* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) No.176/2011 & CM No.6542/2011
Krishna Saini .....Appellant through
Mr. Nalin Tripathi, Adv.
versus
Chameli Devi & Ors. .....Respondent through
None
% Date of Hearing: March 30, 2011
Date of Decision: May 16, 2011
CORAM:
* HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
1. Whether reporters of local papers may be
allowed to see the Judgment? No
2. To be referred to the Reporter or not? No
3. Whether the Judgment should be reported
in the Digest? No
VIKRAMAJIT SEN, J.
CM No.6543/2011
1. Allowed, subject to all just exceptions.
FAO(OS) No.176/2011 & CM No.6542/2011
2. This Appeal impugns the Order dated 14.2.2011 passed by
the learned Single Judge wherein the Prayers of impleadment of
the Appellant/Applicant in Suit No.2120/1998 was declined.
3. The Appellant is said to be a bonafide purchaser of a
property, bearing No.E-111, Bhagwan Nagar, New Delhi for a
consideration of ` 14,20,000/-, out of which a substantial sum of
` 9,00,000/- stands paid at the time of the execution of the subject
FAO(OS)176.2011 Page 1 of 4
Agreement to Sell, and the delivery of possession thereof to the
Appellant. An impleadment is sought in CS(OS) No.2120/1998
which is a Suit for Partition in which a Preliminary Decree has
been passed by Order dated 2.5.2007 by the consent of all the
parties to the said Partition Suit. The Appellant/Applicant seeks to
set aside this consent Decree by getting herself impleaded in the
said Suit on the ground that she is a bonafide purchaser not having
knowledge of the said Partition Suit; that she has already parted
with a considerable sum as consideration for the premises in
question and she is in long and continuous possession of the same
and that the Consent Decree is passed by collusion between the
parties and behind her back.
4. It would be of pertinence to note that the
Appellant/Applicant had filed a similar application for impleadment
bearing number IA 1723/2008 in the same Suit. This Application
was dismissed as withdrawn vide Order dated 2.2.2009 where the
Court allowed the withdrawal of the said Application with the
liberty to file a substantive Suit for vindicating its grievance.
Consequently, a substantive Civil Suit, bearing number 220/2009
was filed before ADJ which thereafter got transferred and tagged
along with CS(OS) No.2120/1999, viz. the Partition Suit.
Thereafter, the Appellant/Applicant has once again filed an
Application for impleadment in the Partition Suit which is the
subject matter of the present Appeal.
FAO(OS)176.2011 Page 2 of 4
5. Mr. Nalin Tripathi, learned counsel for the Appellant, has
relied upon various precedents of the Supreme Court to argue that
a subsequent purchaser, having a substantial interest in the
subject matter of the Suit, is a necessary party and may be
impleaded in the Suit. All the three precedents, viz. Amit Kumar
Shaw -vs- Farida Khatoon, (2005) 11 SCC 403, Dhanalakshmi -vs-
P. Mohan, (2007) 10 SCC 719 and Savitri Devi -vs- District Judge,
(1999) 2 SCC 577 have been considered by a Division Bench of this
Court in S.N. Arora -vs- Brokers and Brokers Pvt. Ltd., 2010(118)
DRJ 631 of which one of us (Vikramajit Sen, J.) was a member
concluding that a subsequent purchaser is not a necessary party in
a suit between the two parties, the subsequent purchaser not being
the party to the agreement between the litigating parties. The
Division Bench arrived at this conclusion after taking into
consideration various Supreme Court judgments (including those
relied upon before us) and the doctrines of lis pendens and
dominus litus. It was also concluded that the course open for a
subsequent purchaser to safeguard his interest is to file a
substantial independent suit. As we have noted earlier, this course
of action has been availed of by the Appellant/Applicant by means
of her independent Suit No.220/2009 which has been ordered to be
tagged with the present partition Suit in which impleadment is
sought. Therefore, the Appellant’s interests will be adequately
administered in that Suit.
FAO(OS)176.2011 Page 3 of 4
6. Further, the learned Single Judge, while dismissing the
application of impleadment, has taken notice of the earlier
application of impleadment which was filed and thereafter
dismissed as withdrawn on 2.2.2009. The previous application was
filed on the same ground and to achieve the same end as the
present one. A party cannot be allowed to abuse the process of the
Court by repeatedly filing similar applications one after another in
the same legal proceedings. Having withdrawn the Application
with a liberty on which the party has already acted upon, another
application claiming the same relief cannot be entertained by this
Court. The learned Single Judge was right in applying principles
analogous to Order XXIII Rule 1 read with Section 141 to hold that
once an application was withdrawn without liberty to file a fresh
one, the subsequent application claiming the same relief is not
maintainable.
7. The present Appeal is devoid of merit and accordingly stands
dismissed. Since notice is not yet issued, we desist from imposing
costs. CM No.6542/2011 also stands dismissed.
( VIKRAMAJIT SEN )
JUDGE
( SIDDHARTH MRIDUL )
May 16, 2011 JUDGE
FAO(OS)176.2011 Page 4 of 4