Delhi District Court
Sh. Lajja Ram vs Sh. Satish Kumar (Now Deceased) on 28 January, 2022
IN THE COURT OF :
Dr. V.K. DAHIYA
ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS: NEW DELHI
Regular Civil Appeal no. 15/2016 (54659/2016)
In the matter of:
Sh. Lajja Ram
S/o Sh. Matru Lal
R/o M231, Gali no. 6,
New Raja Puri, Uttam Nagar,
New Delhi 110 059
.....Appellant
Versus
Sh. Satish Kumar (Now deceased)
Through LR's
1. Smt. Leelawati @ Neelam,
2. Ms. Vineeta , Daughter
3. Ms. Retu, Duaghter
4. Ms. Poonam, Daughter
5. Dev Singh, Son
6. Mr. Bhanu, Son
All R/o S108, Gali no. 2,
New Rajapuri, Uttam Nagar, New Delhi 110 059
....Respondents
RCA no.15/2016(54659/2016)
Lajja Ram v. Satish & Ors.
Page no.1 of 34
Date of Institution of Appeal : 16.09.2015
Date of reserving judgment : 28.01.2022
Date of pronouncement : 28.01.2022
REGULAR CIVIL APPEAL AGAINST THE JUDGMENT/DECREE
DATED 25.08.2015 PASSED BY SH. JITENDRA PRATAP SINGH, Ld.
CIVIL JUDGE, CENTRAL, TIS HAZARI COURTS, NEW DELHI
J U D G M E N T:
1. The present appeal has been filed against the impugned judgment/decree dated 25.08.2015 Passed by learned civil judge (Central) 09, Tis Hazari Courts, Delhi in suit no. 84/2014. The parties are herein referred to as per their litigative status before the learned trial court.
2. Brief facts relevant for disposal of present appeal are like this:
(i) Plaintiff Satish Kumar (in short, the deceased) filed the suit no. 84/2014 stating therein that the shops no. B1/8, Gali no. 8, Raja Puri, Uttam Nagar, New Delhi (in short, the suit shop) was owned by him and he has rented out the same to defendant at the monthly rent of ₹ 300 per month in the month of July 1996. The defendant had paid the rent till September 1996, thereafter, he stopped paying the rent. The plaintiff received summons for settlement in the month of January 1998 in suit 689/2002 filed by the defendant seeking permanent injunction. The deceased filed counter claim in the said suit no. 689/2002 seeking relief of declaration, possession and RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.2 of 34 mesne profits after terminating the tenancy of defendant through notice dated 24.03.1998.
(ii) the suit of the defendant was decreed in his favour in (689/2002) and plaintiff filed an appeal against the judgment/decree passed in said suit no. 689/2002 bearing RCA no. 57/2007, and the learned ADJ has set aside the judgment/decree passed in the said suit and allowed the appeal in favour of the plaintiff, however, the counter claim was not allowed by the appellate court saying that the same was not pressed even before the learned trial court which was pending in suit no. 689/2002.
(iii) The defendant filed the written statement in the present suit and submitted that the suit shop was sold by the deceased to defendant through receipt cum settlement deed dated 17.12.1996 for a sum of ₹ 42,000 and, therefore, the said settlement deed is binding upon the deceased and his LRs.
3. After completion of the pleadings, the learned trial court's framed the following issues through order dated 13.12.2006 :
1. Whether the plaintiff has sold the shop in question to the defendant vide agreement cum receipt dated 17.12.1996 and thus plaintiff is not entitled to any relief ? OPD
2. Whether the present suit is barred under section 10 of the CPC? OPD
3. Whether the plaintiff is entitled to a decree of declaration as prayed for? OPP RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.3 of 34
4. Whether the plaintiff is entitled for a decree of permanent injunction as prayed for ? OPP
5. Whether the plaintiff is entitled for decree of possession, as prayed for ? OPP
6. Whether the plaintiff is entitled for a decree of ₹ 36,000 ?
Whether any interest is payable? If yes, at what rate and for what period? OPP
7. Relief;
4. Thereafter, on 13.08.2015 additional issues were framed in view of the pleadings which are as under:
6A. Whether the suit is maintainable as framed and filed ? 6B. Whether the suit is time barred i.e barred by limitation? 6C. Whether the suit is barred under Order 2 rule 2 of the CPC ? 6D. Whether the plaintiff has locus standi to file the present suit?
5. The deceased expired on 28.12.2011 and until that time his deposition was not recorded before the ld. trial court and therefore his wife Smt. Neelam filed GPA dated 30.08.2007 allegedly executed by the deceased and, thereafter, filed her evidence by way of affidavit to dispose on behalf of the plaintiff. The application for impleading the LRs of the deceased under order 22 CPC was allowed by the ld. trial court along with the impugned judgment/decree by making observation that the adjudication of the application was escaped the attention of the court and, therefore, the application deserves to be allowed.
6. Smt. Leelawati /Neelam was examined as PW1 and brought on record her notarised GPA dated 30.08.2007 Ex. PW1/B executed by the deceased, site plan of the suit shop as PW1/2, RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.4 of 34 photocopies of the notarised GPA, deed of agreement and attested affidavit and receipt executed by Sh. Rajesh all dated 16.09.1993 Ex. PW1/3, notice dated dated 24.03.1998 was marked as Mark PW1/4.
7. Thereafter, Shri Rajesh has appeared as PW2 who testified that he was the vendor and executed the sale documents Ex. PW1/3 dated 16.09.1993 in favour of the deceased and further sold the suit shop with roof rights for consideration of ₹ 22,000, however, PW2 could not produce any sale document to prove his ownership over the suit shop. PW3 Sukhdeen could not bring on record the title documents of the owner of the suit shop.
8. Thereafter, defendant appeared as DW1 and proved the receipt cum settlement deed dated 17.12.1996 (Ex. PW1/D1)/Ex. DW2/1. DW1 also proved on record the following documents:
A. Judgment passed in the previous suit bearing no. 689/2002 dated 17.08.2005 as Ex. DW1/2, B. Certified copy of the suit is Ex. DW1/3, C. Certified copy of amended counter claim as Ex. DW1/4, D. Certified copy of the written statement Ex. DW1/5, E. Certified copy of the evidence lead by the deceased Ex.
DW1/6.
9. Apart from that DW1 testified that the settlement deed has been acted upon and DW1 has made improvement in the suit shop and has also got electricity connection over there. Therefore, the said settlement deed cum receipt is binding upon the LRs of the RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.5 of 34 deceased. Smt. Kitabo was also examined as DW2 who is the attesting witness to the settlement deed dated 17.12.1996 Ex. PW 1/D - 1(Ex. DW2/1).
10. The ld. trial court after hearing the learned counsel for the parties has decreed the suit of the plaintiff for the relief of possession, permanent injunction.
11. Feeling aggrieved by the impugned judgment/decree, defendant has filed the appeal and has raised the following contentions during the course of arguments namely :
(i) The PW2 Rajesh deposed that plaintiff was his power of attorney holder in respect of the suit property, therefore, plaintiff concealed that fact and the suit as framed is not maintainable in as much as plaintiff was supposed to file suit as the power of attorney holder, therefore, issue no. 6A & 6D should have been decided in favour of defendant.
(ii) the learned trial court has not appreciated the clear admissions of PW1 that deceased did not depose before the learned trial court till 2011 despite the fact that PW1 has filed her affidavit by way of evidence as attorney of the deceased in the year 2008, so it is no case of evidence as per the mandate of law laid down by Hon'ble Supreme Court in Vidyadhar v. Manik Rao AIR 1999 SC 1441. It is further submitted by placing reliance upon Janki Vashdeo Bhojwani v. Indusind Bank Ltd. & Ors., 2005 (II) SCC 217, that the attorney RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.6 of 34 cannot depose with regard to the facts which are in the personal knowledge of the principal. Therefore, the averment of the plaint could not proved and suit was to be dismissed on this ground.
(iii) The learned trial court has not appreciated the fact that plaintiff has no better title then defendant in as much as ownership rights of plaintiff over the suit shop was based on the document i.e. GPA which is no document in the eyes of law, therefore, plaintiff could have transferred the possession by way of settlement through receipt dated 17.12.1996 Ex. PW1/D1. As such plaintiff has no legal right to retain the possession of the suit shop. The said settlement/receipt admitted by PW1 in her deposition was neither an agreement to sell not a contract for the sale, that is why the same is a settlement reached between the parties in respect of the suit shop which has been acted upon as per the mandate of law laid down by the Hon'ble Supreme Court in Tek Bahadur Bhujil v. Debi Singh Bhujil, 1996 SC 292, therefore, the defendant need not require protection of Section 53A of the Transfer of Property Act. Moreover, the settlement has been acted upon by the parties, therefore, it did not require registration. IN addition to it, the ld. Trial Court has rightly observed that suit is barred by limitation so far as declaration of the settlement/receipt dated 17.12.1996 as null and void.
(v) It is further submitted that the plaintiff has never pleaded regarding source of title, therefore, defendant did not get any opportunity to rebut such pleadings and evidence with regard to which there is no pleading, cannot be relied upon by plaintiff. The RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.7 of 34 reliance is placed upon Executive Officer, Aulmigu Chokkanatha Swamy Koil Trust Virudhunagar v. Chandram & Ors. 2017 (2) CLJ 1 SC.
(v) Whether the learned trial court has not appreciated the fact that the suit is barred under order II rule 2 CPC in as much as the relief sought by way of the present suit was also sought by plaintiff on the same cause of action by way of counter claim in CS no. 689/02, therefore, the present suit is barred by the provisions of order II rule 2 CPC read with Order 23 CPC. In this regard reliance has been placed upon Alka Gupta v. Narender Kumar Gupta, 2010 (10 SCC 141, Gurbux Sing v. Bhoralal, 1964 AIR (SC) 1810, Vidyadhar v. Manikrao, 199 (3) SCC 573, Vurimi Pullarao v. Vemari Vyankata Radharani Varmi 2020 AIR (SC) 395, Budh Prakash Rastogi v. Santosh Pal Dublish, (1998) 1 RCR (Civil)
121. The appeal is prayed to be allowed.
12. Per contra, the plaintiff filed the reply and contested that the learned trial court has rightly passed the impugned judgment/decree after appreciating the material on record and there is no illegality in the said judgment/decree which may warrant any interference from this appellate court.
13. It is further contended that the suit shop was never sold by plaintiff to defendant for consideration of ₹ 40,000 as alleged. PW2 Rajsh Tayal has testified that he had sold the suit shop to the RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.8 of 34 plaintiff/deceased for consideration of ₹ 22,000 in cash on 16.09.1993 and ownership of the suit shop devolved upon said Rajesh Tayal from the bhoomidhar and the chain of sale documents was handed over by Rajesh Tayal to the deceased.
14. It is further contended that DW2 Kitabo Devi was unable to prove any document in respect of the alleged sale transaction as she testified that the suit shop was sold by the plaintiff to defendant on 17.12.1996 through agreement cum receipt Ex. PW1/D1, therefore, the factum of sale of the suit shop has not been proved by defendant. It is settled principle of law that the tenant is always a tenant and cannot be a owner of the tenanted premises. The suit is not barred by order II rule 2 CPC in as much as thus said provision is not applicable to the present suit as no claim has been sought in the present suit which can be said to might be overlapping with the relief sought in the counter claim in the previous suit filed by the defendant, therefore, provision of Order II rule 2 CPC are not attracted in the facts and circumstances of the present case and the ld. trial court has rightly observed so by recording a finding on this issue. The suit was filed by the plaintiff, but he was bedridden, therefore, he could not depose and there was no other alternative with the deceased to grant GPA in favour of his wife Neelam @ Leelawati who deposed only with regard to the facts which are within his personal knowledge through documents. Therefore, nothing is illegal in deposition of the plaintiff through her wife being attorney of the deceased. Man Kaur (dead) by LRs v. Hartar Singh Sangha 2010 law Suit (SC) 675.
RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.9 of 34
15. It is further contended that the defendant has been in possession of the suit shop in the capacity of a tenant of the plaintiff and the agreement to sell cum receipt cannot be termed either as agreement to sell or contract for sale as has been rightly observed by the learned trial court. The suit shop was handed over to the defendant as a tenant who has taken the electricity connection in his name without prior consent, knowledge or permission of the plaintiff, however, the said fact is not sufficient to conclude that defendant has become owner in possession of the suit shop.
16. In rebuttal, learned counsel for the defendant has filed written submissions and reiterated the grounds of appeal therein and, interalia, contended that the cause of action sought in the counter claim in the previous suit filed by the defendant, which has been abandoned/withdrawn without seeking the permission of the learned trial court, is overlapping with the cause of action as claimed in the present suit, therefore, the suit is not maintainable under order 23 rule 1 CPC as well as order II rule 2 CPC. The plaintiff did not file any evidence, therefore, nothing can be said to have been proved. PW1 being attorney of the plaintiff has stated that plaintiff has purchased the suit shop from PW2 Rajesh Tayal, but PW2 could not prove from whom he has purchased the suit shop, therefore, no title can be said to have been transferred to plaintiff as such no relief be granted to plaintiff through impugned judgment/decree. PW2 could not prove this fact, therefore, he was not entitled to confer title on plaintiff through sale documents. In this regard, reliance is placed upon RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.10 of 34 judgment passed by the Hon'ble High Court of Delhi in Ram Pratap v. Purshottam @ Lala Ram in RSA no. 109/2016 and Asrar v. Om Prakash, 2017 (4) CLJ 98 Del. However, plaintiff has reached settlement to transfer the shop by way of an agreement cum receipt for ₹ 40,000 so he cannot dispossess the defendant from the suit shop. The said receipt is Ex. DW2/1 (Ex. PW1/D1 is the reciept cum agreement to sell, and is a legal documents in view of the law laid down in Devender Singh v. Hari Singh, 2017 (2) CLJ Delhi 743 & Gurmeet Kaur v. Harbhajan Singh, 2017(3) CLJ 239 Del.
17. During the course of arguments the question was vehemently argued by learned counsel for the defendant that the suit is barred by order II rule 2 CPC and, therefore, the counsel for the plaintiff has relied upon the following judgments in order to contend that order II rule 2 CPC are not applicable to the facts and circumstances of the present appeal in as much as there is no overlapping of the cause of action/relief in the counter claim filed by the plaintiff in the previous suit and the relief/cause of action as prayed for in the present suit. In support of his contentions, ld. counsel for the respondent has relied upon Suraj Lamps & Industries Pvt. Ltd. v. State of Haryana, 2012(1) SCC 656, Bishan Chand v. Ved Prakash (since Deceased, Through LRs, in RSA no. 131/2018, Muni Devi v. Sona, Man Kaur (dead) by Lrs v. Hartar Singh Sangha, 2010 LawSuit(SC) 675 and State of Madhya Pradesh v. Mulanchand, 1972 LawSuit(MP) 69.
RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.11 of 34
18. I have heard the learned counsel for the parties and with their assistance have gone through the record.
19. From the pleadings, evidence and material on record and on consideration of the rival contentions raised during the course of arguments, of this appeal, following points of determination are involved in this appeal:
(i) Whether the counter claim filed by the defendant in civil suit no. 689/2002 titled as Lajja Ram v. Satish Kumar was withdrawn, therefore, the suit of the plaintiff is barred by the provisions of order II rule 2 CPC or by the provisions of Order XXIII CPC.
(ii) Whether the agreement/receipt of settlement dated 17.12.1986 Ex. DW2/1/PW1/D1 is sufficient to confer title on defendant and same did not require registration as per the mandate of provisions of section 53A of the Transfer of Property Act and defendant is entitled to the protection of the doctrine of part performance thereof.
(iii) Whether PW1, wife of the deceased being GPA holder was entitled to depose for and on behalf of the deceased, or not.
(iv) Whether the plaintiff was rightly found entitled to the decree of declaration, permanent injunction and possession.
Point of determination (I)
20. The first point of determination is with regard to legal issue as to whether the present suit filed by the plaintiff is barred by the provisions of order II rule 2 CPC. The order II rule 2 provides as under :
"2. Suit to include the whole claim.
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action;
but a plaintiff may relinquish any portion of his claim in order RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.12 of 34 to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted."
21. It is the contention of counsel for defendant that the ld. trial court has not appreciated the fact that the suit is barred under order II rule 2 CPC in as much as the relief sought by way of the present suit was also sought by plaintiff on the same cause of action by way of counter claim in CS no. 689/02, therefore, the present suit is barred by the provisions of order II rule 2 CPC.
22. It may be noted that the suit cannot be dismissed as barred under order II rule 2 CPC in the absence of plea by the defendant to that effect and in the absence of any issue therein. However, in the present case defendant has pleaded that the suit is barred by the provisions of order II rule 2 CPC and led evidence to the effect that the counter claim in CS no. 689/02 filed by plaintiff and placed on record the same through document Ex. DW1/4. Now the question arises, as to whether the said provision of order II rule 2 CPC is applicable to the facts of the present case.
RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.13 of 34
23. So far as the applicability of order II rule 2 CPC the Hon'ble Supreme Court in Alka Gupta (supra), held as under :
"9. This Court in Gurbux Singh v. Bhoora Lal [AIR 1964 SC 1810] held :
"In order that a plea of a bar under O. 2, R. 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the latter suit is based there would be no scope for the application of the bar."
24. In the same manner, in Vurimi Pullarao (supra) the ratio of Gurbux Singh (supra) was reiterated and it was observed that that in order that the bar under Order 2 Rule 2 be attracted, it is necessary that the plaint in the earlier suit must be proved in evidence.
25. A bare perusal of the dicta of the above said case law passed by Hon'ble Supreme Court, it can be safely concluded that for invoking the provisions of order II rule 2 CPC, three conditions must be satisfied:
(i) that the second suit was in respect of the same cause of action is that on which the previous suit was based;
RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.14 of 34
(ii) plaintiff in respect of that cause of action, is entitled to more than one relief,
(iii) the plaintiff being entitled to more than one relief, without leave of the court omitted to sue for the relief for which the 2 nd suit has been filed.
26. In order to apply the provisions of Order II rule 2 to bar a suit it must be found out (1) what was the cause of action in respect of which the claim was made in the previous suit; (2). what is the claim made in the subsequent suit; (3). whether the claim made in subsequent suit could have been made either wholly or in part in respect of the cause of action of the previous suit. If so, the claim in the subsequent suit shall fail to the extent. to which it could have been but was not made in the prior suit. In order to arrive at these findings, the two plaints must be compared. But this does not mean that in order to apply order II rule 2 CPC all the allegations in the two plaints shall have to be taken and the bar imposed shall apply only when these are identical. The allegations are to be looked into only to find out to what extent they disclosed any cause of action. The cause of action for this purpose would mean all the essential facts constituting the right and its infringement. If the plaintiff obtained a judgment in his favour on a particular cause of action in the previous suit his claim in that suit must be taken to have been based on that cause of action, and that judgment ought to be conclusive as to the cause of action in respect of which that claim was made. In order to see what is the cause of action in respect of which the claim in the subsequent suit is made and what is the claim made in it, the plaint in RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.15 of 34 the subsequent suit must be looked into. If certain allegation in the plaint disclosed the selfsame cause of action which could have supported the claim made in the plaint, then, simply because other additional allegations have also been made in it the plaintiff would not thereby escape the bar imposed by order II rule 2 CPC. If without the additional allegation in the second plaint, the cause of action for the claim made in it be complete, then, in that case, the additional allegations will not constitute the cause of action at all, and the Court after finding that will have to dismiss the claim under order II rule 2 CPC. If the additional allegations, go to constitute a fresh cause of action for the claim made, then the cause of action as alleged in the second plaint is different from the cause of action of the first plaint. If the plaintiff fails to establish the additional allegations, he may fail for want of cause of action but his suit will not be hit by the provisions of order II rule 2 CPC.
27. Now the question arises that all the three conditions have been satisfied in the present case. It may be noted that the relief as sought by the plaintiff (herein)/counter claimant in the CS no. 689/2002 has sought possession from defendant (herein)/plaintiff (therein) having been an unauthorised occupant with effect from 01.05.1998. It is further prayed in the said counter claim that the receipt/agreement Ex. PW1/D1/Ex. DW2/1 is null and void being forged and fabricated by plaintiff (therein) / defendant(herein).
RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.16 of 34
28. In this regard, it may be noted that admittedly the defendant has filed the suit no. 689/2002 and plaintiff as defendant(in that suit) filed a counter claim and in the counter claim, he has made following pleadings and made the following prayers :
"That the cause of action for filing the counter claim accrued in the claimant put in appearance in the proceedings of the above noted suit and came to know that the plaintiff, whether intended to defeat and defraud the claimant, has forged and fabricated the alleged receipt cum agreement dated 17.12.1996 for sale consideration of ₹ 40,000 which is totally false document and the same is not acceptable in law and admissible in evidence. The cause of action is still accruing in favour of the claimant and against the plaintiff as he has denied to accept that the said document as forged one but he is insisting for its enforcement against the claimant in the present suit in respect of the suit shop though he is fully aware that the same is forged one.
That the value of the counter claim is assessed to ₹ 200 as it pertains to merely seeking declaration with regard to the receipt cum agreement dated 17.12.1996 to be null and void so the requisite court fee has been affixed. As regards the valuation of the suit for the purposes of recovery of possession of the suit shop it is assessed to ₹ 3600 which is the equivalent to 12 months rent at the rate of ₹ 300 per month and further for the relief of recovery of no mesne profits/damages it is assessed to ₹ 27,000 which is the area has of damages w.e.f. 01.05.1998 till date. The claimant is also entitled to the damages at the said the rate for the future. As well as pendentelite at the said rate till the plaintiff restores the possession to the claimant. The requisite court fee is however a fixed upon the plaint.
That the cause of action for the counter claim accrued in Delhi. The suit shop is situated in Delhi, parties to the counter claim live and work for gain in Delhi, so this Hon'ble court has territorial and pecuniary jurisdiction to entertain and try the present counter claim against the plaintiff. As RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.17 of 34 regards the relief of recovery of possession and mean profit/damages for retaining the illegal possession of the suit shop with effect from 01.05.1998 the cause of action has accrued against the plaintiff for seeking the recovery of possession and damages both as his status has become of unauthorised occupant, which cause of action is still echoing/subsisting against him as the plaintiff has failed to restore the possession to the claimant as well as to pay the mesne profits for retaining the possession.
It is, therefore, respectfully prayed that this Hon'ble court may be pleased to accept the counter claim of the claimant/defendant against the plaintiff thereby to declare that the alleged receipt come agreement dated 17.12.1996 for ₹ 4000 in respect of the purchase of shop No. 1, situated in house No. D - 1, Gali no. 8, Rajapuri, Uttam Nagar, New Delhi is null and void being forged and fabricated by the plaintiff as stated above with the consequential relief of directing the plaintiff not to enforce the same against the claimant court is tenancy in respect of the suit shop under the claimant.
The plaintiff may be directed to vacate and surrender the vacant and peaceful possession of the shop in dispute bearing No.1 situated in house No.D1, Gali no. 8, Rajapuri, Uttam Nagar, New Delhi as shown in red colour in the site plan annexed and he may also be directed to pay a sum of ₹ 27,000 on account of the areas of damages/mesne profits for the period from 01.05.1998 till to date at the rate of ₹ 1000 per month and he may also be directed to pay the mesne profits/damages at the said rate for retaining the illegal possession of this shop in question at the said rate till he restores the possession thereof to the claimant and from the date of presentation of the claim against him."
29. So these are to be the material facts which were alleged by the plaintiff/counter claimant in the counter claim which he was also required to prove in order to succeed. It is also not in dispute RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.18 of 34 that after decree in the suit no. 689/2002 passed on 17.08.2005, the counter claim was admittedly not pressed and withdrawn as admitted by plaintiff and present suit was filed before the ld. trial court on 07.10.2005. Cause of action as specified in the suit out of which the present appeal has arisen is reproduced as under :
"That the cause of action for filing the suit firstly arose when the defendant was inducted as a tenant in the first week of July 1996 in the said shop. It further arose in the Oct. 1996 when the defendant stopped paying the rent to the plaintiff. Again it arose when the defendant filed a suit for permanent injunction on 27.01.98 and claimed himself to be the alleged owner in possession on the basis of alleged forged and fabricated receipt. It further arose when a legal notice 24.3.98 was served on the defendant by he failed to comply with the same. It lastly arose on 20.9.2005 when the defendant openly threatened to transfer, alienate or part with the possession of the suit taking undue advantage of the passing of the decree of permanent injunction in his favour by the learned Civil Judge. Not only this, the defendant has also started making additions and alterations in the suit shop without having any legal right, title or interest to do so. The cause of action is still subsisting and continuing as the defendant has challenged the plaintiff to face dire consequences in case any legal action is taken by the plaintiff against the defendant. "
30. Now coming to the relevant averment and relief sought for in the present plaint by plaintiff, which is as under :
(i) the decree of possession in respect of the suit shop bearing no. B - 1/8, Gali no. 8, Raja Puri, Uttam Nagar, New Delhi 110059 as clearly shown in the site plan attached may kindly be passed in favour of the complainant and against the respondent
(ii) that a decree of recovery of a sum of ₹ 36,000 may kindly be passed in favour of the plaintiff and against the defendant together with pendentelite and future interest at the rate 18% RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.19 of 34 per annum from the date of institution of the suit till realisation of the amount.
(iii) A decree of declaration may also be passed in favour of the plaintiff and against the defendant thereby declaring that the alleged receipt dated 17 of December 1996 is illegal, invalid, and in foreseeable, null, void ab initio and the same is liable to be cancelled
(iv) A decree of permanent injunction may also be passed in favour of the plaintiff and against the defendant thereby restraining the defendant, his family members, associates and assignees from selling, transferring, eliminating or parting with possession or creating any 3rd party interest in respect of the suit shop bearing no. B1/8, Gali no. 8, Raja Puri, Uttam Nagar, New Delhi 110059 as clearly shown in the site plan attached and they may also be restrained from making any additions, alteration or structural changes therein in any manner whatsoever.
31. A bare perusal of the 'cause of action' and relief clause in the counter claim and in the plaint of the present suit depict that the substantive reliefs including that of possession in both the suits are overlapping and by merely the appendage of the consequent relief of permanent injunction and mesne profits did not lead to conclude that there is no overlapping of the cause of action in the said counter claim which admittedly was withdrawn by the plaintiff.
32. The material facts alleged by the plaintiff in the present suit which were required to be proved by him for grant of decree are detailed above. A bare perusal of the averments of material facts, mentioned in the counter claim, which have been reproduced by me herein above goes to show that at the time of filing a counter claim on 13.09.2000, plaintiff was entitled to claim relief of permanent RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.20 of 34 injunction, which he failed to seek in the first suit and plaintiff has also sought relief of declaration of the receipt Ex. DW2/1 as null and void in the first suit/counter claim which has also been claimed in the present suit. At the time of filing of counter claim no leave under Order II rule 2 CPC was taken from the court for bringing the present suit for declaration, possession and relief of permanent injunction as well as mesne profits. Quiet clearly plaintiff did not reserve any right for bringing fresh suit. Additional relief of permanent injunction sought for in the present suit was also available and ought to have been sought for in the earlier suit.
33. There is no semblance of distinction between bundle of facts which are the basis of relief sought for by the plaintiff in the earlier plaint/counter claim as also in the present suit, the present suit was not filed before the withdrawal of counter claim, however, it is filed after withdrawal of counter claim, therefore, the present suit for the same relief should be barred under Order II rule 2 CPC. In my opinion the plaintiff was precluded from bringing such suit as the relief sought for in the present suit are barred under the provisions of Order II rule 2 CPC.
34. It may also be noted that the counter claim filed in the suit of the defendant before ld. trial court was not decided by the trial court and the said fact has been admitted by plaintiff in his pleadings and in the admission made in the plaint and in para no. 2 of the ground of appeal in connected appeal titled Satish Kumar v. Lajja RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.21 of 34 Ram, that the said counter claim was withdrawn. The aforesaid facts show that it is not disputed that the present suit was filed after withdrawal of the counter claim. The earlier counter claim was withdrawn before filing of the subject/present suit. In these circumstances, the issue is not of applicability of provision of Order 2 Rule 2 CPC but of withdrawal of counter claim filed on one cause of action without seeking permission to file the second/subsequent suit on the same cause of action. Provision of Order 2 Rule 2 CPC would have applied if the earlier suit was disposed of on merits and thereafter on the cause of action in the earlier suit reliefs which were not claimed were then claimed in the second suit and which become clear from the expression "afterwards" in Order 2 Rule 2 CPC. Though not quoted, reliance is placed upon Vakil Chand Jain Vs. Prakash Chand Jain, 2009 (8) AD (Delhi) 155, wherein it has been observed as under : "26. Order II Rule 2 CPC requires, however, the earlier suit to include "the whole of the claim which the Plaintiff is entitled to make in respect of the cause of action". The Plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court. Under Order II Rule 2(2) CPC where a Plaintiff omits to sue in respect of any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. In other words, the earlier suit filed had to have run its full course. In such a suit the Plaintiff is expected to make all the claims in respect of a cause of action. It does not envisage a situation like the present one where the suit filed stands withdrawn without the suit running its full course."
RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.22 of 34 So far as the case laws relied upon by ld. counsel for the plaintiff in this regard has no relevance to this point of determination and stand distinguishable to the facts of the present appeal.
From the above discussion, it can be stated that though the relief in the counter claim and the present suit were overlapping, however, the counter claim was not decided on merits but it was admittedly withdrawn, therefore, the provisions of Order II rule 2 CPC are found not applicable to the facts of the present case.
35. So far as the applicability of order XXIII CPC is concerned, suffice is to say that the said counter claim was not dismissed on merits but it was withdrawn without any liberty to file the fresh suit. Therefore, it is to be seen as to whether the present suit is barred by Order XXIII CPC which reads as under :
"1. Withdrawal of suit or abandonment of part of claim.
(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.
(2) An application for leave under the proviso to subrule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other persons.
(3) Where the Court is satisfied RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.23 of 34
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subjectmatter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subjectmatter of such suit or such part of the claim.
(4) Where the plaintiff
(a) abandons any suit or part of claim under subrule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in subrule (3), he shall be liable for such costs as the Court may award and shall be preclude from instituting any fresh suit in respect of such subjectmatter or such part of the claim.
(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under subrule (1), or to withdraw, under sub rule (3), any suit or part of a claim, without the consent of the other plaintiffs."
36. A bare perusal of this order depicts that a suit has been filed without withdrawing the previous suit with the leave of the court is not maintainable. In this regard the observation made in Budh Prakash (supra) are relevant and are reproduced as under :
"10. It may further be added by way of clarification that Clause (3) of Rule 1 does not grant license to the plaintiff of a suit to withdraw his suit. Plaintiff who has filed his suit for a certain cause has a vested right, which is recognised by Rule 1, to either abandon or withdraw the suit. In case the suit is abandoned then the Court will dismiss the suit for non prosecution under Order 23, Rule 3 of the Civil P.C. However, if the plaintiff, for one or the other reason withdraws the suit, without court's permission to file another suit, then he is precluded by Clause (4) of Rule 1 from bringing another suit for the cause of action which was the subject matter of RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.24 of 34 the earlier withdrawn suit. Use of words without the permission referred to in Subrule (3) in Subclause (b) of Clause (4) of Rule 1 clearly indicates that Subrule (3) contemplates of the power/right of the plaintiff to withdraw the suit without asking for the Court's permission to file another. Once the suit is withdrawn without court's permission to file another, bar imposed by Subclause (b) of Clause (4) of Rule 1 is attracted and a fresh suit for the same cause of action on which previous suit Was filed, will be barred."
37. The mandate of Order XXIII rule 1(1) CPC is that under sub rule (1) of Rule 1 under Order XXIII CPC suit could be withdrawn at any time without permission of the court but under sub rule 2 of the said Rule, plaintiff could, without permission of the court, withdraw from the suit without any liberty to institute the fresh suit. Hence, plaintiff did not desire to institute a fresh suit, he could withdraw his suit and permission to withdraw was not necessary. Object of Rule 1 of Order XXIII CPC was to prevent a plaintiff from filing a fresh suit after having failed to conduct the same with first one with care and diligence. The plaintiff has a right to withdraw his suit whenever he desired, but he could not file fresh suit on the same subject matter unless permission was sought from the court for filing a fresh suit.
38. It may be noted that, in the counter claim, the question of accrual of cause or action was declaration of the receipt/settlement Ex. DW2/1 as null and void, possession and mesne profits. In the present suit, the cause of action is also the declaration of the receipt Ex. DW2/1 as null and void, possession and permanent injunction as well as mesne profits. If cause of action are different in both the RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.25 of 34 suits, even a dismissal of the first suit by the court after contest on the merits is no bar to the maintainability of a second suit. Therefore, unless the cause of action for the two suits is the same, the bar of Order XXIII rule 1(3) CPC cannot be applied and mere identity of some of the issues in the two suits will not bring about the identity of the subject matter. It may also be relevant to mention here that if there was identity of cause of action as well as identity of relief claimed in both the suits, then the second suit is not maintainable after the withdrawal of the first suit.
39. The word 'subject matter' means series of causes of acts or transactions alleged to exist giving rise to the relief claimed. The cause of action for the present suit is same as detailed in the counter claim. The relief claimed is also the same. It may also be noted down here that the determination of the question, one has to look to the substance of the two suits and not their form and language only. It has to be found out what the phrase "in respect of same subject matter" means. The subject matter of a suit can only be ascertained from the plaint filed.
40. For the purpose of finding out the meaning of "subject matter" within the meaning of Order XXXIII rule 1(3) CPC it is not necessary, nor it is proper to look the written statement. The imperative provisions of the plaint are amongst others, the facts constituting the cause of action and relief which the plaintiff claims. In other words, the plaint must state the relief of claim and the cause of RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.26 of 34 action that entitle the plaintiff to get relief claimed. This indicates that the subject matter of a suit can be ascertained from the cause of action and reliefs set out in the plaint, if the cause of action in the subsequent suit is not different from the cause of action in the previous suit withdrawn, the two suits must be held to be in respect of the same subject matter.
41. From the above discussion, it can be safely concluded that the present suit is barred by Order XXXI rule 1 CPC and Rule 4(1) CPC and not by Order II rule 2 CPC as alleged. This point of determination is decided in favour of the defendant and against the plaintiff.
Point of determination (II)
42. So far as this point of determination is concerned, suffice is to say that defendant is relying upon the receipt Ex DW1/1 so as to seek the benefit of section 53A of the Transfer of Property Act of part performance. Admittedly, the defendant is in possession of the suit property in terms of the settlement cum agreement which defendant at one place, has claimed to be sufficient to confer title on the defendant by virtue of Section 53A of the TP Act and, at another place, defendant has contended that the receipt/settlement is only a settlement and without seeking the benefit of doctrine of part performance, defendant is in settled possession of the suit shop on the basis of said settlement/receipt.
RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.27 of 34
43. The defendant has doubted the ownership of the plaintiff, however, he has claimed the ownership over the suit shop through receipt/settlement executed by the plaintiff in favour of defendant through which he happened to be in possession of the suit shop. Admittedly, the defendant is claiming ownership/possession of the suit shop through plaintiff, therefore, the defendant is estopped from challenging the title of the plaintiff in the suit shop and can be relied upon in this has no relevance.
44. However, the defendant (herein) /plaintiff filed civil suit no. 689/2002, which had been decreed, though the decree has been set aside in appeal no. 57/2007 by the appellate court, wherein the following issues were framed :
1. Whether the plaintiff has no cause of action against the defendant? OPD
2. Whether the plaintiff has no right, title or interest in the suit property? OPD
3. Whether the plaintiff is entitled for the decree of permanent injunction as prayed for? OPP
4. relief ;
Thereafter the ld. Trial Court has granted the following relief :
"In my opinion, if the ratio of the above said authority, relied upon by the defendant himself is applied then also in the case in hand it is the admitted position between the parties that the plaintiff did not pay the rent after September, 1996 as such I am of the opinion that tenant/plaintiff has been able to show that he continues to possess the property after December, 1996 not in the capacity of a tenant but in part performance of the contract. As a result, I am of the opinion RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.28 of 34 that the plaintiff is entitled for the benefit of section 53A of Transfer of Property Act.
In the light of the above said discussion, I have no hesitation to conclude that the defendant has miserably failed to show that the plaintiff has no right, title or interest in the suit property. I am of the opinion that the plaintiff is entitled for the decree of permanent injunction as prayed for in the plaint. Issue No. 2 and 3 are hereby decided in favour of the plaintiff and against the defendant."
45. Thereafter, the plaintiff (herein)/defendant (therein) filed an appeal before the appellate court which was allowed and the suit of the defendant (herein)/plaintiff (therein) was dismissed against which no appeal has been filed. Therefore, the findings recorded by the appellate court in civil appeal has become final and tantamount to issue estoppel. In this regard, though not quoted, reliance is placed upon Hope Plantations Limited v. Taluk Land Board, Peermade 1999 (5) SCC 590, wherein it has been observed as under :
"It is settled law that principles of estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even he demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are 'cause of action estoppel' and 'issue estoppel'. These two terms are of common law origin. Again once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.29 of 34 further evidence directed to showing that issue was wrongly determined. their only remedy is to approach the higher forum if available. the determination of the issue between the parties gives rise to as noted above, an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operated in subsequent suits between the same parties in which the same issue arises. Section 11 of the Code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. Legal principles of estoppel and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice. "
46. The ratio of Tek Bahadur (supra) pertains to family settlement and has no relevance to the receipt/settlement in question. The ratio of Ram Pratap (supra), Asrar (supra), Devender Singh (supra) and Gurmeet Kaur (supra) also stand distinguishable to the facts of the present appeal and has no relevance to the facts of this case.
47. It may also be noted that the findings recorded by the learned trial court that the receipt Ex. DW2/1 / Ex.DW1/P1 is not sufficient to confer title of the defendant being not a sale as per the mandate of provisions of section 54 of the Transfer of Property Act. But even the said the receipt/agreement Ex. PW1/D1/Ex DW1/4 cannot be said to have satisfied the ingredient of the doctrine of part performance and is not falling within the four corners of section 53 A of the Transfer of Property Act, so far as the entitlement of the defendant to the doctrine of part performance is concerned RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.30 of 34
48. Reverting to the question as to whether the defendant was entitled to the benefit of Section 53A of the Transfer of Property Act, suffice it to say that section 53A contains equitable doctrine of part performance. The doctrine was to the effect that equity considers of that as done which ought to have been done. To put it differently, equity will consider the subject matter of contract as to its consequences in the same manner as if the Act contemplated and contract has been completely executed. But before this doctrine could be applied the intendment of legislature must be complied with, inasmuch as there must be contract to transfer immovable property for consideration. It must be signed by or on behalf of the transferor, the terms of the same ought to be ascertained with reasonable certainty from the document itself and the transferee ought to be put in possession and in case he has already been put in possession, he must continue in possession and he must have done some act in furtherance of the contract and also the transferee must have performed or must be willing to perform his part of contract. In case these conditions are fulfilled, the transferor or any person claiming under him is debarred from enforcing against the transferee and the persons claiming under him, any right in respect of suit shop. However, the receipt is laconic in as much as it did not contain any recital as to the terms and conditions of the sale of the suit shop by plaintiff to defendant. From the perusal of the content of the receipt no terms could be ascertained as to how and in what matter the suit shop was transferred by plaintiff to defendant.
RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.31 of 34
49. Even if, for the sake of arguments, though not admitted, it is presumed that defendant is entitled to the doctrine of part performance, the findings on this issue deserves not to be interfered in as much as the defendant has already been held not to be entitled to the benefit of section 53A of the Act by the learned appellate court in civil appeal No. 57/2007. As such, the said finding is binding on the defendant on the principle of issue estoppel by virtue of the mandate of law laid down in Hope Plantation (supra). This point of determination is answered accordingly.
Point of determination (III)
50. The ld. counsel for the defendant has relied upon Vidyadhar (supra) and Janki Vashdeo(supra) in order to contend that PW1 wife of plaintiff, being the power of attorney holder, was not competent to depose for and on behalf of the plaintiff, so far as the facts which were in personal knowledge of the plaintiff. It may be noted that the ld. trial court has discarded the testimony of PW1 so far as the declaration of the receipt Ex. DW2/1 as null and void by holding that as per the mandate of Janki Vashdeo (supra) she was not empowered to depose for and on behalf of the plaintiff. However, as per the ratio of Man Kaur (supra) wife, being the power of attorney of holder of her husband can depose with regard to the facts which are in her knowledge as per the record. It may also be noted that the testimony of PW12 has not been relied upon by ld. trial court and relief of possession has been granted not on the basis of deposition RCA no.15/2016(54659/2016) Lajja Ram v. Satish & Ors.
Page no.32 of 34 of PW1 but in terms of the categoric admission of the defendant with regard to the previous title of the suit property of the plaintiff. Therefore, it cannot be stated that the testimony of PW1 being attorney holder of her husband/plaintiff has been taken into consideration by ld. trial Court. This point of determination is answered accordingly.
Point of determination (iv)
51. In view of the finding on points of determination no. I and II, the plaintiff is neither entitled for any declaration in respect of the suit property nor possession of the suit property nor the permanent injunction thereto. Therefore, the point of determination no. 4 is also answered accordingly.
52. In view of the above discussion, and the findings recorded on the points of determination this appeal deserves to be allowed and is hereby allowed. The impugned judgment/decree is hereby set aside. The appeal is disposed off accordingly.
Decree sheet be prepared accordingly.
File be consigned to record room.
Announced and dictated on DR
Digitally signed
by DR VIJAY
28th Day of January 2022. VIJAY
KUMAR
DAHIYA
KUMAR Date:
2022.02.14
DAHIYA 16:59:02
+0530
(V.K. DAHIYA)
ADDL.DISTRICT JUDGE01 (SOUTH WEST)
DWARKA DISTRICT COURTS: NEW DELHI.
RCA no.15/2016(54659/2016)
Lajja Ram v. Satish & Ors.
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RCA no.15/2016(54659/2016)
Lajja Ram v. Satish & Ors.
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