Delhi District Court
Dr. Prakash Chander vs Indian Statistical Institute on 29 January, 2018
IN THE COURT OF MS. SHUNALI GUPTA, ADJ06, SOUTH DISTRICT,
SAKET COURT COMPLEX, NEW DELHI
CS No.:16/17
CNR No. DLST010000032002
Unique I.D No.CSDJ 206488/16
In the matter of:
1. Dr. Prakash Chander
S/o Sh. B.R. Gupta
R/o B9, ISI Campus, 7, S.J.S.
Sansawal Marg, New Delhi.
2. Dr. (Mrs.) Alka Chander
W/o. Dr. Prakash Chander
R/o B9, ISI Campus, 7, S.J.S.
Sansawal Marg, New Delhi.
....... Plaintiffs
VERSUS
1. Indian Statistical Institute
Delhi Centre, 7, S.J.S.
Sansawal Marg, New Delhi.
2. Smt. Sumina Grover
W/o. Sh. Rajan Grover
R/o. 120, Malcha Marg,
New Delhi.
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Dr. Prakash Chander & Anr. v. Indian Statistical Institute & Ors.
3. Mrs. Raveena Bahl
W/o. Sh. Sunil Bahl
R/o. 120, Malcha Marg,
New Delhi.
(through attorney Ms. Sumina Grover)
4. Sh. Alok Dey
Head, Indian Statistical Institute
Delhi Centre, 7 S.J.S. Sansawal Margm
New Delhi.
5. Sh. S.S. Sethi
Administrative Officer,
Indian Statistical Institute
Delhi Centre, 7, S.J.S.
Sansawal Marg, New Delhi.
6. Sh. Dinesh Kumar
Bailiff
R/o. Not known
(Through District Nazir,
District Courts Tis Hazari, Delhi)
7. Mr. Ranjan Grover
120, Malcha Marg,
New Delhi.
....... Defendants
Date of Institution : 30.04.2002
Date reserved for judgment : 11.01.2018
Date of pronouncement of judgment : 29.01.2018
Suit for declaration, mandatory and prohibitory injunction,
possession and recovery of damages of Rs.25.00 Lacs.
J U D G M E N T:
1. The factual matrix of the case is as under:
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1.1 It is stated in the plaint that plaintiff no. 1 is a Professor of Economics and
is working in the defendant no.1 organization. He has been a visiting Professor
at various other Universities in the world. The property no. J19, Hauz Khas was
taken on rent in the year 1962 by defendant no.1 from Sh. Labhmal Sachdeva
for commercial and residential purposes. Office of defendant no. 1 was being
run in major part of the building and a small part of the premises was being
used as guest house for its employees and officials. The said premises was
shown as the office of defendant no. 1 for all its correspondence. In the year
1969, plaintiff no. 1 joined the defendant no. 1 as a Research Scholar in
Economics. At that time, he was given accommodation in a guest house in part
of the said building i.e. J19, Hauz Khas, New Delhi. Plaintiff no. 1 worked with
defendant's institute till 1973 and thereafter left for USA. Again in 1978, he
joined defendant no. 1 as Associate Professor. He was alloted a 'type A'
accommodation in J19, Hauz Khas, New Delhi and 30% of his basic salary was
deducted by defendant no. 1 towards house rent allowance. He was also
charged a sum of Rs.400/ towards License fees. In the beginning of year 1970,
defendant no. 1 was alloted a plot of land by DDA measuring 71,112.91 sq.
yards in special IndustrialcumInstitutional area bearing address 7, S.J.S.
Sanasawal Marg, New Delhi. Documents relating to possession, construction,
title, etc. were all executed by DDA in favour of defendant no. 1. A huge
administrative block, academic section and some residential flats for the
purpose of residence of its faculty were constructed on the said land and by the
year 1973, defendant no. 1 acquired possession of about 50 to 60 residential
flats in the said campus. In the year 1974, defendant no. 1 shifted its office from
J19, Hauz Khas to the said campus and the property J19, Hauz Khas was
used by the defendant no. 1 only for providing residential accommodation to its
various employees. Till 19.03.2002, different portions of the said property were
occupied by four employees of defendant no.1 including the plaintiff.
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1.2 It was stated that right from the time of allotment, the landlord namely Sh.
Labhmal Sachdeva was fully aware about the allotment and construction of
complex of defendant no. 1 at 7, S.J.S. Sansawal Marg, New Delhi. The
defendant no. 1 however was using premises no. J19, Hauz Khas and had also
taken on rent other properties for meeting its need for residence.
1.3 In the year 2000, defendant nos. 2 & 3 surfaced on the scene and made
a claim for payment of charges for the premises no. J19, Hauz Khas, New
Delhi. Without seeking establishment of any legal title of the defendant nos. 2 &
3 in respect of the property, the officers of defendant no.1 started making
payment of charges in respect of the said property to defendant no. 2.
Thereafter, a collusive petition U/s. 14 (1) (h) of Delhi Rent Control Act
(hereinafter referred to as 'DRC Act') was filed by defendant Nos. 2 & 3 against
defendant no. 1 seeking their eviction alleging that they have acquired vacant
possession of various properties. It was averred that as the premises had been
let out for commercial - cum - residential purposes, the provisions of Section
14 (1) (h) of DRC Act were not applicable. However, the defendant no. 1 acting
through defendant nos. 4 & 5 made misrepresentation and concealment of
material facts and even failed to plead that the letting was for composite
purposes i.e. commercial cumresidential purposes. It was also revealed that
defendant no. 1 in collusion with defendant nos. 2 & 3 admitted the entire case
of landlords in their written statement.
Though the defendant Nos. 1, 4 & 5 were fully aware about the petition
having been filed by defendant nos. 2 & 3 but no information or particulars were
given to the plaintiff with regard to the eviction petition. When the plaintiff no. 1
came to know about the pendency of the said petition, he made enquiries from
the officials of defendant no. 1 but they concealed and suppressed the entire
matter from the plaintiff. Vide letter dated 20.02.2002, defendant no.4 informed
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the plaintiff no. 1 regarding the eviction order passed by the court in respect of
the said property and instructed the plaintiff to vacate the premises and apply
afresh to defendant no. 1 for allotment of accommodation. The defendant no. 4
also assured the plaintiff that an appeal was filed against the said eviction order
but failed to disclose the particulars and details of the said appeal.
1.4 On 19.03.2002, when the plaintiff no. 1 had left for the campus in the
morning, defendant no. 2, 6 & 7 alongwith a large group of about 50 persons
entered the house and started throwing out the belongings of plaintiff from the
house. Despite request of plaintiff no. 2, they did not even wait for the arrival of
plaintiff no. 1. In the meantime, plaintiff no. 2 somehow contacted plaintiff no. 1
and on being informed of the arrival of bailiff, plaintiff no.1 rushed back to the
house. Defendant no. 6 claimed himself to be the bailiff appointed from Tis
Hazari Courts and having the warrant of possession of the said property. In the
meantime, the defendant nos. 2 & 7 alongwith about 50 other men came there
and started ruthlessly pulling out and packing the household articles of the
plaintiff. The loss caused to the household articles of the plaintiff has been
detailed in the plaint in various paragraphs, which are not being discussed here
for the sake of brevity.
It has been averred that the defendant no. 2, 3, 6 & 7 had acted in illegal
and malafide manner while evicting the plaintiff. The defendant no. 6 had no
authority of law to intrude into the house of the plaintiff alongwith 50 odd
persons and ransack their belongings. They acted in illegal manner contrary to
the procedure laid by law. Due to the said act of the defendants, plaintiff had
suffered pecuniary loss as his valuable goods had been damaged and stolen.
That apart the plaintiff and his family members had suffered great mental
agony, torture and harassment. The defendants could not have ousted the
plaintiff from the property without following due process of law. Hence, the
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present suit was filed seeking the following prayers :
i. Decree for the sum of Rs.25.00 Lacs against defedant Nos. 1 to 7.
ii. Decree of declaration that the eviction order dated 02.02.2002 passed by
the then Ld. ARC Ms. Nividetta Anil Sharma is contrary to law,without
jurisdiction, collusive fraudulent and void.
iii. Decree of possession in favour of the plaintiff for the ground floor of
property No. J19, Hauz Khas Enclave, New Delhi.
iv. Decree of permanent injunction thereby restraining the defendant Nos. 2,
3 & 7 from creating any third party interest in property No. J19, Hauz
Khas, New Delhi.
v. Decree of mandatory injunction thereby directing defendant no. 1 to
provide type A accommodation to the plaintiff.
vi. Cost of the suit.
2. Two sets of written statement were filed - one by defendant nos. 1,4 & 5
and another set by defendant nos. 2,3 & 7.
2.1 In the written statement filed on behalf of defendant nos. 1, 4 & 5,
preliminary objections were taken inter alia that the plaintiffs had no locus standi
to claim any of the reliefs sought by them, and the plaint is liable to be rejected
U/o. 7 Rule 11 CPC as no cause of action has been disclosed in the plaint
against the defendants. The plaint is further silent on how the defendants can
be held responsible for the act of defendant no. 6 done in lawful exercise in
execution of legal order passed by court of law. It was averred that Section 43
of DRC Act mandates that the order made by the Controller or an order passed
in appeal under the Act shall be final and shall not be called in question in any
original suit, application or execution proceedings. Further, the plaintiff had no
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independent title to the said premises as he claimed his right to continue to
occupy the suit premises through defendant no. 1 as a licensee under it. The
suit of the plaintiff was otherwise also hit by the bar created by order 47 CPC
which provides that all the questions arising between the parties to the suit in
which the decree has been passed shall be determined by the court executing
the decree and not by a separate suit. Order 21 Rule 99 &101 CPC provides
that where a person other than the Judgment Debtor is dispossessed of
immovable property by the holder of the decree, it shall be determined by the
executing court and not by a separate suit. Thus, in view of the said provisions
of law, if it was alleged that any illegality had been committed during the course
of execution proceedings then the person dispossessed could have complained
to the executing court, who is vested with powers to investigate thereon and
restore the possession, if it is found that he was illegally dispossessed from the
property. Even otherwise, the suit of the plaintiff does not lie and they are
stopped under law to prosecute the same on the principle of estoppal which is
evident from the plaintiff's own document placed by them on record specifically
the letters dated 22.05.2001, 20.02.2002 & 06.03.2002 issued under the
signatures of defendant no. 4,which clearly belies the claim of the plaintiff that
he was not kept in touch with the eviction proceedings pending in the court.
Further, in the letters dated 16.03.2002, 03.04.2002 and 18.04.2002 written by
the plaintiff no. 1, no reference is made regarding the alleged loss or damage
caused to him during the eviction proceedings, which has been made the main
base by the plaintiff in the present suit to claim the relief of damages. Also,
regarding the recovery of damages, the suit is silent as there are no
details/proof of general and special damages.
2.2 On merits, it was denied that the premises was acquired for commercial
purposes. It was stated that initially a small camp office was being maintained in
the said property for proper supervision as well as to provide proper safety to
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the allottees. However, the said user was objected by DDA vide letter dated
27.08.1973 after which even the said camp office was agreed to be shifted and
the same was assured to the authority / DDA vide letter dated 16.11.1973.
After the death of Sh. Labhmal Sachdeva, his wife namely Smt. Krishnawati
claimed herself to be the owner of the said property. She executed a registered
will bequeathing the property in favour of her two granddaughters namely
Sumina Grover and Raveen Bahl i.e. defendant nos. 2 & 3. Thus, after death of
Krishnawati, defendant nos. 2 & 3 became the owner of the property, which was
also got mutated in their name and thus the defendant no. 1 had to pay rent of
the property to defendant nos. 2 & 3. Rest all the contrary allegations were
denied.
2.3 In the second set of written statement filed by defendant nos. 2, 3 & 7, it
was stated that the suit property was required by defendants no. 2 & 3 for their
own residence as defendant No. 3 had been displaced from her matrimonial
home. Notice dated 21.06.2000 was served upon defendant no. 1 for vacating
the said house. In the meantime, they came to know that defendant no. 1 had
acquired vacant possession of a residence comprising of about 50 60
residential flats in its campus at 7, S.J.S. Sansawal Marg, New Delhi and also
acquired vacant possession of several other residences in Delhi. Thus, they
instituted the petition U/s. 14 (1) (h) of DRC Act against defendant no.1. The
allegations of there being a collusion between defendant no.1 and defendant
nos. 2 & 3 was denied. It was averred that the plaintiff was merely a licensee of
defendant no. 1 in the premises and has no locus standi to challenge the
eviction order or to claim the relief of possession or permanent injunction
against the defendants. Against the order of eviction, an appeal was preferred
by ISI before the Rent Control Tribunal, which was also dismissed vide order
dated 06.05.2002 observing that the appeal has no merits as the
appellant/defendant no. 1 had acquired vacant possession of the property in
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their own campus. Thus, the order passed by the Rent Controller was affirmed.
2.4 On merits as well, the claim of the plaintiff was denied in toto. It was
denied that premises were let out for commercial purposes by Lt. Sh. Labhmal
Sachdeva. On 19.03.2002, when the bailiff went for execution of warrant of
possession, plaintiff no. 2 and her son asked the bailiff to wait for some time as
officers of defendants were coming. After sometime, defendant no. 5 reached
the suit premises and requested for three months time to vacate the premises.
However, the defendants were not willing to grant three month's time to vacate
the premises. They asked the bailiff to get them the possession of the premises
and even offered their labourers for removing the goods. The bailiff/defendant
no. 6 with the assistance of labourers offered by them removed the goods from
the house and delivered the possession of the house to them. The allegations
regarding the bailiff/laborers having committed any mischief was denied. No
objection was filed by the defendant no. 1 or by the plaintiff to the report of the
bailiff filed in the court. In fact, plaintiff no. 1 had appended his signatures to the
report of the bailiff. No police complaint in this regard was ever lodged by the
plaintiffs after the date of execution of warrants and till the date of filing of the
present suit. Hence, the suit was stated to be false, frivolous and vexatious and
its dismissal was prayed.
3. Replication was filed by the plaintiffs reiterating the averments made in
the plaint and denying the contrary averments made in the written statement.
Upon completion of the pleading, initially 12 issues were framed on 03.02.2006.
They are as under:
(1) Whether the relief of declaration and possession is barred
under Section 50 of the Delhi Rent Control Act,1958? OPD
2,3,7
(2) Whether the suit is properly valued and proper court fee
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affixed? OPD
(3) Whether eviction order obtained is contrary to law, without
jurisdiction, collusive, fraudulent and void?
(4) Whether warrants of possession that resulted in forced
eviction was executed in accordance with law? OPP
(5) Whether the defendant no.2 & 3 has any right, title or interest
in the suit property? OPP
(6) Whether the suit premise was let out to the defendant no.1
for residential cum commercial purpose? OPP
(7) Whether there was any collusion between the defendant
no.2, 3 & 7 on the one hand and the defendant no.1, 4 and 5
on the other hand? OPP
(8) Whether the defendant no.1 and 4 should have been given
alternative accommodation to the plaintiff as per service
rules against the subsisting allotment during the pendency
of the eviction petition or issuance and execution of
warrants? OPP
(9) Whether signatory to the written statement filed on behalf of
defendant no.1, 4 and 5 is competent and authorized to sign
the same? OPP
(10) Whether the defendants are jointly and severally liable to
pay damages? If so to what amount? OPP
(11) Whether the defendants 1, 4 and 5 are guilty of a deliberate
and concluded effort to prevent plaintiffs from pursuing their
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legal remedies in accordance with law? OPP
(12) Relief.
However, the plaintiffs later on gave up all the other reliefs except
the relief of damages in the sum of Rs.25.00 Lacs. Hence vide order dated
29.08.2006, the issues were recasted. The observation made in the said
order is relevant and is reproduced herein under:
"Before framing issues, a clarificatory note may be recorded. Case of the
plaintiff is that defendant no.2 & 3, the owners of the property bearing
no.J19, Hauz Khas, with the active connivance of defendant no.7 and in
collusion with the employees of defendant no.1, namely defendant no.4 &
5 obtained a collusive decree for possession / ejectment in respect of
property no.J19, Hauz Khas, New Delhi. Plaintiffs were in occupation of
ground floor thereof and in execution of the decree were thrown out. Thus
qua damages plaintiffs would have to establish that the decree obtained
was a collusive or a fraudulent decree and also whether while evicting the
plaintiffs, manner of eviction was of a kind where property of the plaintiffs
was damaged."
The reframed issues are as under:
(1) Whether decree obtained by defendants no. 2 & 3 is a
collusive and a fraudulent decree and if yes, is an action
maintainable by plaintiffs as a consequence of execution of the
decree?(OPP)
(2) If issue no. 1 is decided in favour of the plaintiffs, to what
damages is plaintiff entitled to in relation to the execution of the
decree? (OPP)
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(3) Whether the decree was executed by a procedure not
contemplated for execution of decree for possession, if yes,
whether any damage was caused to any movable property of
the plaintiffs? If yes, value thereof? (OPP)
(4) If plaintiffs succeed in establishing damages, whether
defendants are jointly and severally liable for the same? (OPP)
(5) Relief.
4. Evidence was led by either side. On behalf of the plaintiffs, 10
witnesses were examined. They are as under:
PW1 Prof. Prakash Chander - the plaintiff no.1 himself.
PW2 Smt. Alka Chander - the plaintiff no.2 herself.
Both PW1 & PW2 have led their examinationinchief by way of
affidavits Ex. PW1/A & Ex. PW2/A respectively and have deposed identically
as per their case set forth in the plaint. Both these witnesses have been
exhaustively crossexamined by both sets of defendants which I shall be
appreciating during discussion on issues. The others are formal witnesses /
witnesses who have produced and proved some records. They are as under:.
PW3 SI Vinod Kumar, P.S. Hauz Khas. He was summoned to produce the
record pertaining to DD no.28B dated 19.03.2002. The witness has deposed
that the said DD cannot be produced as the same was ordered to be destroyed
by the orders of ACP concerned.
PW4 Sh. Dharamvir Singh - Senior Section Supervisor, MTNL, Hauz
Khas. He had produced the summoned record pertaining to telephone number
which existed in the name of Sh. Labh Mal Sachdeva. He has proved the letter
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dated 05.09.2007 as Ex.PW4/A.
PW5 Sh. Rajesh Kumar - Head Clerk, Delhi Jal Board, Greater Kailash. He
had proved that the swater bill Ex.PW1/10 for the period 04.09.1997 to
07.01.1998 pertaining to property no.J19, Hauz Khas, was issued by their
office and the connection whereof was in the name of Sh. Labh Mal Sachdeva.
PW6 Sh. Ravi Shankar Kumar - LDC, Record Room (Civil), Tis Hazari
Courts, Delhi. He had produced the summoned record pertaining to eviction
petition no.149/00 titled as "Sumina Grover Vs. ISI".
PW7 Sh. Anil Kumar - Junior Judicial Assistant, Delhi High Court. He had
produced the summoned record of suit no.677/03 titled as "Bharat Rama
Swamy & Anr. Vs. ISI & Ors.". He has deposed that as per record the said suit
was dismissed by Hon'ble High Court vide order dated 25.01.2006.
PW8 Sh. Sukhraj - Judicial Assistant, Hon'ble Delhi High Court He had
produced the summoned record of Civil Writ No.1815/02 titled as 'Dr. S. P. Das
Vs. Union of India & Anr.'. He had deposed that the said Writ was disposed of
by Hon'ble High Court vide order dated 25.09.2002.
PW9 Sh. Subhashish Gangopadhyay. He has deposed that he was
Professor at ISI at the time of eviction of the plaintiff. However, regarding
eviction of the plaintiff he has deposed on the basis of what he has heard as he
was not living in the suit property. He has primarily deposed with regard to
there being a bias in the attitude of the director and Head of the Institute for
different departments. His evidence does not in any manner directly shows light
upon the issued framed.
PW10 Sh. Wazir Chand, Naib Nazir Record Room, Tis Hazari. He has
produced the records to the effect that the warrants of possession were handed
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over to the bailiff ,namely, Sh. Dinesh for execution. As per the endorsement in
the record it is recorded broke open the lock and door. He has produced the
photocopy of the record as Ex. PW10/A.
5. On behalf of the defendants, 6 witnesses were examined. They are as
under:
DW1 Sh. Chanderkant Babbar - LDC Record Room (S), Tis Hazari
Courts. He had produced the summoned record of appeal no.162/02 titled as
'ISI Vs. Mrs. Sumina Grover'. He has deposed that as per record a stay
application was filed by the appellant along with the appeal seeking stay or
order dated 02.02.2002 The appeal was disposed of on 06.05.2002 and the
copy of the judgment is Ex.DW1/1.
DW2 Sh. R. B. Bapat, he has led his examination in chief by way of affidavit
which is Ex. DW2/A and has relied upon documents Ex. DW2/1 which is the
memorandum of association of ISI. He had deposed that he has been
associated with ISI as an employee since 1983. The major policy decision
regarding the Institute are taken by ISI Counsel. Regarding the execution of the
agreement by the Institute in the year 1955 with regard to the suit property he
has shown his ignorance.
DW3 Sh. S. S. Sethi - Deputy Chief Executive (Administration) in ISI. In
his examinationinchief he has deposed by way of affidavit Ex. DW3/A
wherein he has stated that on19.03.2002 under the instructions of head - Delhi
Centre he along with S.O. ( Legal) arrived at the suit property I..e J19 Hauz
Khas, New Delhi. On the request of the plaintiff and other occupant of J19,
Hauz Khas stopped the eviction, a note was prepared by S.O. (Legal)
requesting the bailiff to give time and wait for the decision of the appeal. The
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said note was handed over to the bailiff on the spot which is Ex. DW3/1. On the
said note, he has identified his signatures as well as signatures of the plaintiff
and other occupants. The certified copy of order dated 25.09.2002 passed by
the Hon'ble Delhi High Court in Writ Petition No. CWP. 1815/02 titled as Dr. S.
P. Dass vs. Union of India and Others is Ex. DW3/2 and the order dated
20.08.2002 passed in Suit No. 623/02 titled as Dr. S. P. Dass vs. ISI is Ex. DW
3/3. During crossexamination he deposed that whatever he has stated in the
written statement is on the basis of the knowledge acquired from the office
record and the information furnished to him by the previous Executive Officer
(Legal). Regarding the purpose of letting out of the suit premises and
objections of misuser taken by the DDA, the witness deposed that he does not
remember of there being any objection of DDA in the year 1973 and the
premises was being used only for residential purpose for the last 20 years.
Regarding execution of the warrants he deposed that he left the site of the suit
property at around 2 O'Clock. When he left the site bailiff had started removing
the belongings of the plaintiff from the flat. The bailiff was accompanied with
land ladies. There were some labour in addition to the bailiff, land ladies and
official persons.
DW4 Sh. Aloke Dey defendant no.4. He was the head, Delhi Centre, ISI
from 15.01.2001 to 06.09.2004 and have retired as professor from ISI on
30.09.2007. In his examinationinchief he has deposed by way of affidavit is
Ex. DW4/A and relied upon documents Ex.DW4/1 to DW4/21 and in para 6
of the affidavit he has specifically stated that the premises J19 Hauz Khas was
taken on lease by the Delhi Centre for residential purpose and portion thereof
was alloted to various employees. At the initial stage, in a room a small camp
office was being maintained but the same was shifted in 1973 at the objection
of DDA. This does not mean that the premises was taken or used for
commercial purposes. This witness was exhaustively cross examined on as
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many as four dates of hearing and cross examination running into number of
pages. However, on vetting the cross examination, I have noted that cross
examination primarily has been on the aspect of passing of the decree,
execution of the eviction order and availability of categories of residential
accommodations as on the date of eviction etc. However, with regard to the
crucial deposition of the witness in para 6 of his examination in chief (referred
herein above) and which is directly touching upon the issues framed, there has
been no cross examination on that aspect.
DW5 Ms. Sumina Grover, the defendant no. 2. She has led her examination
in chief by way of affidavit Ex. DW5/A. She has deposed during her cross
examination on the day of execution of the warrants she also went to the suit
property. The plaintiff was not there at the suit property but his wife was there.
When she reached there apart from her and her husband, only bailiff was
present. She further deposed that they entered in the premises / suit property
on the instructions of the bailiff. They did not ask the bailiff to remove the goods
but the bailiff himself removed the goods. Though the plaintiffs was elected in
handing over the vacant possession of the premises but went inside to pack
their personal belongings. On a specific question put to her for cross
examination as to whether the persons present there at the time of eviction
were officials of the court or outsiders, she answered that there were no
persons from Court apart from bailiff. The plaintiff were helped by their
students and people from defendant no.1 to remove the goods. She denied the
suggestion that she had brought 45 people from outside to throw the goods of
the plaintiffs.
DW6 Ms. Ravina Bahl the defendant no.3. She has led her examination in
chief by way of affidavit EX. PW6/A wherein she has reiterated the stand in the
written statement. During cross examination she deposed that on 19.03.2002
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she was present at the suit premises i.e. J19 Hauz Khas but only for a brief
time for about 45 minutes to one hour. She denied the suggestion that she has
arranged seven laborers to remove the goods of the plaintiff from the suit
property or that she had made any payment to those laborers. She stated that
she never saw any laborers there but there was a driver and person like that
who helped the plaintiff. Further there were lot of students helping the plaintiff
in removing the goods. She was also confronted with the portion of the written
statement wherein it was stated that they had arranged for seven laborers to
remove the goods from the house pursuant to the warrant of possession.
However, she denied the same and deposed that no labours were arranged by
them.
DISCUSSION ON ISSUES
6. Before dealing with the issues, as have been settled subsequently vide
order dated 29.08.2006 without their being any addition or amendment in
pleadings and whereby the earlier issues settled on 03.02.2006 were recasted,
same unequivocally points out to the fact that the controversy in the present suit
primarily hovers on the aspect whether the decree passed by Ld. ARC dated
02.02.2002, also confirmed in the appeal and which resulted in eviction of the
plaintiffs was a collusive or a fraudulent decree or whether it was a decree duly
obtained / a valid decree.
7. Secondly at the outset, I may cull out the broad line of the argument
which the plaintiff is harping upon that the decree passed by Ld. ARC was with
respect to a property which was initially let out for a composite purpose
residential cum commercial purposes and also being used for the said
purposes. Hence, the provision of Section 14 (1) (h) DRC Act does not apply,
as the same is applicable only where the tenancy is with respect to a
residential property. For the sake of convenience Section 14 (I) (h) DRC Act is
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Dr. Prakash Chander & Anr. v. Indian Statistical Institute & Ors.
reproduced herein as under;
Section 14 ( 1) ( h) DRC Act
That the tenant has, whether before or after the commencement of this
Act acquired vacant possession of, or been alloted, a residence;
Findings on issues no.1 & 2.
ISSUE NO. 1.
Whether decree obtained by defendants no. 2 & 3 is a collusive and
a fraudulent decree and if yes, is an action maintainable by plaintiffs as a
consequence of execution of the decree? (OPP)
ISSUE NO.2
If issue no. 1 is decided in favour of the plaintiffs, to what damages
is plaintiff entitled to in relation to the execution of the decree? (OPP)
8. These issues are taken up together as issue no.2 shall be taken up for
discussion only if issue no. 1 is decided in favour of the plaintiff. Briefly stated,
the decree dated 02.02.2002 is sought to be challenged on the premise that it
was obtained by collusion between the parties or was a fraudulent one.
9. Now with regard to collusion and fraudulence in a judicial proceeding, Ld.
Counsel for the plaintiff has relied upon judgment of the Hon'ble Supreme
Court of India in case titled as Nagubai Ammal and Ors. Vs. B. Shama Rao
in Civil Appeal No. 216 of 1953 decided on 26.04.1956 wherein the Hon'ble
Apex Court in para 13 of the said judgment observed the distinction between a
collusive and a fraudulent proceeding. The said para is reproduced as under:
13. Now, there is a fundamental distinction between a
proceeding which is collusive and one which is
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fraudulent. "Collusion in judicial proceedings is a
secret arrangement between two persons that the
one should institute a suit against the other in order
to obtain the decision of a judicial tribunal for some
sinister purpose". (Wharton's Law Lexicon, 14 th
Edition, page 212). In such a proceeding, the claim
put forward is fictitious, the contest over it is unreal,
and the decree passed therein is a mere mask
having the similitude of a judicial determination and
worn by the parties with the object of confounding
third parties. But when a proceeding is alleged to be
fraudulent, what is meant is that the claim made
therein is untrue, but that the claimant has managed
to obtain the verdict of the court in his favour and
against his opponent by practising fraud on the court.
Such a proceeding is started with a view to injure the
opponent, and there can be no question of its having
been initiated as the result of an understanding
between the parties. While in collusive proceedings
the combat is a mere sham, in a fraudulent suit it is
real and earnest.
10. Now, analyzing the core grievance of the petitioner of there being
collusion and fraudulence, the terms 'collusion' and 'fraudulence' in a judicial
proceedings have been categorically defined and distinction thereof also drawn
in the judgment of Nagubai (Supra). As per the definition and distinction made
in the said judgment, there cannot be said to be any element of fraudulence in
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the decree dated 02.02.2002 passed by the Ld. ARC for the simple reason that
proceedings before Ld. ARC could be said to have been fraudulent only where
the claim made by the owners of the property would have been untrue and the
decree would have been obtained against ISI by practicing fraud on the Court.
Obviously the claim of the owners to get back their property from the tenants
was a genuine claim.
11. Otherwise also in pith and substance in the entire plaint and also in the
evidence, the substratum of the allegations against ISI is that they have
colluded with the owners of the property to evict him as they have failed to take
up the defence that a property was let out for residential cum commercial
purposes.
12. Examining the facts of the case in light of the aforesaid judgment, it is
apparent that in the eviction petition the parties arrayed were the actual /
necessary parties. It was not a decree in a sense that the decree was passed
by impleading incorrect parties. To put it pithily, it is not the case of the plaintiff
that he ought to have been arrayed in the petition. I intend to emphasize on
this point that had the petitioner sought his impleadment being a licencee of the
respondent / ISI, then he would not have succeeded for the reason that he was
a mere licencee and secondly and most importantly, in any eviction petition the necessary parties are only the parties to the tenancy. Thus, what he could not have done directly is sought to be done by filing the present suit.
13. Delving further on this aspect, any petitioner / landlord is entitled to present his claim or to seek eviction on any of the ground(s) which he deems fit. Taking into account the same the respondent / tenant has to reply or rebut. Now to contend that the defendant ought to have replied in a particular manner or should have based his defence as per the thinking pattern of the plaintiff herein is not at all acceptable so long as there is no collusion on the part of the CS No.16/17 Page No.20/ 28 Dr. Prakash Chander & Anr. v. Indian Statistical Institute & Ors.
parties.
14. In this regard I may refer to the pleadings of the eviction petition particularly para 14 - reply to the said para given in the written statement as well as the corresponding para of replication. They are reproduced as under: Eviction Petition para 14.
The premises were let out to the Respondent in or about the year 1965 by thegrand mother and predecessor in interest of the petitioners soon after construction thereof. The petitioners have not been able to find any Agreement in writing which may have been executed at the time of letting. The premisesare however, residential in nature and were let out for residential purposes and have throughout been used by the respondent for residential purposes only. The premises are assessed for the purposes of property Tax by the Municipal Corporation of Delhi as 'Residential premises' and Electricity and water is supplied to the premises on Residential Rates.
Written statement reply made to para 14 of the petition.
That as far the contents of paragraph no.14 are concerned, it is submitted that the petitioners have not furnished even the most elementary information / details regarding the names and the addresses of the concerned person / persons referred to as "Grandmother and Predecessor" in the petition. It is rather strange and surprising that the petitioners are themselves unaware of this very important fact / aspect, on the basis of which their claim rests. Further, it is worth considering that the petitioners are admitting the fact that petitioners have not been able to find any Agreement which may have been executed at the relevant time.
Replication in response to reply of para 14.
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Regarding para 14 of the petition, the respondent has not denied the material averments in para 14 of the petition that the premises were let out to the respondent in or about the year 1965. The respondent as stated in reply to the preliminary objections above, is fully aware of the the name of the grand mother of the petitioners and para 14 of the written statement is misconceived.
15. In the gamut of the aforesaid pleadings it is apparent that there was nothing on record by virtue of any document particularly any lease deed or any agreement or even any rent receipt manifesting that the initial letting out was for the composite use. As such the findings of the Ld. ARC on the said aspect could not have been faulted. I note herein that I am only evaluating the pleas of the plaintiff and not sitting an appeal over the judgment of Ld. ARC and my observations have to be so construed. Furthermore, the present litigation having been initiated by the plaintiff, (who was not a party in the initial litigation) he could have filed the lease deed but the same has not been filed in the present suit as well. Perusal of the order sheets also reveals that Ld. Counsel representing ISI gave a statement on 01.08.2008 on behalf of ISI that there was no written lease agreement in respect of the property in question. Thus, the best piece of evidence was never produced on record or had never seen the light of the day. That being the situation we have to appreciate the evidence led by the parties and the other documents produced on record to ascertain the nature / user of letting.
16. During crossexamination PW1 has admitted that since he had moved into the suit premises in year 1978 and till the time he resided there i.e. till 2002 there was no accounts office in the entire property i.e. J19, Hauz Khas. Further it was put to him that the electricity charges for the said premises was also being levied on residential rate and not on commercial rate and he was paying electricity bill on the said rates. He baldly denied the said assertion and despite CS No.16/17 Page No.22/ 28 Dr. Prakash Chander & Anr. v. Indian Statistical Institute & Ors.
specific demand for producing any electricity bill for the said period failed to produce any bill. Furthermore, in December, 1986 the Counsel of the Institute had framed rules for allotment of staff quarters in respect of employees of the Institute which are Ex. as PW1/D2. As per annexure1 of the said rules the property i.e. J19, Hauz has been shown as 'type A' 'residential accommodation'. The rules have been filed by the plaintiff himself and admitted to be correct one. During cross examination a specific question was put to him that being the head of the Institute had he ever objected to these rules. In response to the said question, plaintiff had deposed that he never objected to these rules as these were the Institute rules and he had no reason to object to the same. The point to be emphasized here is that even in the rules of allotment the suit property was shown to be a residential property. In the teeth of such an overwhelming evidence to which the plaintiff had consented / agreed upon for more than 24 long years, he cannot now contend that prior to his being inducted in the property, at any earlier point of time, a part of the property was being used for running an office of the Institute. That would be a too far fetched plea.
17. Apart whereof, the plaintiff was alloted the residence in the suit premises vide allotment letter dated 06.10.1979 followed up by letter dated 03.11.1979. The allotment of residences in J19, Hauz Khas was made to four persons, namely, Dr. C. R. Rao, Dr. Kalyan Mukherjee, Sh. H. C. Sharma and Dr. Prakash Chander. It was the allotment of residential flats. Plaintiff now cannot agitate contrary to the said letters / office orders. In other words, his claim is circumscribed by the rights which he derives by virtue of the said letters or allotment alone.
In that scenario and in light of the evidence appreciated above, the argument of the plaintiff that the suit property was let out for commercial CS No.16/17 Page No.23/ 28 Dr. Prakash Chander & Anr. v. Indian Statistical Institute & Ors.
purpose also has no substance.
18. On the contrary the stand of the defendant is that the property was let out only for residential purposes for providing accommodation to its employees and since the day it was let out to the Institute it was being put to residential use only. In the evidence also DW4 had deposed that though initially a small camp office was being maintained in the premises but was shifted in 1973 at the objection raised by DDA. As already discussed during evidence, there has been no crossexamination of the witness on this deposition result whereof is that this deposition stands to be accepted by the plaintiff. Now, the property i.e. J19, Hauz Khas comprised of four residential units. When the eviction order was passed by Ld. ARC, the other occupants of the premises also took recourse to judicial remedies by filing Civil case as well as Writ petitions. In the suit preferred by occupant Mr. S.P. Dass before the Hon'ble High Court, a similar plea of collusion between the ISI and the owners of the property and that the eviction order was bad as the purpose of letting was composite was raised. Vide order dated 20.08.2002 Ex. DW3/2, in the said suit, the Hon'ble High Court had made the following observations : In this backdrop, even if based on address of defendant no.1 having being given that of property No .J19 on the letters at pages 31, 32 and 34 to 40, defendant no.1 having taken plea of purpose of letting being composite in reply to CM 3119/02, DDA having sent letter dated 25 th October, 1972 at the address of said property, the defendant no.1 had omitted to raise plea of purpose of letting as composite in the written statement filed to eviction petition, it is difficult to reach the conclusion, even prima facie, that defendants 2 & 3 had colluded with defendant no.1 in the passing of eviction order dated 2 nd February, 2002. Therefore, the submission referred to above advanced on behalf of plaintiff on that score CS No.16/17 Page No.24/ 28 Dr. Prakash Chander & Anr. v. Indian Statistical Institute & Ors.
deserves to be repelled being without any merit.
Thus, in view of the aforesaid discussion the assertion of the plaintiff that the property was let out for a composite purpose and therefore, the petition under Section 14 (1) (h) DRC Act was not maintainable and the decree of eviction dated 02.02.2002 thus have been obtained by collusion is not made out at all. It is noteworthy that even the appeal filed by ISI against the eviction order was dismissed subsequently on 06.05.2002 - as such the question of there being any collusion is therefore, outrightly ruled out.
Issues no. 1 & 2 stands decided against the plaintiffs.
ISSUE NO. 3 & 4.
(3) Whether the decree was executed by a procedure not contemplated for execution of decree for possession, if yes, whether any damage was caused to any movable property of the plaintiffs? If yes, value thereof? (OPP) (4) If plaintiffs succeed in establishing damages, whether defendants are jointly and severally liable for the same? (OPP)
19. Both these issues are taken up together as they are interconnected, based on the same evidence and hence, a common discussion shall suffice.
20. Now discussion on issues no. 1 & 2 has a bearing on the present issue as the decree was sought to be invalidated on the ground of collusion - which facet I have already adjudicated upon. Thus, the decree of eviction was not only valid but could have been executed and even later on the first appeal was also dismissed and no further challenge to it CS No.16/17 Page No.25/ 28 Dr. Prakash Chander & Anr. v. Indian Statistical Institute & Ors.
was made.
21. The moment a decree of eviction is passed, the legal right to retain or remain in possession ceases. The obligation of the occupant or the J.D is to comply with the same and to hand over the possession to the D.H. Needless to state, after passing of the decree, for the period of unauthorized occupation of the property thereafter, JD is additionally liable to pay damages also to the DH. The reason is obvious that the protective shield of DRC Act ceases. Having voluntarily failed to comply with the decree, the DH has to seek recourse to execution. Further, It is not that while in execution, the JD or any person, deriving his right through him, can object or retain possession of the premises without the concurrence of DH or in absence of any Court order. Else that would amount to frustrating the decree.
22. Now, coming to the facts of the case, decree of eviction was passed on 02.02.2002. Thereafter, ISI held a meeting with all the four occupants of J19, Hauz Khas and asked them to vacate the premises and apply for fresh allotment. Thus it also cannot be said that the plaintiff was unaware about the eviction order and his consequent responsibility to vacate. He had also understood the same as it is evident from his reply made to ISI dated 16.03.2002. His gravamen appears to be non - allotment of another residential accommodation of 'type - A' (category which he was occupying in the suit property). But that by itself has no bearing on the execution proceedings as allotment of flats is an internal matter of the Institute. At the cost of repetition I may note that the plaintiff was having knowledge of the decree and the Institute's obligation to vacate the premises. In this regard observations made by Ld. ARCT in order of appeal dated 06.05.2002 also assumes significance. An extract CS No.16/17 Page No.26/ 28 Dr. Prakash Chander & Anr. v. Indian Statistical Institute & Ors.
of the same relevant herein is reproduced as under: I find that the appeal has no merit since the appellant acquired vacant possession of the property in their own campus resulting in the delivery of possession to the landlord by the Controller. The impugned order has been rightly passed by the Controller. I find no merit in the appeal.
The Indian Statistical Institute is a Government organisation. An appeal under the circumstances of the case is not warranted from such an organization.
The Government revenue should not be un necessarily incurred. The preference of the appeal in view of the clear position of the law is not approved of. The appeal is accordingly dismissed.
23. In such a scenario execution was filed as despite passing of decree possession was not handed over by the plaintiffs. Bailiff was duly appointed by the Court, the proceedings of vacating the premises and handing over the possession to the owners / DH were duly conducted and also recorded in writing. As per the writing dated 19.03.2002 administrative officer of ISI, namely, Sh. S. S. Sethi, Sh. V. P. Sharma and the plaintiff no.1 also arrived at the suit property. A note was written seeking three months time for vacation from the premises which was signed by the plaintiff, Dr. Bharat Radhaswamy and Administrative officers, namely, Sh. S. S. Sethi and Sh. V.P. Sharma. The said request was declined by the DH in writing. Thus, the request for extension of time having been declined, the plaintiffs were liable to vacate the premises. Now regarding the grievance of the plaintiffs that some other persons CS No.16/17 Page No.27/ 28 Dr. Prakash Chander & Anr. v. Indian Statistical Institute & Ors.
along with the bailiff who were allegedly brought by the DH had helped the bailiff in removing the goods from the premises. I may note that the entire eviction process was done under the supervision of the bailiff. The execution of a decree is governed by Order 21 CPC. The said order is a comprehensive order containing 106 rules and which contemplates nearly all possible situations / hindrances / objections in execution of a decree. Plaintiff has barely stated that the execution was not done following a procedure provided by law but has failed to detail as to which rule of Order 21 CPC has been flouted / has not been complied with. Further, even if the plaintiffs had any grievance regarding the procedure followed in the eviction process, they could have informed the Executing Court by filing appropriate application and seeking remedy as provided for the same. But admittedly no application whatsoever was moved before the Executing Court.
Thus, in light of the aforementioned legal position, the allegations leveled by the plaintiffs are vague having no legal basis and cannot be accepted. Issues accordingly decided against the plaintiffs.
Relief:
In view of my aforesaid discussion, all the issues are decided against the plaintiff and the suit of the plaintiffs stands dismissed.
No order as to cost. Decree sheet be prepared accordingly and file be consigned to record room.
Announced in the Open Court (Shunali Gupta)
Dated: 29.01.2018 Addl. District Judge(06)
South Distt. Saket Courts,
New Delhi.
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