Delhi District Court
Shri Pradeep Kumar vs Shri. Md. Ali on 19 March, 2012
In the Court of Ms. Reena Singh Nag, ADJ-05 (Central) Delhi
Suit No:55/11
Unique ID No. 02401C0988192008
In the Matter of:-
Shri Pradeep Kumar
Son of Shri Kanwar Bhan
R/o G-12/350, Sangam Vihar,
New Delhi-110062 ........ Plaintiff
V/s
Shri. Md. Ali
Son of Shri Md. Subrarati
R/o H-16/354-A, Sangam Vihar,
New Delhi-110062 ........ Defendant
Suit for Specific Performance and Mandatory & Permanent Injunctions
Plaint present on :19.06.2008
Arguments heard on 19.03.2012
Judgment delivered on 19.03.2012
Judgment
1.Plaintiff has filed the present suit for obtaining the decree of Specific Performance of the Agreement to Sell dated 28.02.2006 on the strength of documents executed between the plaintiff and the defendant vide GPA, agreement to sell, affidavit, Will, possession letter and receipt all dated 28.02.2006 in respect of suit property bearing No.H-16/354-A situated at Sangam Vihar, New Delhi-110062, built on a plot of land measuring 31-1/4 sq. yards out of the total plot of land measuring 75 sq. yards out of Khasra No.1066 and in this regard he has prayed the court to direct the defendant to execute necessary paper/Sale Deed and in the alternative on failure of defendant to execute the sale documents, he has prayed for appointment of court official for execution of such sale deed. He has also prayed for Suit No:55/11 Page 1 of 9 passing a decree of mandatory injunction directing the defendant to hand over the vacant physical possession of the suit property to him and a decree of permanent injunction restraining the defendant from selling, alienating, transferring the possession or creating third party interest in the suit property.
2. The case of the plaintiff is that after receiving of the entire sale consideration of Rs. 3,50,000/- defendant had handed him over the possession of the suit property but some goods/belongings of the defendant were allowed to be kept in the room on the first floor of the suit property on the request of the defendant, for a temporary period of 3 months but despite several requests, on one pretext or the other defendant did not remove his goods from that room; that the access to the first floor was from the stairs inside the ground floor room in possession of the plaintiff; that plaintiff served a notice dated 01.10.2007 upon the defendant for handing over the vacant possession but in vain. As a result he was constrained to file a suit for permanent injunction and possession in respect of first floor portion of the premises which suit was dismissed due to technical difficulty of non-payment of requisite court fee on the relief of possession, by Ld. Civil Judge Sh. Tarun Yogesh on 17.05.2008 wherein it was also observed by Ld. Civil Judge that all the documents dated 28.02.2006 on the basis of which plaintiff was seeking the relief of possession, were not registered documents and were attested by Notary Public and as such were inadmisible in evidence being barred by Section 49 of the Registration Act, 1908; that defendant taking advantage of dismissal, removed the belongings of the plaintiff lying on the ground floor room and tresspassed into the suit property in possession of the plaintiff regarding which latter made a compliant to the police on 22.05.2008 but without any result; that a legal notice dated 23.05.2008 was sent through courier on 26.05.2008 revoking and canceling the license of the defendant in respect of first floor in his possession and demanding back its possession and asking the defendant to execute the sale deed for completion of sale transaction but without any success, that instead of complying with the notice, defendant on 01.06.2008 threatened to create third party interest in respect of the suit property. In Suit No:55/11 Page 2 of 9 the obtaining facts and circumstances, plaintiff has sought the aforesaid reliefs. He has also specifically averred that he is willing to perform his part of contract.
3. In his Written Statement, defendant has taken certain preliminary objections, such as suit is liable to be dismissed U/o 7 Rule 11 CPC; that the suit of the plaintiff is not maintainable being barred by res-judicata under Section 11 of CPC as his earlier suit was dismissed by Ld. Civil Judge Sh. Tarun Yogesh which was on same facts and grounds as in the present case; that the documents relied upon by the plaintiff are forged and fabricated as agreement to sell does not mention about the sale consideration and is a void document as per the Indian Contract Act and same being also an unregistered document is barred by Section 49 of the Registration Act; that suit is liable to be dismissed for want of proper court fee.
4. On merits it has been admitted that defendant is owner of the suit property. While denying the case of the plaintiff, it has been submitted by the defendant that the plaintiff had approached the defendant for purchase of the suit property and the deal was materialized for a sum of Rs.5,00,000/- and on asking of the plaintiff, defendant had handed over the original papers of the suit property to the plaintiff. Plaintiff also obtained signatures of the defendant on some blank proforma papers which were in English and he was given to understand by the plaintiff that plaintiff had given him Rs.20,000/- in cash as earnest money and also obtained a blank cheque signed by the defendant as a security for honouring the deal which was to be returned back to the defendant after finalization of the deal; that plaintiff had also agreed that he would make payment of Rs.5,00,000/- in various installments as per the availability of the cash but he did not pay the installments nor returned the blank signed cheque of the defendant or the blank papers duly signed by the defendant and the original documents of the plaintiff, to him who is an illiterate but can sign in Hindi. Defendant has also alleged that plaintiff was extending threats off and on to the defendant on the strength of the documents of defendant in his possession and defendant had made a complaint to the police on 16.08.2007 and also filed a criminal complaint against him in the court on 19.11.2007. The version of Suit No:55/11 Page 3 of 9 the defendant is that plaintiff has misused the blank signed cheque of the defendant and also sent a false and manipulated notice to him with regard to bouncing of the cheque which has also appropriately been replied by the defendant. While admitting that, a notice dated 01.10.2007 was received by the defendant; it has been averred that the same was appropriately replied by counsel of the defendant. The dismissal of suit filed by the plaintiff by Ld. Civil Judge Sh. Tarun Yogesh was also admitted. Defendant denied that vide notice dated 23.05.2008, he was called upon to complete the sale transaction. He denied any liability to pay damages @ Rs.5,000/- per month for unauthorised use and occupation of the first floor of the suit property. Defendant denied having received any notice dated 23.05.2008. It has also been averred by the defendant that on his complaint, the police authority had registered a case against the plaintiff U/s 107/151 CrPC which was pending in the court of ACP Amar Colony, New Delhi at the time of filing of the Written Statement.
5. In replication by the plaintiff, he controverted the version contrary to his plaint and reaffirmed and reiterated the same as taken in his plaint.
6. From the pleadings on record, the following issues were framed on 20.04.2009:-
1. Whether the suit in the present form as filed by the plaintiff is not legally maintainable as against the defendant ? OPD
2. Whether the agreement to sell and other documents as relied upon by the plaintiff are forged and fabricated and without consideration and therefore, legally invalid and hence, plaintiff is not entitled for any relief ? OPD
3. Whether the plaintiff is entitled for a decree of specific performance of the agreement to sell dated 28.02.06 in respect of the suit property as against the defendant as per prayer Clause (a) of the plaint ? OPP
4. Whether the plaintiff is entitled for a decree of mandatory injunction as against the defendant in respect of the suit property as per prayer Clause (b) of the plaint ? OPP Suit No:55/11 Page 4 of 9
5. Whether the plaintiff is entitled for a decree of permanent injunction as against the defendant in respect of the suit property as per prayer Clause (c) of the plaint ? OPP
6. Relief.
7. In support of his case, plaintiff has examined two PWs i.e. Sh. Vinod Kumar as PW1 and Sh. Om Prakash as PW2 who tendered their evidence in affidavit as Ex.PW1/A and Ex.PW2/A and identified their signatures at point A and B on their respective affidavits.
8. Both these witnesses are attesting witnesses to the purported documents executed between the parties on 28.02.2006 viz. GPA executed by defendant in favour of the plaintiff, agreement to sell and purchase executed by the defendant in favour of the plaintiff, affidavit of defendant, receipt executed by the defendant in token of having received Rs.3,50,000/- from plaintiff in respect of the suit property, possession letter executed by defendant with regard to having delivered vacant possession of the suit property to the plaintiff along with the relevant documents relating to the property.
9. PE was closed by Ld. Predecessor on 10.10.2011 as the judicial record reflected that issues were framed on 20.04.2009 and this case was posted for plaintiff's evidence for 21.07.2009 and on 21.07.2009, no PW was present and a cost of Rs.500/- was imposed on the plaintiff and date was adjourned to 23.09.2009 for PE. On 23.09.2009, again no PW was present and further cost was imposed on the plaintiff in the sum of Rs.1000/- for next date for PE as 25.11.2009. On 25.11.2009, the earlier cost of Rs.1500/- was paid by the counsel for plaintiff to counsel for defendant and two PWs i.e. PW1 Sh. Vinod Kumar and PW2 Sh. Om Prakash were examined and discharged and the case was adjourned for 09.02.2010 on which date counsel for defendant filed his vakalatnama and counsel for plaintiff also filed affidavit of plaintiff in evidence with certain original documents and the case was Suit No:55/11 Page 5 of 9 posted for 12.04.2010 for RPE. On 12.04.2010, it was brought to the notice of court that due to inadvertence, the earlier affidavit in evidence filed by the plaintiff was found to be technically defective and prayer was made for taking the same out of consideration. Ld. Predecessor observed that the needful be done by the plaintiff with advance copy to the other side and the case was posted for 13.07.2010. On 13.07.2010 again adjournment was prayed by the plaintiff for filing the affidavit of plaintiff which was allowed subject to cost of Rs.300/-. On next date i.e. on 16.09.2010 Ld. Predecessor was on leave. On 19.11.2010 plaintiff filed his affidavit in evidence but did not bring certain original documents and the case was adjourned for 03.02.2011. On 03.02.2011, the matter was transferred and came before the Ld. Predecessor/transferee court of Sh. S. C. Malik, ADJ who adjourned it for 13.04.2011 for RPE and on the adjourned date i.e. on 13.04.2011 Ld. Presiding Officer was on leave and the case was fixed for 11.07.2011 and on this date also Ld. Presiding Officer was on leave. On 10.10.2011 order was passed closing the PE and it was observed that despite grant of eight opportunities for completing evidence, plaintiff has not concluded his evidence even despite imposition of cost and as such plaintiff's evidence was closed and on the statement of counsel for defendant, defendant's evidence was also closed. Thereafter case was adjourned for 18.10.2011 for final arguments. On 10.10.2011 proxy counsel Sh. Manoj Kumar for counsel Sh. K. S. Sharma for the plaintiff was present, however, on 18.10.2011, 30.01.2012, 01.02.2012, 02.02.2012, 06.02.2012, 10.02.2012, 14.02.2012, 17.02.2012, 06.03.2012 none for plaintiff was present whereas counsel for defendant was there and certain arguments were also heard by Ld. Predecessor.
10. I have heard the arguments and have gone through the case file. My issue-wise findings are as under:-
Issue Nos.1 & 2 :-
1. Whether the suit in the present form as filed by the plaintiff is not legally maintainable as against the defendant ? OPD
2. Whether the agreement to sell and other documents as relied upon by the plaintiff are forged and fabricated and without consideration Suit No:55/11 Page 6 of 9 and therefore, legally invalid and hence, plaintiff is not entitled for any relief ? OPD
11. Onus to prove both these issues was fastened on the defendant.
However, in view of the fact that plaintiff did not examine himself in evidence, the plaintiff's evidence was closed on 10.10.2011 on which date defendant also closed his evidence, as such defendant has failed to lead any evidence to substantiate his plea raised in the issues. However, the first issue is a legal issue and can be decided without leading any evidence by the either side, from the bare perusal of the plaint itself. The present suit has been filed by the plaintiff for specific performance and mandatory and permanent injunction and plaintiff has placed reliance on agreement to sell and other documents executed on 28.02.2006. At the stage of filing, plaintiff is not required to lead the evidence but he has to show his prima facie case and from the bare perusal of the document i.e. agreement to sell dated 28.02.2006 purportedly executed by the defendant in favour of the plaintiff, it is noted that no sale consideration for the alleged property deal is mentioned, even a receipt referred above reflects that the executant /receiver has mentioned that prior to the execution of the receipt, the receiver has received Rs.3,50,000/-, if that was the situation, there was no reason forthcoming for the plaintiff as to why the consideration amount is not mentioned in the agreement to sell or in the affidavit of Mohd. Ali/the receiver. The contention of the defendant is that his signatures were obtained on some blank proforma papers. At the time of filing, the court is required to appreciate only pleadings of the plaintiff and from bare perusal of plaint, without looking into the documents annexed therewith it could not be said that the relief sought was not maintainable as plaintiff has sought the relief of specific performance to execute the sale documents by the defendant. But when the photocopy of Agreement to Sell is perused, same is without consideration and is therefore a document of void agreement and on the basis thereof, the suit is not maintainable. So this issue is decided accordingly against the plaintiff.
12. As regards issue No.2 albeit defendant has not led any evidence to Suit No:55/11 Page 7 of 9 show that the documents relied by the plaintiff are forged and fabricated and without consideration but the fact of the matter remains that bare perusal of the documents referred above shows that the consideration amount is not mentioned in the agreement to sell and as such it is a void agreement.
Issue Nos.3, 4 & 5:-
3. Whether the plaintiff is entitled for a decree of specific performance of the agreement to sell dated 28.02.06 in respect of the suit property as against the defendant as per prayer Clause (a) of the plaint ? OPP
4. Whether the plaintiff is entitled for a decree of mandatory injunction as against the defendant in respect of the suit property as per prayer Clause (b) of the plaint ? OPP
5. Whether the plaintiff is entitled for a decree of permanent injunction as against the defendant in respect of the suit property as per prayer Clause (c) of the plaint ? OPP
13. Since all these issues are interrelated as such they are being decided together. Plaintiff has examined only two witnesses in support of his case who are the attesting witnesses to the documents referred above i.e. agreement to sell, possession letter, receipt etc. Both testified that the consideration amount was received by the defendant in respect of the sale of the suit property and relevant documents i.e. GPA, Agreement to Sell, affidavit, possession letter and receipt of payment etc. were also executed in the name of the plaintiff, at which time these witnesses were present and had affixed their signatures on the documents accordingly. However, documents have been held as inadmissible in earlier suit even by Ld. Civil Judge Sh. Tarun Yogesh as the same being notarized and unregistered document and the position remains the same in this case as well and the sale consideration having been not mentioned in the aforesaid document except the receipt, agreement based on these documents is void and as such the plaintiff is not entitled to any relief. However, from the pleadings on record, defendant has admitted his signatures on some documents and his version that on the asking of the plaintiff he had given him the original documents of the suit property gives the inference that there was some deal between the parties in respect of suit property otherwise there was no necessity on the part of the defendant to give the original Suit No:55/11 Page 8 of 9 documents of the suit property to the plaintiff that too on the receipt of meager amount of Rs.20,000/- as referred by him in his Written Statement. It also does not appeal to be logic that on the one hand, defendant would deliver the original documents to the plaintiff on mere receipt of Rs.20,000/- as earnest money and on the other hand he would also issue a blank signed cheuqe to the plaintiff. It seems that both the sides have not come before the court with clean hands. There being no evidence led by plaintiff to show the existence of a valid legally enforceable agreement, all these issued are decided against the plaintiff.
Relief
14. In view of the obtaining facts and circumstances, the suit of the plaintiff is dismissed. No order as to cost. Decree Sheet be prepared accordingly. File be consigned to Record Room.
Announced in the Open Court on 19.03.2012 (Reena Singh Nag) Additional District Judge-05 Central (Delhi) Suit No:55/11 Page 9 of 9