Mr. Jai Sahai Endlaw and Ms. Sagarika Kaul, Advs v. SHUIBHAM JAIN AND ORS

Judgment

1. Through this Appeal under Order XLIII Rule 1 of the Code of Civil Procedure, 1908 [hereinafter referred to as “CPC”] read with Section 10 of the Delhi High Court Act, 1966 [hereinafter referred to as “DHC Act”], the Appellant assails the correctness of the Order dated 07.05.2024 passed by the learned Single Judge in I.A. No. 23592/2023 in C.S. (Comm) No. 590/2023 titled Shuibham Jain and Ors. vs. Maryam Bee, wherein the application, under Order I, Rule 10 of the CPC, 1908, filed by Respondent No.4, was allowed and he was impleaded in the underlying suit as a party and arrayed as Defendant No.2. Signature Not Verified Signed By:JAI NARAYAN Signing Date:26.08.2025 15:25:50 FAO(OS) (COMM) 199/2024 Page 1 of 15 FACTUAL MATRIX

2. The brief facts leading to the present Appeal are that

Respondent Nos.1 to 3 (Plaintiffs before the Court of first instance) filed a suit seeking, inter alia, specific performance of an Agreement to Sell dated 27.12.2022 [hereinafter referred to as “ATS”], allegedly executed between the Appellant and Respondent Nos. 1 to 3, for the sale of the property admeasuring 82.5 Sq. Yards, bearing Municipal No. 1806 (Mezzanine Floor to Second Floor with roof rights), Ward No. 4, Chandni Chowk, Dariba Kalan, New Delhi, 110006 [hereinafter referred to as “suit property”].

3. It is the case of the Original Plaintiffs that the Appellant and Respondent Nos. 1 to 3 entered into the ATS for sale of suit property for a total consideration of Rs.7,00,00,000/- (Rupees Seven Crores Only); however, despite having made partial payment, the Appellant has failed to have the sale deed executed in their favour, which compelled Respondent Nos. 1 to 3 to file a suit against the Appellant. The Appellant contended that the total sale consideration was Rs. 9,00,00,000/- (Rupees Nine Crores Only), as another ATS of Rs. 2,00,00,000/- (Rupees Two Crores Only) was executed on 27.12.2022, but since Respondents 1 to 3 failed to pay, the Appellant could not execute the sale deed.

4. Pending the suit, the Applicant/Respondent No.4 filed an application, being I.A. 23592/2023, under Order I Rule 10 of the CPC, seeking to be impleaded as a party to the said suit while claiming to be a co-owner in the suit property. Signature Not Verified Signed By:JAI NARAYAN Signing Date:26.08.2025 15:25:50 FAO(OS) (COMM) 199/2024 Page 2 of 15

5. Respondent No.4 is the brother-in-law of the Appellant. The Appellant has claimed to be the owner of the suit property on the strength of two Gift Deeds executed on 23.08.1981 by Late Smt. Zubeda Khatoon and Late Sh. Sheikh Abdul Sattar Sahib (mother-in- law and father-in-law of the Appellant, respectively), whereas the Applicant/Respondent No.4 claims that he is a co-sharer of the suit property to the extent of 50% along with his brother Abdul Malik (husband of the Appellant).

6. The learned Single Judge of this Court allowed the said application, observing that the proposed applicant/Respondent No.4 herein would have some interest in the said property, and any order passed without Respondent No.4‟s presence could also lead to further multiplicity and conflicting rulings. Being aggrieved by this portion of the Impugned Order, the Appellant has filed the present Appeal. CONTENTIONS OF THE PARTIES

7. Learned counsel for the Appellant has advanced the following submissions:

7.1 A third party or stranger to the Contract cannot be added in a suit for specific performance merely to avoid multiplicity of suits.

7.2 Impleadment of the Respondent No.4 as a party to the suit for specific performance of an ATS enlarges the scope of the suit and converts it into a suit for title and possession, which is impermissible in law. Signature Not Verified Signed By:JAI NARAYAN Signing Date:26.08.2025 15:25:50 FAO(OS) (COMM) 199/2024 Page 3 of 15

7.3 Respondent Nos. 1 to 3, being dominus litis, have opposed the application for impleadment and supported the claim of the Appellant being the sole and absolute owner of the suit property in the present Appeal.

8. Per Contra, the learned counsel for Respondent No.4, while vehemently opposing the Appeal, has contended that:

8.1 The Impugned Order is not appealable under Order XLIII, Rule 1 of CPC. Further, Section 10 of the DHC Act, cannot be invoked, in view of Section 13(2) of the Commercial Courts Act, 2015 [hereinafter referred to as „CCA‟]. Reliance has been placed on Kandla Export Corpn. v. OCI Corpn.1., M.V. Polaris Galaxy v. Banque Cantonale De Geneve 2, Trex India Pvt. Ltd. vs. CDE Asia Limited3, and Alka Traders v. Cosco India Ltd.4

8.2 Impleadment in a suit for specific performance depends on the particular facts and circumstances of each case, and it cannot be laid down as a rigid rule that no one can ever be impleaded in such suits. Reliance has been placed on Sumtibai vs. Paras Finance Co.5 and Rajesh Kumar Arora & Ors. vs. Smt. Shila & Ors.6.

8.3 The Impugned Order dated 07.05.2024 against Respondent Nos.1 to 3/Plaintiffs has attained finality to the extent of impleadment, as they had only challenged the direction concerning deposit in

Respondent Nos.1 to 3 (Plaintiffs before the Court of first instance) filed a suit seeking, inter alia, specific performance of an Agreement to Sell dated 27.12.2022 [hereinafter referred to as “ATS”], allegedly executed between the Appellant and Respondent Nos. 1 to 3, for the sale of the property admeasuring 82.5 Sq. Yards, bearing Municipal No. 1806 (Mezzanine Floor to Second Floor with roof rights), Ward No. 4, Chandni Chowk, Dariba Kalan, New Delhi, 110006 [hereinafter referred to as “suit property”].

3. It is the case of the Original Plaintiffs that the Appellant and Respondent Nos. 1 to 3 entered into the ATS for sale of suit property for a total consideration of Rs.7,00,00,000/- (Rupees Seven Crores Only); however, despite having made partial payment, the Appellant has failed to have the sale deed executed in their favour, which compelled Respondent Nos. 1 to 3 to file a suit against the Appellant. The Appellant contended that the total sale consideration was Rs. 9,00,00,000/- (Rupees Nine Crores Only), as another ATS of Rs. 2,00,00,000/- (Rupees Two Crores Only) was executed on 27.12.2022, but since Respondents 1 to 3 failed to pay, the Appellant could not execute the sale deed.

4. Pending the suit, the Applicant/Respondent No.4 filed an application, being I.A. 23592/2023, under Order I Rule 10 of the CPC, seeking to be impleaded as a party to the said suit while claiming to be a co-owner in the suit property. Signature Not Verified Signed By:JAI NARAYAN Signing Date:26.08.2025 15:25:50 FAO(OS) (COMM) 199/2024 Page 2 of 15

5. Respondent No.4 is the brother-in-law of the Appellant. The Appellant has claimed to be the owner of the suit property on the strength of two Gift Deeds executed on 23.08.1981 by Late Smt. Zubeda Khatoon and Late Sh. Sheikh Abdul Sattar Sahib (mother-in- law and father-in-law of the Appellant, respectively), whereas the Applicant/Respondent No.4 claims that he is a co-sharer of the suit property to the extent of 50% along with his brother Abdul Malik (husband of the Appellant).

6. The learned Single Judge of this Court allowed the said application, observing that the proposed applicant/Respondent No.4 herein would have some interest in the said property, and any order passed without Respondent No.4‟s presence could also lead to further multiplicity and conflicting rulings. Being aggrieved by this portion of the Impugned Order, the Appellant has filed the present Appeal. CONTENTIONS OF THE PARTIES

7. Learned counsel for the Appellant has advanced the following submissions:

7.1 A third party or stranger to the Contract cannot be added in a suit for specific performance merely to avoid multiplicity of suits.

7.2 Impleadment of the Respondent No.4 as a party to the suit for specific performance of an ATS enlarges the scope of the suit and converts it into a suit for title and possession, which is impermissible in law. Signature Not Verified Signed By:JAI NARAYAN Signing Date:26.08.2025 15:25:50 FAO(OS) (COMM) 199/2024 Page 3 of 15

7.3 Respondent Nos. 1 to 3, being dominus litis, have opposed the application for impleadment and supported the claim of the Appellant being the sole and absolute owner of the suit property in the present Appeal.

8. Per Contra, the learned counsel for Respondent No.4, while vehemently opposing the Appeal, has contended that:

8.1 The Impugned Order is not appealable under Order XLIII, Rule 1 of CPC. Further, Section 10 of the DHC Act, cannot be invoked, in view of Section 13(2) of the Commercial Courts Act, 2015 [hereinafter referred to as „CCA‟]. Reliance has been placed on Kandla Export Corpn. v. OCI Corpn.1., M.V. Polaris Galaxy v. Banque Cantonale De Geneve 2, Trex India Pvt. Ltd. vs. CDE Asia Limited3, and Alka Traders v. Cosco India Ltd.4

8.2 Impleadment in a suit for specific performance depends on the particular facts and circumstances of each case, and it cannot be laid down as a rigid rule that no one can ever be impleaded in such suits. Reliance has been placed on Sumtibai vs. Paras Finance Co.5 and Rajesh Kumar Arora & Ors. vs. Smt. Shila & Ors.6.

8.3 The Impugned Order dated 07.05.2024 against Respondent Nos.1 to 3/Plaintiffs has attained finality to the extent of impleadment, as they had only challenged the direction concerning deposit in