Indian Kanoon - Search engine for Indian Law

Delhi District Court

K­3 vs Smt. Raj Kaur (Since Deceased) on 30 May, 2014

   IN THE COURT OF Ms. TANVI KHURANA,CIVIL JUDGE­1(South)
                    SAKET COURTS NEW DELHI
In the Matter of
Civil Suit No.491/2014
Case ID No. 02406C0432972010

        Sh. Devinder Singh Suri (now deceased),
        S/o Late Sh. Harbans Singh Suri,
        R/o B­263, Okhla Industrial Area,
        Phase­1, New Delhi.                  

        Also at :

        K­30, Jangpura Extension,
        New Delhi.                                   .........Plaintiff 

                                            Versus

    1.

Smt. Raj Kaur (since deceased)

2. Sh. S.Harvipan Singh Suri S/o Late Shri Harbans Singh Suri R/o : K­30, Jangpura Extension, New Delhi.

3. Municipal Corporation of Delhi (Through : Its Commissioner & Legal Cell) Town Hall, Chandni Chowk, Delhi.

4. Smt. Brij Mohan Kaur Sahni W/o Late S. Mohan Singh Sahni R/o 242, Tagore Park, Delhi.

5. Smt. Ramneet Kaur W/o S. Narender Singh Chaddha R/o 33/42, Punjabi Bagh, New Delhi.

6. Smt. Surinderjeet Kaur Sethi W/o S. Surjeet Singh Sethi R/o 13, Shamsheel Dass Cooperative Society Ltd.

       Gurdas Road,Nasik                        .........Defendants 

Suit No. 491/14
Davinder Singh Suri Vs. Raj Kaur  & Ors.                               Page 1 of 12
                                      
        Date of institution                              : 04.06.2004 / 18.01.2014
        Date of pronouncement                            : 30.05.2014
        Decision                                         : Issue decided in favour of 
                                                           Plaintiff.

Suit for Permanent & Mandatory Injunction Present: Plaintiff in person Defendant with Ld. counsel Mr. Ranjeet Singh Sahni Ms. Promila Kapoor, Ld counsel for MCD.

JUDGMENT ON PRELIMINARY ISSUE:

The plaintiff has filed the present suit seeking permanent and mandatory injunction against defendants directing them to demolish/ remove the illegal and unauthorized construction carried out without sanction plan. The plaintiff has also sought permanent injunction against the defendant no.1 and 2 restraining them, their agents etc. from carrying out any further construction and mandatory injunction against the defendant no. 3 to remove illegal construction carried out in the building bearing no. K­30, Jangpura Extension, New Delhi. Plaintiff's Version:

2. Succinctly, the facts as mentioned in the plaint are that the plaintiff and defendant no.1 were the joint owner in possession of the suit property which was purchased by them out of their joint funds on 21.11.1963. It is also averred that property has been mutated in the name of plaintiff and defendant no. 1 vide letter no. L&DO/PS­1/97 dated 30.01.1996.

It is averred that till date the property stood in the name of plaintiff and defendant no. 1.

3. It is alleged that defendant no. 2 with an intention to grab the property has made unauthorized construction/addition, alteration in the property without obtaining any sanction plan/ permission from the office of defendant no.3/MCD.

4. It is further alleged that recently when plaintiff was out of station, defendant no. 2 made certain illegal and unauthorized construction by covering the back courtyard illegally and converting it into bed room and similarly adding one room on the 1st floor and two rooms on the 2nd floor illegally. Report of the incident was lodged with police station. It is the grievance of the plaintiff that the defendant no. 2 has threatened him to raise further construction and has collected building material despite his protest. Hence the present suit seeking mandatory and permanent injunction was filed.

Defendant no. 2's Version:

5. On notice, defendant no.2 filed his written statement objecting the suit on the grounds of valuation, barred by section 10 of the Code of Civil Procedure, 1908, not approaching with clean hands, want of cause of action and so on. On merits, it was stated that the defendant no. 1 had filed a suit for partition and the plaintiff has taken the price of his 1/4 th share and made a statement in the Hon'ble High Court dated 12.05.1980 and 25.03.1980 in suit no. 322/1980. He further submitted that defendant no. 1 was the absolute owner of the property and had gifted the property to defendant no. 2 vide registered gift deed dated 17.01.2001. It was submitted that plaintiff does not have any right in the property and defendant no. 2 has already filed Suit No. 491/14 Davinder Singh Suri Vs. Raj Kaur & Ors. Page 3 of 12 the application for mutation of the property. He also mentioned that suit no. 74/2003 which is filed by the plaintiff is still pending and therefore this suit is lible to be stayed under section 10 of the Code of Civil Procedure, 1908. He also submitted that the plaintiff has separated from the family since 1980 and there has been no relation of family between the plaintiff and defendants. He also submitted that defendant no. 1 had also executed a WILL dated 18.11.2002 in favour of defendant no. 2. It was submitted that plaintiff does not have any right or interest in the property. Rest of the contention were denied and dismissal of suit was prayed for.

Defendant no. 3's Version :

6. Defendant no.3 also filed the written statement raising objection on the ground that the suit was barred by provisions of section 477/478 of DMC Act 1957, no cause of action, limitation, valuation and res­judicata. It was submitted that on inspection it was revealed that there was unauthorized construction in the property which was booked vide file n o.

353/B/UC/CZ/2004 dated 19.08.2004 and no further construction has been recorded. It is also submitted that suit is infructuous and also barred as there is another matter i.e. suit no. 504/2004 pending before Ld. ADJ, Delhi. Replication:

7. Plaintiff filed replication to the written statement filed by the defendants denying all the contentions raised in the written statement and maintained and reasserted the claim.

Identification of issues:

8. Vide order dated 05.04.2011 , the issues were framed in the present matter as follow :

1 Whether the plaintiff has approached this court with unclean hands ? OPD2

2. Whether the suit is liable to be stayed under Section 10 CPC ? OPD2 (preliminary issue)

3. Whether the plaint has not been value properly and proper court fees has not been affixed? OPD2

4. Whether the suit is bad for want of notice u/s. 477/478 DMC Act, 1957 ? OPD3

5. Whether the defendant no. 3 has initiated action against the illegal construction and the suit is without any cause of action ? OPD3

6. Whether the plaintiff has locus standi to file the present suit ?OPP

7. Whether the defendant has carried out any unauthorized construction as alleged ? OPP

8. Whether the plaintiff is entitled to mandatory injunction as prayed ? OPP

9. Whether the plaintiff is entitled to permanent injunction as prayed against defendant no. 1 and 2 ? OPP

10. Whether the plaintiff is entitled to permanent injunction as prayed against defendant no. 3 ? OPP

9. Issue no.2 was treated as preliminary issue in the present matter. The onus to prove the present issue was on defendant no.2.

10. Ld. counsel for defendant no.2 argued that there are several cases pending between the parties pertaining to the same matter in issue. He stated that the litigation among the parties and the predecessor in title began in 1980. Thereafter again in 2000 and later in 2002, 2003 and in 2004 two matters were filed. He submitted that the last three matters were Suit No. 491/14 Davinder Singh Suri Vs. Raj Kaur & Ors. Page 5 of 12 instituted by the plaintiff and defendant no.2 was also a party to the suits. He submitted that suit number 363/04/03 was instituted in the year 2003 wherein the relief of declaration, mandatory injunction, cancellation of relinquishment deed, permanent injunction against mutation, permanent injunction against third party interest, premanent injunction against threatening and permanent injunction against false and frivolous complaint was filed. He further argued that thereafter the present suit was filed and subsequent to the present suit another suit bearing no.454/06/04 instituted on 09.08.2004 seeking relief of partition, rendition of account, permanent injunction against third party interest, mandatory injunction against illegal construction, declaration and permanent injunction against selling the property was sought. He submitted that as the the prayer in the present suit is also to the effect that defendant be directed to remove the illegal construction, hence, the suit is barred by Section 10 of the Code of Civil Procedure, 1908. He also argued that the present suit is liable to be stayed as the issue of the present suit is subject matter of another suit pending before Ld. ADJ, Delhi and to avoid conflicting judgments, it is necessary that the proceedings of this suit be stayed till disposal of the more comprehensive suit filed before Ld. ADJ. He prayed for use of Section 151 of the Code of Civil Procedure, 1908 by this Court in line of the judgements i.e. Harnam Kaur Vs Ajit Singh, 46 (1992) DLT 385 and Desh Bhushan Jain Vs K. C. Mahajan, 1997 (42) DRJ (DEL).

11. On the other hand, to refute the arguments, Ld. counsel for plaintiff argued that the suit is not liable to be stayed under Section 10 or Setion 151 of the Code of Civil Procedure, 1908. He argued that the relief sought in the suit no.64/04 titled as Devender Singh Vs Brij Mohan Kaur is different from the relief sought in the present suit. He also pointed out that the Ld. ADJ, Delhi has already clarified the issue vide her order on the stay of that matter under Section 10 of the Code of Civil Procedure, 1908.

12. I have heard the rival contentions raised by both the counsel and have perused the case record meticulously. My finding on the issue no.2 is as below:

Issue No.2:

Whether the suit is liable to be stayed under Section 10 CPC ? OPD2 (preliminary issue)

13. The onus to prove this issue in this suit was upon the defendant who agitated that the suit is liable to be stayed under Section 10 or Section 151 of the Code of Civil Procedure, 1908.

14. On perusal of the file, it can be noticed that the parties have had several rounds of litigation among themselves. There are three suits under the scanner for the present matter. For the sake of convenience the suits are described as under:

(a) FIRST SUIT Suit no.363/04/03 titled as Devender Singh Suri Vs Smt. Raj Kaur and Others.

The defendant no.2 in the present matter is reflected as defendant no.2 in that matter as well. The plaint bears the date of 02.02.2003. Though from the Suit No. 491/14 Davinder Singh Suri Vs. Raj Kaur & Ors. Page 7 of 12 certified copy, it can not be ascertained whether it was filed on the same date or not. However, it is presumed that it was filed in the year 2003.

The prayer sought in the present matter was primarily declaration against the gift deed dated 17.01.2001 and relinquishment deed dated 30.09.2001 to be declared as null and void. In addition to relief of declaration mandatory injunction was also sought for deposit of the original documents and cancellation of the same. Permanent injunction restraining defendant no.2 from getting the property mutated, restraining defendant no.1 and 2 from selling, dispossessing off, transferring or creating third party interest, restraining defendant no.3 from threatening or ill­treating defendant no.1 and lastly restraining defendant no.7 from entertaining any false, frivolous complaint against the plaintiff were also sought.

It can be noted that this is a previously instituted suit. However, there is no issue or prayer regarding illegal construction against defendant no.2. Therefore, the matter in issue in the present suit is not the matter directly and substantially in issue in the first suit.

(b) SECOND SUIT Suit no.491/14 titled as Devender Singh Suri Vs Smt. Raj Kaur and Others.

The suit was instituted on 04.06.2004. This is the suit for consideration before this Court. The suit is filed for simplicitor injunction against the defendants. The Suit No. 491/14 Davinder Singh Suri Vs. Raj Kaur & Ors. Page 8 of 12 relief sought in the present suit is mandatory injunction against defendant no. 1 to 3 to demolish/remove the illegal and unauthorized construction carried out without sanction plan. Second relief pertains to permanent injunction against defendant no.1 and 2 from carrying out any further construction and lastly mandatory injunction against defendant no.3 to remove the illegal construction carried out in the building.

It can be noted that the matter in issue in the present case pertains to the construction which is alleged to be illegal by the plaintiff.

(c) THIRD SUIT Suit no.454/06/04 titled as Devender Singh Suri Vs Smt. Brij Mohan Kaur Sahni and Others. It is not apparent from the certified copy that what was the date of institution. However, the plaint mentions the date to be 09.08.2004. Further there is filing stamp of 09.08.2004 on the last page of the plaint. It can be safely assumed that the matter was not instituted before 09.08.2004. This is the subsequent suit to the present suit.

In this suit the plaintiff has filed the suit seeking relief of partition, rendition of account, permanent injunction restraining defendant no.4 from sellling, alienating, transferring, bequeathing, mortgaging or other wise creating any third party interest and decree of declaration declaring general power of attorney dated 01.09.1982, relinquishment deed dated 21.10.1982 and gift deed dated 17.01.2201 as null and void. In addition to these relief, the plaintiff has also sought permanent Suit No. 491/14 Davinder Singh Suri Vs. Raj Kaur & Ors. Page 9 of 12 injunction against defendant no. 1 to 4 and defendant no.6 for not to grant permission to sell the property. Most importantly for the consideration of the present issue, the plaintiff has also sought decree for mandatory injunction against defendant no.4 (who is defendant no.2 in the present matter) to remove unlawful and illegal construction.

It can be noted that the matter in issue pertaining to the mandatory injunction regarding illegal construction has also been made a part of the prayer clause by the plaintiff in this subsequent suit. As far as the issue of mandatory injunction is concerned, it is same in both the suits. However, it is only the issue of entitlement of mandatory injunction which is similar. Nevertheless, it is important and pertinent point that the suit i.e. the third suit has been filed subsequent to the filing of second suit which is under consideration.

15. On bare perusal of Section 10 of the Code of Civil Procedure, 1908, it can be noticed that the object of Section 10 of the Code of Civil Procedure, 1908 is to prevent Courts of concurrent jurisdiction from simultaneously trying to parallel suit in respect of the same matter in issue. The requirement of Section 10 of the Code of Civil Procedure, 1908 is that the matter in issue in the subsequent suit being directly and substantially in issue in the previously instituted suit. Section 10 of the Code of Civil Procedure, 1908 is attracted when the subject matter in both the proceedings is the same. The test being that matter in issue is directly and substantially the matter in issue in the subsequently instituted suit.

16. However, in the present suit the matter in issue is not the same in the previously instituted suit rather, it has some incidence with the matter in issue in subsequently instituted suit. Therefore, it cannot be concluded that the present suit is barred by operation of Section 10 of the Code of Civil Procedure, 1908. The Court is empowered to stay later suit and not previous suit. Guidance here can be taken from G. C. Care Centre and Hospital Vs O. P. Care Pvt. Ltd., AIR 2004 SC 2339 at Page 2340 and Ishwari Devi Vs Shyam Sunder, 1999 AIHC 1098 (P&H). Also where application for stay under Section 10 of the Code of Civil Procedure, 1908 filed in the other suit is rejected, judicial discipline and comity warrants that the Court in which the suit is pending should not consider the application filed under Section 10 of the Code of Civil Procedure, 1908 as was decided in Heinz India S. R. L Vs Dabur India, A 2005 CAL 89 at Page 94. Moreover, in the present case application of Section 10 of the Code of Civil Procedure, 1908 is not made out.

17. Ld. counsel for defendant also relied upon the judgment of Harnam Kaur (Supra) and Desh Bhushan Jain (Supra). The gist of both these landmark precedents in my words is that when the matter in issue are similar or same then judicial prudence calls for consolidation of cases if the cases are not liable to be stayed under Section 10 of the Code of Civil Procedure, 1908. I have full consonance with the authorities cited by the Ld. counsel for defendant no.2. However, for using inherent power under Section 151 of the Code of Civil Procedure, 1908, I should be empowered by law for consolidation of these cases. I would Suit No. 491/14 Davinder Singh Suri Vs. Raj Kaur & Ors. Page 11 of 12 like to point out Section 24 of the Code of Civil Procedure, 1908 wherein only Hon'ble High Court has the power for transferring the matter. At this juncture, I would like to point out that the present matter would not only require consolidation rather it will also require transferring of this matter to the Ld. ADJ Court at Tis Hazari which can be done only by the intervention of Hon'ble High Court of Delhi.

18. In light of the above finding the present issue is decided against the defendant no.2 and in favour of the plaintiff.

19. The preliminary issue no.2 is decided in favour of plaintiff and against the defendant.

Announced in the open court on 30th May 2014. (TANVI KHURANA) The judgment contains 12 pages, Civil Judge­01 (South) all checked and signed by me. Saket Courts/New Delhi 30.05.2014 Suit No. 491/14 Davinder Singh Suri Vs. Raj Kaur & Ors. Page 12 of 12