Delhi District Court
Vinita Sohan Lal vs State on 17 December, 2019
IN THE COURT OF MS VANDANA JAIN, ADDITIONAL DISTRICT
JUDGE07 (SE), SAKET COURTS NEW DELHI
RCA No. 144/2019
Vinita Sohan Lal Vs State
In the matter of:
Mrs. Vinita Sohan Lal
W/o Sh. Ambrish Chandra
D/o Mrs. Esther Winnifred Sohal Lal
R/o Flat no. 144, SFS1, DDA Flats,
Yusuf Sarai, Gulmohar Enclave, New Delhi 110049
...........Appellant
VERSUS
State of NCT of Delhi
.................Respondent
Date of Institution : 05.07.2019
Date of reserving of judgment : 13.12.2019
Date of Judgment : 17.12.2019
ORDER ON APPEAL
1. Vide this order, I shall dispose off appeal filed by the appellant/plaintiff against the impugned judgment dated 13.03.2019 whereby the suit of the appellant/plaintiff for declaration and mandatory injunction was dismissed by the Ld. Trial Court.
Vinita Sohan Lal Vs State Page 1/102. The brief facts as averred in the plaint before Ld. Trial court are that on 15.07.2016, the appellant/plaintiff had filed the suit for declaration and mandatory injunction against the defendant/respondent declaring her brother Mr. Ashish as dead and for mandatory injunction directing the respondent no. 2 to issue the death certificate of Mr. Ashish.
3. DDA had allotted the Flat no. 144, SFS1, DDA Flats , Yusuf Sarai, Gulmohar Enclave, New Delhi 110049 alongwith Scooter Garage no. 70, CategoryII "hereinafter referred as said premises", in favour of the appellant's/plaintiff's mother namely Mrs. Esther Winnifred Sohan Lal vide allotment dated 12.09.1983. It is further stated that Mrs. Esther Winnifred Sohan Lal was married to Mr. Samuel Sohan Lal and two children were born out of the said wedlock namely Mrs. Vinita Sohan Lal (plaintiff herein) and Mr. Ashish. It is further stated that Mr. Ashish was mentally unsound person and his entire responsibility and care were carried by the parents and appellant/plaintiff as well. It is further stated that plaintiff's father Mr. Samuel Sohan Lal passed away on 25.04.2002 whereas plaintiff's mother Mrs. Esther Winnifred Sohan Lal passed away on 18.08.2003 and Mrs. Esther Winnifred Sohan Lal had executed the unregistered Will dated 30.05.2002 whereby she bequeathed her entire Vinita Sohan Lal Vs State Page 2/10 properties (immovable and movable) in favour of the plaintiff. It is further stated that suddenly one day Mr. Ashish disappeared and appellant/plaintiff made efforts to find him but when Mrs. Ashish could not be traced then appellant/plaintiff lodged the complaint vide DD no. 18 dated 26.11.2004 with police Post Gulmohar Park under PS Defence Colony. It is further stated that appellant/plaintiff had filed the application for getting the said premises converted from Leasehold to the Freehold and also for mutation with the DDA on 27.05.2005 alongwith all the necessary requisite formalities but DDA kept delaying the same one pretext or the other. It is further stated that DDA neither carried out the mutation nor allowed the plaintiff's application for conversion from Leasehold to the Freehold, in respect of said premises rather DDA burdened the plaintiff by demanding one document after another. It is stated that appellant/plaintiff had written applications to the DDA under RTI seeking the status of her application for mutation and conversion but the conduct of the DDA is very unsatisfactory and inappropriate as DDA directed the appellant/plaintiff to submit the death certificate to Mr. Ashish. It is further stated appellant/plaintiff filed application under Right to Information Act regarding the information for seeking registration process in case of "Missing Person" for more than Vinita Sohan Lal Vs State Page 3/10 7 years and in response to said RTI application, the Directorate of Economics and Statistics gave a vague reply. It is further stated that appellant/plaintiff informed the DDA, that defendants/respondents had refused to issue death certificate of Mr. Ashish to appellant/plaintiff.
4. It is stated that by the order dated 28.02.2018, the suit was dismissed with an observations that notice under section 80 CPC and section 478 of the DMC Act was not issued to the respondent. The appellant/plaintiff again issued a notice dated 20.09.2018 to the defendant/respondent for which a reply dated 08.10.2018 was filed by the respondent and defendant/respondent has informed that "as per RBD Act 1969 after 7 years of completion of missing person the court can decide the orders for death certificate of missing person therefore, the case must be file in the court where case may be decided". Therefore, again the present suit was filed on 29.11.2018 which arose after the issuance of notice dated 20.09.2018 praying for a decree of declaration and mandatory injunction, however, the said suit was rejected.
5. Ld counsel for appellant/plaintiff has argued that Ld Trial Court has failed to appreciate that Mr. Ashish disappeared and his missing report was filed with police post Gulmohar Vinita Sohan Lal Vs State Page 4/10 Park under PSDefence Colony vide DD number 18 dated 26.11.2014 and thereafter his whereabouts could not be located even by the police. It is further argued that Ld. Trial court failed to appreciate the provision of Section 108 of Indian Evidence Act and it further failed to appreciate that law is meant for helping the affected parties and not to make the process difficult. It is stated that the said order is illegal and is liable to be set aside.
6. I have heard the arguments and have perused the record carefully.
7. Ld. Trial Court had dismissed the suit of the plaintiff merely on three grounds :
(a) The cause of action mentioned in the earlier suit filed by the plaintiff and in the suit in respect of which present appeal is pending.
(b) The DDA was not made a party though it was a necessary party.
(c) Suit fails to set out any cause of action against the sole standing defendant i.e. SDMC.
8. I shall deal with these grounds one by one.
Vinita Sohan Lal Vs State Page 5/109. (a) The cause of action mentioned in the earlier suit filed by the plaintiff and in the suit in court were stated to be different.
The earlier suit was filed wherein in the cause of action paragraph, it was alleged that brother of the plaintiff was missing and a complaint was lodged and DDA demanded the death certificate to carry out the mutation certificate. However, in the instant suit, it was stated that cause of action arose on 28.09.2018 when notice under section 80 was issued to the respondent no. 2 herein and further when defendant no 2 replied to the said notice. Ld Trial Court compared the cause of action paragraph of both the cases and observed that cause of action in both the suits were different which could not be pleaded by the appellant/plaintiff and the procedural compliance to statutory pre requisite can not give risk to a cause of action. In this regard, it is stated that the earlier suit was dismissed solely on account of non service of the mandatory notices under section 80 CPC and section 478 of the DMC Act. The appellant/plaintiff complied with the statutory requirements and then again filed the suit. This suit actually was an extension of an earlier suit. Though, the plaintiff failed to mention the cause of action stated to Vinita Sohan Lal Vs State Page 6/10 have been arising from the date when her brother went missing and she lodged a complaint but simply stated in the continuation that it arose when notice under section 80 CPC was issued to defendant/respondent and defendant no. 2 replied to the said notice. In this regard, it is reminded that the procedures are only hand made of justice and can not be allowed so as to defeat the ends of justice. The hyper technicalities can not be allowed to frustrate the purpose for which the law has been enacted. Even if, there is a lapse of drafting by the advocate of the plaintiff, at the outset , it can not be said that the suit does not disclose any cause of action. The cause of action paragraph alone can not be read in isolation in order to reject the plaint. The contents of the plaint as a whole have to be read in order to assess whether the plaint discloses cause of action or not. Therefore, in my considered view, Ld. Trial Court erred in coming to a finding that due to differences in the pleadings with respect to the cause of action in both suits, suit is not maintainable. This finding is liable to be set aside.
(b) The DDA was not made a party though it was a necessary party.
As far as the averments with respect to the DDA, Vinita Sohan Lal Vs State Page 7/10 being a necessary party is concerned, facts of the case are very clear. The appellant/plaintiff had clearly set out the facts showing the reason for filing the present suit for declaration and mandatory injunction. It is stated that DDA has refused to mutate the property in her name without getting the death certificate of her brother. The present suit has not been filed for seeking any direction qua the DDA. Therefore, by no stretch of imagination, DDA can be said to be a necessary party in the present suit. It is only for the purpose of intimating the court about requirement of death certificate that these facts were mentioned in the plaint. The relief has been sought only against SDMC for issuance of death certificate so as to enable her to file the same before the DDA to get the property mutated in her name. DDA has no say or role to play in the suit filed by plaintiff. Therefore, this finding of Ld. Trial Court that DDA is a necessary party is bad.
(c) Suit fails to set out any cause of action against the sole standing defendant i.e. SDMC.
The third observation of Ld. Trial Court is with respect to their being no cause of action against SDMC. In this regard, section 34 of the Specific Relief Act is very clear which is reproduced herein under: Vinita Sohan Lal Vs State Page 8/10 "Discretion of court as to declaration of status or right Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying , or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief;
provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so".
Explanation A trustee of property is a " person interested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.
10. Declaration as to civil death is a declaration which declares a status of a person and it can be safely observed that the declaration as to civil death can be granted by the Civil Court under section 34 of the Specific Relief Act 1963 r/w section 9 CPC 1908. The ground of a decree of declaration to declare a civil death of a person is structured Vinita Sohan Lal Vs State Page 9/10 on the presumption envisaged in section 108 of the Indian Evidence Act 1872. Under Section 34 of the Specific Relief Act, it is stated that a declaration without consequential relief can not be granted however, in the present case, the plaintiff has sought a relief of issuance of death certificate which is a consequential relief defendant upon the outcome of relief sought for declaration. No death certificate can be issued by the concerned authority till the time this declaration is issued. Therefore, section 34 of the Specific Relief Act clearly applies to the case in hand and finding of Ld Trial Court that suit for declaration was not maintainable is illegal and bad in law. The impugned order dated 13.03.2019 is set aside.
11. Matter is remanded back to the Ld. Trial Court to proceed as per law. Parties are directed to appear before Ld Trial Court on 09.01.2020.
12. Trial Court Record be sent back to concerned court with copy of order. Appeal file be consigned to the Record Room Digitally signed by VANDANA after due compliance. VANDANA JAIN JAIN Date:
Announced in the open 2019.12.23
15:59:35 +0530
court on 17.12.2019 (VANDANA JAIN)
ADJ07/SE/SAKET COURTS/
NEW DELHI/17.12.2019
Vinita Sohan Lal Vs State Page 10/10