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IN THE HIGH COURT OF DELHI
C. Hari Shankar, J.
B.B. Joshi - Appellant
Versus
Sharma Foundation - Respondent
CM(M) 903 of 2019 & CM Appl. 27127 of 2019
Decided On : 09-11-2022
Key Points: - The court held that the impugned order correctly treated the suit as instituted by Sharma Foundation as a Trust. (!) - The matter discusses substitution of deceased Plaintiff 2 (Dr. P. Sharma) and replacement by Respondents 2 to 4 as trustees, under Order I Rule 10 CPC. (!) (!) - The decision rejects applying Order XXII Rule 3 consequent on death of a trustee if the suit is treated as filed by the Trust. (!) - The appellate court directs a de novo consideration of whether Respondents 2 to 4 would be entitled to be impleaded as Plaintiffs, under Order I Rule 10, taking into account objections raised. (!) - The court notes that the suit includes a Trust Deed and other trust documents placed on record, supporting the Trust capacity of the plaintiff. (!) (!) (!) - The court found issues with the authenticity and timing of trustees named in the 2015 minutes and their relation to the trust, impacting substitution. (!) (!) (!) - The final order partially allows the petition and directs de novo consideration of impleadment under Order I Rule 10 CPC. (!) - The court emphasizes supervisory jurisdiction limits under Article 227 and that it cannot act as an appellate court to reweigh evidence. (!) (!) - The judgment requires the ADJ to decide de novo the application under Order I Rule 10 CPC, with potential further submissions. (!)
ORDER
1. This petition under Article 227 of the Constitution of India emanates from a suit which was originally instituted before this Court as CS (OS) 335/2012 (Sharma Foundation & Anr. v. B.B. Joshi) and which, consequent to enhancement of the pecuniary jurisdiction of Trial Courts, stands transferred to the Court of the learned Additional District Judge (the learned ADJ), where it was renumbered CS 12/17. Respondent 1 Sharma Foundation and Dr. P. Sharma were the plaintiffs in the suit and the petitioner B B Joshi was the sole defendant.
2. The petitioner is aggrieved by order dated 15th February 2019 passed by the learned ADJ, whereby an application under Order I Rule 10(2)1 of the Code of Civil Procedure, 1908 (CPC), filed by Dr. Swasti Shrimali Vohra, Rajiv Nair and Dr. Manu Shrimali Sharma, Respondents 2 to 4 herein, has been allowed. By the impugned order, Dr. P. Sharma was deleted from the array of parties and, in his place, Respondents 2 to 4 have been permitted to be impleaded.
Facts
Plaint in CS (OS) 335/2012 (later CS 12/17)
3. Plaintiff 1 in CS(OS) 335/2012 was Sharma Foundation "through Chairman Dr. P. Sharma". Dr. P. Sharma was separately impleaded as Plaintiff 2.
4. Though the recitals in the plaint do not specifically refer to Plaintiffs 1 and 2, the reference to "the plaintiff", in the plaint, is apparently to Plaintiff 1 Sharma Foundation.
5. The factual recitals in the plaint may be summarised thus:
(i) The petitioner B B Joshi ("Joshi" hereinafter) entered into an Agreement to Sell dated 18th December 2006 with Respondent 1-Sharma Foundation, for sale of property situated in Khasra Nos. 204, 205, 206 and 209 situated at Nawada Pargana, Parwadoon, Dehradun, admeasuring 4575 sq. m. (the suit property) for a total sale consideration of Rs.1.2 crores. Under the Agreement to Sell, which was executed at Delhi, Joshi was to sell the suit property to Sharma Foundation. Pursuant thereto, Sharma Foundation paid Rs.60 lakhs to Joshi, towards earnest money, vide cheque dated 18th December 2006, which was encashed by Joshi on 21st December 2006. The Agreement to Sell envisaged Sharma Foundation opening a charitable hospital in the suit property, for which Joshi was obligated to obtain statutory permissions and complete other formalities within 16 months from the date of agreement, failing which Sharma Foundation was liable to be refunded the earnest money deposited by it along with interest @ 20% per annum.
(ii) The plaint alleged that Joshi failed to obtain the requisite permissions and, therefore, offered to return the earnest money paid by Sharma Foundation. Sharma Foundation accepted Joshi's offer. The earnest money was to be refunded by Joshi in one go, along with interest. Joshi delayed in refunding the money and, after great persuasion, refunded the money in instalments in part, to the extent of Rs.25,98,500/-.
(iii) Thereafter, Joshi furnished, to Sharma Foundation, cheques dated 7th April 2010 for Rs.10 lakhs, 14th April 2010 for Rs.10 lakhs, 21st April 2010 for Rs.10 lakhs and 30th May 2011 for Rs.7 lakhs. At the request of Joshi, Sharma Foundation did not deposit the first three cheques dated 7th April 2010, 14th April 2010 and 21st April 2010. The fourth cheque dated 30th May 2011, when presented, was returned unpaid.
(iv) Joshi having thus failed to refund the earnest money paid by Sharma Foundation with interest, a legal notice dated 7th December 2011 was issued by Sharma Foundation to Joshi. The total amount payable by Joshi to Sharma Foundation, as computed in para 12 of the plaint, worked out to Rs.95,23,500/-. As such, the plaint prayed for a decree, in favour of Sharma Foundation and against Joshi, of recovery to the extent of Rs.95,23,500/- alongwith pendente lite and future interest @ 20% per annum.
Written statement
6. On or around 8th May 2012, Joshi filed his written statement by way of response to the suit instituted by Sharma Foundation. To deal with the limited issue in controver
A trust may represent legal actions even without explicitly stating its nature in the plaint; proper procedural follow-through is essential for parties' substitutions in litigation.
The court upheld the trial court's decision to deny the petitioners' application to join the suit, emphasizing the necessity of parties and the principle of dominus litis in civil proceedings.
The court may compel the addition of necessary parties to a suit despite the plaintiff's choice, ensuring all interested parties can be adjudicated effectively.
Jurisdiction of Court - Only wrong decision may not be a ground for exercise of jurisdiction under this article unless wrong is referable to grave dereliction of duty, flagrant abuse of power by subo....
The main legal point established in the judgment is that the discretionary power to add parties under Order 1 Rule 10 of the Code of Civil Procedure should be exercised to ensure the effective adjudi....
The need to strictly adhere to the provisions of law in civil proceedings and the limited scope of exercising powers under Article 227 of the Constitution of India.
The main legal point established in the judgment is the interpretation and application of Order I Rule 10 of the Code of Civil Procedure, 1908 in determining the necessity of adding parties to the su....
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