Delhi District Court
Suresh Kumar vs Union Of India & Others on 15 November, 2014
ID No.02401C0335702005
IN THE COURT OF SHRI PANKAJ GUPTA : ADDL. DISTRICT JUDGE
(CENTRAL07) : TIS HAZARI COURT : DELHI
SUIT NO.34/2008
Suresh Kumar .............Plaintiff
versus
Union of India & Others .............Defendants
O R D E R:
1. By this order, I shall dispose of the application under Order 1 Rule 10 of Code of Civil Procedure, 1908 (CPC) moved by the applicant namely Shri Samuel Watharkar (the applicant).
2. Brief facts relevant for the disposal of the present application are that on 05.02.2005, the plaintiff filed the present suit for declaration and mandatory injunction against the defendants no. 1 and 2. Subsequently, the defendant no.3 was impleaded in the present suit. The parties led their evidence. Thereafter, on 01.12.20013, the applicant moved the application under order 1 Rule 10 of CPC. However, the said application was dismissed in default on 16.12.2013. On 15.01.2014, the applicant moved another application under order 1 Rule 10 of CPC i.e. the present application.
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3. I have heard Ld. Counsels for the parties and have perused the material available on record.
4. Brief facts leading to filing of the present application are that the plaintiff filed the present suit on the ground that his father Shri Sanwalia Ram (SR) was allotted an open platform no.203, INA Market New Delhi w.e.f. 08.07.1964 by Government of India, Ministry of Worth, Housing and Rehabilitation, Office of Directorate of Estate, New Delhi and he used to sell the vegetables from there till 1982 when he changed the business to selling fish under the name and style of "Fish Corner" which was registered under the Delhi Shops and Establishment Act, 1954 on 16.01.1982. On 23.10.1990, SR applied for transfer of the ownership rights along with relevant documents and deposited the necessary fee. However, SR died on 11.12.1996. Thereafter, the defendant no. 2 vide letter dated 14.07.2003 addressed to Sh. Nathu Ram, brother of the plaintiff demanded the original death certificate of SR and the application for regularisation of the shop (the "suit property") along with no objection certificate for grant of ownership rights of the platform. In October 2003, the plaintiff submitted the documents along with no objection certificate of other legal heirs of SR, requesting that the name of the plaintiff be substituted as allottee of the suit property and also deposited the fee. However, the defendants no.1 and 2 failed to do the needful. Hence, the plaintiff filed the present suit seeking declaration that after the death of SR, the plaintiff became entitled for substitution and transfer of ownership rights of the suit property and the mandatory injunction against the defendants no.1 and 2 directing them to carry out the substitution and transfer of the ownership right of the suit property in their record.
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5. The defendants no.1 and 2 filed their common written statement and admitted that SR was allotted the platform. However, they disputed the claim of the plaintiff on the ground that the defendant no.3 has also lodged a claim in respect of the suit property. Hence, it is prayed that the suit may be dismissed.
6. In the written statement (WS), the defendant no. 3 admitted that the platform over which the shop exists was allotted by the concerned authority to the father of the plaintiff i.e. SR. However, it is stated that SR put the defendant no. 3 in exclusive possession of the suit property on 16.07.1981 for consideration of Rs.2 lacs. After the death of SR in the year 1996, the defendant no. 3 remained in actual possession of the same and also constructed a shop thereupon and applied for regularisation of the same. Therefore, he is entitled to the same. Hence, he prayed that the suit may be dismissed. He also made the counter claim against the plaintiff.
7. In the application, the case of the applicant, nephew of the defendant no. 3, is that in the year 1976, father of the applicant Late Shri Suresh Watharkar got the shop/platform i.e. the suit property for consideration of Rs.2 lacs from the erstwhile owner/allottee SR and used to do the business from the suit property under the name and style "M/s. S. Fish Corner". In the year 1992, the applicant joined his father in the said business. His father died on 03.01.1997. Since then, the applicant has been in perpetual possession of the suit property. The defendant no. 3, uncle of the applicant, used to look after the business. By passage of time, the defendant no. 3 started keeping evil eyes on the business of the applicant and also started threatening the applicant and his mother to hand over the suit property and 3/15 Suresh Kumar vs. Union of India & Ors.
also made a demand of Rs.25 lacs. On 03.07.2012, the defendant no. 3 broke open the lock of the suit property and removed the goods and record of the applicant and put his own locks on the suit property. The police intervened in the matter. But instead to take the action against the defendant no. 3, the police registered a false FIR no.157/2012 dated 21.07.2012 against him. The applicant came to know about the present proceedings when he received the charge sheet in the said proceeding. The applicant has also initiated the criminal proceeding against the defendant no. 3. Being aggrieved by the same, the applicant filed a suit for possession, permanent and mandatory injunction i.e. the suit no.461/2012 (hereinafter referred to as the "said suit") against the defendant no. 3 herein. In the said suit, the defendant no. 3 herein was proceeded exparte and an exparte judgment and decree were passed in favour of the applicant herein on 29.05.2013. Thereafter, the applicant initiated the execution proceeding and obtained the physical vacant possession of the suit property from the defendant no. 3 herein. Hence, the applicant, being the occupant of the suit property, is a necessary and proper party in the present suit.
8. The question arises whether the applicant is a necessary and proper party to the present suit.
9. Whole case of the applicant is based upon the exparte judgment and decree dated 29.05.2013 passed in the suit no. 461/12 against the defendant no. 3 herein. Counsel for the applicant relied upon the said decree and pleaded that the applicant is a necessary and property party in the suit.
10. The exparte judgment dated 29.05.2013 is a judgment in 4/15 Suresh Kumar vs. Union of India & Ors.
persona. Admittedly, the plaintiff was not the party to the said suit.
11. The basis of the present suit filed by the plaintiff is that his father SR was the original allottee of the suit property and after his death, all the remaining legal heirs have given their no objection for transfer of the ownership right of the suit property in his favour. Therefore, the plaintiff, being the legal heir of SR is entitled for the transfer of the ownership right of the suit property in his favour.
12. Perusal of the judgment dated 29.05.2013 reveals that in the said suit, the applicant neither claimed nor proved the right of ownership or any other right to claim possession of the suit property. Even the concerned court did not decide any right of the applicant and its nature under which he was enjoying possession of the suit property. On the contrary, in the present suit, the plaintiff claimed the right through his father being original allottee of the suit property along with the documents to substantiate the same. The applicant has also not disputed that the plaintiff is the legal heir of SR. In the said suit, no threat was claimed against the plaintiff herein. Even in the present application, the applicant has not claimed any right, title or interest in the suit property against the plaintiff.
13. Further, it is not the case of the applicant that he ever applied to Municipal Corporation of Delhi (MCD) for licence to run the meat shop which is mandatory in nature. It is also not the case of the applicant he ever protested against the application moved by the plaintiff with the defendant no.
2. Therefore, the applicant has failed to show as to how he is a necessary and proper party to adjudicate the relief of declaration and mandatory injunction.
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14. As discussed in later part of the order, the applicant has deliberately concealed the fact of the present suit from the concerned court which passed the judgment and the decree dated 29.05.20013. Therefore, if according to the applicant, the said judgment and the decree passed in the said suit shall affect the present proceedings, then the applicant has failed to explain as to why he only impleaded the defendant no. 3 herein in the said suit and had not taken any step to impleaded the plaintiff herein in the said suit despite coming to know about the present suit. On the same analogy, the applicant has failed to explain as to how he has now become necessary and proper party in the present suit on the basis of the said judgment to which the plaintiff is the third party.
15. As discussed above, the entire case of the applicant is based upon his possession of the suit property in terms of the judgment and the decree dated 29.05.2013. The said judgment is a judgment in persona. In the application, the applicant has not disclosed what right his father got from SR in the year 1976 to possess the suit property. In paras 3 and 9 of the application, the applicant claimed perpetual possession of the suit property but again has not disclosed under what right he claimed perpetual possession of the suit property. During the course of arguments, counsel for the applicant pleaded that SR executed the documents in favour of father of the applicant regarding the suit property. It is not the case of the applicant in the application that in the year 1976, father of the plaintiff executed some documents in favour of his father regarding the suit property for consideration. No such plea was taken by the applicant in suit no. 461/12 also. Further, the 6/15 Suresh Kumar vs. Union of India & Ors.
applicant has not disclosed the nature and number of the documents executed by SR in favour of his father. It is also not disclosed whether such documents were registered or not. During the course of the arguments, counsel for the applicant also pleaded that the applicant has lost those documents but failed to produce a single document to substantiate the same. Further, even if it is presumed to be correct for the sake of arguments only, then the applicant should have been aware at least about the nature and number of the documents which he also failed to disclose. As such, the said plea is beyond pleading and is an afterthought. Hence, it can be held that the applicant has failed to substantiate that his father got the possession of the suit property from SR for consideration in the year 1976.
16. Along with the application, the applicant only filed the copy of the judgment and decree dated 29.05.2013 only. On the direction of this court, the applicant filed copy of the pleading and the documents filed by him in the said suit. Perusal of the record reveals that in the said suit, the applicant only relied upon the one telephone bill, one electricity bill and copy of pass book to substantiate his possession in the suit property. The telephone bill is dated 09.07.2012, the electricity bill is dated 30.07.2012, and the entries in the pass book pertain to the period from 23.08.2011 to 03.08.2012. Now I propose to take up these documents one by one and discuss their effect on the plea of possession of the suit property taken by the applicant.
17. Telephone bill Case of the applicant is that earlier his father and then he continued on the business from the suit property in the name and style "S.Fish Corner". It is not the case of the applicant that he ever changed the name of the said business. But perusal of the reply dated 07.01.2014 sent 7/15 Suresh Kumar vs. Union of India & Ors.
by MTNL under RTI to counsel for the defendant no. 3 reveals that vide order dated 03.07.2012, the landline telephone connection installed in the suit property was transferred in the name of "M/s. Silver Sea Food Ltd., showing the applicant as its proprietor, at the instance of the defendant no. 3, showing himself as the proprietor of "S. Fish Corner'. Firstly, the said fact is not disclosed by the applicant in the application. Secondly, if the applicant was running the business under the name "S. Fish Corner", then, there was no occasion to get the telephone connection transferred in the name of "M/s. Silver Sea Food Ltd., being its proprietor, because it is not the case of the applicant that he changed the name of the business. Thirdly, it shows that the applicant had not concern with the business being run from the suit property under the name "S. Fish Corner". Hence, it can be inferred that the applicant had not concern with the name "S.Fish Corner" and the business being run there under and prior to 03.07.2012, the applicant had no concern with the said telephone connection.
18. Electricity BillThe electricity bill dated 30.07.2012 raised in the individual name of the applicant reveals that it was raised for the period from 04.03.2012 to 27.06.2012. However, the said bill is not in the name of "S. Fish Corner" which was being allegedly run by the applicant. As discussed above, "M/s. Silver Sea Food Ltd." is the name of the firm of which the applicant claimed to the proprietor in the transfer application for the telephone connection and not that of "S. Fish Corner". Further, no document is filed to that effect prior to the period July 2012.
19. Passbook As discussed above, the electricity bill is dated 30.07.2012 and the telephone bill is dated 09.07.2012. The entries in the 8/15 Suresh Kumar vs. Union of India & Ors.
passbook which is in the name the applicant pertain to the period from 23.08.2011 to 03.08.2012. It implies that once, the applicant applied for the opening of the said bank account at the address of the suit property, the subject electricity bill and the telephone bill were not in existence. Except that, no other document has been filed by the applicant in the said suit or the present suit. Therefore, the question arises on the basis of which documents, the applicant applied for opening of the said bank account. But the said question remained answered because the applicant has not filed any document on the basis of which he opened the said bank account on the address of the suit property. As such, an adverse inference can be drawn against the applicant. More so, the passbook is not the document to substantiate the possession of the suit property.
20. In view of the foregoing discussions, the applicant has failed to file any document to substantiate his possession from 1976 till February, 2012. At best, it can be presumed that the applicant came in possession of the suit property in March, 2012 i.e. during the pendency of this suit but under what right, he remained silent. Hence, it can be held that the applicant has no right, title and interest in the suit property. So far as the judgment dated 29.05.2013 is concerned, the same is a judgment in persona. Hence, the question of jurisdiction of the court to invoke order 1 Rule 10, CPC to add the applicant who has not been made a party in the suit by the plaintiff, not arise unless the applicant has direct legal interest in the dispute involved in the suit, which he has failed to show.
21. If the plaintiff succeeds in the present suit, then he would be entitled to the reliefs. For the purpose of execution of the decree, the law will 9/15 Suresh Kumar vs. Union of India & Ors.
take its own course. But merely because during the pendency of the present suit, the applicant has come in possession of the suit property, without disclosing the right under which he is in possession of the suit property, he cannot be held a necessary and proper party to adjudicate the present suit. Therefore, in my opinion, the applicant is not the necessary and proper party to the present suit.
22. It is settled law that one must approach the court with clean hand. Counsel for the plaintiff pleaded that the present application is a result of collusion between the defendant no. 3 and the applicant. The defendants no. 3 and the applicant denied the same.
23. Once the application was moved, the parties had already led their evidence. Case of the applicant is that on 03.07.2012, the defendant no. 3 broke open the lock of the suit property and came in possession of the same. On the other hand, case of the defendant no. 3 is that at the night of 02.07.2012 , the applicant broke open the lock of the suit property and trespassed therein. On 03.07.2012, once he came to know about the said fact, he removed the locks put by the applicant and thereby repossessed the suit property and thereafter he made a complaint dated 03.07.2012 with the police. The said facts are narrated in the said complaint also. As such, it can be held that at the time of filing the complaint on 03.07.2012, the defendant no. 3 was in possession of the suit property which continued till his dispossession in the execution proceedings initiated by the applicant. Therefore, to dispose of the application, it is inevitable to discuss the conduct of the applicant and the defendant no. 3 from July, 2012 to 01.12.2013 when the applicant filed the first application under Order 1 Rule 10 of CPC on similar facts.
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24. In the application, the applicant has not disclosed the exact date, month and year when he got the knowledge of pendency of the present suit. He only stated that once, he received the copy of the charge sheet in the FIR no. 157/12, he came to know about pendency of the present suit. During the course of arguments, the applicant, on inquiry, stated that he got the knowledge of the present suit and the proceedings thereof in November 2012. As per record, the applicant instituted the said suit on 12.10.2012. Hence, it can be held that just after institution of the said suit, the plaintiff had come to know about the present suit and proceedings. In the said suit, the judgment was passed on 29.05.2013. According to the applicant, he got the possession of the suit property from the defendant no. 3 in the execution proceedings. The plaintiff has failed to explain if his right to possession was under threat because of the plaintiff herein, then, why he had not impleaded him as a party necessary party in the said suit or had moved the present application during the said period itself. The applicant has also failed to give any explanation for his silence from November 2012 till 01.12.2013.
25. Further, as per record, the applicant filed the suit no.461/2012 on 12.10.2012. As discussed above, according to the applicant, he came to know about the present suit and its proceedings in November, 2012. Perusal of the plaint filed in the said suit on 12.10.2012 reveals that the applicant mentioned only one address of the defendant no.3 herein i.e. KA53, Opp. Waive Cinema, Kaushambi, Ghaziabad, UP (the UP address). It is own case of the applicant that on 03.07.2012, the defendant no. 3 dispossessed him from the suit property and came in possession thereof. However, surprisingly, the applicant did not mention the address of the suit property which was forcibly possessed 11/15 Suresh Kumar vs. Union of India & Ors.
by the defendant no. 3 on 03.07.2012 as alleged, in the said plaint. Further, once the applicant came to know about the present suit in November, 2012, then, he should be aware of the Delhi residential address of the defendant no. 3 herein i.e. WZ63A, Lajwanti Garden New Delhi46 ( Delhi residential address) as mentioned in the present suit. However, even thereafter, the applicant did not mention any of those two Delhi addresses of the defendant no. 3 in those proceedings. As per record, the defendant no. 3 was proceeded exparte on 04.01.2013. If the applicant was not able to serve the defendant no. 3 herein in the said suit and once, he came to know about the present suit in November 2012, then the applicant had the sufficient opportunity to get the defendant no. 3 herein served either in this court or through this court. But nothing was done by the applicant.
26. Further as discussed above, the applicant claimed himself to run the business in the name of "S. Fish Corner" from the suit property while he himself applied for transfer of the telephone connection in the name of "M/s. Silver Sea Food Ltd. " which shows that the applicant had no concern with the business name "S. Fish Corner" even prior to filing of the said suit.
27. In view of the foregoing discussions, it can be held that the applicant has deliberately concealed the fact of the said suit from this court and that of the present suit from the concerned court and had not furnished all the addresses of the defendant no. 3 rather concealed the same in the said suit to obtain an exparte judgment and the decree.
28. Case of the defendant no. 3 is that he was not aware of the suit no. 461/12 and the exparte judgment and decree passed therein. But in his 12/15 Suresh Kumar vs. Union of India & Ors.
reply, the defendant no. 3 has not disclosed the date, month and year when he actually came to know about the exparte judgment and decree.
29. To oppose the application, counsel for the defendant no. 3 pleaded that the applicant trespassed the suit property and he lodged the said FIR to that effect. If that is so, he has failed to explain why did he sign the transfer application for the landline telephone connection in favour of the applicant and also issued the no objection certificate to that effect, which resulted in transfer vide order dated 03.07.2012 as mentioned in reply dated 07.01.2014 sent by MTNL.
30. Further, in the suit for injunction i.e. suit no. 140/04 earlier filed by the defendant no. 3 and in the WS filed in the present suit, the case of the defendant no. 3 is that on 16.07.1981, father of the plaintiff (SR) gave the actual possession of the property to him for Rs. 2,00,000/ and he was running the business there from. Admittedly, the defendant no. 3 lodged an FIR no. 157/2012 against the applicant on the basis of his complaint dated 03.07.2012. Perusal of the contents of the complaint dated 03.07.2012 which led into lodging of FIR reveal that according to the defendant no. 3, he was running the shop from the suit property since 1981 which he had taken on rent by him from Sh. Nathu, brother of the plaintiff. Thereafter, in the year 199697, Sh. Nathu took Rs. 8 lacs in cash and Rs.1 lac in cheque towards the consideration of the suit property to transfer the same in his favour. However, he failed to do the needful. Thereafter, he started with the version of the incident taken place at the night of 02.07.2012. Firstly, the said version of the defendant no. 3 is the complaint and FIR is completely contradictory to the stand raised by 13/15 Suresh Kumar vs. Union of India & Ors.
him in his earlier suit and the defence raised in the WS. Secondly, in the said complaint, the defendant no. 3 remained completely silent about the present suit which he has been contesting from the year 2005. Thirdly, according to the defendant no. 3 himself, even he had not disclosed the facts of the present suit once he was called in the police station in the presence of the applicant before registration of the FIR. The defendant no. 3 has failed to give any explanation as to why he had given a contradictory version in his complaint dated 03.07.2012 and had not mentioned a single word about the present suit and the defence raised therein. Surprisingly, in the complaint dated 03.07.2012, the defendant no. 3 has also not mentioned his address of the suit property. He has also not mentioned his Delhi residential address as mentioned in the present suit. Instead, he mentioned an address i.e. the UP address which is not on the court record. Hence, it can be held that the defendant no. 3 on the one hand took a contradictory stand in the complaint dated 03.07.2012 and on the other hand, he deliberately concealed both his Delhi addresses.
31. The conduct of the defendant no. 3 can further be ascertained from the fact that in the present case, he moved an application for stay of the proceedings on 07.11.2013 on the ground that he has filed one application u/o 9 Rue 13 of CPC to set aside the judgment and decree dated 29.05.2013. Even in the said application, he has not disclosed when he came to know about the said judgment. He has also not disclosed the exact date when the possession of the suit property was taken away from him in the execution proceedings. In the said application, it is stated that the applicant obtained the said decree by fraud. The defendant no. 3 failed to explain if the said decree was obtained by fraud by the applicant and the applicant is not the necessary and proper party 14/15 Suresh Kumar vs. Union of India & Ors.
to the suit as pleaded in the reply, then why he sought stay of the suit.
32. In view of the foregoing discussions, it can be held that the applicant deliberately concealed the fact of pendency of the present suit from July 2012 till 01.12.2013 from the concerned authorities and courts to get the exparte decree and the possession of the suit property. In the said process, the defendant no. 3 not only remained silent at relevant time but also took the contradictory stand and thereby assisted the applicant. Hence, the present application is a clear case of collusion between the defendant no. 3 and the applicant. Hence, the opposition by the defendant no. 3 to this application is merely eyewash. Therefore, it can be held that the applicant has not approached the court with clean hands.
33. In view of the foregoing discussions, the present application is dismissed. Cost of Rs. 10,000/ is imposed upon the applicant out of which 50% be deposited with DLSA Fund (Central) and remaining cost be paid to the plaintiff.
Announced in the open court, (PANKAJ GUPTA)
th
On 15 Day of November, 2014. ADJ(Central07)/DELHI
15.11.2014
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