Delhi District Court
Pushpa Bhardwaj vs Govt. Of Nct Of Delhi on 19 February, 2013
1
IN THE COURT OF DIG VINAY SINGH
ADDITIONAL DISTRICT JUDGE, (CENTRAL) 04, THC, DELHI
Date of institution : 09.08.2007
Judgment reserved on : 19.02.2013
Judgment delivered on : 19.02.2013
RCA No.03/11 Unique Case ID No. 02401C0771132007
Pushpa Bhardwaj,
W/o Sh. Vijay Kumar Bhardwaj
R/o 801, Raj Rani Building,
Mohalla Kundewalan,
Delhi-110006. ....Appellant
Versus
1. Govt. of NCT of Delhi,
Through Chief Secretary,
Delhi Government Office,
I.T.O. Indira Gandhi Stadium,
New Delhi.
2. The Sub-Registrar-III,
Asaf Ali Road,
New Delhi. ... Respondents.
JUDGMENT
1. This is first regular civil appeal directed against the judgment and decree dated 07.07.2007 passed by ld. Civil judge Delhi. Vide the impugned CS No.03/11 Pushpa Bhardwaj Vs. Govt. of NCD of Delhi. dated:19.02.2013 Page No. 1 of 6 h.l.
2judgment the suit of plaintiff for mandatory injunction was dismissed and therefore, the plaintiff has come in appeal.
2. The two respondents of the appeal were the two defendants respectively in the suit. For the sake of convenience they are referred to as the plaintiff and the defendants respectively.
3. Under the suit for mandatory injunction the plaintiff had sought a decree directing the defendants to provide registered GPA, executed on 30.06.1997 and registered with the defendant No.2 on 05.08.1997, to the plaintiff. Plaintiff claimed to have purchased the suit property bearing No. 801, Raj Rani Building, Mohalla Kundewalana, Delhi-06, on 30.06.1997 from one Mr. Manmohan Mehra Direcotor of M/s Mehra Finance, through irrevocable GPA and other documents like receipt, affidavit and agreement to sell. The GPA was registered with the defendant No.2 on 05.08.1997 and a slip bearing No.038549 was provided to the plaintiff. The plaintiff was asked to come after a month to collect the registered GPA from the office of Sub Registrar. But despite repeated visits GPA was not provided to the plaintiff, by the Sub Registrar on the ground that some case has been filed in another suit titled as Kishan Chand Vs. Mehra Finance, bearing Suit No. 436/1997 in respect of the above GPA. In the said suit an injunction order dated 24.04.2001 was passed injuncting Mehra Finance Ltd. from creating any third part interest in the suit property. The said civil suit was filed on 27.08.1997 under Suit No. 436/1997 i.e. after the registration of GPA on 05.08.1997. The plaintiff applied for supply of copies under Slip No 2703 dated 17.09.2002, but still the GPA was not provided to the plaintiff.
CS No.03/11 Pushpa Bhardwaj Vs. Govt. of NCD of Delhi. dated:19.02.2013 Page No. 2 of 6 h.l.
34. The suit came to be filed as late as on 26.02.2004. It may be again recalled that the GPA was registered on 05.08.1997 and the plaintiff was called to collect GPA initially in September, 1997 but the suit was filed on 26.02.2004.
5. The two defendants remained exparte in the suit and thereafter even their defence was struck off on 07.10.2005.
6. Following issues were framed in the suit on 07.10.2005:-
1. Whether the plaintiff is entitled to get a decree of mandatory injunction against the defendants as prayed? (OPP)
2. Relief.
7. The testimony of plaintiff as PW-1 remained un-rebutted and uncontroverted. Yet the suit was dismissed by the ld. Trial court observing in the impugned judgment that the plaintiff did not implead M/s Mehra Finance Ltd. and Sh. Kishore Chand as parties in the suit despite the fact that in another suit No.436/97, between one Kishore Chand and Mehra Finance Ltd., an injunction order has been passed restraining M/s Mehra Finance Ltd. from creating any third party interest in the suit property. Ld. Trial court observed that granting mandatory injunction against the defendant, to give registered GPA to the plaintiff, who is purchaser of the suit property from M/s Mehra Finance Ltd., would tentamount to overriding and negating the injunction order passed in Suit No. 436/97. Ld. Trial court observed that granting mandatory injunction in the present suit would mean CS No.03/11 Pushpa Bhardwaj Vs. Govt. of NCD of Delhi. dated:19.02.2013 Page No. 3 of 6 h.l.
4that the plaintiff will get a right to do what Mehra Finance Ltd. has been restrained to do vide the injunction order in the suit No. 436/97. It was also observed that even the copy of injunction order was not placed on record by the plaintiff for the reasons best known to her, therefore, relief of mandatory injunction cannot be granted. Ld. Trial court has also observed that the best course available to plaintiff would have been approaching the court where the suit No. 436/97 is/was pending. For these reasons the decree for mandatory injunction has been refused by ld. Trial court.
8. The plaintiff has challenged the impugned judgment on the ground that neither M/s Mehra Finance Ltd., nor Kishan Chand were necessary parties in the suit or even otherwise the suit No. 436/97 was instituted after execution and submitting for registration of GPA on 30.06.1997 and 05.08.1997, respectively. It is also claimed that the injunction order in that suit does not come in the way of granting mandatory injunction in the present suit.
9. The reasoning given by the ld. Trial court that the plaintiff was not entitled to a decree of mandatory injunction on the ground of pendency of another suit and on the ground of an injunction order in another suit does not find favour with this court for simple reason that neither plaintiff was a party in that suit nor the plaintiff in that suit ever came to the trial court to object to the said suit. Even otherwise the said suit was instituted specifically after the GPA in question was tendered for registration on 05.08.1999. No relief was claimed by the present plaintiff against Kishan Chand or M/s Mehra Finance Ltd., therefore, they were not necessary or proper parties in the present suit.
CS No.03/11 Pushpa Bhardwaj Vs. Govt. of NCD of Delhi. dated:19.02.2013 Page No. 4 of 6 h.l.
510. However, there was a question for limitation which has not been addressed by ld. Trial Court. Ld. Counsel for the appellant was heard on the point of limitation today. Ld. Counsel for the appellant claimed that after 05.08.1997, the plaintiff kept on visiting the office of sub-Registrar on various dates particularly till 17.09.2002, when certified copy of GPA was applied under slip No.2703, therefore, the suit filed on 26.04.2004 was within limitation, I am afraid this argument is fallacious.
11. It is an admitted possession in law that limitation of three years existed in favour of plaintiff to approach the court seeking mandatory injunction. The document was tendered for registration on 05.08.1997. The plaintiff was called to re-collect the document in September, 1997. The document was not given to the plaintiff in September, 1997, therefore, the period of limitation to file the suit began sometime in September, 1997. The plaintiff could have approached the Court till September, 2000 but the plaintiff filed the suit only on 26.02.2004. This issue of limitation was not raised by any body before ld. Trial court nor it was considered by ld. Trial Court.
12. As per Section 3 and 27 of the Limitation Act, it is the duty of the Court to see the issue as to limitation of a suit. There is no provision of condonation of delay in institution of suit. Whether the suit was within limitation or not was thus mandatorily to be seen by the ld. Trial court. The suit filed by the plaintiff was beyond limitation. Thus the suit of the plaintiff has to be dismissed being barred by limitation. Accordingly the appeal filed by the appellant has to fail not for the reasons assigned by the ld. Trial court which are erroneous but for the reasons that the suit was barred by limitation.
CS No.03/11 Pushpa Bhardwaj Vs. Govt. of NCD of Delhi. dated:19.02.2013 Page No. 5 of 6 h.l.
613. The appeal is accordingly dismissed and it is held that plaintiff was not entitled to decree of mandatory injunction under Issue No.1. Issue No.1 stands decided against the plaintiff and the suit of the plaintiff has to be dismissed.
The appeal is accordingly dismissed. No orders as to costs. Trial court record be sent back along with copy of this judgment. Decree sheet be prepared accordingly. Appeal file be consigned to record room.
Announced in the open Court
on 19th Day of February, 2013 (DIG VINAY SINGH)
Addl. District Judge,
Central-04, Tis Hazari Courts.
Delhi
CS No.03/11 Pushpa Bhardwaj Vs. Govt. of NCD of Delhi. dated:19.02.2013 Page No. 6 of 6 h.l.