Delhi District Court
Sh. Virendra Chaudhary vs Delhi Development Authority on 2 April, 2018
IN THE COURT OF SH. PRASHANT SHARMA
SCJCUMRC (CENTRAL): TIS HAZARI COURTS: DELHI
RCA : 06/18
Sh. Virendra Chaudhary,
S/o Late Sh. Prem Raj,
R/o 4282/3, Second Floor,
Ansari Road, Darya Ganj,
New Delhi - 110002. ..... Appellant
VERSUS
1. Delhi Development Authority,
(through its Vice Chairman)
Vikas Sadan,
New Delhi 110023
2. Sh. Anil Kumar Ghai,
S/o Sh. Madan Lal Ghai,
R/o 4/5006, Sant Nagar, Karol Bagh,
New Delhi.
3. Sh. Aman Ghai,
S/o Sh. Anil Kumar Ghai
R/o 4/5006, Sant Nagar, Karol Bagh
New Delhi. ..... Respondents
Date of Institution : 17.01.2018
Date of reserving Judgment : 14.03.2018
Date of pronouncement : 02.04.2018
RCA - 6/18 Virendra Chaudhary Vs. DDA & Ors. Page 1 of 18
JUDGMENT
1. Vide this order, I will decide the present appeal, filed by appellant namely Virender Chaudhary, vide which he has challenged order of Ld. Trial Court dated 27.11.2017, passed in Civil Suit No.337/17 (New CS No.2534/17). Vide said order, Ld. Trial Court not only dismissed the application of appellant under Order 39 Rule 1 & 2 CPC rather had rejected the plaint of plaintiff (appellant herein) under Order 7 Rule 11 CPC, by finding that appellant had not sought relief of declaration to the effect that he is having any right in the suit property and also had not sought relief of possession of suit property, which made the plaint illegal, in the wake of judgment of Hon'ble Apex Court tittled as "Anathula Sudhakar Vs. P. Buchchi Reddy (dead) by LRs & ors.", decided on 25.03.2008, in Civil Appeal No. 6191/08.
2. Before deciding the appeal in hand, I must briefly mentioned the facts, alleged by the appellant in the plaint, which was rejected by Ld. Trial Court. Same are mentioned below :
"That father of appellant namely Late Sh. Prem Raj (hereinafter referred as "erstwhile lessee") had acquired lease hold rights by perpetual lease deed dated 27.08.1943 from Delhi Improvement Trust (predecessor in interest of DDA), with respect to plot no.5, Block No.60, WEA, Ramjas Road, Karol Bagh, RCA - 6/18 Virendra Chaudhary Vs. DDA & Ors. Page 2 of 18 New Delhi measuring 568.91 sq. yds. (hereinafter property in question). That late Sh. Prem Raj, during his lifetime, never constructed any residential cottage on the said land and kept on paying vacant land tax to MCD till 08.09.2000. The lease of said plot was cancelled by DDA on 10.07.1978 and thereafter Sh. Prem Raj continued to request DDA for restoration of the lease. Despite said cancellation of lease, one Babu Ram Gupta and Mrs. Swaran Kanta Gupta, entered into an agreement for sale of lease hold rights with respect to said property, subject to getting the lease restored from DDA vide agreement to sell dt. 09.02.1981. Further, agreement to sell dt. 14.04.1981 was executed and a sum of Rs.40,000/ more were paid. At the time of execution of agreement to sell dated 14.04.1981, two documents styled as General Power of Attorney and Special Power of Attorney were got executed in favour of Smt. Raj Kumari, who is wife and sisterinlaw of alleged vendees. The erstwhile lessee, made efforts to get the lease restored from DDA and deposited a sum of Rs.83333.21 paise with lessor but restoration of lease was not confirmed. Smt. Raj Kumari in connivance with alleged vendees, moved an application dated RCA - 6/18 Virendra Chaudhary Vs. DDA & Ors. Page 3 of 18 07.01.1983 to the competent authority/DDA for fulfilling the requisite of statutory requirements of Sec.26 (1) and (2) of Urban Land (Ceiling & Regulation) Act, 1976 (in short "UL (C&R) Act, 1976). The competent authority / DDA issued letter dated 20.01.1983 to the erstwhile lessee informing that application dated 07.01.1983 was received and said application can be entertained after fulfilling the various requisites as mentioned in the letter. The erstwhile lessee informed the concerned authority that he had made no application under UL(C&R) Act, 1976. He was told by the said authority that power of attorney in favour of Smt. Raj Kumari, should be revoked and cancelled by him. Subsequently, erstwhile lessee cancelled the general power of attorney and special power of attorney executed in favour of Smt. Raj Kumari vide legal notice dated 17.02.1983 and informed the competent authority about the same. The application dated 07.01.1983, as mentioned above, was rejected by the competent authority vide rejection letter dated 18.04.1983.Appellant claimed that as a result of said rejection letter, the two agreements to sell dated 09.02.1981 and 14.04.1981 became frustrated. The RCA - 6/18 Virendra Chaudhary Vs. DDA & Ors. Page 4 of 18 erstwhile lessee, requested the two intending purchasers to take back their sum of Rs. 85,000/ but none turned up. Subsequently, erstwhile lessee received a show cause noticed dated 04.12.1984, in which DDA noted that he had breached certain clause of lease deed dated 27.08.1943. 30 days time period was given to erstwhile lessee to show cause as to why the leasehold rights be not cancelled. The said notice was found pasted at the outer door of the house in January, 1985. It was replied by erstwhile lessee vide letter dated 07.02.1985 that he had never breached any of the clauses, mentioned in notice dated 04.12.1984 as he had never sold / transferred his rights to Babu Ram Gupta and Swaran Kanta Gupta. DDA did not proceed further and did not cancel the leasehold rights of erstwhile lessee. Subsequently, DDA issued letter dated 09.06.1987, for the purpose of claiming ground rent of suit property, which was duly paid by erstwhile lessee. Apart from that, erstwhile lessee received letters dated 02.09.1985 and 16.01.1986 from DDA. In the meanwhile, since DDA did not confirm the withdrawal of their show cause notice dt. 04.12.1984, erstwhile lessee was forced to file civil suit no. 223/86 for RCA - 6/18 Virendra Chaudhary Vs. DDA & Ors. Page 5 of 18 permanent injunction against DDA, which was dismissed by the concerned court vide judgment dated 05.04.2002. Apart from that, erstwhile lessee had filed civil suit no. 215/86 after coming to know about the two sale deeds dt.09.02.1981 and 14.04.1981, which was dismissed as withdrawn, at request of erstwhile lessee. Thereafter, erstwhile lessee filed suit bearing no. 2043/89 before Hon'ble Delhi High Court for declaration and possession against DDA, which was dismissed by Hon'ble Delhi High Court vide judgment dated 03.09.2012. It was claimed by appellant that said order dt. 03.09.2012 was obtained by playing fraud upon Hon'ble Delhi High Court. That third sale deed dated 14.09.2006 was executed during pendency of suit no. 2043/89 in favour of Ashok Gupta. After coming to know the said sale deed and consequential mutations in the records of DDA, appellant filed a civil suit bearing no. 30/14, which is pending adjudication, as on date. Appellant has requested DDA to cancel the mutations with respect to suit property by claiming that said mutations had been effected as DDA officials are acting in collusion with Anil Kumar Ghai and Aman Ghai, who were arrayed as defendant no.2 and 3 in RCA - 6/18 Virendra Chaudhary Vs. DDA & Ors. Page 6 of 18 the present suit. Despite execution of sale deeds dt.
03.09.1983, 06.08.1984, 14.09.2006 and 24.05.2013, DDA as per appellant is still realizing ground rent / lease money as per lease deed dated 27.08.1943. So, in such circumstances, appellant claimed that he is entitled to get cancellation of mutations in favour of Anil Kumar Ghai and Aman Ghai. Thus, he prayed that a decree for mandatory injunction be passed in his favour and against DDA, thereby directing DDA to cancel mutation effected in favour of defendants namely Anil Kumar Ghai and Aman Ghai. He also prayed that a decree for permanent injunction be passed in his favour thereby restraining DDA and its officials from receiving / accepting any ground rent / lease money from defendant no.2 and 3."
3. After filing of the suit, summons were issued to defendants namely DDA, Anil Kumar Ghai and Aman Ghai. DDA filed written statement, challenging the case of appellant. Defendants namely Anil Kumar Ghai and Aman Ghai filed application under Order 7 Rule 11 CPC, which was allowed by Ld. Trial Court vide impugned order dated 27.11.2017. Hence, present appeal was filed by appellant.
RCA - 6/18 Virendra Chaudhary Vs. DDA & Ors. Page 7 of 184. Before moving further, I must mention here that plaint of appellant was rejected under Order 7 Rule 11 CPC. The said provision is mentioned in verbatim below:
"11. Rejection of plaint.The plaint shall be rejected in the following cases:
(a) Where it does not disclose a cause of action;
(b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) Where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamppaper within a time to be fixed by the Court, fails to do so;
(d) Where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the
provisions of rule."
5. Aforesaid provision, therefore mandates that a plaint can be rejected if any of the aforesaid grounds exists. One of the ground, based on which a plaint can be rejected, is that plaint is barred by law. The plaint RCA - 6/18 Virendra Chaudhary Vs. DDA & Ors. Page 8 of 18 in question was rejected by Ld. Trial Court under Order 7 Rule 11 (d) CPC, though it is not specifically mentioned in the said order. A meaningful reading of the impugned order, would revealed that plaint was rejected on the said ground of provision under Order 7 Rule 11 CPC.
6. So far as interpretation of the aforesaid provision is concerned, it is trite to mention here that for rejecting a plaint, the court has to see the plaint and documents annexed with it only. Court is not supposed to appreciate the defences of the defendants and documents filed by defendants. Reliance in this regard is placed upon case law titled as "Phonographic Performance Ltd Vs. Spring Club" 209 (2014) DLT 584.
7. So, I am appreciating the contents of plaint and documents annexed with it only, so as to decide as to whether impugned order was legally correct or not.
8. Reverting back to the case of appellant, I find that by way of present suit, appellant highlighted not only the grievances he had prayed in the prayer clause of the plaint, rather he categorically claimed that sale deeds dated 03.09.1983, 06.08.1984, 14.09.2006 and 24.05.2013 were illegal. He also claimed that his right over suit property in question, exists as on date in the wake of realization of ground rent / lease money by DDA from him, as on date. So, he was able to raise an issue, as to whether ownership rights in the wake of aforesaid sale deeds exists in favour of defendants Anil Kumar Ghai and Aman Ghai or whether leasehold rights RCA - 6/18 Virendra Chaudhary Vs. DDA & Ors. Page 9 of 18 exists in his favour, with respect to suit property in question ? The said issue is basically an issue with respect to title of suit property in question.
Based on outcome of said issue, the reliefs prayed by the appellant can be granted or dismissed. The said issue, therefore, is interwoven with the prayers of appellant, made in the plaint and cannot be separated. Appellant has not prayed any relief with respect to the declaration of his rights over suit property in question. In the absence of said reliefs, the suit of appellant for mandatory and permanent injunction simplicitor, was not maintainable. The issue of title over suit property in question preceded the reliefs claimed by the appellant. So, in the absence of any declaratory relief, the suit filed by appellant was not legally maintainable. Aforesaid inquiry into the facts of this case in reference to the title of the suit was made, as Hon'ble Apex Court in case ""Anathula Sudhakar Vs. P. Buchi Reddy (dead) by LRs & ors.", decided on 25.03.2008, in Civil Appeal No. 6191/08 had given directions, while making following observations:
"(d) where there are necessary pleadings regarding title and appropriate issue relating to title on which parties lead evidence, if the matter involves is simple and straight forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases are the exception to the normal rule that question of title will not be decided in suits for injunctions. But persons having clear title and possession suing for injunction, should not be driven RCA - 6/18 Virendra Chaudhary Vs. DDA & Ors. Page 10 of 18 to costlier and more cumbersome remedy of a suit for declaration merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will inquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.
9. Apart from that, I find that erstwhile lessee had got leasehold rights vide lease deed dated 27.08.1943 (copy of which is on record). As per para 4 of the plaint, said lease deed was cancelled by DDA on 10.07.1978. Appellant did not refer to any document in the plaint and documents annexed with it, which indicate that DDA had restored the said lease deed. In such circumstances, issue of title of appellant, being legal heir of erstwhile lessee, over suit property in question arises and therefore relief of declaration with respect to title over suit property, should have been sought by appellant.
10. Further, appellant relied upon agreements to sell dated 09.02.1981 and 14.04.1981, executed by erstwhile lessee in favour of Babu Ram Gupta and Swaran Kanta Gupta (copies of which are on record). He did not pray for cancellation of those agreements which transferred title of suit property in question from erstwhile lessee. In those RCA - 6/18 Virendra Chaudhary Vs. DDA & Ors. Page 11 of 18 agreements to sell and letter dated 03.08.1985, allegedly issued by erstwhile lessee, it was noted that erstwhile lessee had claimed himself to be the owner of suit property in question. That claim created confusion in my mind, so far as status of erstwhile lessee is concerned, as a person can either be a lessee or an owner. He / she cannot have b oth the designations at the same time with respect to a particular property. Erstwhile lessee herein had claimed himself to be the owner in letter written on 03.08.1985, which did not clear his position qua suit property in question. So, viewed from that perspective, I find that issue of title over suit property in question was involved in this case, for which relief of declaration, should have been made by the appellant, which he did not do.
11. Coupled with the same, aspects of justification regarding nullity of agreements to sell as mentioned above, in the wake of revocation of general power of attorney and special power of attorney issued by erstwhile lessee vide legal notice dated 17.02.1983, as claimed by the appellant, were aspects which can only be decided once a proper issue with respect to declaration of title over suit property in question is sought by the appellant. Same was not done by him, making the plaint illegal.
12. In addition to aforesaid aspects, I find that Hon'ble Delhi High Court in judgment dated 03.09.2012 had held in para 12 that agreements RCA - 6/18 Virendra Chaudhary Vs. DDA & Ors. Page 12 of 18 to sell dated 09.02.1981 and 14.04.1981 alongwith sale deeds dated 03.09.1983, 06.08.1984 and 14.09.2006 were not illegal or void on account of alleged violations of UL (C&R) Act. Said judgment has attained finality, as it is not set aside, till date by Competent Forum. In the wake of those findings of Hon'ble Delhi High Court, plea of appellant that said sale deeds leading to mutations in the records of DDA is not legal, is meritless plea. In such circumstances, it was incumbent upon appellant to have explained as to how his said claims was maintainable in the present suit, when Hon'ble Delhi High Court has come to the contrary decision. Being a bonafide litigant, appellant should have explained it in the plaint, which he did not do. In civil law cases, a party moving the court must come with clean hands. This is the judge made law, cited in various judgments of higher echelon of judiciary. Appellant has not followed the said law while filing present suit.
13. Based on aforesaid appreciation and conclusions, drawn on the basis of plaint and documents annexed with it, I find that Ld. Trial Court rightly rejected the plaint of appellant.
14. In the grounds of appeal, appellant has claimed that Ld. Trial Court did not appreciate certain facts while passing impugned order viz. That DDA had seized fake sale deed dated 03.09.1983, that DDA had issued show cause notice dated 04.12.1984 to erstwhile lessee, that defendants no. 2 and 3 are claiming their title on the basis of fictitious sale RCA - 6/18 Virendra Chaudhary Vs. DDA & Ors. Page 13 of 18 deeds, that DDA has taken the stand in suit no. 2043/89 that erstwhile lessee continues to be lessee in their record and that respondent's case is based on false facts. Appellant relied upon the case laws of "S.P. Chengalvaraya Naidu Vs. Jagan Nath" AIR 1994 SC 853 to assert that a person who does not approach the court with clean hands, should be thrown out of the court at any stage. He relied upon the case law of "Sandeep Kumar Vs. Nihal Chand" 2014 (207) DLT 104 to assert that a party moving the court must disclose true facts and no litigant can derive benefit from a court of law of his own wrongs.
15. So far as pleas raised in grounds of appeal, are concerned, they again highlight the issue that defendants Anil Kumar Ghai and Aman Ghai had no right over suit property in question as their sale deeds are false. That claim of appellant could have been appreciated only when he had claimed the relief of declaration over suit property in question. In the absence of said relief of declaration, there was no fact in issue involved in this case with respect to the title over suit property in question and therefore the court had no occasion to decide as to the falsity of the title of defendants Anil Kumar Ghai and Aman Ghai. Based on same reasoning, I find that acts of DDA, could not have been appreciated by Ld. Trial Court. So, those grounds of appeal did not justify that the suit of appellant, based on equitable reliefs only was maintainable simplicitor.
RCA - 6/18 Virendra Chaudhary Vs. DDA & Ors. Page 14 of 1816. So far as case laws referred by the appellant were concerned, there is no dispute regarding the law laid down in those case laws by the Hon'ble Apex Court and Hon'ble High Court. Factually, those cases were distinct from facts of this case. The said law referred by the appellant, was applicable upon appellant also. So, duty was casted upon appellant, to have explained as to why he had moved Ld. Trial Court in the wake of dismissal of his claims in civil suit no. 223/86 and 2043/89, which were based on the facts, similar to the facts of present case. It was incumbent upon appellant, to have explained as to how he had filed present case, in the wake of categorical cancellation order of lease deed in question dated 10.07.1978 passed by DDA. His explanations regarding continuation of lease hold rights, were based on the recovery of ground rent by DDA and the contents of letter dated 04.12.1984. The said explanations were his understandings of the manner in which lease hold rights had to be seen and appreciated. His understanding, cannot take the place of legal reasoning as noted above. So as such plaint of appellant did not meet out the aforesaid shortcomings and appellant himself did not move the court with clean hands. Those case laws, as such did not help his cause.
17. He also relied upon the case law of "Pramod Khanna & Anr. Vs. Subodh Khanna & Anr" 2013 VII AD (Delhi) 136. When appellant was asked by this court as to whether facts of the said case are similar to the facts of this case or not, he has replied that facts of the said case are RCA - 6/18 Virendra Chaudhary Vs. DDA & Ors. Page 15 of 18 directly applicable / similar to the facts of case in hand. After hearing said response, I have gone through the said cited judgment. After considering the said judgment I find that facts of the said case were different from the facts of case in hand. In the said case, plaintiff therein had sought following reliefs, which is not the case in hand.
"(a) Pass a decree of permanent injunction in favour of plaintiffs and against the defendants, whereby, the defendants acting themselves or through their agents, servants, attorneys, etc. be restrained from carrying out any contraction activities on part "A" & "C" of property bearing No. W105, Greater Kailash PartII, New Delhi110048, belonging to the plaintiffs, as described in the site plan of the property annexed with the sale deeds;
(b) pass a decree of declaration in favour of plaintiffs and against the defendants, thereby, declaring any purported documents such as, purported memorandum of family settlement on nonjudicial stamp papers dated 04.04.2006, possession letters dated 04.04.2006, letters to MCD for mutation dated 04.07.2006, the power of attorneys and special power of attorneys dated 29.05.2006 and any other documents, deeds, affidavits etc. in respect of RCA - 6/18 Virendra Chaudhary Vs. DDA & Ors. Page 16 of 18 property bearing No. W105, Greater Kailash PartII, New Delhi - 110048, signed and executed by the plaintiffs being forged, fabricated, manipulated, interpolated, illegal, null and void, as the same were obtained fraudulently and under misrepresentation of facts and is not binding on the plaintiffs;
(c) Pass a decree of mandatory injunction in favour of plaintiffs and against the defendants, whereby directing the defendants to revert back the possession of part "A" & "C" of the property bearing no. W105, Greater Kailash PartII, New Delhi - 110048 to the plaintiff, after removing any construction done on the said "A" & "C" portion illegally and without any authority;
(d) Award cost in favour of the plaintiffs and against the defendants"
18. Based on aforesaid discussion of law applicable on the given factual matrix of this case, I find that Ld. Trial Court had rightly rejected the plaint under Order 7 Rule 11 CPC. Appeal, accordingly, stands dismissed.
RCA - 6/18 Virendra Chaudhary Vs. DDA & Ors. Page 17 of 1819. Trial Court record be sent back to the concerned Court, as per rules alongwith copy of this order, by tomorrow i.e. 03.04.2018.
20. Appeal file be consigned to Record Room, after necessary compliance. Digitally signed by PRASHANT PRASHANT SHARMA SHARMA Date: 2018.04.02 14:40:12 +0530 Announced in open court (Prashant Sharma) nd Dated 02 April, 2018 SCJCumRC (Central) Tis Hazari Courts: Delhi RCA - 6/18 Virendra Chaudhary Vs. DDA & Ors. Page 18 of 18