Delhi High Court
Mobeen Khan vs Obaid Khan on 12 July, 2013
Author: S. Muralidhar
Bench: S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
CS (OS) No. 1382 of 2012, IA No. 13479 of 2012
& IA No. 9508 of 2013
Reserved on: July 3, 2013
Decision on: July 12, 2013
MOBEEN KHAN ..... Plaintiff
Through: Mr. A.K. Singla, Senior Advocate
with Mr. Pankaj Gupta and
Mr. Deepak R. Dahiya, Advocates.
versus
OBAID KHAN ..... Defendant
Through: Mr. Siddharth Bantha with
Mr. Siddharth Aggarwal, Advocates
for D-1.
CORAM: JUSTICE S. MURALIDHAR
JUDGMENT
12.07.2013 IA No. 13479 of 2012 (under O XII R 6 CPC) and IA No. 9508 of 2013
1. The background to these applications is that the Plaintiff filed CS (OS) No. 1382 of 2012 in this Court on 11th May 2012 for a decree of possession in favour of the Plaintiff and against the Defendant, Mr. Obaid Khan son of late Ajaz Khan and 5 others in respect of the suit property being the front half portion of property No. 49B, Khan Market, New Delhi - 110 003 ('suit property'), as shown in colour 'Red' in the site plan produced with the CS(OS) No. 1382 of 2012 Page 1 of 20 plaint. The further relief sought was for a decree for damages and mesne profits in the sum of Rs. 25,00,000 along with pendente lite and future interest @ 12% per annum.
2. Summons in the suit and the notice in the application were directed to issue by the Court on 14th May 2012. The Defendant was served and entered appearance through counsel on 25th May 2012.
3. The Plaintiff filed IA No. 13479 of 2012 under Order XII Rule 6 Code of Civil Procedure 1908 ('CPC') on the basis of the admission in written statement filed by the Defendant in reply to para 7 of the plaint to the effect that the predecessor-in-interest of Defendant was in occupation of only the rear half portion of the suit property.
4. The Plaintiff filed IA No. 22618 of 2012 under Order 1 Rule 10 read with Section 151 CPC for deletion of Defendants 2 to 6. In the said application, on 18th December 2012 the Joint Registrar ('JR') passed the following order:
"IA 22618 of 2012 (filed under Order 1 Rule 10 CPC by the Plaintiff for deletion of Defendant Nos. 2 to 6) The Defendant Nos. 2 to 6 are not yet served as per the record. None appears for them.CS(OS) No. 1382 of 2012 Page 2 of 20
By the present application, the Plaintiff makes a vehement plea that the suit property is occupied by Defendant No. 1 only and he is the sole necessary and proper party to the suit. Hence, no relief is sought against Defendant Nos. 2 to 6.
In view of the above, the Plaintiff being dominus litis has the choice to add or delete the Defendants. Therefore, the notices on this IA are dispensed.
Defendant Nos. 2 to 6 against whom no relief is sought by the Plaintiff as submitted by learned counsel, now the Defendant Nos. 2 to 6 are directed to be deleted from the array of parties.
The Plaintiff is directed to file the amended memo of parties also. Thus, the IA stands disposed of.CS (OS) No. 1382 of 2012
Matter be listed before the Hon'ble Court for further directions on 19th December 2012 (as per the order dated 6th August 2012)."
5. The Defendant filed IA No. 2547 of 2013 under Order VII Rule 11 CPC for rejection of the plaint on the ground that the suit is not maintainable and liable to rejected for non-joinder of the necessary and proper parties. It was pointed out that the Plaintiff had abandoned his claim against five of the Defendants 2 to 6 who were the legal representatives of the occupant of a portion of the suit property. By a detailed order dated 15th February 2013 the Court rejected the said plea on the ground that whether or not the Defendants 2 to 6 earlier impleaded and subsequently given up by the Plaintiff were CS(OS) No. 1382 of 2012 Page 3 of 20 necessary parties could be decided only after the issues were framed. The Defendant then claimed rejection of the plaint on the ground that the Plaintiff is claiming ownership and possession of the said property pursuant to an agreement to sell allegedly executed by the erstwhile owner of the property, Smt. Pusha Gupta, and also that the property in question stands mutated in his favour in the records of New Delhi Municipal Council ('NDMC'). The Court rejected the said plea on the ground that "whether or not he (Plaintiff) would succeed in getting a decree of possession is a different matter, which shall be decided in accordance with law after the trial." The Court further held that whether or not the transaction between the Plaintiff and the erstwhile owner was a genuine one or not would also be a matter to be gone into at the stage of trial. The application was accordingly dismissed with costs of Rs. 25,000.
6. I.A. No. 9508 of 2013 was filed by the Plaintiff under Section 151 of the CPC for directions to the Defendant to remove the shutter enclosing the verandah in front, glass door put behind the shutter in verandah area wooden case placed in verandah and material stacked by him in front portion of the property at 49B, Khan Market, New Delhi - 110 003 which forms subject matter of the suit.
CS(OS) No. 1382 of 2012 Page 4 of 20
7. Mr. A.K. Singla, learned Senior counsel for the Plaintiff refers to para 7 of the plaint where it was categorically averred that Smt. Puspta Gupta, the predecessor-in-interest has filed an eviction petition under Section 14 (1) (a) of the Delhi Rent Control Act, 1958 ('DRC Act') against the legal representatives ('LRs') of Dr. M.S. Paul to whom the front half portion of the suit property had been let out. During the pendency of the said proceedings, the LRs of Dr. M.S. Paul agreed to vacate the tenanted premises. It was further averred that the application filed by Mr. Ajaz Khan, the predecessor-in-interest of the Defendant for impleadment was dismissed by the Rent Controller, New Delhi by his order dated 18th March 2011. It was further averred in para 7 of the plaint that the LRs of Dr. Paul handed over the vacant peaceful possession thereof to the predecessor-in- interest/Plaintiff. Mr. Singla pointed out that in para 7 of the written statement to the plaint that it has been categorically stated by Defendant that Smt. Pushpa Gupta continues to be in possession of the said part of the front portion which was in occupation of Dr. M.S. Paul and "the Defendants are not in possession of the said portion and are not using the same."
8. Mr. Sidharth Bantha, learned counsel for the Defendant, on the other hand submitted that the suit itself is false and frivolous. He denied that the CS(OS) No. 1382 of 2012 Page 5 of 20 Plaintiff is the owner of the said property. He submitted that the Plaintff has no concern with the tenancy rights which vested in Mr. Ajaz Khan. Dr. M.S. Pal died during the life time of Mr. Ajaz Khan. Reliance is placed on the statement made by Smt. Pushpa Gupta through counsel on 17th February 1997 admitting the assertion of Mr. Ajaz Khan to the above effect. It is submitted that Dr. M.S. Pal, and after his death his legal heirs, were in possession of only a part of the front portion as mentioned in the written statement and that "the possession of the entire front portion was not delivered by the legal heirs of Dr. M.S. Pal to Smt. Pushpa Gupta or could she take the possession of the entire front portion in view of her undertaking dated 17th February 1997 and order dated 21st July 2001." Reliance is also placed on the decisions of the Privy Council in Kala Chand Banerjee v.Jagannath Marwari AIR 1927 PC 108 and of the High Court of Bombay at Goa in Shri Vinayak D.S. Karmalkar v. Shri Anand Bisi Gaonkar Manu/MH/0766/2012.
9. Having heard learned counsel for the parties, this Court is of the view that the application, i.e, IA No. 13479 under Order XII Rule 6 CPC should be allowed and decree of possession be passed and further a mandatory CS(OS) No. 1382 of 2012 Page 6 of 20 injunction should be issued to the Defendant to remove the shutters etc from the front portion of the suit property.
10. The suit property was originally purchased by Smt. Shakuntala Badhwar at public auction held on 20th August 1957 under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. The Competent Authority issued a certified of sale dated 30th June 1960 in her favour. Thereafter, a perpetual lease deed was executed on behalf of the President of India in her favour. Thereafter, the suit property was sold by Smt. Shakuntala Badhwar to one Mr. Inder Pal by a sale deed dated 18th September 1961, who in turn further sold the said property to Mr. Sampat Kumar Gupta by a registered sale deed dated 14th January 1964. The Competent Authority granted mutation in his favour on 1st June 1967.
11. Prior to his death on 7th August 1986, Mr. Sampat Kumar Gupta made a Will and testament dated 13th August 1981 bequeathing the property exclusively in favour of his wife Mrs. Ram Dulari @ Preeti Devi. Before her death, Mrs. Ram Dulari made her last Will and testament dated 10th December 1990 the property in question was bequeathed in favour of Mrs. Pushpa Gupta. The said property was accordingly mutated in favour of Mrs. Pushpa Gupta on 7th November 1994.
CS(OS) No. 1382 of 2012 Page 7 of 20
12. As far as the front half portion is concerned, Mr. Sampat Kumar Gupta inducted Dr. M.S. Paul as a tenant in respect of the front half portion of the said property in 1971. As far as the back half portion is concerned, in 1969 he permitted the predecessor-in-interest of the Defendant late Mr. Ajaz Khan to occupy the back half portion of the said property, for a sum of Rs. 500 per month.
13. Mr. Ajaz Khan filed a Suit No. 117 of 1991 (renumbered as Suit No. 337 of 2006) for permanent injunction restraining Mr. Sampat Kumar Gupta from alienating or interfering with the possession of the Plaintiff over the portion of the suit property. On 31st January 2005 an order was passed in the application under Order XXXIX Rules 1 & 2 CPC in the said suit. In the said suit Dr. M.S. Paul was impleaded as Defendant No. 2. It was noted that there was a verandah (court yard) in front of the said shop. Mr. Sampat Kumar Gupta demanded increase in the rate of rent up to Rs. 800 per month but Mr. Ajaz Khan did not agree to it. After some time Mr. Sampat Kumar Gupta asked Mr. Khan to allow Dr. M.S. Paul to use a part of shop for running his clinic during some hours in the morning and some hours in the evening. According to Mr. Ajaz Khan (the Plaintiff in the said proceedings), CS(OS) No. 1382 of 2012 Page 8 of 20 he would be able to earn Rs. 500 from Dr. M.S. Paul's user of the premises. Thus, in order to keep good relationship with Mr. Sampat Kumar Gupta, Mr. Ajaz Khan agreed to allow Defendant No. 2 (Dr. Paul) to use a part of his shop for his clinic in certain hours in the morning as well as in the evening. It is also noted that there was one gate on the front side as also there was a verandah attached to that. On the backside there was a gate opening in the service lane. Mr. Ajaz Khan claimed that he was the exclusive user of the verandah lying in front of his shop. A shutter was also affixed at the outer pillar of verandah and one sign board was also fixed in front of the shop. Thus, Mr. Ajaz Khan claimed that he was in exclusive possession of the premises which was shown in red colour in the site plan. He claimed that the premises shown in the blue colour was in common use of Mr. Ajaz Khan and Dr. M.S. Paul. Mr. Khan had kept a show case in the front side whereas Dr. Paul had provided certain benches to provide sitting facilities to his patients.
14. In his written statement in the above suit Mr. Sampat Kumar Gupta asserted that the encroachment in the form of shutter constructed by Mr. Khan was without his consent as owner. It was categorically stated that Dr. M.S. Paul was inducted as tenant in respect of the entire front portion of the CS(OS) No. 1382 of 2012 Page 9 of 20 said shop excluding the public verandah. It was asserted that "the Plaintiff has made illegal encroachment over the public passage, hence, he is not entitled to any injunction." During the pendency of the case, Mr. Sampat Kumar Gupta expired and his legal heirs are brought on record.
15. By an order dated 31st January 2005 in the applications under Order XXXIX Rules 1 and 2 CPC, the trial court came to the conclusion that the Mr. Ajaz Khan had made out a prima facie case and directed the Defendants not to interfere with his possession during the pendency of the suit and also not to cause damage or remove the sign board or the shutter in question during the pendency of the suit.
16. An application was filed by Mrs. Pushpa Gupta seeking modification of the aforementioned order dated 31st January 2005. It was pointed out that on 7th March 2006 when the purchaser of the front portion on behalf of himself and on behalf of the LRs of Dr. Paul attempted to enter the front portion, Mr. Khan refused to permit him to open the front shutter of the shop. Accordingly, the application was filed for permission that Defendant Nos. 2 to 5 are entitled to open the shutter and have a right to ingress or egress to the front portion of the shop in question. In the said application on 17th January 2007 the Civil Judge observed that admittedly, the Defendants 2 to 5 CS(OS) No. 1382 of 2012 Page 10 of 20 have been in possession of the front portion of the shop in question and therefore, they cannot be denied their ingress or egress to the front portion of the shop in question. Accordingly, the order dated 31st January 2005 was modified and it was directed as under:
"The order dated 31st January 2005 is accordingly modified and it is hereby ordered that the Defendants shall not interfere in the possession of the Plaintiff during the pendency of the suit and, shall also not cause any damage to show cause or remove the sign board and shutter in question during the pendency of the suit. It is further made clear that the Defendants shall have a right to ingress or egress in the front portion of the suit premises through the front door/shutter till the pendency of the suit during the business hours as specified by Delhi Government. The application stands disposed of."
17. There were problems in implementation of the above order. In a further application by the Defendants in the above suit directions were issued by the trial court on 14th July 2010 as regards the opening of the shutter in front portion of the shop in question. Ultimately the said Suit No. 237 of 2006 was dismissed as withdrawn as the Defendant herein did not wish to pursue it.
18. At this stage it is necessary to note two other proceedings involving the rear and front portions of the property at 49 B Khan Market. Seeking CS(OS) No. 1382 of 2012 Page 11 of 20 possession of the rear portion from Mr. Ajaz Khan, Mrs. Pushpa Gupta filed Suit No. 37 of 1997 in which Mr. Ajaz Khan filed a written statement admitting two things: that Mrs. Pushpa Gupta was the owner and that he was a tenant in the "rear portion of the shop which is separated by a portion and a door through the same which can be locked and has been locked ever since 1969." Later in October 2004 he sought to amend the written statement by filing an application under Order VI Rule 17 CPC seeking to change his stand by asserting that he was not in occupation of only the rear portion but the whole of the shop including the front portion. This application was allowed by the learned Additional District Judge (ADJ) by an order dated 18th July 2005. Aggrieved by the said order, Mrs. Pushpa Gupta filed C.M. (M). No. 1761 of 2005 which came to be allowed by this Court by an order dated 11th October 2007. This Court observed that by way of the said amendment Mr. Ajaz Khan "wants to wriggle out of the admission made by him in his original written statement wherein he had categorically admitted that he was in occupation only of the rear portion of the shop, by taking a totally contradictory plea by way of amendment to the effect that he was, in fact, a tenant in occupation of the whole of the shop No. 49-B." The Special Leave Petition filed by Mr. Ajaz Khan against the said order was dismissed CS(OS) No. 1382 of 2012 Page 12 of 20 by the Supreme Court on 9th January 2008. Ultimately the said suit came to be dismissed for non-prosecution on 6th March 2010.
19. The third strand of litigation involved the front portion. Mrs. Pushpa Gupta filed an eviction petition against the LRs of Dr. M.S.Paul by way of an eviction petition under the Delhi Rent Control Act 1958 on 27th May 2000 (which was renumbered as Eviction Petition No. 31 of 2009). In the said petition Mr. Ajaz Khan sought impleadment by filing an application under Order 1 Rule 10 CPC. He died during the pendency of the said application whereupon his LRs including Mr. Obaid Khan (the Defendant herein) sought substitution in the said application. The main application and the application for substitution were both dismissed by the Rent Controller (RC). This order was challenged by filing MCA No. 32 of 2007 in the Court of the Additional Senior Civil Judge (ASCJ). In the meanwhile yet another application was filed by the LRs of late Mr. Ajaz Khan seeking impleadment in the eviction petition. The RC by a detailed order dated 18th March 2011 dismissed the application after noting the order dated 11th October 2007 passed by the High Court in C.M. (M). No. 1761 of 2005. The RC observed "..it becomes doubtful that the applicants have any concern with the premises in question." On 8th July 2011 the RC dismissed the CS(OS) No. 1382 of 2012 Page 13 of 20 aforementioned eviction petition as withdrawn after parties informed him that their disputes had been compromised and that the LRs of ate Dr. M.S. Paul had vacated the front portion of 49 B Khan Market and handed over peaceful possession to Mrs. Pushpa Gupta. Correspondingly in MCA No. 32 of 2007 a statement was made on behalf of the Respondent Mrs. Pushpa Gupta as under:
"09.12.2011 Statement of Mr. Amit Punj, Advocate, Seat No. 87-88, Civil Side, Tis Hazari Courts, Delhi. Enrolment No. D- 591/2000 at Bar.
I am the counsel for Respondent in the present appeal. Without admitting the allegations in the appeal and without prejudice to other rights and contentions of the Respondent, I have instructions to state that the Respondents have already given physical and peaceful possession of the front portion of property bearing No. 49B, Khan Market, New Delhi to Pushpa Gupta through her attorney and Sh. Mobin Khan, Successor-in- Interest of the owner of the property, as per the settlement arrived in the court of Sh. Manoj Kumar, Ld. RC/SCJ, Patiala House Courts, New Delhi. The Respondents as such are left with no right, title or interest qua the front portion of the property in dispute nor they are claiming in terms of the impugned order. The Respondents shall be bound by this statement."CS(OS) No. 1382 of 2012 Page 14 of 20
20. On the basis of the above statement MCA No. 32 of 2007 was also disposed of by the following order of the ASCJ:
"09.12.2011 Present: Sh. Sanjay Aggarwal, counsel for Applicant.
Sh. Amit Punj, Counsel for Respondents.
Statements of counsel for both the parties recorded separately. In view of their statements, the present appeal stands dismissed as withdrawn with no order as to cost.
Copy of this order as well as statements recorded today be sent along with the TCR.
Appeal file be consigned to Record Room."
21. The result of the above orders was that as far as the front portion was concerned, the repeated attempts by Mr. Ajaz Khan and later his LRs to assert their rights in relation thereto were rebuffed both in the suit for possession of the rear portion filed by Mrs. Pushpa Gupta against Mr. Ajaz Khan and in the eviction petition filed by her against the LRs. of Dr. Paul as regard the front portion. Also, in the presence of counsel for Mr. Obaid Khan in MCA No. 32 of 2007the counsel for Mrs. Pushpa Gupta stated that they "have already given physical and peaceful possession of the front portion of property bearing No. 49B, Khan Market, New Delhi to Pushpa CS(OS) No. 1382 of 2012 Page 15 of 20 Gupta through her attorney and Mr. Mobin Khan, successor-in-interest of the owner of the property as per the settlement arrived in Court of Mr. Manoj Kumar, Ld. RC/SCJ, Patiala House Courts, New Delhi." Therefore this was an acknowledgment of the Plaintiff herein Mr. Mobeen Khan being the attorney of Mrs. Pushpa Gupta.
22. Reverting to the suit filed by Mr. Ajaz Khan, Suit No. 237 of 2006, an application was filed by the Plaintiff in the present suit, Mr. Mobeen Khan, seeking impleadment in the suit. However, even while this application was pending on 10th January 2012 learned counsel for Mr. Obaid Khan (who had come on record as the Plaintiff in the aforementioned suit) stated before the Court that he did not wish to continue to proceed with the suit and sought to withdraw it. The statements of Mr. Obaid Khan herein and his counsel were recorded as under:
"Statement of Sh. Obaid Khan s/o Sh. Ajaz Khan r/o 137/48, Gali No. 3, Main Road, Jamia Nagar, New Delhi, on SA.
I am LR no. (b) of the Plaintiff in the present case. The Plaintiff do not want to proceed with the present suit. Plaintiffs may be permitted to withdraw the present suit and the suit may be dismissed as withdrawn.CS(OS) No. 1382 of 2012 Page 16 of 20
Statement of Mr. Sanjay Aggarwal, Advocate, Chamber No. 46, Civil Side, Tis Hazari, Delhi without oath.
I am counsel for Plaintiffs. I have instructions to make statement on behalf of Plaintiffs. As per instructions, Plaintiffs do not want to proceed with the present suit. In view of the same, I may be permitted to withdraw the present suit and the suit may be dismissed as withdrawn."
23. After recording the said statement, the Court passed the following order:
"10.01.2012 Present: Mr. Sanjay Aggarwal, counsel for Plaintiffs along with Sh. Obaid Khan LR No. (b).
Sh. Sumanth Dey, counsel for Applicant/ non-Defendant.
Mr. Anil Punj, Counsel for Defendant.
It is submitted by counsel for Plaintiffs that Plaintiffs do not wish to continue with the present case and seek permission to withdraw the present suit. Opposed by counsel for Applicant/Non-Defendant and counsel for Defendant. Heard. Let statement of counsel for Plaintiffs and LR present today be recorded to this effect. Statement of counsel for Plaintiffs and LR Obaid Khan are recorded accordingly. In view of statement, present suit is dismissed as withdrawn. Original documents filed by the parties be returned to them after obtaining certified copies of the same against receipts as per rules. File be consigned to record room."
24. Significantly, while withdrawing the said suit, no right or liberty to file any fresh proceedings was sought. Therefore the assertion of Mr. Obaid CS(OS) No. 1382 of 2012 Page 17 of 20 Khan in para 7 of the written statement that Mrs. Pushpa Gupta was placed in possession of a only a "part of the front portion which was in occupation of Dr. M.S. Paul and the remaining part of the front portion remained in joint possession of the answering Defendant and Mrs. Pushpa Gupta" is contradicted by all of the above orders. In fact there is an admission that "Defendants are not in possession of the said portion and are not using the same" and that "Mrs. Pushpa Gupta continues to be in possession of the said portion which was in occupation of Dr. M.S. Paul." The above orders passed in two judicial proceedings makes it clear that Mr. Ajaz Khan and his LRs were unable to establish any right or interest of theirs in the front portion of 49 B Khan market. The orders made in those proceedings have attained finality. Repeatedly the courts have concluded that Mr. Ajaz Khan or his LRs have no right in the front portion. The Defendant cannot be permitted to repeatedly urge contentions to the contrary over and over again. To permit the present suit to go to trial on the above issues which have been conclusively settled would be an abuse of the process of law.
25. As reagdrs the prayer for removal of the shutter outside the front portion, the minutes of the Meeting of Environment Pollution (Prevention and Control) Authority for the NCR (EPCA) held on 26th March 2011 show that CS(OS) No. 1382 of 2012 Page 18 of 20 a decision was taken to remove all the unauthorized encroachments from the verandahs in Khan Market. It is evident that the request for conversion of the property from leasehold to freehold will not be considered unless the said unauthorised encroachments are removed. In the circumstances, there is no justification for Defendant to resist the removal of the shutter which has been unauthorisedly placed outside the front portion, to which the Defendant has in any way no right.
26. In conclusion, the Court directs as under:
(i) IA No. 13479 of 2012 under Order XII Rule 6 CPC is allowed with costs of Rs. 5,000 which will be paid by the Defendant to the Plaintiff within two weeks from today.
(ii) A decree for possession is passed in favour of the Plaintiff in respect of the front half portion of the property at 49-B, Khan Market, New Delhi -
110 003 as shown in colour 'red' in the site plan annexed with the suit. The Defendant is directed to hand over the vacant and peaceful possession of the said front portion to the Plaintiff within two weeks by removing all his articles kept therein.
CS(OS) No. 1382 of 2012 Page 19 of 20
(ii) IA No. 9508 of 2013 under Section 151 is allowed by directing the Defendant to remove the shutter enclosing the verandah in front, glass door put behind the shutter in verandah area, the wooden case placed in verandah in front portion of the property 49B, Khan Market, New Delhi, within two weeks from today. If the Defendant fails to do so, it will be open to the Plaintiff to seek the assistance of Bailiff to execute the direction and if necessary, break the locks and remove the shutter. The Plaintiff can seek the assistance of the local police, if necessary.
CS (OS) No. 1382 of 2012
28. Consequent upon the above order only prayers (b) and (c) in the plaint survive. List before the Joint Registrar on 17th September 2013 for admission/denial of the documents. The parties will file their respective affidavits of admission and denial and produce the originals/certified copies of the documents relied upon by that date.
29. List before the Court on 23rd October 2013 for framing of issues.
S. MURALIDHAR, J JULY 12, 2013 Rk CS(OS) No. 1382 of 2012 Page 20 of 20