RAJ KUMARI & ANR Vs. SANJAY TANEJA

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India is filed by the legal heirs of the original defendant in the suit impugning the order of the trial court dated 2.4.2013 allowing DDA to be added as a party under Order I Rule 10 of the Code of Civil Procedure, 1908 (CPC) in a suit for specific performance and permanent injunction.

(2.) The suit for specific performance and permanent injunction was filed in the year 2005 by the respondent/plaintiff with respect to the property bearing flat no. 350, Pocket C-1, Sector-11, Rohini. Issues were framed in the year 2007 and thereafter respondent/plaintiff completed his evidence. It is thereafter that the subject application under Order 1 Rule 10 CPC was filed by the respondent/plaintiff.

(3.) Learned counsel for the petitioners/defendant argues that DDA is neither necessary nor a proper party with respect to the issues which presently exist in the suit as to whether or not that specific performance should or should not be granted in a suit for specific performance. It is argued that in the suit the issues are only with respect to the agreement to sell of which enforcement is sought, breach thereof and readiness and willingness of the respondent/plaintiff to perform his part of the contract with connected issues. It is argued that even if the flat is not freehold, it is only after the respondent/plaintiff succeeds in the suit for specific performance that permission will have to be obtained from DDA for selling of the property. Reliance in support of this argument is placed upon the judgment of the Supreme Court in the case of Mrs. Chandnee Widyavati Madden Vs. Dr. C.L. Katial & Ors, 1964 AIR(SC) 978 and it is argued that agreement to sell are contingent contracts and only after contingent contracts achieve finality by a decree for specific performance, thereafter only the superior lessor is called upon to give permission i.e the role of the superior lessor-DDA comes in only after passing of the decree and not before passing of the decree. Reliance is also placed on behalf of the petitioner to Order XXI Rule 32 CPC as per which after passing of the decree courts in case of refusal of the defendant to apply for necessary permission to the superior lessor, appoints a Local Commissioner to take the necessary permission including for performing the task of execution and registration of the sale deed.