Narayan Dass v. Ashok Kumar @ Agastya

V.B.GUPTA, J. mw

* HIGH COURT OF DELHI: NEW DELHI CM (M) No.1286/2010 & CM No.18317/2010 % Judgment reserved on: 7th October, 2010 Judgment delivered on: 21st October, 2010 Narayan Dass S/o Tala Ram R/o IX/6535, Indra Gali, Gandhi Nagar, Delhi - 110031 ….Petitioner. Through: Mr. Gaurav Sethi, Adv. Versus 1. Ashok Kumar @ Agastya S/o Narain Dass R/o Flat No. 227, First Floor, Gaur Green Avenue, Ghaziabad, U.P. 2. Madhu Chawla W/o Ravi Chawla R/o 203, Surya Niketan, Vikas Marg, Delhi – 110092 ….Respondents Through: None CORAM: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. Present petition under Article 227 of the Constitution of India has been filed by petitioner against order dated 17th August, 2010 passed by Administrative Civil Judge, Karkardooma Courts, Delhi, vide which application under Order 1 Rule 10 of Code of Civil Procedure (for short as "Code") filed by applicant-Smt. Madhu Chawla was allowed and petitioner was directed to amend the plaint accordingly. 2. Brief facts of this case are that, petitioner has filed a suit for injunction against respondent No.1 (his son) alleging that he (petitioner) has purchased property No. IX/5810, Subhash Mohalla, Gandhi Nagar, Delhi -110031 in two parts. Half of the property was purchased by petitioner from one Ravinder Singh and remaining half of the property was purchased by him in the name of respondent No.1. Now, respondent No.1, is threatening to dispossess the petitioner from property in question without adopting the due process of law. 3. In the written statement filed by respondent No.1, he took a preliminary objection that the suit is bad for non-joinder of necessary parties as respondent No.1 has already transferred the ownership/title of the property in question vide Gift Deed to his wife Smt. Nancy Mehndiratta. Now, his wife being the sole owner of property in question has sold the said property to Smt. Madhu Chawla and as such Smt. Nancy Mehndiratta and Smt. Madhu Chawla are necessary parties to the suit. 4. In application under Order 1 Rule 10 of the Code filed by applicant Smt. Madhu Chawla, it is stated that she is the owner of half part of the property in question having purchased the same from Smt. Nancy Mehndiratta and petitioner is aware about this fact. The applicant being the owner of half part of the property in question, is a necessary party and as such she may be impleaded as defendant in the suit. 5. It is contended by learned counsel for petitioner that petitioner has filed a suit for injunction and has claimed relief against respondent No.1 only. Moreover, applicant in no manner had done any act to wrongfully dispossess the petitioner and further petitioner is not having any apprehension against the applicant. As such impugned order allowing the applicant to become as defendant is patently illegal and beyond jurisdiction. 6. Trial court in impugned order observed; "The applicant has also placed on record gift deed executed by the defendant in favour of his wife. I am of the view as the applicant has purchased the half portion of the suit property from the wife of defendant, the defendant has no interest in the suit property as he has already sold the half portion of the suit property and definitely the applicant will be effected by the decision of this case. It is contended by the counsel for the plaintiff that the present suit is for permanent and mandatory injunction. Taking into consideration the fact that the half portion of the property has already been sold by the wife of the defendant to the applicant, the applicant is a necessary party and she is impleaded as defendant." 7. Order 1 Rule 10 of the Code read as under:- "10. Suit in the name of wrong plaintiff – (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been i