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High Court Of Delhi
VIRTUS DORDRECHT B.V. - Appellant
Versus
VIKRAM BHARGAVA - Respondent
L.A. 11036 of 2000
Decided On : 04/10/2003
Held:
A person who is neither a necessary nor proper party, cannot be allowed to be imp leaded as a party. Such a finding cannot be given without ascertaining the issues arising in the suit.
A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. The addition of parties is generally not a question 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. The Court is empowered to join a person whose presence is necessary for the prescribed purpose and cannot under the rule direct the addition of a person whose presence is not necessary for that purpose. If the intervener has a cause of action against the plaintiff relating to the subject matter of the existing action, the Court has power to join the intervener so as to give effect to the primary object of the order which is to avoid multiplicity of actions.
The suit of the plaintiff for the recovery of certain amount against defendants 1 & 2 is primarily based on the averments and allegations that they had committed breach of trust by mis-appropriating different sums of money received by them from the plaintiffs by investing them for purchasing of lands in their own name and the name of their family members contrary to the terms of the agreement and thereafter a part of land in question was transferred in favor of a third party with a view to defeat the claim of the plaintiffs which they could have made on the said land, this Court is of the considered opinion that the said third party is not only a proper but a necessary party for the just and proper adjudication of the suit. As regards the plea of proposed defendant that she is a bona fide purchaser for valuable consideration without knowledge of any alleged claim of the plaintiffs against the existing defendant, this Court is of the opinion that she would be entitled to raise this plea in her defense after she is imp leaded as a party.
The objection of the proposed-defendant that the application has been made under the incorrect provision of law, appears to be correct because the application ought to have been made under Sub-rule (2) instead of Sub-rule (4) of Rule 10 of Order I CPC. Since all the averments and allegations alleged in the application are fully covered by Sub-rule (2) of Order I Rule 10 CPC, thereforee, the application can be considered and treated to have been made under Order I Rule 10 (2) & (4) CPC.
( 1 ) THE plaintiffs have moved this application under Order I Rule 10 (4) read with Order 39 Rules 1 and 2 read with Section 151, Civil Procedure Code seeking permission to implead Smt. Angoori Devi wife of Shri Jai Prakash, resident of C-32, AFFCC, Neb Sarai, New Delhi as a defendant (defendant No. 6) in the present suit and for an injunction restraining her (Smt. Angoori Devi) from dealing with, selling, transferring, mortgaging, disposing off, alienating, creating third party interests in any manner or parting with possession of the portion of land transferred in her name by defendant No. 1 i. e. Khasra No. 562/462/83 (100. 9 bighas) and a part of Khasra No. 565/462/83 (88 Bighas) of the suit property.
( 2 ) THE germane facts which need to be noticed for the disposal of the present application are the plaintiffs had filed a suit for recovery of US Dollars 5,64,895 (Rs. 2,14,66,030/-), declaration and injunction against defendant Nos. 1 to 5. The allegations made in the suit being that around July - August, 1996 defendant No. 1 approached plaintiff No. 1 with a project for export of certain agricultural commodities. A contract was executed between the plaintiffs and defendant No. 1. After that defendant No. 1 alleged to have represented to the plaintiffs that he had a better proposal for investment in real estate business and that the money sent by the plaintiffs for the performance of export project would be remitted to his account with the bank. Defendant No. 1 also introduced defendant No. 2 as his personal friend and consultant in Trade Promotion, having held certain prestigious posts in government Organisations. Acting on the representation of defendant Nos. 1 and 2, the plaintiffs remitted a sum of US Dollars 3500,000 to the defendants to secure the purchase of land and thereafter certain more amounts were remitted by transfer from the bank account for the purchase of land. However, contrary to the assurance and promise, defendant Nos. 1 and 2 purchased several pieces of agricultural land in all measuring 753. 09 Bighas in the names of defendant Nos. 1 to 4 in the revenue estate of village Mitasar, Tehsil Sardarshahar, District Churu, Bikaner, Rajasthan. The said act of the defendants was not only contrary to the terms and conditions of the agreement and the contemplated project but was also fraudulent act on the part of the defendants committed with a view to dupe the plaintiffs of huge sum which they had entrusted to defendant Nos. 1 and 2 under good faith. The suit is being contested by defendant Nos. 1 to 5 on a variety of grounds.
( 3 ) ALONG with the suit, the plaintiffs had also filed an application under Order 39 Rules 1 and 2, Civil Procedure Code praying for an ad interim injunction. On 2nd april, 1998, this Court while issuing notice on the said application, restrained the defendants from dealing with, selling, transferring, mortgaging, disposing off, alienating, creating third party interests in any manner or parting with the possessions of the suit property as described in para 21 at pages 17 and 18 of the plaint. The said injunction order is still in operation.
( 4 ) THE present application dated 16th October, 2000 was moved on 19th october, 2000 by the plaintiffs with the allegations that in the month of July, 2000, the plaintiffs learnt that defendant No. 1 Shri Vikram Bhargava had transferred a part of the suit property i. e. Khasra No. 562/462/83 (measuring 1000. 0 Bighas) and a part of Khasra No. 565/462/83 (88 Bighas) to one Smt. Angoori Devi wife of Shri jaiprakash, resident of C-32, AFFCC, Neb Sarai, New Delhi sometime in February, 1998 before the filing of the present suit in April, 1998. Accordingly it was stated that the said portion of the suit property is now under the legal ownership and possession of the said Smt. Angoori Devi who is alleged to be the wife of Shri Jai prakash an employee of Defendant Nos. 1 and 2. It is also alleged that Smt. Angoori devi and her husband Shr
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