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Subhash Chander Vs. Municipal Corporation of Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Revision Appeal No. 1037 of 1979
Judge
Reported in17(1980)DLT478
ActsCode of Civil Procedure (CPC), 1908 - Sections 115 - Order 1, Rule 10
AppellantSubhash Chander
RespondentMunicipal Corporation of Delhi and ors.
Advocates: G.S. Vohra,; Y.K. Sabharwal and; Mukul Rohatagi, Advs
Cases ReferredBanarsi Dass Durga Prasad v. Panna Lal Ram Richhpal A.l.R.
Excerpt:
it was adjudged under order 1 rule 10 of the civil procedure code, 1908, that when a suit relates to immovable property in order that a person might be added as a party, he should have direct interest in the subject matter of litigation - further, mere agreement to sell in his favor had no interest in the property. - - (3) where the subject matter of litigation is a declaration as regards status or legal character the rule of the present or direct interest may be relaxed in suitable case where the court is of the opinion that by adding that party it would be in a better position effectually and completely to adjudicate upon the controversy......parties actually before the court, but generations to come, and in view of that consideration, the rule of 'present interest' as evolved by the case law relating to disputes about property does not apply with full force ; and (7) the rule laid down in s. 43 of the specific relief act, is not exactly a rule of res-judicata. it is narrower in one sense and wide in another.'(7) it is apparent from the same that when the suit relates to a property in order that a person may be added as a party he should have direct interest in the subject matter of litigation. ram parkash has merely an agreement to sell in his favor. according to section 54 of the transfer of property act a person who has merely an agreement to sell in his favor has no interest in the property. it is clear from the following.....
Judgment:

G.R. Luthra, J.

(1) The present revision petition is directed against an order dated 3rd December 1979 of Shri R. K. Sharma, Sub Judge I Class, Delhi. Vide that order the learned Sub Judge had accepted an application of Shri Ram Parkash under Order I Rule 10 Civil Procedure Code for being imp leaded as defendant in the suit filed by the present petitioner.

(2) The present petitioner Shri Subhash Chander brought a suit for perpetual injunction restraining Municipal Corporation of Delhi, respondent No. I and Zonal Assistant Commissioner, Karol Bagh, Tibbia College, New Delhi respondent No. 2, its employees and agents from demolishing any porton of the shop in property Nos. 2643-2645/3, Bank Street, Beadonpura,Karol Bagh, Delhi. According to the petitioner he is a tenant in respect of a shop in the said property on a rent of Rs. 400.00 per month excluding water and electricity charges. The petitioner received a notice under Section 343 and 344 of Delhi Municipal Corporation Act for demolishing some portion of the shop from the Municipal Corporation of Delhi respondent No. 1. It is asserted by the petitioner that the demolition of any portion of the property could nol be legally carried out and accordingly the aforesaid suit was brought by him.

(3) The petitioner had imp leaded M/s G. S. Bedi & Company as defendant No. 3 in the suit on the ground that it was from the said firm that the former had obtained tenancy rights in respect of the shop.

(4) Shri Ram Parkash brought an application Order I Rule 10 C.P. C. read with Section 151 C. P. C. for being imp leaded as a defendant on the assertions which are as follows. He had entered into an agreement, dated 11th October 1975, with Shri G. S. Bedi with regard to the entire property No. 2643 to 2645/3 Bank Street Karol Bagh, Delhi whereby the latter had agreed to sell said property to the former for total price of Rs. 98000.00 out of which a sum of Rs. 51,000.00 had been paid. Thereafter G. S. Bedi did not want to stick to that agreement. thereforee, he (Ram Parkash) brought a suit in this court for specific performances of the agreement to sell and also filed an application being 1.A. No. 1879/77 for obtaining orders for maintenence of status quo. This court granted an ad-interim injunction restraining G.S.Bedi from alienating, disposing of or selling or parting with possession of the property till further orders. G. S. Bedi came up with a plea that he had let out the premises to G. S. Bedi & Co., a partnership firm consisting of his wife and daughters. It was afterwards that the shop had been let out by G. S. Bedi & Company to the present petitioner Subhash Chander. That creation of tenancy in favor of the present petitioner was Sham & fictitious. Further unauthorised construction was started in the property which was brought to the notice of this court who appointed Shri Sudershan Kumar Misra Advocate as local commissioner for inspection of the spot and make a report. Shri Sudershan Kumar Misra went on the spot and found that the construction was going on. He reported to that effect and also placed on record some photographs. With the above assertions it is concluded that his (Ram Parkash's) presence is absolutely necessary to completely and effectually decide the controversy.

(5) The aforesaid application was contested by the present petitioner. However, as already mentioned, learned Sub Judge allowed the application. It was remarked by the learned Sub Judge that even though Ram Parkash may not be a necessary party he was a proper party as in his absence his interests in the property could not be properly looked after.

(6) Leading authority on the point is a judgment of Supreme Court in Razia Begum vs. Sahibzadi Anwar Begum and others . In that case following proposition of law was laid down in para 13 of the judgment: 'As a result of these considerations, we have arrived at the following conclusions: (1) That the question of addition of parties under R. 10 of 0. I of the Code of Civil Procedure is generally not one of initial jurisdiction of the court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case; but in some cases, it may raise controversies as to the power of the court in contradistinction to its inherent jurisdiction, or, in other words) of jurisdiction in the limited sense in which it is used in S. 115 of the Code; (2) 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 limitation. (3) Where the subject matter of litigation is a declaration as regards status or legal character the rule of the present or direct interest may be relaxed in suitable case where the court is of the opinion that by adding that party it would be in a better position effectually and completely to adjudicate upon the controversy. (4) The cases contemplated in the last proposition have to be determined in accordance with the statutory provision of Ss. 42 and 43 of Specific Relief Act. (5) In cases covered by these statutory provisions the court is not bound to grant the declaration prayed for, on a mere admission of the claim by the defendant, if the court has reasons to insist upon a clear proof apart from the admission; (6) The result of a declaratory decree on the question of status, such as in controversy in the instant case, effects not only the parties actually before the Court, but generations to come, and in view of that consideration, the rule of 'present interest' as evolved by the case law relating to disputes about property does not apply with full force ; and (7) The rule laid down in S. 43 of the Specific Relief Act, is not exactly a rule of res-judicata. It is narrower in one sense and wide in another.'

(7) It is apparent from the same that when the suit relates to a property in order that a person may be added as a party he should have direct interest in the subject matter of litigation. Ram Parkash has merely an agreement to sell in his favor. According to Section 54 of the Transfer of Property Act a person who has merely an agreement to sell in his favor has no interest in the property. It is clear from the following portion of Section 54 of the Act:

'Acontract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.'

It was held in Satyabrata Ghosh vs. Mugneeram Bangur & Co. and, another that according to Indian law which is embodied in Section 54 of the Transfer of Property Act a contract for sale of land does not create any interest in the property which is the subject matter of the contract. Same was the view expressed by Supreme Court in Radhakrishan Laxminarayan Toshniwal vs. Shridhar Ramchandm Alshi & others .

(8) Hence Ram Parkash was not to be imp leaded as necessary or proper party. In Raghbir Saran vs Shagoofa KhatoomKm I.A. 2989of 1979in suit No. 1280 of 1978 Mr. Justice Sultan Singh decided on 22nd January 1980 that a person (who was Inderjit Singh Gupta in that case) who claimed himself to be having an agreement of sale of immoveable property in his favor was neither necessary nor a proper party to the suit and that he should not be added as defendant.

(9) The learned counsel for Ram Parkash relied upon a Judgment of Mr. Justice Sultan Singh of this court in M/s Aero System vs. Sh. Jagannath Sharma & another . In that case on the basis of an agreement to sell a person instituted a suit against another for specific performance. Son of the defendant in that case applied for being imp leaded as a party on the ground that property subject matter of agreement to sell was joint Hindu Family one and that thereforee, he was necessary to be imp leaded. It was held that son of the defendant in that suit was necessary party because he had interest in the property. But that authority has no application to the facts of this case. It was a coparcener that son of defendant in that case wanted to be imp leaded and there was no application for impleading from a person having agreement to sell in respect of property in his favor.

(10) The learned counsel for Ram Parkash contended that the present revision petition is not maintainable under Section 115 of the Code of Civil Procedure. He relied upon a judgment of the Supreme Court in M/s D. L. F. Housing and Construction Company (P) Ltd vs. Sarup Singh & others, in which following proposition of law was laid down :

'WHILEexercising the jurisdiction under S. 115 it is not competent to the High Court to correct errors of fact however, gross and even errors of law unless the said errors have relation to the jurisdiction of the court to try the dispute itself. The words 'illegality' and 'with material irregularity' as used in clause (c) do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision and not to errors either of fact or of law after the prescribed formalities have been complied with.'

(11) The learned counsel urged that in the present case there was neither error nor irregularity in the exercise of jurisdiction and that hence there was no application of Section 115 Civil Procedure Code

(12) But the aforesaid authority has no application in the present case. That was a case of stay of proceedings under Section 30 of the Land Acquisition Act by a court within the meaning of that statute. It was held that revision petition under Section 115 Civil Procedure Code was not maintainable.

(13) There are direct authorities in support of the proposition that any order passed under Order I Rule 10 is subject to revisional powers of the High Court. It was held by Privy Council in Atma Ram v. Beni Prasad & others, 0049/1935 that where an application under Order I Rule 10 for adding a party to a suit had been summarily dismissed the court acted with material irregularity so as to be liable to be subject to revision petition under Section 115 of the Code of Civil Procedure. Similar was the view expressed in Razia Bagum v. Sahhbzadi Anwar & others, cited already. The ratio laid down by the Supreme Court in that case has been reproduced and the view of the Supreme Court in respect of these revisional powers as contained in sub para 1 of para 13 of the judgment.

(14) Same was the view expressed by Punjab and Haryana High Court in Banarsi Dass Durga Prasad v. Panna Lal Ram Richhpal A.l.R. 1969 P.& H. 57.

(15) Under the above circumstances I accept the revision petition, set aside the impugned order of the learned Sub Judge and dismiss the application of Ram Parkash for being imp leaded as respondent. Parties are left to bear their own costs. The parties have been directed to appear in the court of learned Sub Judge on 28th March 1980.


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