Delhi High Court
Jhang Biradari Housing Residents ... vs Bharat Bhushan Sachdeva & Ors on 4 February, 2015
Author: Manmohan Singh
Bench: Manmohan Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment pronounced on: 4th February, 2015
+ I.A. No.16791/2011 & I.A. No.13043/2011 in CS(OS) 1449/2011
JHANG BIRADARI HOUSING RESIDENTS SOCIETY
..... Plaintiff
Through Mr.Arun Bhardwaj, Sr. Adv. with
Mr.P.Choudhry, Adv.
versus
BHARAT BHUSHAN SACHDEVA & ORS ..... Defendants
Through Mr.Rajiv Nayar, Sr.Adv. with
Mr.B.K.Sood, Adv. for defendants.
Mr.Man Mohan Gupta, Adv. for
applicant in I.A. No.13844/2014.
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. This is a suit for declaration filed by the plaintiff against the defendants seeking a declaration that the plaintiff society is the actual and lawful owner of the property measuring 31 bighas comprised in Khasra Nos. 206/2, 208/2, 209, 210/2 and 211/2, Basai Dara Pur, Rothak Road, New Delhi (hereinafter referred to as the "suit property") with consequential relief of mandatory injunction seeking a direction for the defendants to transfer/convey the suit property in the name of the plaintiff.
2. The case of the plaintiff as per the plaint is that the plaintiff society was initially formed as an Association for re-settlement of CS(OS) No.1449/2011 Page 1 of 35 people belonging to Jhang (Pakistan), who migrated from Pakistan to India after partition. The Association decided to take in auction from the Government the property at Basai Dara Pur, Delhi comprised in Khasra Nos. 206, 207, 208, 209, 210 and 211 measuring 61 bighas and 6 biswas (hereinafter referred to as the "
said land"). However since the Association was not a registered Society, it could not bid in the auction in its own name. Accordingly, it was decided that two of its members, namely, late Sh. Amir Chand and Sh. Brij Lal, would bid in their own names for taking the said land for the Association. Consequently, their bid was accepted.
3. It is averred in the plaint that after having made the entire payment, the Association requested the Assistant Settlement Commissioner, Delhi to issue Sale Certificate for the said land. It is stated that out of the entire payment made for the purchase of the said land, some amount came from the members of the Association while some other people who were not the members of the Association had paid the rest. Accordingly, out of the said land measuring 61 bighas 6 biswas, land measuring 30 bighas 6 biswas was acquired and the remaining land measuring 31 bighas (the suit property) remained vested in the Association. Later on, it was decided by the Association that payments be made to the non-members of the Association who had paid some money in the bid amount. For this purpose, some members of the Association made contributions. The names of some of them are given in Para 8 of the plaint.
CS(OS) No.1449/2011 Page 2 of 354. Vide a General Power of Attorney dated 16th April, 1960 which was executed by late Sh. Amir Chand and Sh. Brij Lal, Sh. Matwal Chand was appointed as the Secretary of the Association. Certificate of sale pertaining to the suit property was issued in the name of Amir Chand and Sh. Brij Lal. However, later on Sh. Amir Chand and Sh. Brij Lal were not interested in continuing as members of the Association and wanted to move out by taking their share as per market value after a portion of land was taken over by the Government. The sale deed pertaining to the remaining land (i.e. the suit property) was to be executed in the name of the Association, however, since the Association was not registered, it was decided that pending registration of the suit property be transferred in the name of the new Secretary, Sh. Matwal Chand. Accordingly, sale deed dated 16th May, 1962 was executed pertaining to the suit property in the name of the Secretary of the Association, Sh. Matwal Chand.
5. The Association was thereafter converted into a regular society, i.e. the plaintiff herein, registered under the Societies Registration Act on 23rd, January, 1996. Sh. Matwal Chand was re-appointed as the Secretary of the plaintiff.
6. As stated earlier, out of the land measuring 61 bighas 6 biswas, land measuring 30 bighas 6 biswas was acquired and compensation was disbursed. The remaining land i.e. the suit property measuring 31 bighas was also sought to be acquired for which acquisition proceedings were started. The said acquisition proceedings were challenged by way of Writ Petition (W.P. (C) CS(OS) No.1449/2011 Page 3 of 35 697/1983) in the name of Sh. Matwal Chand since in the official records, the suit property was in his name. The said writ petition was allowed vide order dated 15th April, 2004. The said order was challenged by Union of India before the Supreme Court by way of an special leave petition which was pending at the time of filing of this suit.
7. On 21st October, 2006, Sh. Matwal Chand expired and was survived by his legal heirs - two sons and a daughter, who are defendants No. 1 to 3 herein. It is averred by the plaintiff that after demise of Sh. Matwal Chand, the intentions of defendants gradually became malafide. They started dealing with civic authorities and revenue authorities in their own name. The mutation in their names was affected in the February, 2009, however, the said fact came to the knowledge of the plaintiff in 2011, before filing of the suit.
8. It is averred that the said mutation is illegal, fraudulent and capricious which does not confer any title or ownership rights on the defendants. The plaintiff continues to be the rightful and actual owner of the suit property and the mutation obtained by the defendants is liable to be declared null and void. Hence this suit.
9. Defendants have filed their written statement. Defendants also filed application being I.A. No. 13043/2011 under Order 7 Rule 11 CPC. Subsequently, the plaintiff filed I.A. No. 16791/2011 under Order 6 Rule 17 CPC. Both these applications are pending for disposal where the parties have addressed their submissions.
CS(OS) No.1449/2011 Page 4 of 35I.A. No.13043/2011 (Order 7 Rule 11 CPC)
10. Defendants' in their application under Order 7 Rule 11 CPC have averred that the suit as framed is not maintainable. Neither the plaintiff has any title in the suit property nor Sh. Gulab Singh, who has claimed himself to be President of the Society, has any title to the suit property. Plaintiff has concealed material facts and also distorted facts including court proceedings, wherein individual interest has been claimed by Gulab Singh and others in contradistinction to the claim made on behalf of plaintiff in the present suit.
11. The suit is not valued correctly for the purposes of court fees and jurisdiction. The sale deed in favour of Sh. Matwal Chand was executed on 16th May, 1962. More than 48 years have elapsed from the date of execution of the sale deed which is now sought to be set aside by filing the present suit despite of having full knowledge about the sale deed. The same is barred by limitation.
12. Though the suit property was purchased on 16th May, 1962, no one claimed any interest in the suit property since that time except by way of filing the present suit by the plaintiff. Plaintiff itself is not claiming to be the owner of the suit property and appears to be espousing the cause of its so called members, who individually have not claimed any interest in the said property. Consequently, suit is barred by the provisions of Benami Transaction (Prohibition) Act, 1988 and suit is not maintainable in view of provisions of Section 4 of the said Act.
CS(OS) No.1449/2011 Page 5 of 3513. It is submitted by the defendants during the course of hearing that the plaint itself mentions the cause of action having accrued when the suit property was conveyed from the name of earlier owners to the name Sh. Matwal Chand, i.e. in the year 1962. This fact has been in the knowledge of all the so called members of the plaintiff society, as is apparent from reading of various paragraphs of the plaint. Even Sh. Matwal Chand died on 21st October, 2006, who is alleged to have acted against the interest of plaintiff and that means prior to his death and as such the suit filed in the year 2011 on the face of it is barred by limitation.
14. After conveying of the suit property in favour of Sh. Matwal Chand in the year 1962, no fresh cause of action can be said to have been occurred giving rise an occasion to the plaintiff to file the suit in the year 2011. The suit filed in the year 2011 is barred by limitation as decree of declaration has been sought in respect of suit property that plaintiff is the actual, bonafide and genuine owner of the suit property.
15. Once the plaintiff knew that the suit property was transferred to Sh. Matwal Chand in the year 1962, the suit is barred by limitation and the cause of action not being a re-occurring event and right to sue having occurred immediately at that time, the suit is liable to be dismissed having been filed beyond a period of three years under Article 58/59 of Limitation Act.
CS(OS) No.1449/2011 Page 6 of 3516. Learned counsel for the plaintiff in order to give reply on limitation stated that the suit has been filed seeking declaration and mandatory injunction and not for cancellation of the sale deed. It is against the illegal mutation effected by the defendant in 2009 regarding the suit property, thus, a fresh cause of action has arisen and suit is filed in 2011 which is within limitation.
17. With regard to merit of the case, various submissions are made by the plaintiff with regard to malafide conduct of Matwal Chand. It is submitted that in fact he has played a fraud upon the Society, however, it is not denied by the counsel that the Society was registered in the year 1996 after 34 years from the execution of sale deed of the suit property and the suit has been filed after 15 years from the date of registration of society and death of Matwal Chand. It is not denied by the plaintiff and/or its members that they were aware about the registration of sale deed in 1962 itself.
18. On legal issue, it is submitted by the plaintiff that the application under Order 7 Rule 11 CPC contains allegations and averments which are factual in nature and thus it requires evidence and cannot come under the ambit of Order 7 Rule 11 CPC as several triable issues has been raised by the plaintiff which needs evidence and adjudication. The plaint bears sufficient cause of action for trial as on perusal of paragraphs of the plaint being paras 5 to 9 and 17 to 21, which makes sufficient averments and bears adequate cause of action for the suit to go for trial. The suit filed by the plaintiff is maintainable as when fraud and CS(OS) No.1449/2011 Page 7 of 35 misrepresentation is alleged there is enough cause of action to try the suit in accordance with law as the averments made in the plaint deals with mixed question of law and facts which raises triable issues which can only be decided by leading evidence.
19. The said land was acquired prior to the alleged sale deed in favour of father of the defendant Shri Matwal Chand. It is stated that the said land was acquired by the Land Acquisition Department vide notification dated 6th January, 1961 and an award was passed on 7th December, 1961 and the alleged sale deed was executed on 16th May, 1962 and it is well settled that no transfer of suit property could have been effected after the land was acquired by the Government as such the sale deed was non- est in the eyes of law.
20. It is stated that Shri Matwal Chand was not the owner of the suit property by virtue of the sale deed executed in his favour. It is stated that Shri Matwal Chand was the General Secretary of the plaintiff Society and the sale deed was executed for the benefit of the plaintiff society as in the award passed by the Land Acquisition Collector on 7th December, 1961 it has been held that compensation as awarded was to go to plaintiff Society and not to Shri Matwal Chand. In the amended plaint it is stated that the plaintiff society is now claiming its possession of part of the suit property from the inception i.e. 1958 till date as the society has an office in the suit property and has been performing their work from the said office.
CS(OS) No.1449/2011 Page 8 of 3521. It is argued by Mr.Arun Bhardwaj, learned Senior counsel appearing on behalf of the plaintiff that there is no force in the arguments of the defendants who have alleged that the suit of the plaintiff is barred by limitation. It is stated that the plaintiff has averred in the plaint that the suit land belonged to the plaintiff Society and that only in 2011 it came to the knowledge of the plaintiff Society that in February, 2009 the defendants had mutated the suit property in their names fraudulently and were trying to sell of the same without any legal right as such the suit is within the period of limitation and is not barred by provisions of law.
22. It is also argued by the learned Senior counsel, that the plaint discloses some cause of action or raises some questions fit to be decided by the Court, mere fact that the case is weak and not likely to succeed is no ground for striking it out. This proposition of law has been laid down in the case of Sangeeta Garg Vs. Deepak Bansal & Another,155 (2008) DLT 173 (DB).
23. Reliance was placed by the plaintiff on the case of Vijay Pratap Singh Vs. Dukh Haran Nath Singh, AIR 1962 SC 941, wherein the Supreme Court held as under :
"The court has not to see whether the claim made by the Petitioner is likely to succeed; it has merely to satisfy itself that the allegations made in the petition, if accepted as true, would entitle the Petitioner to the relief, he claimed. If accepting those allegations as true no cause is made out or granting relief no cause of action could be shown and petition must be rejected. But in ascertaining CS(OS) No.1449/2011 Page 9 of 35 whether the Petition shows a cause of action the court does not enter upon a trial of the issues affecting the merits of the claim made by the Petitioner. It cannot take into consideration that defences which the defendant may raise upon the merits, nor has the court competent to make elaborate enquiry into doubtful or complicated question of law or facts."
24. It is submitted that the same view has been taken by the Supreme Court in Popat and Kotecha Property Vs. State Bank of India Staff Association, (2005) 7 SCC 510 Para 10, wherein it has been held that disputed question cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC.
25. Another decision was referred by the plaintiff in Mayar (H.K.) Ltd. Vs. Owners & Parties, Vessel M.V. Fortune Express, 2006 AIR (SC) 1828, wherein the Supreme Court observed as under :
"It is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the court exercising the powers under Order 7 Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings CS(OS) No.1449/2011 Page 10 of 35 relied on are in regard to misrepresentation, fraud, willful default, undue influence or of the same nature. So, long as the plaint discloses some cause of action which requires determination by the court, mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint."
26. It is argued that the suit is not barred by limitation as alleged as fraud has been alleged by the plaintiff and it is well settled that the limitation begins to run from the date plaintiff discovers fraud played upon him and not from the date of execution of the sale deed and other transfer documents etc, as alleged in the plaint and the same proposition of law has been held to be good by the Supreme Court and reliance is placed on Ningawwa Vs. Byrappa Shiddappa Hireknrabarand, AIR 1968 S.C. 956 and Virendra Singh vs. Kashiram, AIR 2004 Rajasthan 196, where in it was held that it is not the date of execution of Gift Deed but time when fraud became to known to the plaintiff.
27. It is argued that as the acts and deeds of the defendants of mutating the property in February, 2009 after the death of their father Shri Matwal Chand in 2006 came to be known to the plaintiff in the year 2011 thus the suit is well within the period of limitation. The plaintiff has taken several grounds to succeed in the above matter both in the plaint and also in the amended plaint which could not attract rejection of the plaint.
28. It is also argued on behalf of plaintiff that it is held by several decisions rendered by Supreme Court that where fraud is alleged by the petitioner then the limitation starts running from the date of knowledge and not from the date of execution and thus Articles CS(OS) No.1449/2011 Page 11 of 35 58, 59 and 64 of Limitation Act, 1963 is not attracted and the suit cannot be held to be barred by limitation. Reliance is placed on Rameshwar Dubey vs. Masomat Asha Kaur, (1996) 11 SCC 160 and Md.Noorul Hoda vs. Bibi Raifunnisa, (1996) 7 SCC
767.
29. The plaintiff has affixed proper and sufficient court fee on the plaint and there is no deficiency in the same as the suit land is under acquisition and the compensation awarded is Rs.3000/- per bigha. The area of land is 31 Bighas and even if interest is added to the above amount, the value of land shall not exceed Rs.21 lakhs as valued by the plaintiff.
30. Amendment has been sought of the plaint and certain documents have been filed along with the amendment application in order to show that the suit land belonged to plaintiff Society even as per para 22 of the award passed.
31. Mr.Rajiv Nayar, learned Senior counsel appearing on behalf of the defendants, opposed the prayer made in the amendment application. He argued that the suit is totally misconceived, barred by limitation and is not maintainable as per original plaint. The application under Order 6 Rule 17 CPC is not maintainable as by virtue thereof, the plaintiff introducing entirely new case and also trying to withdraw the admissions made in the original plaint.
32. There is no dispute about the settled legal proposition that it is only the averments made in the plaint and the accompanying documents which can be gone into for the purpose of dealing with CS(OS) No.1449/2011 Page 12 of 35 an application under Order 7 Rule 11 CPC. The statements of plaintiff No.1 and plaintiff No.2 recorded under Order 10 CPC can also be seen for this limited purpose. In T.Arivandandam vs. T.V. Satyapal, (1977) 4 SCC 467, the Supreme Court while dealing with the powers of the Court under Order 7 Rule 11 CPC had noted that where the meaningful reading of the plaint disclosed that the suit which had been filed was in fact vexatious and meritless; it being a case of clever drafting which has created the illusion of a cause of action, it must be nipped in the bud by the Court.
33. As far as the reliance of decisions referred by the plaintiff is concerned, there is no dispute that while deciding the application under Order 7 Rule 11 CPC, the plaint and documents filed along with plaint are to be read and considered in meaningful manner. In case, the Court finds that the defendant is not able to make a case under any part of the said provision, the plaint cannot be rejected. The benefit of doubt on the issue of limitation would go in favour of the plaintiff, however, at the same time if it is apparent on the face of the plaint that the plaint does not disclose cause of action and the suit is apparently barred by law, then the plaint is to be rejected.
34. The plaintiff is claiming declaration in the present suit, no relief is sought for cancellation of sale deed dated 16th May, 1962, whereunder Sh. Matwal Chand drew title. Even no relief is sought for possession. In the original plaint, the plaintiff has not CS(OS) No.1449/2011 Page 13 of 35 averred or claimed possession of the suit property. Suit having been filed for mere declaration without possession. Besides there is no averment of plaintiff being in possession, which fact on the contrary having been asserted by the defendants that they are in possession and no relief has been claimed for possession and the suit has not been valued for the relief of possession for the purposes of court fees nor any ad valorem court fees having been paid on the market value of the suit property.
35. From the reading of the plaint, neither the plaintiff nor Sh. Gulab Singh, who has claimed himself to be President of the Society, has any title to the suit property. Admittedly, as mentioned in paragraph 11 of the plaint, plaintiff society was formed in the year 1996.
36. It has been pleaded to the knowledge of the plaintiff that sale deed in respect of the suit property in favour of predecessor in interest of the defendants was executed on 16th May, 1962 as per paragraph 10 of the plaint. No prayer is made in the plaint for cancellation of sale deed or to seek declaration that the sale deed is null and void nor the plaintiff has paid the court fee as per value of the property.
37. In paragraph 5, 6, 7, 9, 10, 11, 13, 15, it is stated that as per the version of the plaintiff, all these acts had taken place with the knowledge of the members of the plaintiff society. The plaintiff has filed the present suit in the year 2011 i.e. after 49 years from the date of execution of the sale deed.
CS(OS) No.1449/2011 Page 14 of 3538. In paragraph 21 of the plaint it is mentioned that the cause of action accrued when the suit property was conveyed from the name of earlier owners to the name of predecessor in interest of defendant, i.e. in the year 1962. This fact has been in the knowledge of the members of the plaintiff society, as it is apparent from reading of the paragraphs of the plaint mentioned in paragraph 2. Even predecessor in interest of the defendants died on 21st October, 2006 as admitted in the plaint in para 21, who is alleged to have acted against the interest of the plaintiff. The suit was filed in the year 2011 i.e. after 5 years. The Society was registered in the year 1996 as per the case of the plaintiff. On the date of registration, the plaintiff was fully aware about the alleged conduct of Sh. Matwal Chand despite of same the suit was filed after 15 years.
39. Once the plaintiff knew that the suit property was transferred to the predecessor in interest of defendants in the year 1962, suit is barred by limitation. The cause of action not being a re- occurring event and right to sue having occurred immediately at that time, suit is liable to be dismissed having been filed beyond a period of three years under Article 58/59 of Limitation Act.
40. In the case of J.D. Jain & Ors vs. Sharma Associates & Ors., 167 (2010) DLT 766 it was held as under:
"17. It is evident from the above materials that the plaintiffs were aware and in any event deemed to have been aware of the defendants' possession regarding the suit property and the basis of their claim for CS(OS) No.1449/2011 Page 15 of 35 possession, i.e., the partnership deed dated 18.11.1987 some time during that year or at best sometime in 1988--at the latest on 30.6.1988 when they filed the suit i.e. CS (OS) 194/1988. Articles 58 & 59, of the Schedule, to the Limitation Act prescribe the period of limitation in respect of the relief of declaration; it is three years from the date of accrual of the cause of action. Even if the Courts have to take a liberal and charitable view about the plaintiffs' knowledge having been acquired after the Suit filed by the defendants, their best case would be awareness sometime in the year 1988. If that were the4 starting point of the period of limitation, clearly the three year period ends sometime in 1991. That the plaintiffs were pursuing concurrent remedies in respect of the same suit property with this awareness is also evident from the copies of the complaint under Section 145 filed by them. Therefore, the Suit is clearly time barred as far as the relief of declaration claimed is concerned.
18. As far as the relief of possession is concerned, here too, the plaintiffs could have either sought that relief in any of the pending proceedings or even sought to counter claim for that relief in the suits pending before the Civil Court and the District Judge. They chose not to do so at any point of time. If the starting point of limitation were to be reckoned from 1988 onwards, clearly the relief of possession also stood barred in view of the Limitation Act--Article 65 sometime in 1999-2000.
19. The Court also finds as substantial the defendants' arguments regarding maintainability of the Suit on the ground that no leave was sought from the trial Court, which the plaintiffs have approached for the relief by filing the Civil Suit No. 194/1998. The provisions of Order 2 Rule 2, CPC compel a litigant or a suitor who seeks relief from the Court to also ask for grant of all such reliefs as he can, on the basis of the entire subsisting cause of action--as on the date of his CS(OS) No.1449/2011 Page 16 of 35 approaching the Court--to avoid multifariousness. If that is not possible, he has to seek leave, in the absence of which he is barred from instituting a fresh suit, in respect of such causes. In the present case, the plaintiffs' knowledge about the partnership deed dated 18.11.1987 and the awareness of the defendants' claim to be in legal possession, has to be seen in totality as conferring cause for the plaintiffs to approach the Court. They deliberately chose only to file a suit for injunction without seeking declaratory reliefs or decree for possession as is now urged in the present suit. In the opinion of this Court, provisions of Order 2 Rule 2, CPC clearly bars them from seeking such relief.
21. Thus, the Court should always be vigilant for scrutinizing the pleadings and materials placed before it to ascertain whether the litigation is frivolous or maintainable at all. The Supreme Court also observed that the Court must exercise its powers under CPC at every appropriate stage in order to nip frivolous cases or those which are clearly barred in law."
41. In Abdul Rahim & Ors vs. Abdul Zabar & Ors., (2009) 6 SCC 160 it was held as under:
"28. A suit for cancellation of transaction whether on the ground of being void or voidable would be governed by Article 59 of the Limitation Act. The suit, therefore, should have been filed within a period of three years from the date of knowledge of the fact that the transaction which according to the plaintiff was void or voidable had taken place. The suit having not been filed within a period of three years, the suit has rightly been held to be barred by limitation.
29. In Mohd. Noorul Hoda v. Bibi Raifunnisa [(1996) 7 SCC 767] this Court held: (SCC p. 771, para 6) CS(OS) No.1449/2011 Page 17 of 35 "6. ... There is no dispute that Article 59 would apply to set aside the instrument, decree or contract between the inter se parties. The question is whether in case of person claiming title through the party to the decree or instrument or having knowledge of the instrument or decree or contract and seeking to avoid the decree by a specific declaration, whether Article 59 gets attracted? As stated earlier, Article 59 is a general provision. In a suit to set aside or cancel an instrument, a contract or a decree on the ground of fraud, Article 59 is attracted. The starting point of limitation is the date of knowledge of the alleged fraud. When the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded. Section 31 of the Specific Relief Act, 1963 regulates suits for cancellation of an instrument which lays down that any person against whom a written instrument is void or voidable and who has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, can sue to have it adjudged void or voidable and the court may in its discretion so adjudge it and order it to be delivered or cancelled. It would thus be clear that the word 'person' in Section 31 of the Specific Relief Act is wide enough to encompass a person seeking derivative title from his seller. It would, therefore, be clear that if he seeks avoidance of the instrument, decree or contract and seeks a declaration to have the decrees set aside or cancelled he is necessarily bound to lay the suit within three years from the date when the facts CS(OS) No.1449/2011 Page 18 of 35 entitling the plaintiff to have the decree set aside, first became known to him."
(See also Sneh Gupta v. Devi Sarup [(2009) 6 SCC 194 : (2009) 2 Scale 765] .)"
42. In N.V.Srinivasa Murthy & Ors. vs. Mariyamma, (2005) 5 SCC 548 it was held as under:
"3. With the assistance and on the comments and counter-comments of the parties, we have carefully gone through the contents of the plaint. We find that the plaint has been very cleverly drafted with a view to get over the bar of limitation and payment ofad valorem court fee. According to us, the plaint was rightly held to be liable to rejection if not on the alleged ground of non-disclosure of any cause of action but on the ground covered by clause
(d) of Rule 11 of Order 7 of the Code of Civil Procedure namely that "the suit appears from the statement in the plaint to be clearly barred by law".
9. The cause of action is said to have arisen when the Assistant Commissioner by order dated 28-4- 1994 confirmed the orders of the lower authorities directing mutation of the names of the defendants on the suit lands and then again in the first week of July 1995 when the defendants as alleged had made an attempt to interfere with the plaintiffs' possession and enjoyment of suit lands. The suit was filed on 26-8-1996. In the prayer clause, the reliefs claimed in the suit are (a) declaration that the plaintiffs are absolute owners of the suit lands, and (b) permanent injunction restraining the defendants from wrongfully entering the scheduled property and from interfering with the peaceful possession and enjoyment of scheduled lands.
10. As seen from the pleadings it is clear that foundation of the suit is that the registered sale deed dated 5-5-1953 was, in fact, only a loan transaction CS(OS) No.1449/2011 Page 19 of 35 executed to secure the amount borrowed by the plaintiff's predecessor. The amount borrowed was alleged to have been fully paid back on 25-3-1987 and in acknowledgement thereof a formal receipt was obtained. At the same time, there was an alleged oral agreement by the defendants to reconvey the property to the plaintiff by registered deed.
11. On the above averments, relief of declaring the registered sale deed dated 5-5-1953 to be a loan transaction and second relief of specific performance of oral agreement of reconveyance of the property by registered instrument should and ought to have been claimed in the suit. A suit merely for declaration that the plaintiffs are absolute owners of the suit lands could not have been claimed without seeking declaration that the registered sale deed dated 5-5-1953 was a loan transaction and not a real sale. The cause of action for seeking such a declaration and for obtaining reconveyance deed according to the plaintiff's own averments in para 9 of the plaint, arose on 25-3-1987 when the plaintiffs claimed to have paid back the entire loan amount and obtained a promise from the defendants to reconvey the property. Reckoning the cause of action from 25-3-1987, the suit filed on 26-8- 1996, was hopelessly barred by time.
xxx xxx xxx
15. Civil Suit No. 557 of 1990 was pending when the present suit was filed. In the present suit, the relief indirectly claimed is of declaring the sale deed of 5-5- 1953 to be not really a sale deed but a loan transaction. Relief of reconveyance of property under alleged oral agreement on return of loan has been deliberately omitted from the relief clause. In our view, the present plaint is liable to rejection, if not on the ground that it does not disclose "cause of action", on the ground that from the averments in the plaint, the suit is apparently CS(OS) No.1449/2011 Page 20 of 35 barred by law within the meaning of clause (d) of Order 7 Rule 11 of the Code of Civil Procedure.
16. The High Court does not seem to be right in rejecting the plaint on the ground that it does not disclose any "cause of action". In our view, the trial court was right in coming to the conclusion that accepting all averments in the plaint, the suit seems to be barred by limitation. On critical examination of the plaint as discussed by us above, the suit seems to be clearly barred on the facts stated in the plaint itself. The suit as framed is prima facie barred by the law of limitation, provisions of the Specific Relief Act as also under Order 2 Rule 2 of the Code of Civil Procedure."
43. In the judgment of the Supreme Court in the case of N.V.Srinivasa Murthy (supra) the Court had observed that the mutation proceedings in the year 1994 did not give rise to a fresh cause of action as it was only in furtherance to the sale deed dated 5th May, 1953 and it appeared to have been made as a camouflage to get over the bar of limitation. Therefore, the Court had dismissed the suit under Order 7 Rule 11 CPC.
44. The suit filed by the plaintiff for a declaration that the plaintiff is an owner without seeking any declaration for cancellation of sale deed is not maintainable at all. Despite claiming declaration, no relief sought for cancellation of sale deed dated 16th May, 1962. In the absence of relief of cancellation of the sale deed, the suit itself is not maintainable. The suit is not maintainable so long as the sale deed stands, no relief of declaration can be granted to the plaintiff. The plaint does not disclose cause of action and is CS(OS) No.1449/2011 Page 21 of 35 barred by law within the meaning of clause (d) of Order 7 Rule 11 CPC.
I.A. No.16791/2011 (Order 6 Rule 17 CPC)
45. The plaintiff has filed the abovesaid application under Order 6 Rule 17 read with Section 151 CPC for amendment of the plaint in paras 2, 9, 10, 12, 13 and 18 by adding paras 2A, 9A, 9B, 10A, 10B, 10C, 12A, 13A, 13B and 18A. It is stated inter alia in the amendment application that the plaintiff Society is in use and occupation and is in legal possession of the suit land since its inception from 1958 till date and also maintained a society office in the suit premises and has been performing their work from the said office situated in the suit premises above mentioned. The father of the defendants No.1 and 2 was the Secretary of the Society and he got a General Power of Attorney executed by Sh. Amir Chand and Shri Brij Lal in his favour on 16th April, 1960 registered on 4th May, 1960.
46. It is stated that the amendments sought is necessary for determining the real question in controversy between the parties and the same is prayed for the purpose of determining the real question of disputes between the parties and same does make out a new case or a new cause of action. It is also stated that the amendment sought is a further explanation of pleadings which already exists in the plaint. It is also necessary to avoid multiplicity of the proceedings.
47. The following decisions are referred by the plaintiff in support of application for amendment of plaint :
CS(OS) No.1449/2011 Page 22 of 35a) In the case of Rajesh Kumar Aggarwal v. K.K. Modi, (2006) 4 SCC 385 : (para 16, 17, 19, 20) it was held :
"Test that governs issues of amendment is "real controversy" test.
Merits of proposed amendment - Not to be gone into at the stage of allowing amendment."
b) In the case of Saif-ul-Islam Company, L.P vs. Roshan Lal Arora & Another , 2003 AIHC 2966 Delhi High Court, (paras 12 to 15) it was held -
"Amendments are necessary for the purpose of determining real questions in controversy - do not change the nature of the suit and would not cause any prejudice to the defendants if the same are allowed."
"Mere delay and latches in making the application for amendment is not a good ground for refusal of the amendments."
c) In the case of Suraj Prakash Bhasin v. Raj Rani Bhasin, (1981) 3 SCC 652 (para 5 to 8) it was held -
"The liberal principles which guide the exercise of discretion in allowing amendments are that multiplicity of proceedings should be avoided, that amendments do not totally altered the character of an action should be readily granted."
d) In the case of Reevajeetu Builders and Developers vs. Narayanaswamy & Sons & Ors., (2009) 10 SCC 84 (paras 58, 59, 63 and 64) it was held -
"Basic test which must govern for grant or refusal of amendments is whether such amendment is necessary CS(OS) No.1449/2011 Page 23 of 35 for determination of real question in controversy or for proper and effective adjudication of the case."
e) In the case of Peepee Publisher & Distributors (P) Ltd vs. Dr. Neena Khanna & Anr., 2009 (110) DRJ 489 (paras 16 to 18) it was held -
"Courts cannot go into the truth or falsity or maintainability of the case in amendment. For complete and effective adjudication of the dispute between the parties amendment should be allowed."
f) In the case of Chet Ram Gupta v. Motian Devi Lamba, 148 (2008) DLT 473 (DB) (paras 10, 12, 14, 16, 17, 18) it was held -
"Amendments sought does not make out new case or new cause of action.
Fundamental facts stated by applicant continued to be same and in substance amendment does not introduce any new material facts.
Parties should not be made to suffer for want of proper drafting even when relevant facts are already before court in pleadings and basic structure of suit is not altered."
48. It is settled law that the Court must not refuse bonafide, honest and necessary amendment but at the same time, it is also settled law that the Court should never permit malafide, dishonest and unnecessary amendment which may cause prejudice to the other side which cannot be compensated adequately in terms of money. If plaint does not disclose cause of action as per averment made in the plaint and the suit is apparently barred by law, the Court normally should reject the amendment in case a CS(OS) No.1449/2011 Page 24 of 35 party trying to introduce different new case and seeking to displace the case of the other side by withdrawing admissions.
49. The following decisions are necessary to be discussed in this regard :
a. In Muni Lal v. The Oriental Fire & General Insurance Company Ltd. and Anr., AIR 1996 SC 642 it was held as under:
"6. On a consideration of this case in its proper perspective, we are of the view that granting of amendment of plaint seeking to introduce alternative relief of mandatory injunction for payment of specified amount is bad in law. The alternative relief was available to be asked for when the suit was filed but not made. He cannot be permitted to amend the plaint after the suit was barred by the limitation during the pendency of the proceeding in the appellate court or the second appellate court. Considered from this perspective, we are of the view of the opinion that the District Court and the High Court were right in refusing the prayer of amendment of the suit and the courts below had not committed any error of law warranting interference."
b. In Heeralal vs. Kalyan Mal, AIR 1998 SC 618 it was held as under:
"9. Now it is easy to visualize on the facts before this Court in the said case that the defendant did not seek to go behind his admission that there was an agreement of 25-1-1991 between the parties but the nature of the agreement was sought to be explained by him by amending the written statement by submitting that it was not an agreement of sale as such but it was an agreement for development of land. The facts of the present case are entirely different and consequently the said decision also cannot be of any help for the learned counsel for the respondents. Even that apart, the said CS(OS) No.1449/2011 Page 25 of 35 decision of two learned Judges of this Court runs counter to a decision of a Bench of three learned Judges of this Court in the case of Modi Spg. & Wvg. Mills Co. Ltd. v. Ladha Ram & Co. [(1976) 4 SCC 320 :
(1977) 1 SCR 728] In that case Ray, C.J., speaking for the Bench had to consider the question whether the defendant can be allowed to amend his written statement by taking an inconsistent plea as compared to the earlier plea which contained an admission in favour of the plaintiff. It was held that such an inconsistent plea which would displace the plaintiff completely from the admissions made by the defendants in the written statement cannot be allowed.
If such amendments are allowed in the written statement the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. In that case a suit was filed by the plaintiff for claiming a decree for Rs 1,30,000 against the defendants. The defendants in their written statement admitted that by virtue of an agreement dated 7-4-1967 the plaintiff worked as their stockist-cum-distributor. After three years the defendants by application under Order VI Rule 17 sought amendment of written statement by substituting paras 25 and 26 with a new paragraph in which they took the fresh plea that the plaintiff was mercantile agent-cum-purchaser, meaning thereby they sought to go behind their earlier admission that the plaintiff was stockist-cum-distributor. Such amendment was rejected by the trial court and the said rejection was affirmed by the High Court in revision. The said decision of the High Court was upheld by this Court by observing as aforesaid. This decision of a Bench of three learned Judges of this Court is a clear authority for the proposition that once the written statement contains an admission in favour of the plaintiff, by amendment such admission of the defendants cannot be allowed to be withdrawn if such withdrawal would amount to totally displacing the case of the plaintiff and which would CS(OS) No.1449/2011 Page 26 of 35 cause him irretrievable prejudice. Unfortunately the aforesaid decision of the three-member Bench of this Court was not brought to the notice of the Bench of two learned Judges that decided the case in Akshaya Restaurant [1995 Supp (2) SCC 303] . In the latter case it was observed by the Bench of two learned Judges that it was settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings. The aforesaid observations in the decision in Akshaya Restaurant [1995 Supp (2) SCC 303] proceed on an assumption that it was the settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings. However the aforesaid decision of the three-member Bench of this Court in Modi Spg. [(1976) 4 SCC 320 :
(1977) 1 SCR 728] is to the effect that while granting such amendments to written statement no inconsistent or alternative plea can be allowed which would displace the plaintiff's case and cause him irretrievable prejudice.
xxx xxx xxx
12. In our view, therefore, on the facts of this case and as discussed earlier, no case was made out by the respondents, contesting defendants, for amending the written statement and thus attempting to go behind their admission regarding 5 out of 7 remaining items out of 10 listed properties in Schedule A of the plaint.
However, so far as Schedule B properties are concerned, from the very inception the defendants' case qua those properties was that the plaintiff had no interest therein. By proposed amendment they wanted to introduce an event with reference to those very properties by submitting that they had been in possession of trespassers. Such amendment could not be said to have in any way adversely or prejudicially affected the case of the plaintiff or displaced any admission on their part qua Schedule B properties CS(OS) No.1449/2011 Page 27 of 35 which might have resulted into any legal right in favour of the plaintiff. Therefore, so far as Schedule B properties were concerned, the amendment could not be found fault with. Hence exercising the powers under Article 136 of the Constitution of India we would not be inclined to interfere with that part of the decision of the High Court allowing the amendment in the written statement, even though strictly speaking High Court could not have interfered with even this part of the order under Section 115 CPC."
c. In Modi Spinning and Weaving Mills Co. Ltd. and Anr. Vs. Ladha Ram & Co., AIR 1977 SC 680 it was held as under:
"7. The trial court rejected the application of the defendants for amendment. One of the reasons given by the trial court is that the defendants wanted to resile from admissions made in para 25 of the written statement. The trial court said that "the repudiation of the clear admission is motivated to deprive the plaintiff of the valuable right accrued to him and it is against law". The trial court held the application for amendment to be not bona fide.
8. The High Court on revision affirmed the judgment of the trial court and said that by means of amendment the defendants wanted to introduce an entirely different case and if such amendments were permitted it would prejudice the other side.
10. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paras 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the CS(OS) No.1449/2011 Page 28 of 35 application for amendment and agreed with the trial court."
d. In Gautam Sarup vs. Leela Jetley & Ors., (2008) 7 SCC 85 it was held as under:
"28. What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other."
e. The Supreme Court in the case of Revajeetu Builders's case (supra) held as under:
"20. The learned counsel for the respondents further relied on the decision in Heeralal vs. Kalyan Mal & Ors. (JT 1997 (9) SC 267: 1998 (1) SCC 278) wherein the court proceeded on the basis that the earlier admissions of the defendant cannot be allowed to be withdrawn. The court examined the facts and held that the defendant cannot be permitted to withdraw any admission already made.
xxx xxx xxx
38. The rule, however, is not a universal one and under certain circumstance, such an amendment may be allowed by the court notwithstanding the law of limitation. The fact that the claim is barred by law of limitation is but one of the factors to be taken into account by the court in exercising the discretion as to whether the amendment should be allowed or refused, but it does not affect the power of the court if the amendment is required in the interests of justice. Ganga Bai vs. Vijai Kumar (1974) (2) CS(OS) No.1449/2011 Page 29 of 35 SCC 393): Arundhati Mishra vs. Sri Ram Charitra Pandey (1994) (2) SCC 29)".
f. The Supreme Court in the case of Radhika Devi vs. Bajrangi Singh., JT 1996 (2) SC 238 held as under:
"The appellant has instituted Partition Suit No.24/88 in the Court of Subordinate Judge, Aurangabad for partition of certain properties. Respondents 16 to 20 herein filed written statement on June 15, 1988 wherein they pleaded that Ramdeo Singh had executed and registered a gift deed in their favour on July 28, 1978 bequeathing the properties covered there under. They became owners of those lands and the appellant is bound by the same. Pending the suit, the appellant filed an application under Order 6 Rule 17, CPC on November 11, 1992 seeking declaration that the gift deed was obtained by the respondents illegally and fraudulently and, therefore, it was ineffective and does not bind the appellant. Though the trial Court by order dated November 24, 1992 allowed the petition, the High Court in Revision No.1657/92 by order dated August 13, 1993 allowed the petition and set aside the order directing amendment of the plaint. Thus, this appeal by special leave. Shri S.K. Sinha, learned Counsel for the appellant has contended that the appellant had no knowledge of the execution of the gift deed by Ramdeo Singh and by the amendment of the plaint, the appellant is not defeating the right of the respondents but is merely seeking to avoid the gift deed executed which was detrimental to appellant's right, title and interest in the property. Therefore, the amendment does not alter either the character of the suit or the nature and the relief already sought, viz., partition of the property. Shri Sanyal, the learned senior counsel for the respondents, contended that the appellants had lost the right to seek the above declaration as being barred by limitation. The registration of the document is a notice to everyone claiming any right, title and interest therein; even CS(OS) No.1449/2011 Page 30 of 35 otherwise, the respondents in the written statement filed on June 15, 1988 has specifically pleaded about the gift being made by Ramdeo Singh in their favour. Despite that, the appellant had not taken any steps till November 1992 by which time even the suit for declaration within the limitation of three years from the date of knowledge had got time-barred. Therefore, the appellant is not entitled to amend the plaint which would prejudicially affect the rights of the respondents."
50. This suit for declaration has been filed admitting that plaintiff is not in possession. After filing the present application, an application for amendment was filed and claim was made that the plaintiff is in possession. In fact, the plaintiff was/is aware that if the plaintiff is not in possession, an ad valorem court fees having not been paid on the market value of the suit property and consequential relief of possession, after claiming declaration, having not been claimed, thus suit became barred under Section 34 of Specific Relief Act.
51. The prayer clause of I.A. 9562/2011 under Order 39 Rule 1 and 2 CPC as well as prayer clause of plaint and document filed by the plaintiff at pages 211 and 226, being judgment dated 15th April, 2004 in W.P.(C) No.2677 of 1981, wherein admission of predecessor-in-interest of defendants have been acknowledged and admitted. The sale Deed dated 16th May, 1962 by virtue whereof predecessor-in-interest the defendants became owner was filed by plaintiff wherein it has been mentioned that predecessor-in-interest of the defendants were the owner and in possession of the suit property.
CS(OS) No.1449/2011 Page 31 of 3552. While claiming declaration, no relief sought for possession and plaintiff admittedly not even averred or claimed possession of the suit property. Suit filed merely for declaration without possession, is barred under Section 34 of Specific Relief Act. Further there is no averment of plaintiff being in possession, which fact on the contrary having been asserted by the defendant that they are in possession and no relief having been claimed for possession.
53. The suit having not been valued for the relief of possession for the purposes of court fees nor any ad valorem court fees having been paid on the market value of the suit property, suit is not maintainable in the absence of court fees and as such is liable to be rejected.
54. In Jaswant Singh VS. Surinder Kaur Kohli, 159 (2009) DLT 517 it was held as under:
"2. It is submitted by the plaintiff that the value of the property transferred by the virtue of the sale deed was Rs. 85 lac and out of that Rs. 25 lac was the sale consideration mentioned in the sale deed and Rs. 60 lac was to be paid in cash by the defendant by the same evening. He took the plea that the defendant played foul play and did not hand over the cash and also did not hand over the cheques as mentioned in the sale deed. The plaintiff has valued the suit for the purpose of jurisdiction at Rs. 85 lacs but for the purpose of court fees, he has not valued the suit and stated that the Court fee paid as Rs. 20 only. While issuing summons of the suit, this Court had left the question of court fee open and allowed registration of the instant plaint.
6. Since the suit has been filed by the plaintiff for cancellation of the sale deed of a property worth Rs. 85 CS(OS) No.1449/2011 Page 32 of 35 lac, it is apparent that in order to avoid payment of correct court fees for transferring back the property worth Rs. 85 lac, he camouflaged the suit in the form of declaration that the deed was void and was not binding on the plaintiff. In all such cases where cancellation or voiding of the sale deed is sought, it implicitly amounts to a claim over the property already sold and possessions delivered. Section 7(iv)(c) of the Court Fees Act would apply and the plaintiff is bound to pay the Court fees on the valuation of the suit put by him for the purpose of jurisdiction. Plaintiff cannot affix a court fee of Rs. 20 as levied by the plaintiff where the suit is for cancellation of the sale deed on the ground of foul play or coercion or undue influence, which comes within the ambit of Section 7(iv)(c). The Court fee has to be paid on the valuation of the suit put by the plaintiff for the purpose of jurisdiction only.
7. The contention of the plaintiff that defendant fraudulently made the plaintiff execute the sale deed, without payment of consideration, on the face of it cannot be considered even for the purpose of Court fees, in view of settled law that any amount of oral evidence cannot be considered by the court when the parties have entered into a written contract and the written contract will have the precedence. Where the sale deed, on the very face of it had been duly executed and registered and title and possession have passed to defendant by virtue of the sale deed, a declaration of sale deed being void, would necessarily implicit cancellation of the sale deed and the consequential relief of passing of title back to the plaintiff is implicit in the prayer and, therefore, suit is governed by Section 7(iv)
(c) of the Court Fees Act and not by Schedule II, Article 17(3). In fact by filing this suit, the plaintiff has claimed title over the property which, according to plaintiff is Rs.
85 lac. Thus, the plaintiff is liable to pay Court fees on this amount. The suit of the plaintiff is thus liable to be rejected on the ground of non-payment of court fees.
CS(OS) No.1449/2011 Page 33 of 35However, the plaintiff is given a chance to pay the Court fee on the value of Rs. 85 lac, as put by the plaintiff for the purpose of jurisdiction, within three weeks from today. In case the court fee is not paid within three weeks, the suit is liable to be rejected on this ground."
55. The plaintiff pleads in the plaint that the suit property was purchased in the name of predecessor in interest of defendants on 16th May, 1962. No one has claimed any interest in the suit property since that time except by way of filing the present suit by the plaintiff Society which was registered in the year 1996. The suit even is barred by the provisions of Benami Transaction (Prohibition) Act, 1988 and is not maintainable in view of provisions of Section 4 of the said Act.
56. It is settled law that if on the face of it the suit is barred by limitation, the Court can exercise its discretion to reject the plaint unless the Court finds that the issue of limitation is to be determined after the trial in doubtful matter where such issue needs a trial.
57. In the amendment application, the plaintiff is claiming that the society is in part possession of the suit property as this application has been filed after the defendants filed the written statement and an application for rejection of the plaint on the ground of plaintiff being not in possession, and having not claimed possession is not entitled to maintain the suit in view of Section 34 of Specific Relief Act and in the absence of requisite court fees for the relief of possession. Plaintiff has not averred that it is in possession of the any part of the suit property. Consequently by CS(OS) No.1449/2011 Page 34 of 35 way of present application of the amendment, it is seeking to withdraw admission, which cannot be permitted. Law in relation to amendment of the plaint is strict as compared to written statement nor the plaintiff can be permitted to withdraw the admission already made which has vested the defendants with a right which cannot be taken away.
58. In the abovesaid reasons, it is clear that the suit filed by the plaintiff is time barred on the face of it and further the amendment sought by the plaintiff is introducing entirely different case by alleging that the plaintiff is in possession of the suit property though in the original plaint, the said fact was not pleaded. The plaintiff by alleging the same is trying to place new case by completely displacing the case of the plaintiff from admissions made by the plaintiff. The said application is thus not maintainable, even otherwise once the suit on the face of it is time barred as well as on other reasons as mentioned earlier paras of the orders, the plaintiff is not entitled to amend the plaint. Such application cannot be entertained. Therefore, the amendment application being I.A. No.16791/2011 of the plaintiff under Order 6 Rule 17 CPC is dismissed. The application being I.A. No.13043/2011 filed by the defendants under Order 7 Rule 11 CPC is allowed. The plaint is rejected under the provisions of Order 7 Rule 11 (d) CPC.
(MANMOHAN SINGH) JUDGE FEBRUARY 04, 2015 CS(OS) No.1449/2011 Page 35 of 35