Om Prakash Khanna vs Ved Prakash Sharma and Another

Veena Birbal, J.

CM No. 3871/2013

Allowed, subject to just exceptions.

Application stands disposed of.

C.R.P. 47/2013

By way of this revision petition u/s 115 read with section 151 of CPC, a challenge has been made to the order dated 2nd February, 2013 passed by the Ld. ADJ-04(NW), Rohini Courts, Delhi whereby the application of the petitioner herein i.e., defendant no. 1 before the Ld. trial court under Order 1 Rule 10(2) CPC read with section 151 CPC wherein a prayer is made to delete his name from the array of parties, has been dismissed. Respondent no. 1 herein i.e., plaintiff before the Ld. trial court has filed a suit for recovery of Rs. 20 lakhs against respondent no. 2 herein i.e., defendant no. 2 before the trial court and the present petitioner i.e., defendant no. 1 before the trial court. Petitioner/defendant no. 1 is the son of respondent no. 2/defendant no. 2. The case of respondent no. 1/plaintiff is that petitioner/ defendant no. 1 and respondent no. 2/ defendant no. 2 had approached him for selling their plot bearing number F-21, measuring 200 sq. yards out of Khasra no. 74/ 11, situated in the area of Village Rithala, Delhi now known as Sharma Colony, Budh Vihar, Phase-2, Delhi. Respondent no. 1/ plaintiff agreed for the same and the deal was finalized for Rs. 64 lakhs only. A hand written byana receipt was executed on 30th June, 2011 and respondent no. 1/plaintiff gave Rs. 1 lakh as a token money in the presence of witnesses and respondent no. 2/defendant no. 2 had also executed byana receipt for the same. It is further alleged that respondent no. 1/plaintiff further gave a sum of Rs. 9 lakhs to respondent no. 2/defendant no. 2. Thereupon respondent no. 2/defendant no. 2 executed an agreement to sell in his favour and the balance amount was to be paid on or before 20th September, 2011. After taking the aforesaid amount, it was agreed that title documents shall be executed. Petitioner/ defendant no. 1 was also present at the time of execution of agreement to sell and he had also executed an affidavit and took the whole responsibility for materialising the said deal. Further allegations in the suit are that petitioner/defendant no. 1 and respondent no. 2/defendant no. 2 did not execute the title documents and property was sold to some third person. Accordingly, respondent no. 1/plaintiff demanded return double of bayana amount i.e., Rs. 20 lakhs but petitioner/ defendant no. 1 and respondent no. 2/ defendant no. 2 refused to return.

After service of summons in the aforesaid suit, petitioner/defendant no. 1 moved an application for deletion of his name from the array of parties. However, the said application was dismissed by the trial court by observing that petitioner/defendant no. 1 was a proper party in the facts and circumstances of the case if not a necessary party. Aggrieved with the same, present revision petition is filed.

Perusal of the record shows that as per allegations while executing agreement to sell, petitioner/defendant no. 1 has given an affidavit to the effect that if any mishappening would happen to his mother, he would be liable and responsible and execute the proper sale documents in favour of purchaser or his nominee. In these circumstances, the learned trial court has rightly observed that he is a proper party and cannot be deleted from the array of parties, as is prayed by him. Petitioner/defendant no. 1 and respondent no. 1/defendant no. 2 are mother and son. As per affidavit on record, he has taken the responsibility upon him in respect of deal in question.

In these circumstances, no illegality is seen in the impugned order which calls for interference of this court. The revision petition is dismissed. No costs.