Delhi District Court
Mr. Manjeet Kaur vs Mrs. Monu on 30 September, 2013
IN THE COURT OF SHRI. ASHISH AGGARWAL, ADDITIONAL SENIOR CIVIL
JUDGECUMJUDGE, SMALL CAUSES COURTCUMGUARDIAN JUDGE,
NORTH WEST DISTRICT, ROHINI COURTS, DELHI.
SUIT NO.1016/09/97.
Unique ID no.02404C0309902009.
1.Mr. Manjeet Kaur S/o Mr. Gurdial Singh R/o C73Y, DDA Flats, Jahangir Puri, Delhi.
2. Mr. Jitender Pal S/o Mr. Jaswant Singh R/o C76Y, DDA Flats, Jahangir Puri, Delhi.
....Plaintiffs Versus
1. Mrs. Monu W/o Mr. Kuldeep Singh R/o C73Z, DDA Flats, Jahangir Puri, Delhi.
2. Mrs. Banto W/o Rajinder Singh R/o C76Y, DDA Flats, Jahangir Puri, Delhi.
3. Mr. Ram Singh SHO, PS Jahangir Puri, Delhi.
4. Delhi Urban Shelter Improvement Board (Earlier known as Slum & JJ Department of Municipal Corporation of Delhi) Office at Punarwas Bhawan, Vikas Kutir, I. P. Estate, New Delhi110002.
1/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07
....Defendants
Date of institution : 16.07.1997
Date on which reserved for judgment :
Date of decision : 30.09.2013
Suit for Recovery of Possession and Permanent Injunction Judgment
1. This judgment shall decide the suit filed by the plaintiffs.
2. Two causes of action have been joined in the present suit. No observation is however being made on the legality of such joinder since no issue to that effect has been framed and also since the suit has already been subjected to a long trial spanning thirteen years.
3. There are two plaintiffs in the case namely Ms. Manjeet Kaur (plaintiff no.1) and Mr. Jitender Pal Singh (plaintiff no.2). The grievance of plaintiff no.1 is with the defendant no.1 Smt. Monu whereas that of plaintiff no.2 is with defendant no.2 Smt. Banto.
4. According to the plaintiffs, they are victims of riots that took place in the year 1984. It is stated in the plaint that during the riots they were dispossessed from their camp and came into possession of the flat bearing no.C91Y, Jahangir Puri, Delhi. It is further stated in the plaint that several people had occupied flats which were lying vacant. The plaintiffs and other such occupants feared their dispossession and therefore filed a writ petition before the Hon'ble High Court of Delhi. The Hon'ble High Court of Delhi protected their possession. The defendants no.1 and 2 however forcibly dispossessed the plaintiffs from their flats. It is further stated in the plaint that the plaintiff no.1 was 2/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07 dispossessed by defendant no.1 on 10.04.1997 while the plaintiff no.2 was dispossessed by defendant no.2 on 17.04.1997. On this basis, the plaintiffs have filed the present suit praying for the following reliefs:
a. Permanent injunction restraining the defendants no.1 and 2 from transferring, alienating or parting with possession of the flat bearing no.C73Z and C73Y, Janta Flats, Jahangirpuri, Delhi.
b. Recovery of possession of:
(i) Flat no.C73Z against defendant no.1;
(ii) Flat no.C76Y against defendant no.2.
c. Directions to defendants to pay Rs.1500/ per month in respect of each flat as unauthorized usage charges to the plaintiffs.
5. Initially the suit had been filed for permanent and mandatory injunction. By order dated 10.09.2001, an application under Order 6 Rule 17 of Code of Civil Procedure filed by the plaintiff was allowed and the suit was permitted to be amended so as to make the prayer for recovery of possession in place of mandatory injunction which was earlier prayed for.
6. Originally, the defendant no.4 was not a party to the suit. The plaintiffs later filed an application under Order 1 Rule 10 of Code of Civil Procedure so as to implead the Slum and J. J. Department of Municipal Corporation of Delhi as a party to the suit. The application was allowed by order dated 02.05.2003 and the Slum and J. J. Department was impleaded as defendant no.4. Later, the Slum and J. J. Department ceased to exist and it was replaced by Delhi Urban Shelter Improvement Board. By order dated 27.07.2011, the Delhi Urban Shelter Improvement Board was substituted as defendant no.4 3/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07 in place of Slum and J. J. Department.
7. The defendants filed their written statement.
8. In her written statement, defendant no.1 denied the averments made in the plaint. She stated that the plaintiffs have no locus standi to file the present suit. She submitted that the plaintiffs have not joined DDA which is a necessary party in the suit. She also stated that the suit is not properly valued. She denied that the plaintiff came into possession of flat no.C91Y. She also stated that defendant no.1 is a victim of 1984 riots and that she came into possession of C73Z, DDA, Janta Flats, Jahangirpuri, Delhi. She denied the assertion of the plaintiffs of forcible dispossession by the defendant no.1.
9. In her written statement, the defendant no.2 disputed the valuation of the suit. She contended that the suit is liable to be dismissed for failure of the plaintiff to join DDA as a party. She denied that the plaintiffs came into possession of flat no.C91Y. She asserted that the defendant no.2 has been in possession of the flat in question.
10.The defendant no.3 filed his written statement. In his written statement, he stated that the plaintiff no.1 is residing in flat no.C73Y, DDA Flats, Jahangirpuri, Delhi. He further stated that some of the DDA flats which were unauthorizedly occupied were got vacated and sealed by DDA. Defendant no.3 denied that the plaintiffs were forcibly dispossessed from the suit property. He further submitted that the suit properties figure among the properties which were sealed by DDA.
11.The defendant no.4 filed its written statement. In its written statement, the defendant stated that the plaintiffs have no locus standi to file the present suit and that the suit is not properly valued. It is further stated 4/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07 that the suit is barred by limitation and that no prior notice was served upon defendant no.4. It is further stated that the suit suffers from non joinder of parties. It is denied that the plaintiffs are riot victims or that they were dispossessed from the camp or that they came into possession of the suit premises. It is further stated that the flats in question have been trespassed and that whoever is in occupation thereof is a trespasser. It is further stated that the writ petition filed by the plaintiffs had been dismissed.
12.After completion of pleadings, issues were framed by order dated 31.03.2009 passed by the Ld. Predecessor of the Court, as follows:
1. Whether the plaintiff is entitled to relief of possession as prayed for? OPP.
2. Whether the plaintiff is entitled to relief of permanent injunction as prayed for? OPP.
3. Whether the plaintiff is entitled to the damages as prayed for?
OPP.
4. Whether the plaintiff has no locus standi to file the present suit? OPD1 & 2.
5. Whether the suit is bad for misjoinder and nonjoinder of the parties? OPD1 & 2.
6. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD.
7. Whether the suit is barred by limitation? OPD4.
8. Whether the suit is barred under Section 477/478 of DMC Act? OPD4.
5/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07
9. Relief.
13.The plaintiffs led evidence in support of their case. They examined five witnesses. The said witnesses tendered their affidavits in evidence. The testimony of PW1 Mr. Jaspal Singh, PW3 Joginder Singh, PW4 Poonam and PW5 Gurdial Singh is identical in material terms. All the said witnesses have stated in their affidavits that defendants no.1 and 2 "are in forcible occupation of flats no.C73Z and C76Y, Jahangirpuri, Delhi". The said witnesses were crossexamined and discharged.
14.Plaintiffs examined plaintiff no.1 Mrs. Manjeet Kaur as PW2. She tendered her affidavit Ex.P2 in evidence. She reiterated the averments made in the plaint. She identified and relied upon copy of her ration card as Ex.PW1/1. PW2 was cross examined and was then discharged.
15.After examination of the above named witnesses, plaintiffs closed their evidence.
16.The defendants led evidence in support of their defence. The defendant no.1 examined herself as D1W1. In her affidavit, she reiterated the averments made in the written statement. She was crossexamined and was then discharged.
17.Smt. Amarjeet Kaur was examined as D1W2. She tendered her affidavit Ex.D1W2/A in evidence. In her affidavit, she stated that the plaintiff have no concern with the suit property and that the defendant no.1 is in possession of the flat no.C73Z, DDA Flats, Jahangirpuri, Delhi. She was crossexamined and was then discharged.
6/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07
18.Smt. Paramjit was examined as D2W1. She tendered her affidavit Ex.D2W1/A in evidence. In her affidavit, she stated that the plaintiff has no concern with the suit property and that the defendant no.2 is in possession of the same. She was crossexamined and was then discharged.
19.The defendant no.3 did not lead evidence.
20.The defendant no.4 adduced evidence and tendered in evidence the affidavit of D3W1 Mr. H. C. Vats. In his affidavit he reiterated the averments made in the written statement. He was crossexamined and was then discharged.
21.Defence evidence was closed.
22.I have heard final arguments advanced by counsels for the parties and have also perused the record. My issuewise findings are as follows:
ISSUE No.1 "Whether the plaintiff is entitled to relief of possession as prayed for? OPP."
23.The onus to prove this issue was upon the plaintiffs. The plaintiffs have prayed for recovery of possession of flat nos.C73Z and C76Y, DDA Flats, Jahangirpuri, Delhi.
24. It is argued by Ld. counsel for plaintiffs that plaintiffs were in possession of the said flats and they were forcibly dispossessed therefrom by defendants no.1 and 2. This version is sought to be supported by the testimony of plaintiff no.1 examined as PW2 and by the testimony of PW1 Mr. Jaspal Singh, PW3 Mr. Joginder Singh, PW4 Ms. Poonam and PW5 Gurdial Singh.
7/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07
25.The plea of plaintiffs of forcible dispossession has been disputed by the defendants. The defendant no.1 and defendant no.2 have claimed that they occupied vacant flats and that they never dispossessed the plaintiffs therefrom. The defendants have sought to support this version by the testimony of defendant no.1 as D1W1, Smt. Paramjeet Kaur as D2W1 and Smt. Amarjeet Kaur as D1W2.
26.Having perused the record, the following is observed:
A. The suit had been instituted by a plaint which was filed on 16.07.1997. The said plaint states that the plaintiffs came into possession of a flat bearing no.C91, Y, Janta Flat, Delhi. This plea finds mention in para no.1 of the original plaint. Thereafter in the entire plaint, no mention has been made of flat no.C91, Y. The plaintiffs have not stated in the plaint that they have been dispossessed from the said flat. They have also not sought any relief in respect of the said flat.
B. Perusal of the original plaint further reveals that the plaintiffs have sought reliefs in respect of the flat bearing nos. C73Z, C73Y and C76Y. There is no mention of the said flat numbers in the pleadings of the plaint. The plaintiffs have not at all pleaded in the plaint that they were in possession of the said three flats (or either of them) or that they have been forcibly dispossessed from the said flats. There is no link between the properties mentioned in the plaint, and those in respect of which prayers are made. Hence the reliefs prayed for by the plaintiffs cannot be granted even if the averments made in the plaint are deemed to be true.
C. The plaintiffs have claimed that they have been dispossessed from 8/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07 the flats occupied by them. They have not disclosed the manner in which they have been forcibly dispossessed. Further, the plaintiffs have not disclosed as to which of the flats had been occupied by each of the plaintiffs. The prayer made by the plaintiffs are in respect of three different flats and which flat was under whose occupation cannot be ascertained from the plaint.
D. Perusal of paragraph no.3 of the plaint indicates that there were different "flats" which were under the occupation of the plaintiffs. However, paragraph no.1 of the plaint suggests that there was only one flat which was in occupation of both the plaintiffs. The averments made in the plaint are inconsistent.
E. The plaint was amended by the plaintiffs. In the amended plaint too, the plaintiffs did not clarify the aforesaid facts. The plaint continued to plead occupation of flat bearing no.C91Y and yet did not make any prayer in respect of the said flat. In the amended plaint too, the prayers were made in respect of three flats bearing no.C73Z, C73Y and C76Y. No pleading is found in the plaint regarding the said flats. The amended plaint too does not mention as to which flat was under whose occupation. It also does not explain the manner in which defendants no.1 and 2 allegedly forcibly dispossessed the plaintiffs.
F. In the replication to the written statement of the defendant no.2., the plaintiffs sought to urge that the mention of flat no.C91Y is a typographical mistake and it should be read as C73Z. Even after realizing the said mistake, the plaintiffs never amended the plaint. Not only this, subsequently, when the plaintiffs led evidence, in the 9/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07 affidavit of plaintiff no.1/PW2, the plaintiffs mentioned that they had come into possession of flat bearing no.C91Y itself. That being so, the absence of amendment of the plaint, and the reiteration of the same flat number in the affidavit of plaintiff no.1 makes it clear that the plaintiffs did not intend to refer to flat no.C73Z as the one which they had come to occupy. Had the flat number been mentioned incorrectly, the plaintiffs, on realizing the mistake would have not mentioned the same flat number in the testimony of plaintiff no.1. But the plaintiffs did so. In the result, this court has no option but to assume that the flat number in which the plaintiffs had come into possession after being dislodged from their refugee camp is flat no.C91Y. The plaintiffs have not made any prayer in respect of this flat. G. Even if it were to be assumed that the plaintiffs had actually come into possession of flat no.C73Z that would not justify making prayers in respect of two other flats bearing no.C73Y and C76Y. H. Even the plaintiffs have been changing their versions. They have stated in their plaint that they were forcibly dispossessed from the flats. However, during final arguments, when the plaintiffs filed their written submissions, they stated therein that they had themselves inducted the defendants no.1 and 2 as lessee/licensee without rent. The said versions are not consistent.
I. Even if it is assumed that the plaintiffs had initially voluntarily inducted the defendants no.1 and 2 and later defendants no.1 and 2 had forcibly dispossessed the plaintiffs, then too the plaintiffs ought to have disclosed in the plaint the fact that they had themselves inducted the defendants into the suit property. The fact that the defendants' entry 10/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07 into the suit property was lawful and was with the consent of the plaintiffs is a vital fact which should have been disclosed by the plaintiffs. The statement, if made by the plaintiffs in their plaint, would have changed the whole nature of the suit. At present, the suit has been filed as one for recovery of possession which was forcibly taken away. The suit appears to be founded on Section 6 of the Specific Relief Act, 1963. Had the aforesaid fact been disclosed, the suit of the plaintiffs would have been for ejection of lessee/licensee (depending on the terms of agreement).
This seems to suggest that the plaintiffs have concealed material facts from the Court.
In the case of S.P. Changalvaraya Naidu (dead) by L.Rs. vs. Jagannath (dead) by L.Rs, AIR 1994 SC 853, it was noted :
"The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Propertygrabbers, taxevaders, bankloan dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the, illegalgains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation".
J. The testimony of the witnesses of the plaintiffs does not advance their case. PW1 Mr. Jaspal Singh has stated in his affidavit in evidence Ex.P1 that defendants no.1 and 2 came into forcible occupation of flat nos.C73Z and C76Y, Janta Flats, Jahangirpuri, Delhi. He stated that the plaintiffs are riots victims and are entitled to allotment of flats. He also stated that he "feels" that the plaintiffs are entitled to the 11/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07 possession of the suit property.
When PW1 was crossexamined, he resiled from his deposition. He denied the suggestion that the plaintiffs were forcibly dispossessed from the suit property by defendants no.1 and 2. He stated that "it is further wrong to suggest that the defendant no.1 forcibly dispossessed the plaintiff from the suit premises."
Further, during crossexamination by defendant no.4, he admitted that possession of flats no.C76Y and C73Z was voluntarily given by the plaintiffs to the defendants.
The statement of PW1 that the plaintiffs were not forcibly dispossessed and that they had voluntarily given possession of the suit property to the defendants runs contrary to the claim of forcible dispossession of the plaintiffs. It is inconsistent with the plea of the plaintiffs as well as with the assertion of the same witness in his affidavit as to forcible dispossession. Keeping in view the material contradiction, and the fact that the witness himself did not disclose (in his affidavit) the fact of voluntarily giving possession of flats to the defendants, the testimony of PW1 Jaspal Singh is not reliable. It also falsifies the claim of the plaintiffs of their forcible dispossession from the suit premises. K. The plaintiff no.1 as PW2 stated in her testimony/affidavit that the plaintiffs had occupied flat no.C91Y. The plaintiffs have not made any prayer in respect of that flat. She has also not stated in her testimony that the plaintiffs were dispossessed from the flats in respect of which prayers have been made in the plaint. Hence, her testimony does not support her claims.
L. Further, the plaintiff no.1/PW2 during her crossexamination 12/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07 admitted that she had herself handed over possession of flat no.C73 Y to defendant no.1. This fact has not been disclosed by the plaintiffs anywhere in the plaint or in the affidavit of PW2. In view of the suppression of facts by the witness, her testimony is not reliable. It also does not demonstrate that the plaintiffs have been forcibly dispossessed from the suit property, which is the foundation of the claim of the plaintiffs.
M. The plaintiff no.1/PW2 has stated in her crossexamination that she was in occupation of flat no.C73Z and that it is her brother who occupied flat no.C76Y. Hence, to prove forcible dispossession from C76Y, the occupant of the said property ought to have been examined. This has not been done. Plaintiff no.2 has not entered the witness box. He has not proved his forcible dispossession from the property which was under his occupation. No satisfactory explanation has been given as to why he has chosen not to testify. The plaintiff no. 2 ought to have examined himself to depose regarding his dispossession. The testimony of his sister, who was not even residing with him, is not credible. The plaintiff no.2 was the best person who could testify since the facts were in his knowledge as the incident had allegedly taken place with him. He being a litigating party, had no reason to stay away from the Court. Yet, he chose to do so. No explanation has been furnished on behalf of the plaintiffs as to why they did not examine plaintiff no.2 as a witness. Adverse inference must be drawn against the plaintiffs for their failure to examine Plaintiff no.2 as a witness. It must be presumed that had the plaintiff no.2 stepped into the witness box, his testimony would not have advanced 13/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07 their version and would rather have belied their claims. No other reason can be conceived as to why the plaintiff no.2 shied away from testifying before the Court. This view is supported by the decision of Privy Council in Sardar Gurbakhsh Singh V. Gurdial Singh (1927) 29 Bom LR 1392 wherein it has been observed as under:
"It is the bounden duty of a party personally knowing the whole circumstances of the case to give evidence on his behalf and to submit to crossexamination. Non appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case."
Further, in the case of Adivekka and Others V. Hanamavva Kom Venkatesh (deceased by LR's) and Another AIR 2007 SC 2025, it was held as under: "Nonexamination of party to the lis would lead to drawal of an adverse inference against her."
N. Further, PW2 Manjeet Kaur has stated in her crossexamination that she was in occupation of flat no.C73Z. However this plea does not find mention in the plaint. The occupation of plaintiff no.1 of the said flat has been asserted only in the testimony of the witness and finds no basis in the pleadings. A plea which has not been raised in the plaint cannot be proved in evidence.
In the case of Darshan Singh v. Santokh Singh, 1997(2) R.C.R.(Civil) 577, the Hon'ble Punjab & Haryana High Court held as under :
"It is well settled that any amount of evidence in support of a plea which does not find place in the pleadings is inconsequential and is to be left out of consideration".
In the case of Nagubai Ammal v. B. Shama Rao AIR 1956 SC 593, the 14/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07 Hon'ble Supreme Court noted:
"The true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence."
In Siddik Mahomed Shah v. Mt. Saran and others, AIR 1930 P.C. 57(1), which has since been followed in innumerable cases, it was held:
"no amount of evidence can be looked into upon a plea which was never put forwarded."
Hence, the said plea of the plaintiff no.1 cannot be accepted. It cannot be assumed that the plaintiffs were in possession of flat no.C73Z. Consequently, the plaintiffs are not entitled to restoration of possession of the said flat. Regarding other flats, there is not even an iota of evidence so as to entitle the plaintiffs to claim recovery of possession.
O. PW1 Mr. Jaspal Singh, PW3 Mr. Joginder Singh, PW4 Ms. Poonam and PW5 Mr. Gurdial Singh have stated in their affidavits that the defendants no.1 and 2 "are in forcible occupation of flat no.C73Z and C76Y".
The testimony of the aforesaid witnesses is of no help to the plaintiffs. Firstly, the said witnesses do not state anything regarding flat no.C73 Y. The first prayer of the plaintiffs is concerning the said flat too and yet the witnesses have not testified regarding the said flat. Secondly, the testimony of the witnesses regarding flat nos. C73Z and C76Y is beyond pleadings. The plaintiffs have not stated in their plaint that 15/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07 they were in possession of the said flats or that the defendants forcibly dispossessed the plaintiffs from the said flats. The plaint does not suggest that the defendants forcibly occupied the said flats. Since there is no pleading to this effect, the testimony of the witnesses of the plaintiffs regarding forcible occupation cannot be taken into account. Thirdly, the said witnesses have not stated in their affidavits that the plaintiffs were earlier in occupation of the said flats. They have not stated that the plaintiffs were dispossessed from the said flats. Even if it is assumed that the defendants forcibly occupied the said flats, they cannot be evicted in this suit unless the plaintiffs proved that before the defendants they were in possession of the flats and that the defendants had forcibly dispossessed them in order to occupy the flats. In the result, the testimony of PW1 Mr. Jaspal Singh, PW3 Mr. Joginder Singh, PW4 Ms. Poonam and PW5 Mr. Gurdial Singh does not lend credence to the version of the plaintiffs of forcible dispossession.
P. PW1 Mr. Jaspal Singh, PW3 Mr. Joginder Singh, PW4 Ms. Poonam and PW5 Mr. Gurdial Singh have stated in their affidavits that "they feel" that the plaintiffs no.1 and 2 are entitled to the possession of the said flats. The said testimony does not advance the case of the plaintiffs. This is a mere expression of opinion and is not relevant for the decision of the case. The witnesses do not affirmatively state that the plaintiffs were in possession of the flats and that they were forcibly dispossessed. They simply state that they feel that the plaintiffs should possess the said flats. Why they feel this way has not been disclosed. The feelings or opinions of witnesses cannot constitute the basis of 16/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07 decision of the Court. The witnesses should have disclosed the reason for holding that opinion so that the Court could act on it. Q. Further, the abovenamed witnesses have simply stated that they know that the defendants no.1 and 2 are in forcible occupation of the flats. They have not disclosed the source of their knowledge. They do not plead that the forcible dispossession took place in their presence. They do not claim to have witnessed it. Unless a person has seen an occurrence, he cannot testify to its existence. This proposition follows from Section 60 of the Evidence Act. Since the witnesses have not explained the source of knowledge, no credibility could be attached to their testimony. This is besides the fact that their deposition of forcible occupation is in conflict with the plaintiffs own subsequent version (in written submissions and in crossexamination of plaintiff no.
1) that they had themselves inducted the defendants no.1 and 2 into the suit property.
R. During crossexamination, PW3 Joginder Singh stated that plaintiff no.1 was residing in flat bearing no.C73X, at the time of riots. This is in conflict with the version of the plaintiffs in the plaint (where they have claimed to have occupied flat no.C91Y) and also in conflict with the claim of the plaintiffs (though unsupported by evidence or pleadings) that they were in possession of flat nos.C73Z, C73Y or C76Y. There is nothing on record to suggest that the plaintiffs were in possession of C73X as urged by PW3 Mr. Joginder Singh. It appears that the witness is not aware of the facts regarding possession of flats. S. PW4 Ms. Poonam stated in her crossexamination that she is not aware of the contents of her affidavit. It is strange that she has signed 17/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07 the affidavit without knowing the contents of the same. Since the witness has pleaded ignorance of contents of her affidavit, no reliance can be placed on the same.
T. PW5 Mr. Gurdial Singh is the husband of plaintiff no.1. His testimony is queer. He has claimed to be residing at flat nos.C73Y and C73Z. He has stated as follows:
"My two sons are residing in property no.C78X, Jahangir Puri, Delhi and two other sons are residing with me at C73Z & C73Y. It is wrong to suggest that I am not residing at the flat no.C73Z."
Although husband of the plaintiff no.1 has claimed to be in occupation of flat nos.C73Y and C73Z, the plaintiffs have prayed for injunction in respect of the said flats. If the statement of PW5 is correct, there is no reason for the plaintiffs to seek possession of flat no.C73Z and to make prayers in respect of flat no.C73Y. Moreover, it is strange that while the plaintiffs claim to be in possession of the suit property, they are seeking recovery of the said property from the defendants.
U. It is also noticed in the suit that the plaintiffs have not claimed to be the owner of the flats in question. There is no prayer of declaration of title. It is not the case of the plaintiffs at all that they were in legal occupation of the suit property. The case of the plaintiffs is that they were themselves trespassers into the suit property and that they were forcibly removed from the said property by the defendants no.1 and
2. It appears that the plaintiffs are trying to claim the vesting of "possessory title" in them. It seems that the plaintiffs have approached this Court on the basis of their forcible dispossession and are claiming 18/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07 the enforcement of rights recognized by Section 6 of the Specific Relief Act. Section 6 of the Specific Relief Act entitles even trespassers to be put back in possession of the trespassed property if it is proved that they have been forcibly removed. In the present case, the plaintiffs have not pleaded in the plaint that they have been forcibly removed from the flats of which they are seeking to recover possession. Further, their plea of dispossession is also negated by their own admission in the crossexamination of plaintiff no.1, in the cross examination PW1 and the crossexamination of PW5 that the plaintiffs have voluntarily given possession of flats to the defendants no.1 and 2. The plaintiffs have miserably failed to plead or prove that they have been forcibly dispossessed from the suit property. Therefore they are not entitled to recover possession thereof. Regarding the plea of the plaintiffs that they had initially inducted the defendants no.1 and 2 into the suit property and that the defendants no.1 and 2 refused to vacate the same, the said plea does not find mention in the plaint. This is besides the fact that the defendants have, by testimony of D1W1 Smt. Monu, D1W2 Smt. Amarjeet Kaur and D2W1 Smt. Paramjit, proved that they have not forcibly dispossessed the plaintiffs from the suit property. The aforesaid witnesses were crossexamined on behalf of the plaintiffs. However their testimony could not be shaken or discredited.
27.In light of the foregoing, the plaintiffs have failed to prove their forcible dispossession from the flats in question. They have also failed to prove that they have any right, title or interest in the said flats. Therefore the plaintiffs are not entitled to the relief of recovery of 19/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07 possession. The issue is decided in favour of defendants and against the plaintiffs.
Issue no.2 "Whether the plaintiff is entitled to relief of permanent injunction as prayed for? OPP."
28.The onus to prove this issue was upon the plaintiffs. The plaintiffs have prayed for permanent injunction restraining the defendants no.1 and 2 from transferring, alienating or parting with possession of flat nos.C73Z and C73Y.
29.As noted above, the plaintiffs have failed to plead in their plaint that they are owners of the said flats or that they have any right or interest in the said flats. They have also not pleaded that the defendants are trying to transfer or part with possession of the said flats. In fact, the plaint does not make any mention of the said flats. Hence, there is no basis to restrain the defendants from transferring, alienating or parting with possession of the said flats.
30.Further, there is no cause of action in favour of the plaintiffs since it has not been pleaded that the defendants are trying to transfer or part with possession. In absence of any threat or attempt by the defendants, they cannot be restrained from doing so. An injunction cannot be issued merely to allay the imaginary fears of the plaintiffs.
31.In order to make out a case for grant of injunction, the plaintiff has to demonstrate not only the existence of the right but also a threat of invasion of the said right. An injunction is granted only when the injury to the rights of plaintiff is reasonably expected. An injunction is not issued to restrain a person from doing that which he is not attempting 20/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07 or intending to do. Injunction therefore does not lie in absence of actual or presently threatened interference. It is not sufficient for issuance of injunction that the injury may possibly result from the act sought to be prevented. There must be at least a reasonable probability that the injury will be caused if no injunction is granted. In the case of Bheekam Chand v. Ismail AIR 2006 Raj 1, the Hon'ble Rajasthan High Court held that where there is no threat of forcible dispossession, the plaintiff is not entitled to the grant of any injunction restraining such dispossession.
In the case of Sohan Singh v. Jhaman, (P&H) 1986 R.R.R. 579, the Hon'ble Punjab and Haryana High Court observed as under:
"In other words, there must be some overt act on the part of the defendant to invade or a threat to invade the plaintiff's right or commission of an act on the part of the defendant which is contrary to the plaintiff's rights. Except in so far as the above contingencies, no perpetual injunction could be granted against the defendant under the Act. "
32.It is also noted that the plaintiffs have not stated the truth before the Court. They have concealed the fact that they had themselves voluntarily inducted the defendants in the suit property (a fact that they subsequently admitted, as elaborated above). The plaintiffs have come to the Court seeking inter alia the relief of injunction. Injunction is an equitable relief. Plaintiffs ought to have come to Court with clean hands. They ought to have disclosed all material facts particularly those relating to their eviction from the suit property and the entry of the defendants therein. Failure to do so is sufficient ground to reject the claims of the plaintiffs.
21/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07 In the case of S. Raminder Singh Vs. NCT of Delhi 102(2003) DLT 511, the Hon'ble High Court of Delhi observed as under:
"While seeking the discretionary relief, the petitioner is bound to approach the Court with clean hands and not to conceal any facts".
In the case of M/s. Seemax Construction (P) Ltd. V. State Bank of India and another AIR 1992 Delhi 197, Hon'ble High Court of Delhi observed as under: "The suppression of material fact by itself is a sufficient ground to decline the discretionary relief of injunction. A party seeking discretionary relief has to approach the court with clean hands and is required to disclose all material facts which may, one way or the other affect the decision. A person deliberately concealing material facts from court is not entitled to any discretionary relief. The court can refuse to hear such person on merits ".
By their conduct of concealing material facts, the plaintiffs have disentitled themselves to the discretionary relief of injunction.
33.In these circumstances, the injunction cannot be issued to restrain the defendants no.1 and 2 from transferring, alienating or parting with possession of the aforementioned flats. The issue is decided in favour of plaintiffs and against the defendants.
Issue No.3 "Whether the plaintiff is entitled to the damages as prayed for? OPP."
34.The onus to prove this issue was upon the plaintiffs. The plaintiffs have prayed for recovery of usage charges from the defendants. Usage charges can be granted to the plaintiffs only if it is proved that the rightful claimants of the flats are the plaintiffs. As noted above, the 22/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07 plaintiffs have failed to prove that they are entitled to possession of the said flats. They have also failed to prove that the defendants no.1 and 2 are in illegal occupation of the said flats. Hence, the instant prayer is liable to be declined. The issue is decided in favour of the defendants and against the plaintiffs.
Issue No.4 "Whether the plaintiff has no locus standi to file the present suit? OPD1 & 2."
35.The onus to prove this issue was upon the defendants no.1 and 2. The defendants no.1 and 2 have challenged the locus standi of plaintiffs to file the present suit. According to the plaintiffs, they are entitled to recover possession of the suit premises from the defendants and have therefore instituted the present suit. Since the plaintiffs considered themselves entitled to certain benefits and have prayed for recovery of the said benefits, it cannot be held that the plaintiffs have no locus standi to file the present suit. It is another matter that the plaintiffs are not entitled, on merits, to the said benefits. It can however not be said that the plaintiffs have no grievance at all. It is therefore concluded that the plaintiffs have locus standi to institute the present suit. The issue is decided in favour of the plaintiffs and against the defendants. Issue No.5 "Whether the suit is bad for misjoinder and nonjoinder of the parties? OPD1 & 2."
36.The onus to prove this issue was upon the defendants no.1 and 2. According to the defendants no.1 and 2, the suit suffers from non joinder of necessary parties. The said defendants have stated in their 23/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07 written statement that the plaintiffs have not impleaded DDA/MCD as a party to the suit.
37.This is a suit for injunction, recovery of possession and recovery of damages. No relief is claimed against DDA or MCD. As such, there is no occasion for the plaintiffs to array them as defendants. They are rightly not impleaded as a party to the suit. Complete and effective relief can be obtained by the plaintiffs without arraying the said bodies.
In the case of Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar AIR 1963 SC 786, the Hon'ble Supreme Court held that a necessary party is one without whom no order can be effectively passed.
In the case of Harcharan Singh v. S. Bhagar Singh & Ors., AIR 2000 J&K 92, it was held that in a suit for injunction, where the relief is not claimed against a person, he need not be arrayed as a party and the suit would continue to be maintainable.
The present case can be completely and effectively decided without the presence of any other party.
38.MCD and DDA are neither necessary nor proper parties to the suit. Consequently, on failure of the plaintiffs to implead the said bodies as parties to the suit, the suit cannot be dismissed.
39.It is concluded that the suit is not barred on the ground of nonjoinder of necessary parties. The issue is decided in favour of the plaintiffs and against the defendants.
24/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07 Issue No.6 "Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD."
40.The onus to prove this issue was upon the defendants. According to the defendants, the plaintiffs have not correctly valued the suit as per the value of the suit property.
41.The plaintiffs have valued the suit for the prayer of recovery of possession at Rs.20,000/. The defendants have not led any evidence to prove the value of the suit property at the time of institution of the suit. They have also not crossexamined the witnesses of the plaintiffs regarding the value of the suit properties. D4W1 Mr. H. C. Vats has stated in his affidavit the market value of the suit properties at the time of filing of the affidavit. The said value is not relevant. It is the value of the property at the time of institution of the suit that has to be considered by the Court. This has not been proved. Hence, it cannot be stated that the said prayer has not been correctly valued. Moreover, since this is not a title suit and the plaintiffs have founded their claims only on Section 6 of the Specific Relief Act, they are required to value the suit at only half of the value of the suit property. To establish their contention that the suit is under valued, the defendants ought to have proved that the value of the flats, at the time of filing of the suit was more than Rs.40,000/. This has not been done. Hence, the Court has no option but to accept the value of the suit for the relief of recovery of possession.
42.For the relief of injunction, the suit has been valued at Rs.130/. The prayer for injunction is required to be valued as per Section 7 (iv) (d) of 25/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07 the Court Fees Act. The said provision states that such suits are to be valued as per the choice of the plaintiff. The Hon'ble High Court of Delhi has, in the case of Sheila Devi Vs. Shri Kishan Lal ILR (1974) II Delhi 491, held that the said choice/discretion of the plaintiff is absolute and unfettered. It was noted as under:
"A plain reading of paragraph (iv) of Section 7 shows that it requires the plaintiff in any of the suits mentioned in the various clauses thereof to state the amount at which "he values the relief sought", and the amount of courtfee payable to be computed according to the said amount at which "the relief sought is valued" in the plaint. It is implicit in it, and it is also not disputed, that the paragraph requires the plaintiff himself to value the relief he seeks. The only question for consideration is whether the plaintiff has the right to place any valuation that he likes. The paragraph does not by itself impose any restriction or condition as regards the valuation by the plaintiff. When the statutory provision itself has not imposed any such restriction or condition, it would not be proper, in our opinion, for a Court to introduce such a restriction or condition into the section. The plain language of the provision gives an unrestricted choice to the plaintiff to value the relief. It would not, therefore, be proper for a Court to say that the relief was undervalued and to correct the said valuation invoking the general power mentioned in Order Vii Rule ll(b) or the inherent power saved by Section 151 of the Code of Civil Procedure. The provision in paragraph (iv) of Section 7 of the Courtfees Act which gives a free hand to the plaintiff to place any valuation that he likes and does not place/any restriction or condition has, in our opinion, so far as the suits mentioned in that paragraph are concerned, the effect of taking away the general power of the Court under Order Vii Rule 11(b) of the Code of Civil Procedure and the inherent power to correct an undervaluation. The general power and the inherent power stand modified by the special statutory provision in Section 7(iv) of the Courtfees Act. In other words, in, our opinion, paragraph (iv) of Section 7 of the Courtfees Act gives a right to the plaintiff to place any valuation that he likes on the relief he seeks, and the Court has no power to interfere with the plaintiff's valuation. This view is quite in conformity with the nature of the suits mentioned in 26/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07 clauses (a) to (f) of paragraph (iv) of Section 7. All the said suits are such that it is not possible for the plaintiff to specify the precise value of the relief he seeks in each of the said suits. A perusal of the various clauses (a) to (f) shows the same. That was why the legislature obviously thought it fit to leave to the plaintiff to place any valuation the likes on the relief he seeks in such suits. It was sought to be argued that the aforesaid view would permit the plaintiff to place any arbitrary or fanciful value on the relief he seeks."
In the case of Commissioner Aviation and Travel Company and Ors. Vs. Vimla Panna Lal (1988) 3 SCC 423, the Hon'ble Supreme Court examined the discretion of the plaintiff to value his suit as per his wishes. It was observed as under:
"So far as suits coming under Section 7(iv) of the Court Fees Act are concerned, the legislature has left the question of valuation of the relief sought in the plaint or memorandum of appeal to the plaintiff. The reason is obvious. The suits which are mentioned under Section 7(iv) are of such nature that it is difficult to lay down any standard of valuation. Indeed, the legislature has not laid down any standard of valuation in the Court Fees Act. Under Section 9 of the Suits Valuation Act, the High Court may, with the previous sanction of the State Government, frame rules for the valuation of suits referred to in Section 7(iv) of the Court Fees Act. Although the Punjab High Court has framed rules under Section 9 of the Suits Valuation Act which are applicable to the Union Territory of Delhi, such rules do not lay down any standard of valuation with regard to suits coming under Section 7(iv) of the Court Fees Act."
43.Hence, the value of the suit for the relief of injunction cannot be called into question.
44.The plaintiffs have also prayed for recovery of damages. However, they have not specified the period for which the said recovery is sought. They have not stated the date of commencement of liability of defendants no.1 and 2 to pay damages. In any case, for the relief 27/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07 of damages, payment of court fee can be sought even after passing of decree in the suit. Hence, deficiency in valuation or court fee does not go to the root of the matter and does not vitiate proceedings. Moreover, the said relief has already been declined.
45.In these circumstances, it cannot be held that the suit is under valued. The issue is decided in favour of the plaintiffs and against the defendants.
Issue No.7 "Whether the suit is barred by limitation? OPD4."
46.The onus to prove this issue was upon the defendant no.4. The defendant no.4 has not led any evidence in support of the said plea.
47.For a suit under Section 6 of Specific Relief Act, 1963 the period of limitation is laid down in Section 6 (2) (a) of the said Act. The period of limitation is six months from the date of dispossession. Allegedly, the plaintiff no.1 and plaintiff no.2 were dispossessed on 10.04.1997 and 17.04.1997 respectively. The suit was filed on 16.07.1997. The suit was thus instituted within six months from the date of alleged dispossession. Hence, it cannot be held that the suit is barred by limitation.
48.The suit is clearly within the period of limitation. The issue is decided in favour of the plaintiffs and against the defendants. Issue No.8 "Whether the suit is barred under Section 477/478 of DMC Act? OPD4."
49.The onus to prove this issue was upon the defendant no.4. The defendant no.4 has urged that the suit is barred by Sections 477 and 28/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07 478 of Delhi Municipal Corporation Act.
50.In the original suit, the plaintiff had not impleaded DUSIB or its predecessor MCD as a party. MCD was impleaded subsequently on an application under Order 1 Rule 10 of Code of Civil Procedure. No relief is prayed for against the MCD.
51.Section 477 of Municipal Corporation Act provides that a suit is not maintainable in respect of an act performed by officials of municipal corporation under the Act and in good faith. The present suit is not directed against any act performed under the statute. The plaintiffs are not questioning any statutory action by the defendant no.4. In fact, the suit is not directed against defendant no.4 and no prayer has been made against it. No act of defendant no.4 is under the scanner. Hence, Section 477 of Delhi Municipal Corporation Act is not attracted in the facts of the case.
52.For the same reason, Section 478 of the Act is not attracted. Section 478 applies only to suits against acts of the Municipal Corporation. This is not such a suit.
53.Even otherwise, the suit is not vitiated for want of notice under Section 478 of Delhi Municipal Corporation Act for the reason that the said provision of law merely provides a procedural requirement which does not go into the merits of the dispute. In this context, it would be appropriate to refer to the decision of Hon'ble Supreme Court in the case of Ghanshyam Dass Vs. Dominion of India, (1984) 3 SCC 46, wherein it was held as under:
"Section 80 of the Code is but a part of the procedure code passed to provide the regulation and machinery, by means of which the 29/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07 courts may do justice between the parties. It is therefore, merely a part of the adjective law and deals with procedure alone and must be interpreted in a manner so as to subserve and advance the cause of justice rather than to defeat it."
The Hon'ble Supreme Court quoted the decision of Sangram Singh Vs. Election Tribunal, Kotah & Anr., 1955 SCR (2) 1, to hold that the provision of prior statutory notice is designed to facilitate justice and not to punish, and that proceedings should not be allowed to be defeated on mere technicalities.
The above decision was followed by Hon'ble Court of Delhi in the case of Sh. Gian Chand Vs. Gaon Sabha Aya Nagar & Ors, IA No.176/2009 in CS (OS) No.1578/2006 decided on 10th September, 2009, wherein it was held as under:
"In the case of Ghanshyam Dass Vs. Dominion of India, (1984) 3 SCC 46, it was held that Section 80 of the Code is but a part of the procedure code passed to provide the regulation and machinery, by means of which the courts may do justice between the parties. It is therefore, merely a part of the adjective law and deals with procedure alone and must be interpreted in a manner so as to subserve and advance the cause of justice rather than to defeat it. As far as possible, no proceedings in a court of law should be allowed to be defeated on mere technicalities. This is the principle on which our laws of procedure are based."
In light of the aforesaid decisions, it is amply clear that the suit cannot be dismissed on the ground of absence of prior statutory notice.
54.The suit is not barred by Sections 477 and 478 of the Delhi Municipal Corporation Act, 1957. The issue is decided in favour of the plaintiffs and against the defendants.
30/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07 Issue no.9 "Relief."
55.In view of the aforesaid facts and circumstances, the suit filed by the plaintiffs is dismissed against all the defendants. There shall be no order as to costs. Decree sheet shall be prepared. File be consigned to record room.
Announced in the open Court on 30 September 2013.
th (Ashish Aggarwal) ASCJcumJSCCcumGJ NorthWest District,Rohini Courts, Delhi.
31/31 Manjeet Kaur & anr. Vs. Monu & ors. Suit no.1016/09/07