Delhi District Court
Harkesh Hooda vs . Dalpat Singh & Ors. on 23 December, 2011
IN THE COURT OF SHRI. ASHISH AGGARWAL, CIVIL JUDGE1,
SOUTH WEST DISTRICT, DWARKA COURTS, DELHI
CS No: 748/11
Harkesh Hooda Vs. Dalpat Singh & Ors.
Date: 23.12.2011
ORDER
1. This order shall decide the maintainability of the suit. Version of the plaintiff
2. The plaintiff has stated in the plaint that by notification dated 31.01.1979 issued by the concerned Land Acquisition Collector, Delhi Administration (now Government of NCT of Delhi), the property comprised in khasra nos. 849/2 min and 850/2 min in village Mohammadpur, Munirka, New Delhi was acquired. The defendant no. 1 challenged the notification by way of Civil Writ Petition bearing no. 289/1979 filed before the Hon'ble High Court of Delhi. Various grounds were urged. By order dated 31.03.2006, the Hon'ble High Court of Delhi disposed off the writ petition with the directions that the defendant no. 1 would make a representation under Section 48 of Land Acquisition Act and the said representation would be considered by appropriate authorities.
3. In the meantime, in the year 1998, the plaintiff came into possession of house No. 28A, Kartar Market, near DDA Flats, Munirka, New Delhi along with Harkesh Hooda Vs. Dalpat Singh & Ors. 1 of 17 CS No. 748/11 his cousin Mr. Jasveer Singh. Mr. Jasveer Singh had been appointed manager in respect of House No. 28, Kartar Market, near DDA Flats, Munirka, New Delhi by Sh. Pradeep Paliwal. It is further stated in the plaint that Mr. Pradeep Paliwal had paid a sum of Rs.1,30,00,000/ as consideration amount to Mr. Dalpat Tokas for the entire land measuring 500 sq. yards out of total area of 6000 sq. yards on which the house of the plaintiff is located. In the year 2001, the plaintiff built two rooms alongside the main house. After completing construction work, the plaintiff shifted to the new house that is House No. 28A, Kartar Market, near DDA Flats, Munirka, New Delhi.
4. The plaintiff and his cousin Mr. Jasveer Singh started residing in the "suit premises". On 29.08.2011, the plaintiff was sitting in front of his house. Some police officials with Inspector Ved Prakash, SHO, PS Vasant Vihar, New Delhi came to the spot and asked the plaintiff about the capacity in which he is in possession of the property. The defendant no. 3 demanded documents relating to the suit property. The plaintiff informed the SHO that he is in possession of the property since the last twelve years and that his relative Mr. Jasveer Singh has entered into an agreement with Mr. Pradeep Paliwal with respect to the suit property whereby he was allowed to reside in the property. The SHO humiliated, insulted, abused and threatened the plaintiff. The plaintiff was arrested and detained in the police lockup. On 30.08.2011, the plaintiff was produced before the SEM (South District), Vasant Vihar, Delhi. The plaintiff then realized that he had been arrested under Sections 107 and 111 of Criminal Procedure Code. After taking personal bond, the plaintiff was released.
Harkesh Hooda Vs. Dalpat Singh & Ors. 2 of 17 CS No. 748/11
5. On 02.09.2011, some police officials came to the suit property. They inquired about the plaintiff. The plaintiff was not at home. Mr. Jasveer Singh, cousin of the plaintiff was informed that a complaint had been received against the plaintiff from one Mr. Dalpat Tokas. The police constables misbehaved with the ladies present at the house. Since then police officers have been regularly visiting the house of the plaintiff. The plaintiff tried to meet senior police officers but did not get an appointment.
6. On 24.09.2011, the plaintiff filed an application seeking grant of anticipatory bail from the court of Ld. Additional Sessions Judge, Delhi. On 26.09.2011, when the application for anticipatory bail came up for hearing, the court was informed that no case was registered against the plaintiff. Counsel for plaintiff therefore withdrew the application for anticipatory bail.
7. On 28.09.2011, S.I Ashok Kumar Saini and some constables came to the house of the plaintiff and threatened his cousin that he shall vacate the premises. They were also warned that if the plaintiff is found in the area, he will be booked for serious offences and shall be sent to jail.
8. On 30.09.2011, the plaintiff made a representation to superior police officials against the illegal acts of the defendant no. 3 and other police officials. Yet no police action was taken in the matter.
9. The plaintiff filed writ petition before the Hon'ble High Court of Delhi seeking directions against the defendant no. 3 restraining him from illegally interfering with the peaceful possession of the plaintiff over the suit property.
Harkesh Hooda Vs. Dalpat Singh & Ors. 3 of 17 CS No. 748/11
10. On the basis of these averments, the plaintiff has prayed for a decree of permanent injunction restraining the defendants from interfering with the peaceful possession of the plaintiff over the property bearing no. 28A, Kartar Market, near DDA Flats, Munirka, New Delhi.
Written submissions filed by the plaintiff
11. The plaintiff has filed written submissions in support of his case. It is contended by the plaintiff that it is mandatory for the court to issue summons once the suit has been instituted. Reliance is placed by the plaintiff on Order 5 Rule 1 and Order 4 Rule 3 of Code of Civil Procedure.
Assessment of version of the plaintiff
12. Arguments advanced by Ld. Counsel for plaintiff have been heard. I am afraid I am unable to agree with the contention of the plaintiff that upon institution of the suit, it is obligatory to issue summons to the defendant and that the court cannot examine its maintainability. Such interpretation canvassed by the plaintiff is not borne out from either Order 5 Rule 1 or Order 4 Rule 3 of Code of Civil Procedure. Reference may also be made to the decision of Hon'ble Supreme Court in the case of Popat and Kotecha Property v. State Bank of India Staff Association 2005(4) R.C.R.(Civil) 334, wherein it was held that the trial court can exercise the power of rejecting the plaint under Order 7 Rule 11 of Code of Civil Procedure at any stage of the suit including before registering the plaint or issuing summons to the defendant. This has rather Harkesh Hooda Vs. Dalpat Singh & Ors. 4 of 17 CS No. 748/11 been reinforced as the obligation of the court. Therefore, this court is under a duty to examine the maintainability of the suit even at this stage. Pleadings
13. It must now be assessed as to whether the suit is maintainable assuming the facts pleaded in the plaint to be true. Reading the plaint as a whole does not disclose any cause of action. The plaint appears to be stating facts in a random, unconnected and abstract manner. The plaintiff has not stated or described the extent of the suit property in the plaint. He has sought injunction in respect of H.No. 28A, Kartar Market, Near DDA Flats, Munirka, New Delhi. He has however not provided any measurement of the said property in the plaint. Nor have the measurements been disclosed in the site plan filed with the plaint. In paragraph no.1 of the plaint, the plaintiff has referred to acquisition of khasra nos. 849/2 min and 850/2 min. However, further in the plaint, in paragraph no.3, the plaintiff has referred to khasra nos. 849/2 min and 8420/2/2. The relevance of these khasra numbers has not been explained. The plaintiff has not stated in the plaint as to whether the suit property falls in the aforesaid khasra numbers or any of them. The plaintiff has not been able to draw any connection between the acquisition of land, its challenge before the court and the present suit property.
14. The plaintiff has stated in the plaint (para no.16) that he had filed a writ petition before Hon'ble High Court of Delhi to restrain defendant no.3 from interfering with his possession of the suit property. The fate of the writ petition Harkesh Hooda Vs. Dalpat Singh & Ors. 5 of 17 CS No. 748/11 has not been disclosed. The writ petition no. has also not been furnished. In case the writ petition is pending, a subsequent suit making the same prayer is not maintainable.
15. The plaintiff has pleaded in the plaint that the petitioner was permitted by the Hon'ble High Court of Delhi in writ petition no. 289/1979 to make a representation under Section 48 of Land Acquisition Act to canvass the various pleas urged by him to challenge the acquisition of land. The plaintiff has not stated as to whether any such representation has indeed been filed and if so the outcome thereof.
16. The plaintiff has stated in the plaint that defendant No. 1 had accepted certain consideration of 1,30,00,000/ from Mr. Paliwal for land measuring 500 sq. yards. It is not stated in the plaint as to whether the said consideration had been accepted for "sale" of the suit property or any other purpose. Assuming this to be sale consideration, the plaintiff has yet not stated whether pursuant to acceptance of sale consideration, sale was carried out or not. Mere acceptance of sale consideration by Mr. Dalpat Tokas does not amount to "sale" in the eyes of law and does not confer ownership rights on the vendee. Since the plaintiff has neither pleaded nor demonstrated that Mr. Pradeep Paliwal had become the owner of the suit property, the plaintiff cannot claim to be either lessee or licensee therein. Yet, even if it is assumed that the said transaction amounts to sale and that by virtue thereof Mr. Paliwal became owner of the suit property, that does not confer any rights upon the plaintiff or his cousin Mr. Jasveer Singh. The plaintiff has not explained the capacity in which he and his cousin Harkesh Hooda Vs. Dalpat Singh & Ors. 6 of 17 CS No. 748/11 Mr. Jasveer Singh came to occupy the suit property. The plaintiff has stated that Mr. Jasveer Singh was inducted in house no. 28, Kartar Market, Munirka, New Delhi and not in the suit property which comprises of house no.28A. Moreover, the plaintiff has only disclosed about the induction of Mr. Jasveer Singh. He has not explained as to how he himself entered the property.
17. The contents of the plaintiff are incoherent, unconnected and substantially unintelligible. In the case of M/s. Hari Gokal Jewellers Vs. Satish Kapur ILR (2006) I Delhi 679, Division Bench of Hon'ble High Court of Delhi held that a plaint which is vague or vexatious must be outrightly rejected. It was observed that "It is the abundant duty of the plaintiff to clearly and unambiguously plead his case." It was held that vague averments do not give rise to any cause of action.
Whether plaintiff has any right in the suit property
18. Even if it is assumed that the plaintiff entered the property as relative of the manager namely Mr. Jasveer Singh, that would make him no better than a licensee in the suit property. His occupation of the suit property does not amount to "possession" so as to deserve protection of the law.
In the case of Thomas Cook Limited Vs. Hotel Imperial & Ors., 127 (2006) DLT 431, the Hon'ble High Court of Delhi took note of a number of other decisions on the subject including that of Rame Gowda Vs. M. Varadappa Naidu, I (2004) SLT 675, and held that a licencee is a permissive occupant. His occupation does not amount to "possession" and therefore he is not entitled to Harkesh Hooda Vs. Dalpat Singh & Ors. 7 of 17 CS No. 748/11 the grant of injunction against dispossession.
Reference may also be made to the cases of D.T.T.D.C vs. D.R. Mehra & Sons, 62 (1996) DLT 234 (DB), Sant Lal Jain vs. Avtar Singh, A.I.R. 1985 SC 857, Tamil Nadu Housing Board Vs. A Vismam, 1996(2) R.R.R. 353, and G.N. Mehra Vs. International Airports Authority of India (IAAI), 63 (1996) DLT 62.
Hence, the plaintiff is not entitled to any injunction restraining his dispossession.
19. Further, from the plaint, it appears that the land has already been acquired. After acquisition, ownership of the land vests with the government. The plaintiff has arrayed the Lt. Governor as defendant no.2 as representative of the owner. The acquisition of the land had been challenged before the Hon'ble High Court of Delhi through writ petition no. 289/1979. The writ petition was not allowed. The acquisition of land therefore continues to stand valid. Upon acquisition, the plaintiff ceases to have any right therein. He has become a trespasser whereas the government is its owner. It is settled law that a trespasser is not entitled to any injunction against the true owner. Cause of Action Role of defendant No. 1
20. The plaintiff has failed to plead that defendant no.1 threatened or attempted to dispossess him from the property. No role has been ascribed to the defendant no. 1 except that the cousin of the plaintiff had learnt from some unnamed police officials that the defendant no. 1 had filed a complaint against Harkesh Hooda Vs. Dalpat Singh & Ors. 8 of 17 CS No. 748/11 the plaintiff. Copy of the said complaint has not been filed with the plaint. The allegations contained in the said complaint have not been disclosed. Making a complaint to the police does not amount to interference with the possession of the plaintiff. It is not even pleaded by the plaintiff that police officials were acting at the instance of the defendant no. 1 while asking the plaintiff to leave the premises. The plaintiff has failed to explain as to how he apprehends any such interference so as to seek protection of the court. Unless the plaintiff pleads that the defendant no. 1 is trying or threatening to dispossess him, he cannot obtain any injunction restraining the defendant no. 1 from doing so. Role of defendant No. 2
21. There is no mention of defendant no.2 anywhere in the contents of the plaint. There is not even a whisper of allegations against the defendant no. 2. The plaintiff has not explained as to why he has arrayed defendant No. 2 as a party to the suit and whether he is aggrieved by any act performed by the defendant No. 2.
Role of defendant No. 3
22. Similarly, against defendant no.3, the allegations are that he had sought property documents and that he had insulted, humiliated, threatened and detained the plaintiff. The allegations are contained in paragraph no. 9 of the plaint. The succeeding paragraphs of the plaint relate to acts performed by other police officers. These other police officers have not been pleaded to be Harkesh Hooda Vs. Dalpat Singh & Ors. 9 of 17 CS No. 748/11 acting at the instance of the defendant No. 3 and therefore defendant no. 3 cannot be vicariously held responsible for their acts.
23. In paragraph No. 9 of the plaint, it is not pleaded that the defendant no.3 tried or threatened to dispossess the plaintiff from the suit property. The allegation of interference with possession has been made only against SI Ashok Kumar Saini, who is not a party to the suit. It has not been pleaded by the plaintiff that the humiliation, insult or threats advanced to him were directed towards interference with his possession over the suit property. It has also not been pleaded that while threatening dispossession, SI Ashok Kumar Saini was acting in the instance of the defendant no.3.
Cause of Action
24. The plaintiff has therefore failed to plead that any of the defendants tried to interfere with his possession over the suit property. Since there is no averment to this effect, the plaintiff can also not prove this fact upon trial, as evidence must be confined to the matters stated in the plaint. In the case of Darshan Singh v. Santokh Singh, 1997(2) R.C.R.(Civil) 577, the Hon'ble Punjab & Haryana High Court held as under :
"It is well settled that any amount of evidence in support of a plea which does not find place in the pleadings is inconsequential and is to be left out of consideration".
25. A fact which is not pleaded to exist cannot be sought to be proved. When, in the plaint, the plaintiff has not alleged any attempt of dispossession by the defendants, he cannot prove, during trial, that any such attempt was Harkesh Hooda Vs. Dalpat Singh & Ors. 10 of 17 CS No. 748/11 made.
26. In order to make out a case for grant of injunction, the plaintiff has to demonstrate not only the existence of the right but also a threat of invasion of the said right. An injunction is granted only when the injury to the rights of plaintiff is reasonably expected. An injunction is not issued to restrain a person from doing that which he is not attempting or intending to do. Injunction therefore does not lie in absence of actual or presently threatened interference. It is not sufficient for issuance of injunction that the injury may possibly result from the act sought to be prevented. There must be at least a reasonable probability that the injury will be caused if no injunction is granted.
In the case of Bheekam Chand v. Ismail AIR 2006 Raj 1, the Hon'ble Rajasthan High Court held that where there is no threat of forcible dispossession, the plaintiff is not entitled to the grant of any injunction restraining such dispossession.
In the case of Sohan Singh v. Jhaman, (P&H) 1986 R.R.R. 579, the Hon'ble Punjab and Haryana High Court observed as under:
"In other words, there must be some overt act on the part of the defendant to invade or a threat to invade the plaintiff's right or commission of an act on the part of the defendant which is contrary to the plaintiff's rights. Except in so far as the above contingencies, no perpetual injunction could be granted against the defendant under the Act. "
27. In the present case, threat of dispossession has not been pleaded to have emanated from the defendants. As such, there is no reasonable apprehension of invasion of rights of the plaintiff by defendants. An injunction Harkesh Hooda Vs. Dalpat Singh & Ors. 11 of 17 CS No. 748/11 cannot be granted merely to allay the fears and apprehensions of individuals. The mere fact that the injunction against the defendants would not cause any harm to them does not authorize its issuance. The injury to the rights of the plaintiff must be shown to be certain to occur if the defendants are not enjoined by way of injunction. This ingredient being conspicuously absent, the plaintiff is not entitled to the grant of injunction against the defendants.
28. The expression "cause of action" has been succintly explained by Hon'ble High Court of Delhi in the case of Kanwal Kishore Manchanda & Anr. V. S.D.Technical Services Pvt. Ltd. 121(2005) DLT 98 in which it was observed as follows:
"What then is a cause of action? Till there is no cause, there cannot be any action. For a cause, there has to be a right to sue. Infringement of a right or a clear and unequivocal threat to infringe that right would constitute a cause to bring an action. Whether a particular threat gave rise to a compulsory cause of action depends, upon the question whether that threat effectively invades or jeopardises the right. To constitute a cause of action, first is the coming into existence of a right and secondly, its infringement or threat to be infringed."
As the plaintiff has failed to prove that he was threatened by the defendants with dispossession, he has no cause of action against them. Barred by Law
29. The plaintiff has not served prior statutory notice upon the defendant no. 3 under Section 140 of the Delhi Police Act. There is no provision for seeking exemption from service of such notice. Nor has exemption been prayed for.
Harkesh Hooda Vs. Dalpat Singh & Ors. 12 of 17 CS No. 748/11
30. Ld. counsel for plaintiff has argued that since the defendant has acted in contravention of the law, the plaintiff is not required to serve prior statutory notice upon him. I do not find any force in this contention. The plaintiff has stated in the plaint that he had been humiliated, insulted, threatened and detained by defendant no. 3 under Sections 107 and Section 111 of the Criminal Procedure Code. These alleged acts have been performed under the colour of duty, even if irregularly or wrongfully performed. The defendant no. 3 cannot be stated to be acting in his private or individual capacity. He was clearly purporting to exercise his powers under the Criminal Procedure Code.
31. Section 140 of Delhi Police Act protects acts done under the colour of duty even if they are in excess of duty. The expression "under colour of duty"
has been explained by Hon'ble Supreme Court in the case of Virupaxappa Veerappa Kadampur v. State of Mysore 1963 SCR Supl. (2) 6 as under :
"The expression 'under colour of something' or 'under colour of duty', or 'under colour of office', is not infrequently used in law as well as in common parlance. Thus in common parlance when a person is entrusted with the duty of collecting funds for, say, some charity and he uses that opportunity to get money for himself, we say of him that he is collecting money for himself under colour of making collections for a charity. Whether or not when the act bears the true colour of the office or duty or right, the act may be said to be done under colour of that right, office or duty, it is clear that when the colour is assumed as a cover or a cloak for something which cannot properly be done in performance of the duty or in exercise of the right or office, the act is said to be done under colour of the office or duty or right. It is reasonable to think that the legislature used the words 'under colour' in Section 161 (1) to include this sense."
The Court further observed that the words "under colour of duty" would Harkesh Hooda Vs. Dalpat Singh & Ors. 13 of 17 CS No. 748/11 include "acts done under the cloak of duty, even though not by virtue of the duty" and that the acts done in dereliction of duty must be held to have been done under colour of the duty. The Court rejected the view that if the alleged act is found to have been done in gross violation of the duty then it ceases to be an act done under colour of duty. In that case, the allegation was that the appellant, a Police HeadConstable, had prepared a false panchnama and a false report with regard to seizure of ganja. It was held that the said preparation of the panchnama and report were acts done under colour of duty imposed upon the said HeadConstable by the Police Act.
In the case of Prof. Sumer Chand Vs. Union of India 1993 SCALE (3)706, a suit for malicious prosecution and damages had been filed. Although, to prosecute maliciously is not a part of official duty, the police officers were held to be acting under the colour of duty. It was held that the bar contained in Section 140 of Delhi Police Act is attracted and the suit is not maintainable for want of service of statutory notice.
Reference may also be made to the case of Inspector Rajender Saini and Anr. vs State 2005 CriLJ 3861 decided by Hon'ble High Court of Delhi. In that case, it was held that protection under Section 140 of Delhi Police Act is also available to police officers alleged to have caused the disappearance of evidence although this is an offence punishable under Section 201 of Indian Penal Code.
In the case of Sh. Balraj Bhasin v. Sh. Man Mohan Singh & Ors. RFA No. Harkesh Hooda Vs. Dalpat Singh & Ors. 14 of 17 CS No. 748/11 54/2003 decided on 25.11.2011, the Hon'ble High Court of Delhi held that a suit against police officers alleging that they had illegally carried away articles belonging to the plaintiff was also hit by Section 140 of Delhi Police Act.
In the case of Manoj Pant vs State 1996 (36) DRJ 553, the Hon'ble High Court of Delhi held that Section 140 of Delhi Police Act also governs cases where police officers are alleged to have been involved in preparing incorrect record with a view to save a person from punishment.
The defendant no. 3 was purporting to discharge his official duties and was wielding his statutory powers. In such cases, he must be served with statutory notice under Section 140 of the Delhi Police Act before the suit can be filed against him since the alleged acts have a nexus with his official duties.
Applying the aforesaid decisions, it is clear that the alleged acts were performed under the colour of duty and it was obligatory upon the plaintiff to serve notice upon the defendant no.3 in accordance with Section 140(2) of the Delhi Police Act, 1978, one month before instituting the suit. For want of such notice, the suit is barred by law.
32. Further, under Order 27 Rule 5A of Code of Civil Procedure, the plaintiff is required to join the government as a party to every suit instituted against a public officer in respect of an act alleged to have been done in official capacity. The defendant nos. 2 and 3 are public officers. The government ought to have been arrayed as a party of the suit. Since it has not been so added, the suit is barred by law.
Harkesh Hooda Vs. Dalpat Singh & Ors. 15 of 17
CS No. 748/11
Inference
33. Although the case is at an early stage, the plaint is subjected to scrutiny to assess its maintainability in view of the observations of Hon'ble Supreme Court in the case of Sopan Sukhdeo Sable and Others V. Assistant Charity Commissioner and others (2004) 3 SCC 137 in which it was held that it is obligatory for the Court to reject the plaint in the event of noticing any of the infirmities mentioned in Order 7 rule 11 of Code of Civil Procedure.
In the case of T. Arivandam v. T.V. Satyapal and Another, (1977) 4 SCC 467, the Hon'ble Supreme Court has held that if on a meaningful, not formal, reading of the plaint if is manifestly vexatious and meritless, in the sense of not disclosing a clear right to sue, the court should reject the plaint under Order VII Rule 11 of the Code of Civil Procedure.
In the case of Liverpool & London S.P.& I Association Ltd. Vs. Sea Success I & Another (2004) 9 SCC 512 it was held that when no cause of action is disclosed by the plaint, courts should not unnecessarily protract the hearing of suit. It was directed that in such cases, the court must save expenses, achieve expedition and avoid the courts' resources being used up in cases which will serve no useful purpose. It was further held that a litigation which, in the opinion of the court, is doomed to fail should not be allowed to be used as a tool of harassment.
34. As noted above, the suit is barred by law and the plaintiff has no cause of action. In these circumstances, I find no good ground to keep the suit pending or to put it to trial. Even if the plaintiff succeeds in proving the averments made Harkesh Hooda Vs. Dalpat Singh & Ors. 16 of 17 CS No. 748/11 in the plaint, he would not become entitled to the relief claimed by him. In view of the aforesaid, under Order 7 Rule 11 of Code of Civil Procedure, the plaint is rejected.
File be consigned to record room.
(Ashish Aggarwal)
Civil JudgeI/Dwarka Courts
Delhi/23.12.2011
Harkesh Hooda Vs. Dalpat Singh & Ors. 17 of 17
CS No. 748/11