Delhi District Court
Sh. Manmohan Singh vs Sh. Harjit Singh on 27 February, 2016
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In the Court of Ms. Namrita Aggarwal
CCJ Cum Additional Rent Controller1 (Central)
Tis Hazari Courts, Delhi.
Case No. 221/13/02
Unique I.D. No. 02401C0472052002
In the matter of :
Sh. Manmohan Singh
S/o Late Sardar Arjan Singh :
C/o Shop No. 8 (E), Pushpa Market (Central Market),
Lajpat Nagar, New Delhi. ...........Plaintiff
Versus
1. Sh. Harjit Singh
S/o Late Sardar Budh Singh
R/o F41/C, Gali No. 16E,
Sadh Nagar, Palam Colony,
New Delhi110045.
2. Smt. Satya Devi
W/o Late Sh. Kashmiri Lal Mal
R/o 19/535, DDA Flats, Madangir,
New Delhi.
3. Sh. Hanuman Prashad
C/o Alpha Hair Dressers
Shop no. 8, Pushpa Market,
(Central Market), Lajpat Nagar, New Delhi. ...........Defendants
Page 1 of 18 Manmohan Singh Vs. Harjit Singh CS. No. 221/13/02
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SUIT FOR DECLARATION FOR CANCELLATION AND DELIVERING
UP THE DOCUMENT AND INJUNCTION
Date of Institution : 27.03.2002
Date of reserved for judgment : 19.12.2015
Date of judgment : 27.02.2016
Decision : Dismissed
JUDGMENT:
1. A suit for declaration for cancellation of the Agreement to Sell dated 10.01.2002 and for delivering of the documents alongwith injunction has been filed by the plaintiff Sh. Manmohan Singh against the defendants Sh. Harjit Singh, Smt. Satya Devi and Sh. Hanuman Prashad.
2. The case of the plaintiff is that the plaintiff became a tenant in respect of shop no. 8 (e), Pushpa Market (Central Market), Lajpat Nagar, New Delhi, in the year 1967 and, thereafter, on 04.10.1978, a Rent Deed was executed by defendant no. 1 in favour of the plaintiff which was duly registered. That defendant no. 1 inherited the shop no. 8 (e) as well as other shops bearing no. 8 & 8 (a) to (d) from his father Late Sh. Budh Singh, who died on 22.12.1966. That defendant no. 3 was the tenant with respect to a portion of shop no. 8. That defendant no. 2, alleged to have Page 2 of 18 Manmohan Singh Vs. Harjit Singh CS. No. 221/13/02 3 purchased the shop no. 8 in collusion with defendants no. 1 & 3. That defendant no. 1 after inheriting the suit property started collecting rent from the tenants but he neglected the suit property and neither paid the property tax, etc. to appropriate authorities nor carried out the day to day repairs. That since defendant no. 1 had failed to deposit the property tax, a number of notices were sent by the MCD and the tenants from time to time asking defendant no. 1 to pay the taxes. That defendant no. 1 had been borrowing money from people including the plaintiff. That subsequently, defendant no. 1 approached the plaintiff and told him about the auction of the suit premises by the MCD due to nonpayment of property tax. Defendant no. 1 offered to sell the suit property to the plaintiff provided, he agreed to pay the MCD dues. It was also pointed out by the plaintiff to defendant no. 1 that he had not got the property mutated in his name in the L & D.O. records and therefore, he was not competent to execute any sale deed in favour of the plaintiff in respect of the suit property. Subsequently, it was decided that defendant no. 1, being the landlord will first get the lease/rent deed in respect of the tenanted shop in favour of the plaintiff and thereafter, they will find ways and means to get the documentation regarding the sale of the suit premises. The plaintiff and defendant no. 1 agreed that the suit premises will be sold by defendant no. 1 to the plaintiff for a total consideration of Page 3 of 18 Manmohan Singh Vs. Harjit Singh CS. No. 221/13/02 4 Rs. 40,000/ which would include Rs. 29,235.60/ payable to the MCD towards house tax. That on 05.12.1978, the plaintiff paid a sum of Rs. 4,000/ to defendant no. 1, who executed a receipt for the same in favour of the plaintiff as well as an agreement to sell. It was agreed that the balance amount of Rs. 6764.40/ will be paid by the plaintiff to defendant no. 1 at the time of execution of the sale deed, after he obtained necessary permissions from the the appropriate authorities. That thereafter, the plaintiff issued notices to the tenants in the suit premises informing them about the sale of the suit premises and also approached MCD to settle the payment of house tax. That due to certain mistakes in calculation of house tax, the plaintiff was compelled to file a suit against MCD and obtained stay order restraining the MCD from auctioning the suit premises until the decision of the suit. During the pendency of the said suit, the plaintiff had also deposited a sum of Rs. 3,000/ in compliance with the order of the court. That when defendant no. 1 came to know that the auction of the suit premises has been stayed, he developed malafide intentions and filed an application u/o 1 Rule 10 CPC for being impleaded as a party to the said suit. That thereafter, defendant no. 1 also filed two suits for cancellation of the Lease Deed/Rent Deed which had been executed by him in favour of the plaintiff with regard to shop no. 8 (e) and suit for cancellation of the Agreement to Sell, which Page 4 of 18 Manmohan Singh Vs. Harjit Singh CS. No. 221/13/02 5 he had executed in favour of the plaintiff with respect to entire property bearing no. 8, Pushpa Market, Lajpat Nagar, Delhi. Thereafter, defendant no. 1 in collusion with defendant no. 3 had entered into an Agreement to Sell with respect to the said property with defendant no. 2, which they had no legal right to execute during the pendency of the suit. Therefore, it is prayed by the plaintiff that Agreement to sell dated 10.01.2002 is illegal and void abinitio and is therefore, liable to be cancelled. That the plaintiff came to know about the execution of the aforesaid Agreement to Sell on 25.03.2002, when defendants no. 2 & 3 approached the plaintiff for seeking permission to make alternations in the shop and to put a new sign board of defendant no. 2 on the said shop. It is averred that the defendants have executed the present agreement to sell in order to deprive the plaintiff from the suit property. In these circumstances, prayer is made for declaration of said Agreement to Sell dated 10.01.2002 as illegal and void and further, for decree of injunction in favour of the plaintiff and against the defendants, thereby restraining the defendants from claiming any right, title and interest over the property in question under the alleged Agreement to Sell dated 10.01.2002 or from making any additions, alternations or installing any sign board in the suit property.
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3. Summons were served upon the defendants. Written statement has been filed by defendant no. 1, wherein defendant no. 1 denied all the averments made by the plaintiff stating that the plaintiff was a tenant with respect to a small portion admeasuring 6' x 6', known by private no. 8 (e), Pushpa Market (Central Market), Lajpat Nagar, New Delhi. That defendant no. 1 has also filed two suits for declaring Agreement to Sell as well as alleged Lease Deed as null and void, which are pending adjudication and MCD has also passed demolition orders for demolition of the unauthorized construction raised by the plaintiff on the first floor and second floor of the property in question.
4. Written statement has also been filed by defendants no. 2 & 3, wherein it is submitted that the plaintiff has no right, title and interest in the property in question. That defendant no. 2 is a bonafide purchaser of property bearing no. 8/1, Pushpa Market (Central Market), Lajpat Nagar, New Delhi, vide document dated 10.01.2002. That property in question has been duly mutated in the MCD and the assessment of house tax has also made in the name of defendant no. 2. It is submitted that defendant no. 3 was a tenant in the premises no. 8/1, Pushpa Market (Central Market, Lajpat Nagar, New Delhi and he had surrendered his tenancy rights in favour of the owner, i.e. defendant no. 1 on 10.01.2002 and Page 6 of 18 Manmohan Singh Vs. Harjit Singh CS. No. 221/13/02 7 defendant no. 1 in turn, sold the property in question to defendant no. 2 and also delivered the vacant and peaceful possession of the same to defendant no. 2.
5. Replication has been filed wherein the plaintiff has denied all the averments made by the defendant in his written statement and reaverred what was averred by him in his original plaint. It is averred by the plaintiff that until the pending suit are decided between the parties, none of the parties could interfere with the suit property nor defendant no. 1 could have sold the same to defendant no. 2.
6. From the pleading of the parties, vide order dated 24.04.2003, the following issues were framed for trial :
1) Whether defendant no. 1 had got no right, title or interest to sell the suit property to defendant no. 2.? OPP
2) Whether agreement to sell dated 10.01.2002 is illegal, void and without any consequence? OPP
3) Whether the plaintiff is entitled to injunction as prayed for? OPP
4) Whether the plaintiff is guilty of suppression of material facts & if so, its effect? OPD
5) Whether the suit has not been properly valued for the purpose of court fees & jurisdiction? OPD
6) Whether the plaintiff has no cause of action to file the present suit? OPD
7) Relief.
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7. During evidence, plaintiff himself entered into the witness box as PW1 and deposed on the lines of the original plaint. Further, he relied upon the following documents:
1) Certified copy of the Lease Deed dated 04.10.1978 : Ex. PW1/1
2) Agreement to Sell & Receipt dated 05.12.1978 : Ex. PW1/2 & PW1/3
3) Copy of letter dtd. 11.03.98 to the Assessor & collector, MCD: Ex. PW1/4
4) Declaration dated 09.03.1998 filed by plaintiff with MCD : Ex. PW1/5
5) Copy of objection letter with enclosed annexures : Ex. PW1/6 (colly.) 6) Site plan : Ex. PW1/7
8. In his turn, the defendant Sh. Harjit Singh entered into the witness box as DW1 and deposed on the lines of his written statement. Further, he relied upon the following documents:
1) Conveyance Deed dated 16.04.1981 : Ex. DW1/1
2) Order dated 10.08.1983 passed by Sh.O.P. Gogne : Ex. DW1/2
3) Order dated 25.05.1983 passed by Sh. J. B. Goel in suit no. : Ex. DW1/3 207/1982 titled as "Manmohan Singh Vs. Sh.Harjit Singh"
4) Order dated 16.10.1987 passed by Sh. S.P. Sabharwal, : Ex. DW1/4 ADJ, Delhi
5) Order dated 11.07.1980 : Ex. DW1/5
6) Survey report for the year 1996 : Ex. DW1/6
7) House Tax receipt dated 15.04.1981 : Ex. DW1/7
8) Statement of Sh. A.S. Vaish, Advocate of plaintiff dt. 12.01.83: Ex. DW1/8 in suit no. 431/1981
9) Statement of Sh. R.K. Sharma, Advocate for defendant no.1 : Ex. DW1/9 and 4 and Sh. H.C. Sukhija dt. 12.01.1983 in suit no. 431/81
10) Order dated 12.01.1983 in suit no. 431/81 titled as : Ex.DW1/10 "Manmohan Singh VS. MCD & Ors.
11) Statement of Sh. Harjit Singh in suit no. 91.81 dt. 24.05.82 : Ex. DW1/11
12) Order dt. 24.05.82 for dismissal of injunction application of : Ex. DW1/12 plaintiff in suit no. 91/81
9. I have heard the arguments and have gone through the judicial record. My issuewise findings are as under : Page 8 of 18 Manmohan Singh Vs. Harjit Singh CS. No. 221/13/02 9 Issues no. 1, 2, 3 & 6.
1. Whether defendant no. 1 had got no right, title or interest to sell the suit property to defendant no.
2.? OPP
2. Whether agreement to sell dated 10.01.2002 is illegal, void and without any consequence? OPP
3. Whether the plaintiff is entitled to injunction as prayed for? OPP
6. Whether the plaintiff has no cause of action to file the present suit? OPD
10. Issues No. 1, 2, 3 & 6 settled by the Court, are interconnected and do not require separate adjudication, as the said issues, in nut shell, raised the question, as to whether plaintiff is entitled to the reliefs claimed by him, in the plaint. They are decided, by common appreciation of the record and evidence placed before me, in the subsequent paragraphs.
11. Plaintiff in this suit, in terms of his plaint and his evidence by way of affidavit Ex. PW1/A, had deposed that initially he was inducted as a tenant in shop No. 8 (e), Pushpa Market, Central Market, Lajpat Nagar, New Delhi, in the year 1967. Later on, a rent deed dated 04.10.1978 was executed by defendant No. 1 who was his landlord. Subsequently, on 05.12.1978, plaintiff and defendant No. 1 entered into an agreement to sell Ex. PW1/2. Defendant No. 1 had executed a receipt of the same dated Ex. PW1/3. On the basis of execution of Ex. PW1/2 and Ex. PW1/3, plaintiff has claimed that defendant No. 1 was divested off his rights to sell any portion to any third party. As defendant No. 1 had Page 9 of 18 Manmohan Singh Vs. Harjit Singh CS. No. 221/13/02 10 entered into an agreement to sell dated 10.01.2002 with defendant No. 2, so plaintiff was constrained to approach the Court, by filing present suit, vide which he has prayed that said agreement to sell dated 10.01.2002, be declared null and void and be cancelled. On the strength of validity of alleged agreement Ex. PW1/2, he further prayed that defendants be restrained from claiming any right, title or interest arising out of agreement to sell dated 10.01.2002. Based on the said agreement Ex. PW1/2, he further prayed that injunction order be passed against defendants, thereby restraining them from making any additions, alterations or installation of any sign board in the suit premises vic shop No. 8, Pushpa Market, Central Market, Lajpat Nagar, New Delhi.
12. At the very outset, it is an admitted position that plaintiff had filed an earlier suit bearing No. 207/82, under the relevant provisions of Specific Relief Act for the specific performance of Agreement dated 05.12.1978, against defendant No. 1. that suit was dismissed in default by the competent Court vide order dated 25.05.1983. Plaintiff had challenged the said suit under Order 9 Rule 9 CPC, vide miscellaneous No. 69/83, which was dismissed vide order dated 16.10.1987. Subsequently, plaintiff did not approach Higher Courts, challenging the said orders of dismissal of his reliefs. The net result is aforesaid orders Page 10 of 18 Manmohan Singh Vs. Harjit Singh CS. No. 221/13/02 11 regarding dismissal of the suit of Specific Performance of plaintiff, attained finality. Plaintiff in this case, though has challenged the legality of agreement dated 10.01.2002 executed between defendant No. 1 and defendant No. 2 but has prayed so, on the basis of his agreement Ex. PW1/2, which he had allegedly made with defendant No. 1. Legality of agreement dated 10.01.2002, cannot be seen in isolation. For arriving at any just conclusion, which regard to the aforesaid prayers of plaintiff, appreciation of legality of agreement Ex. PW1/2, needs to be done. In other words, plaintiff by virtue of present suit, is trying to get his agreement Ex. PW1/2, enforced. Same cannot be done, as Order 9 Rule 9 CPC, bars bringing of fresh suit in respect of same cause of action.
"Cause of Action means the Cause of Action for which suit was brought. It gives occasion for and forms the foundation of the suit. If that Cause of Action enables a person to ask for a large and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings. Reliance in this regard is placed on Sidramappa Vs. Radha Shetty, AIR 1970 SC 1059. In the given circumstances, the wider relief, which plaintiff had prayed earlier by virtue of filing suit No. 207/82, was the enforcement of agreement Ex. PW1/2. In this case, plaintiff on the basis of legality of agreement Ex. PW1/2 has prayed that subsequent agreement dated 10.01.2002, be declared null Page 11 of 18 Manmohan Singh Vs. Harjit Singh CS. No. 221/13/02 12 and void. Reasoning, which existed at the time of filing of suit No. 207/82, pertaining to validity of agreement Ex. PW1/2, existed at the time of filing of this suit and said reasoning constituted the case of action, in filing of this suit. Therefore, the cause of action in filing present suit and that which existed at the time of filing of suit No. 207/82, was common. Plaintiff, therefore, could not have filed present suit, once legality of agreement Ex. PW1/2, itself was not confirmed by a judicial pronouncement. Hence, relief claimed by the plaintiff, cannot be granted to him, on the basis of bar under Order 9 Rule 9 CPC.
13. Apart from that, plaintiff in his evidence, nowhere asserted that on account of him becoming owner of the whole suit premises, defendant No. 1, lost the right to sell any portion of the said premises, in terms of agreement dated 10.01.2002. He only claimed that in view of execution of agreement to sell Ex. PW1/2, defendant No. 1 lost the right to sell portion of premises in question. It was incumbent on him to have categorically depose in his evidence, that he has become owner of the suit premises, as it would have given clear picture to the Court, regarding his stand viz a viz ownership of premises in question was concerned. In the absence of the same, suit of the plaintiff suffered from an inherent defect which was never cured.
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14. Moving further, plaintiff never reasoned, as to why defendant No. 1 lost the right to sell portion of premises in question, in terms of agreement dated 10.01.2002. He had made bald assertion with regard to the same, but never gave it legal cushioning. Suit of the plaintiff, was defective on that account also.
15. In his cross examination, plaintiff deposed that he had no knowledge about whether records of L&DO had been mutated with regard to his name as owner of premises in question. If that is the case, then I fail to understand, as to how plaintiff was claiming himself to be the owner of premises in question. Further, plaintiff never applied for mutation of records in his name with regard to the suit property maintained by apprising the competent authority, about his title over suit premises. His shying away from government authorities further created doubt regarding his ownership status over suit property in question. He showed his want of knowledge, with regard to whether L&DO had mutated the name of defendant No. 1 in its record. Thus, I find that plaintiff was not careful, in setting the records straight, pertaining to his title over suit premises in question.
16. In addition to that, plaintiff admitted that defendant No. 2 is in Page 13 of 18 Manmohan Singh Vs. Harjit Singh CS. No. 221/13/02 14 possession of suit premises since 10.01.2002, which means that the agreement dated 10.01.2002 was acted upon by defendant No. 1 and 2. Plaintiff should have prayed for maintaining status quo ante, with regard to the portion occupied by defendant No. 2 to the effect that said portion should revert back to defendant No. 1, as it was, prior to said agreement. Plaintiff did not pray so and therefore, his suit was inconsequential also.
17. Lastly, from the version of plaintiff, what can be gathered, though not specifically claimed by plaintiff, was that agreement dated 10.01.2002 was bad on account of applicability of the principle of lispendens, which is a principle which embodies that the subject matter of the suit should not be transferred to third party during pendency of the suit. Said principle is mentioned in Section 52 of Transfer of Property Act, 1882, which effectively provides that during the pendency of a suit in which any right to immovable property is in question, the property cannot be transferred by any party to the suit so as to affect that rights of other parties. In this case, said principle is not applicable, for the reason that agreement to sell Ex. Pw1/2 did not culminate into sale deed and was not registered, as per law. So as the sale was not complete, so defendant No. 1 was well within his right to enter into agreement to sell dated
10.01.2002.
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18. In the background of aforesaid appreciation, I find that plaintiff did not prove that defendant No. 1 had got no right, title or interest to sell the suit property in terms of agreement dated 10.01.2002, that agreement to sell dated 10.01.2002 was illegal and that plaintiff was entitled to injunction, as prayed by him. All the aforesaid issues No. 1, 2 & 3 are decided against plaintiff. Issue No. 6 is decided in favour of defendant. Issue no. 4.
4. Whether the plaintiff is guilty of suppression of material facts & if so, its effect? OPD
19. Defendant had claimed that plaintiff was guilty of suppressing material facts from the Court and therefore, the suit must be dismissed. The question, therefore, was whether the plaintiff was guilty of suppression of material facats and if so, then what was its effect. Though, defendants did not lead any evidence, despite availing opportunities but they were able to discharge their onus of proving aforesaid issue, once plaintiff admitted during cross examination that his earlier suit for Specific Performance was dismissed. Nonmentioning of said fact regarding earlier litigation, by plaintiff, amounted to suppression of material fact, as cause of action in filing the said previous suit and present suit, as discussed above, was common. Had plaintiff disclosed Page 15 of 18 Manmohan Singh Vs. Harjit Singh CS. No. 221/13/02 16 the said details of his previous suit of Specific Performance, this suit would have been dismissed, at an earlier stage, without recording of evidence. Therefore, on one hand, nonmentioning of aforesaid details of previous suit, was a material omission on the part of plaintiff and its effect was that it created doubt over the bonafide of plaintiff in moving the Court, with clean hands.
20. Here, I must also mention that this Court had examined plaintiff under Order 10 CPC. Said provision, prescribes that proper way of clearing up the pleadings at the first hearing. Under the said provision, court has the power to examine each party, for recording admission and denials. The purpose of the same is to find out the real points in controversy between the parties by way of clearing up the pleadings and removing any ambiguity. This Court had examined plaintiff under said provision on 05.03.2003. In the said examination, the plaintiff had replied that in another suit pending between the parties, following issue was settled.
"Whether the plaintiff has entered into the agreement to sell dated 05.12.1978 with the defendant".
21. Disclosure of said fact, indicated that issue regarding the legality of agreement Ex. Pw1/2, in itself was under consideration and non Page 16 of 18 Manmohan Singh Vs. Harjit Singh CS. No. 221/13/02 17 mentioning of said fact, in the background of aforesaid appreciation, was a material omission on the part of the plaintiff. Aforesaid issue, is decided in favour of defendants.
Issue no. 5.
5. Whether the suit has not been properly valued for the purpose of court fees & jurisdiction? OPD
22. Onus of proving this issue, rested on defendants. They were able to discharge the said onus, once plaintiff in his cross examination, admitted that the sale consideration mentioned in the agreement dated 10.01.2002, sought to be declared as null and void, was Rs. 5 lacs and that plaintiff has not affixed, Court Fees on the said amount. As plaintiff had prayed for cancellation of agreement dated 10.01.2002, so he should have paid Court Fees on the consideration amount of the said agreement, as per law. He did not do so and therefore, this suit was bad on account of nonpayment of proper Court Fees. Aforesaid issue is decided in favour of defendants.
RELIEF
23. Plaintiff is not entitled to any relief, in the background of aforesaid Page 17 of 18 Manmohan Singh Vs. Harjit Singh CS. No. 221/13/02 18 appreciation of record placed before me. Accordingly, this suit stands dismissed.
24. File be consigned to Record Room after compliance.
Announced in open Court (Namrita Aggarwal)
on 27 Day of February, 2016. CCJ cum ARC1 (Central)
th
[This judgment contains 18 pages.] Tis Hazari Courts, Delhi
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