Delhi High Court
Mohan Brothers Cooperative House ... vs Delhi Development Authority And Ors. on 20 September, 2004
Equivalent citations: 114(2004)DLT282, 2004(77)DRJ184
Author: Vikramajit Sen
Bench: Vikramajit Sen
JUDGMENT Vikramajit Sen, J.
1. I propose to dispose of Plaintiffs application under Order XXXIX Rules 1 and 2 (I.A. No.10617/2001) praying for orders against the Defendants restraining them from selling, transferring, alienating, parting with possession or creating any third party rights in Plot No. 19, Street No.7, Sarva Priya Vihar, New Delhi; Plaintiffs application under Order VI Rule 17 for amendment of the plaint (I.A No. 10821/2002); and the application of Defendant No.3under Order VII Rule 11 (I.A. NO. 935/2003) praying for the rejection of the plaint. I shall also dispose of the Suit for permanent injunction.
2. The facts of the case in brief are that an Agreement was executed in 1966 between the State, through Commissioner, Delhi Administration and four Societies including the Plaintiff, for the development of land admeasuring approximately twenty (20) acres. These four Societies, including Mohan Brothers CHBS Limited, Plaintiff No.1, (Mohan Brothers for short) and Sarva Priya CHBS Limited, Defendant No.2, (Sarva Priya for short) constituted a Joint Development Committee of which Shri S.P. Gupta, father of Defendant No.3 was the Secretary at the material time. Sarvodaya C.H.B.S. Limited merged with Defendant No.2 in 1969. Mohan Brothers was allotted 2.050 acres and each of its members has been allotted a plot. It is the Plaintiff's case that Sarva Priya, being the largest Society, enjoyed a dominant position which was also in some measure due to the fact that Shri S.P. Gupta was the Secretary to the Joint Development Committee. Plaintiff No.2 was placed on the Waiting List of Mohan Brothers. It is not in dispute that Plaintiff No.2 was not an original member and was granted membership on the Waiting List, 20 years after the formation of the Society. It appears that Sarva Priya was allotted 27,438.58 sq. yds. against its entitlement of 27,882.66 sq. yds. resulting in a shortfall of 444.16 sq. yds. owing to which the Lesser had allotted plot No. 7/19 admeasuring 492.59 sq. yds. to Sarva Priya as far back as on 5.1.1985. A Perpetual Sub-Lease Deed of land inclusive of this plot was executed on 12.2.1985. The plot was allotted to Defendant No.3 on 15.2.1985. Counsel for the Plaintiffs have strenuously submitted that the subject plot has been shown as a disputed one in the records of the DDA, as recently as in 1991. The plaint, howe , makes no mention of Mohan Brothers Resolution dated 5.9.1989 stating that Plot No. 19 had been allotted to Sarva Priya which had paid a sum of Rs.83,000/- to the DDA. The plaint also does not disclose that at the Special General Body Meeting held on that date i.e. 5.9.1989 Mohan Brothers was to take requisite steps for getting back the value of 48.43 sq. yds of developed land.
3. The first question which has to be decided is whether any cause of action has arisen in favor of Plaintiff No.2. My attention has been drawn to a previous letter of the Delhi Administration dated 5.7.1977, paragraph five whereof states that in no case should the membership in any Society exceed the number of plots available. Reliance has been placed on the Directions issued by the Office of Registrar of Cooperative Societies (Delhi Administration) on 22.2.1984 to the effect that all registered Group Housing Societies shall not maintain any Waiting List for the purpose of enrollment of members. It is not disputed that inasmuch as Plaintiff No.2 had been enrolled as a 'Waiting List Member' subsequent thereto, no rights in her favor could possibly have been created. Once this position is arrived at it would be evident that the Plaintiff No.2 does not possess any rights which can be agitated by way of a civil suit/action.
4. It has next been contended by learned counsel for the Defendants that the suit itself is barred by limitation, inasmuch as the disputed plot had been allotted in favor of Defendant No.3 as far back as in February 1985. This allotment was well within the knowledge of Plaintiff No.1 who has not assailed this decision till the filing of the present suit in November, 2001. Assuming for the sake of arguments that there was no irregularity in the grant of membership to Plaintiff No.2 the cause of action would have arisen immediately upon the allotment of the disputed plot in favor of Defendant No.3. An effort has been made to explain away this legal/preliminary objection by relying on the records of the DDA in which the said plot had been shown as a disputed in the Perpetual Lease executed in favor of Mohan Brothers on 23.1.1991. The Plaintiffs reliance on DDA's letter dated 16.11.1998 turning down the Plaintiffs objection as being too old, and further reliance on the Plaintiffs legal notice dated 18.1.1991 under Section 53 of the Delhi Development Authority Act cannot extend the period of limitation. The cause of action clearly arose on the allotment of the plot to Defendant No.3 in February, 1985. Addressing letters/notices cannot enlarge time. Inasmuch as the suit bring into question the said allotment which has taken placed 15 years previously the suit is clearly barred by limitation.
5. The Plaintiffs application under Order VI Rule 17 for amendment of the plaint has been supported by the affidavit of Shri Banarsi Lal Dhingra, who was the Secretary of Mohan Brothers at the material time. A nebulous statement has been made that important facts could not be mentioned in the plaint because the records of the Society were not available and were untraced at the time of its filing. It is not in contention that Shri Dhingra was personally aware of these facts and would have known of the Resolutions passed by the Society in 1989. There has been a deliberate suppression of facts. Even if the amendments prayed for in Paragraph 16 are allowed it would not save the suit from dismissal on the grounds of limitation. The same is the position that obtains in respect of the proposed amendments to paragraphs 18 and 19 of the plaint.
6. So far as the alternate prayer `C` in the application for amendment is concerned it is based on a distinct cause of action which does not concern Defendants 2 and 3 in any manner whatsoever. Allowing such an amendment would change the very nature of the suit since a holistic reading of the plaint can only lead to the conclusion that the grievance in it is the allotment of the plot to Defendant No.3. While amendments should be liberally allowed they should be declined where they have the effect of changing the nature of the suit or introducing a distinct cause of action.
7. In these circumstances the Plaintiffs application for the issuance of an injunction under Order XXXIX Rules 1 and 2 is rejected since a prima facie case does not exist in their favor.
8. The application for amendment is rejected for the reasons mentioned above. The Defendants application for rejection of the plaint is accepted since the plaint is clearly barred by time. Plaintiff No.2 does not possess any enforceable civil right since her inclusion in the list of members was contrary to the directions, orders and regulations of the Land Owning Agency which had prohibited and proscribed the grant of membership where no land was available.
9. Suit and applications stand disposed in the above terms.
10. The parties are, however, directed to bear their respective costs.