Smt. Arti Chaudhary vs Sh. Vinod Kumar and Others

V.K. Jain, J.

I.A. No.12863/2008

This is an application for deleting the name of Defendant No. 2 from the array of Defendants. It has been alleged in the application that there is no privities of contract between the plaintiff and the applicant and he has unnecessarily been dragged into this litigation.

A perusal of the plaint would show that the case of the plaintiff is that Defendant No. 1 represented himself to be the absolute owner and in possession of northern side portion measuring 475 sq. yards i.e. half portion of property No. 62 Part of Khasra No. 429 situated at Village Masjid Moth, New Delhi-110049 as per the collaboration agreement dated 3rd December, 2003 between him and Defendant Nos. 3 to 6. It is further alleged in para 3 of the plaint that it was also represented by Defendant No. 1 that Defendant Nos. 3 to 6 were the absolute owners and in possession of the said property. Defendant No. 1 is alleged to have agreed to sell first floor flat having an area of 1000 sq. feet consisting of two bedrooms with attached toilets with drawing cum dinning, kitchen, front side balcony with one car parking to the plaintiff. It is further alleged that pursuant to the agreement to sell and purchase, Defendant No. 1 received the amounts mentioned in para 4 of the plaint from the plaintiff. A sum of Rs. 10 lakhs is stated to have been paid to Defendant No. 1 towards the sale consideration and a sum of Rs. 1.51 lakhs towards expenditure. The only allegation against Defendant No. 2 is that he was pursuing the transaction along with Defendant No. 1 for selling the property to the plaintiff, had been actively participating in the sale and he was in collusion and connivance with Defendant No. 1. It is also alleged that agreement to sell was executed in the presence of Defendant No. 2 and one more witness.

Thus, the plaintiff is not alleging any agreement between him and Defendant No. 2. The agreement to sell in favor of the plaintiff is alleged to have been executed only by Defendant No. 1 and Defendant Nos. 3 to 6 have been impleaded as Defendants since they are alleged to be the owners of the property, who entered into a collaboration agreement with Defendant No. 1. A perusal of the collaboration agreement dated 3rd December, 2003 also would show that this agreement was excited only between Defendant No. 1 and Defendants 3 to 6. Defendant No. 2 is not a party to this agreement. The agreement to sell and purchase dated 18th April, 2005 would show that this was executed only between the plaintiff and Defendant No. 1 and Defendant No. 2 was only a witness and not a party to the agreement.

In a suit for specific performance of an agreement to sell, the witness to the agreement is neither a necessary nor a proper party to the suit and no relief against him can be granted to the plaintiff qua the agreement. In the event of a decree for specific performance of the agreement to sell and purchase dated 18th April, 2005 being passed, it will not be passed against Defendant No. 2, who has no right, title or interest in the property subject matter of the agreement and, therefore, can transfer no title therein to the plaintiff. He is also not a proper party to the suit and his presence as a party is not required to enable the Court to effectually and completely adjudicate on the dispute involved in this suit. It will always be open for the plaintiff to summon him as a witness, if required to prove his case. But, he cannot be compelled to defend a litigation to which he is neither a necessary not a proper party.

The contention of the learned Counsel for the plaintiff is that the plaintiff has also claimed injunction against all the Defendants, restraining them from assigning, alienating, transferring the property, subject matter of agreement with the plaintiff, besides recovery of Rs. 1.51 lakhs and damages amounting to Rs. 10 lakhs. Since Defendant No. 2 does not have any right, title or interest in the suit property, he is not in a position to assign, transfer, sell or alienate it or create any third party interest in it. Hence, no injunction of the nature sought by the plaintiff can be granted to the plaintiff against him. The amount of Rs. 1.51 lakhs towards expenditure is alleged to have been paid by the plaintiff to Defendant No. 1 and not to Defendant No. 2. Therefore, this amount cannot be claimed from him. The damages also can be claimed only from Defendant No. 1 since the case of the plaintiff is that he has suffered mental harassment on account of his failure to perform the agreement with the plaintiff. Thus, this relief also can be claimed only against Defendant No. 1 and not against Defendant No. 2.

For the reasons given in the preceding paragraphs, the name of Defendant No. 2 is struck off of the array of Defendants. Amended memo of parties after deleting Defendant No. 2 will be filed by the plaintiff within one week.

The application stands disposed of.

CS(OS) No. 721/2008

List on 11th May, 2011 for settlement of issues, as prayed.