) the only question is whether an applicant who applies for being imp leaded as a party to the suit, has got a direct interest in the subject-matter in dispute, which would be affected by the result of the litigation, "The interest" that is necessary to make a person party is legal interest including equitable interest, that is an interest which the law would recognise and uphold. It was further held that the expression "the questions involved in the suit" must be given wider interpretation ; and that a stranger to a suit, who has direct interest-legal or equitable in the subject-matter of the dispute, can be imp leaded as a party.

(11) The applicant in the present case claims direct and inherent interest in the property alleged to the owned by the Huf, being a member-coparcener of the joint Hindu family, on the basis of the said declaration dated 12th December, 1963, and the assessment order for the assessment year 1964-65.

(12) After giving my careful consideration to the contentions of the parties, and without expressing any opinion about the respective merits and demerits of the case, pleaded by the applicant, I am of the opinion that the applicant be imp leaded as a defendant to the present case. I order accordingly. The plaintiff may file amended plaint within six weeks from today impending the applicant as defendant No. 3 and making consequential amendments.