Delhi District Court
Smt. Nirmala Singh vs . Smt. Moolwati on 20 October, 2012
IN THE COURT OF MS. ANJANI MAHAJAN, CIVIL JUDGE02, DISTRICT
(NORTH), TIS HAZARI COURTS, DELHI
SUIT NO. 401/97
Smt. Nirmala Singh Vs. Smt. Moolwati
ORDER
1. This order shall decide the two applications on which arguments were advanced by Ld. Counsel for the parties 1) Application of the plaintiff under order 6 rule 17 CPC and 2) Application of the defendant under order 7 rule 11 CPC.
2. Before adverting to the two applications at hand, the brief history of the present case is essential to be set out.
3. The plaintiff filed a suit for declaration originally before the Ld. Civil Judge, Moradabad that she was the owner in possession of suit land i.e. land admeasuring 240 square feet out of land no. 70, area 1.22 decimal, village Manpur Narainpur District Moradabad, and that the defendant had no right to interfere in the possession of the plaintiff, on the ground that the plaintiff had purchased the same from the defendant Sh. Ramakant Aggrawal (since deceased and substituted through his Legal heirs i.e. the present defendants) for a sum of Rs. 8,000/ on 10.02.1971. The suit was instituted on 08.08.1978. As per record, an application was moved for recording of an alleged compromise between the parties on 08.09.79, on the basis of which compromise decree was drawn up on 05.10.79. However, on 25.01.80, an application under Order 9 rule 13 CPC read with section 151 CPC was moved by the defendant on the ground that the plaintiff had allegedly obtained the decree behind his back, fraudulently in connivance with the son in law of the Suit No. 401/97 1 defendant Sh. Munish Chand Goyal, Advocate and sought setting aside of the decree. The application of the defendant was allowed subject to cost on 22.03.80 and the suit was restored. Thereafter, the suit was dismissed in default vide order dated 22.04.80. Plaintiff filed an application for restoration of the suit on 02.12.1980 alleging that the defendant had got the decree set aside fraudulently and she had not got notice of restoration of the suit after the application under order 9 rule 13 CPC had been allowed. This application was dismissed in default on 17.09.1982, a second application for restoration of the application was also dismissed in default on 04.02.1983 and a third application for restoration was filed on 08.09.1983. The plaintiff cannot be faulted for the dismissal of these applications since in between, she had filed an application for transfer of the suit to Delhi as her father had been murdered and she was terrified to attend court in Moradabad, which application was allowed by the Hon'ble Supreme Court vide orders. On 29/03/95, the applications for restoration were allowed by the Ld. Civil Judge subject to cost. Defendant filed written statement dated 24.02.96, and took various preliminary objections including inter alia; bar of limitation, suit was barred under section 34 of the Specific Relief Act, plaintiff was never in possession of the suit land and the defendant was in possession of the suit land even prior to filing of the suit, suit for declaration without seeking relief of possession was not maintainable. Defendant also denied execution of any agreement to sell or making of payment. Defendant in fact denied being the owner of the suit land. Suit was dismissed in default on 01.05.97 and restored on 25.07.97.
Suit No. 401/97 2
4. With this background, the application of the plaintiff under order 6 rule 17 C.P.C. can be referred to 4.1 The plaintiff filed an application dated 24.07.2006 seeking amendment of the plaint stating that the plaintiff was in possession of the suit property when the suit had been filed, however, during the absence of the plaintiff, the possession of the suit property had been taken and wished to amend the plaint to include para 3(a) to this effect, and also to include the relief of possession. It is stated that since the defendants (Legal heirs of the deceased defendant) had taken possession of the suit property during the pendency of the proceedings, therefore the proposed amendments were necessary for determining the real controversy between the parties.
4.2 The defendants opposed the application for amendment and stated that the owner of the suit land was the State of U.P. and the suit was barred by the U.P. Zamindari Abolition and Land Reforms Act, 1951. It was also alleged that the plaintiff had never been in possession as father of the plaintiff, Late Sh. Harpal Singh was the tenant of the disputed property and a S.C.C. Suit no. 76/1980 was decreed on 10.11.1980 for rent and ejectment against the plaintiff's father. The plaintiff as Legal representative of the judgment debtor Sh. Harpal Singh had filed objections under section 47 CPC which were dismissed. The suit property was delivered to the defendant during execution proceedings of the aforesaid decree on 23.05.1983. It was averred that the possession of the defendant was through a decree of the court and no amendment could be allowed to change the nature of the suit unless the Suit No. 401/97 3 decree was cancelled and 23 years had passed since the plaintiff was dispossessed through court orders and defendants as owners/landlords had been given possession. The application was sought to be dismissed with costs. 4.3 I have heard the arguments of Ld. Counsel for the parties and perused the record.
4.4 Pertinent to note is the fact that the plaintiff has not even mentioned the date when the dispossession is alleged to have been done by the defendants or the facts as to how and in what manner the dispossession was carried out. A bald and cryptic averment that she was dispossessed from the suit property has been made without any details as to when the incident occurred. On the other hand is the defendant's claim which cannot be ignored that the plaintiff's father Late Sh. Harpal Singh and consequently the plaintiff as legal representative of Late Sh. Harpal Singh were evicted vide court orders in the year 1983. In this case unfortunately till date, not even the issues have been framed and as such though the law relating to amendment of pleadings at the pretrial stage is very liberal however, it is subject to the conditions that the amendment sought should be necessary for determining the real issue in controversy between the parties and should not result in injustice or irreparable loss to the other side and amendment sought should be a bonafide one. In the present case, the amendment application on the face of it appears to be malafide considering that the suit was filed in 1978, the written statement was filed in 1996 and the present application has been filed in the year 2006, ten years after the filing of the written statement wherein the specific defence taken by defendant was Suit No. 401/97 4 that the plaintiff was not in possession of the suit land and also since the application of the plaintiff is unnaturally silent about the material facts of the alleged dispossession including date of dispossession. Also noteworthy is the fact that the application has been filed even after the filing of the application of the defendant under order 7 rule 11 CPC in the year 2000, wherein again the defendant alleged that the plaintiff was not in possession. The plaintiff had filed the present declaratory suit on the strength of the plea that she was owner in possession of the suit land. Subsequent events can definitely be sought to be incorporated by way of an application under order 6 rule 17 CPC but the amendment application must disclose clearly and cogently the exact sequence of events which would form the material facts showing that the dispossession was a fact which occurred during the pendency of the litigation and that it was illegal dispossession, and not, as is the plea of the defendant, dispossession in pursuance of a decree. No dates are given by the plaintiff which could have allowed the court to ascertain whether the claim being made is within time or not. The court cannot be a silent spectator ignoring the surrounding facts and circumstances of the case. The present application discloses no ground for allowing amendment of the pleadings being vague and malafide in nature and in my opinion, deserves dismissal.
4.5 For the foregoing reasons, the application of the plaintiff under order 6 rule 17 CPC is hereby dismissed.
5. Application of defendant under order 7 rule 11 read with section 151 CPC.
6. The defendant stated in the application under order 7 rule 11 CPC that the Suit No. 401/97 5 suit land was a land paying revenue and was governed by the U.P. Zamindari Abolition and Land Reforms Act and that the declaration sought was within the exclusive jurisdiction of the revenue court. It was stated that the jurisdiction as provided for declaratory suit under section 209 is with the Assistant Collector, Ist class as mentioned in Schedule II in column 4 and the jurisdiction of the civil court was barred under section 331I A. Further, it was alleged that even under section 34 of the Specific Relief Act, the declaratory relief sought by plaintiff was not maintainable. It was also claimed that plaintiff was not in possession.
7. The plaintiff opposed the application stating in the preliminary objections that the plea sought to be raised was not raised in the written statement thus the application was not maintainable and the application had been filed with the motive to delay the proceedings. It was averred that the plaintiff had filed a suit for declaration to the effect that the plaintiff was the owner and in possession of property built by her on a piece of land measuring 240 square yards which was purchased from the deceased defendant Sh. Ramakant Aggarwal and the suit had been decreed but the defendant had got it set aside fraudulently without the knowledge of the plaintiff. It was denied that the suit was barred by U.P. Zamindari Abolition and Land Reforms Act and it was averred that only the civil court had the jurisdiction to deal with the present suit. It was further the case of the plaintiff that the proper court fee had been paid, when the suit was filed and the plaintiff was in possession of the suit property at the time of filing of the suit. Office report also revealed that the suit was within the jurisdiction of the court of the Munsif at Suit No. 401/97 6 Moradabad and proper court fee had been paid.
8. Oral arguments were advanced by the Ld. Counsel for the parties. Counsel for the plaintiff argued that after more than twenty years, the defendant could not be heard to say that the suit was not maintainable and liable to be rejected. It was also argued that the defendant had earlier admitted the possession of the plaintiff when entering into the alleged compromise showing that the plaintiff was in possession and plaintiff's suit for declaration simpliciter was maintainable. Ld. Counsel for the plaintiff also argued that nomenclature of the suit does not matter and suit was within limitation since execution of sale deed was avoided by defendant for one reason or another and finally defendant refused on 01.04.1978 and plaintiff filed the suit on 08.08.1978. It was orally argued that the defendant had got the compromise decree set aside by fraud. Ld. counsel for the plaintiff relied upon the following judgments - Surjit Singh Bhatia Vs. Tej Raj Singh Goel (HUF) 2011 (7) AD (Delhi) 359, Texem Engineering Vs. Texcomash Export 2011 (179) DLT 693, and Image Advertisement & Anr. Vs. Anand Prakash 2010 AD (Delhi) 149 for the point that only the contents of the plaint are to be seen at the time of deciding the application U/o 7 R 11 CPC. This is well settled. Plaintiff has relied upon Basti Ram Vs. Nagar Nigam Ghaziabad 2nd appeal no. 938/1999, State of U.P. Vs. Smt. Ram Sri & Anr AIR 1976 All 121 and Udai Singh Vs. Gaon Sabha MANU/UP/1037/2011 on the point of jurisdiction of civil court.
9. Ld. Counsel for the defendant argued that firstly, the suit of the plaintiff was barred by limitation since the plaintiff alleged the cause of action arose on Suit No. 401/97 7 10.02.1971 and the suit was filed on 08.08.1978, which was more than three years after the date the cause of action arose. Secondly, it was argued that the U.P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act) barred the suit and the plaintiff had not arrayed the Gaon Sabha or U.P. State government as a necessary party and it was claimed that the suit was barred under section 229 B of the aforesaid Act. Defendant also argued that a suit for declaration after seven years of the alleged agreement to sell without prayer for specific performance was not maintainable and reference was made to 2000 CLT (1) 426.
10. Heard and perused.
11. The argument of the plaintiff that the present application cannot be considered since it is filed more than twenty years after the filing of the suit cannot be legally sustained. In Saleem Bhai and Ors. v. State of Maharashtra and Ors. MANU/SC/1185/2002 : [2002]SUPP5SCR491 it was held with reference to Order VII Rule 11 of the Code that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial Court can exercise the power at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial.
12. Therefore, at any time prior to conclusion of the trial, the court may consider the application under order 7 rule 11 CPC and going only by the plaint averments, without looking at the defences taken in the written statement, the court must be satisfied that the suit is not barred by law otherwise it would result in rejection of the suit. There is always a duty on the plaintiff to bring an appropriate action for Suit No. 401/97 8 protecting any rights that he alleges infringement of, for the redressal of which the court machinery exists, and if the action is barred by any law or falls within any of the other parameters of the provision of order 7 rule 11 CPC, then the plaintiff runs an inherent risk of getting his action rejected under this mandatory provision.
13. For considering the applicability of order 7 rule 11 CPC the court is only to look at the pleadings of the plaintiff and see if any of the bars envisaged under order 7 rule 11 CPC applies. The plaintiff has filed the present suit for declaration that plaintiff is owner in possession of suit property. Ld. Counsel for plaintiff argued that section 9 of the U.P. Zamindari Abolition and Land Reforms Act was attracted to the present case as the plaintiff had constructed a building on the land and the same was deemed to be settled with the plaintiff by the State Government and thus the State government was not a necessary party.The case referred to by the plaintiff in this regard is Basti Ram Vs. Nagar Nigam Ghaziabad 2nd appeal no. 938/1999. A close scrutiny of the case would reveal that the same does not support the case of the plaintiff. The suit land is 'Araji' land which is agricultural land. The case relied on by the plaintiff i.e. Udai Singh Vs. Gaon Sabha & Ors. ( MANU/UP/1037/2011) does not help the case of the plaintiff and is on different facts and not helpful to the case of the plaintiff.
14. However, the bar of the U.P. Zamindari Abolition and Land Reforms Act would apply only in cases as provided under the Act which include declarations in relation to Bhumidari or Asami rights or declaratory suits by the Gaon Sabha and in the present case, the plaintiff is seeking a declaration of ownership on the basis of an Suit No. 401/97 9 alleged agreement to sell, which would not fall within the parameters of the declarations as envisaged under the aforesaid Act, thus as such, the bar of jurisdiction in view of the U.P. Zamindari Abolition and Land Reforms Act is not strictly attracted in the present case. However, in Cdr. Bhupinder Singh Rekhi vs C.S. Rekhi And Ors. 1998 VIIAD Delhi 200 an identical situation arose wherein the reliefs of declaration of ownership and permanent injunction were sought on the basis of an agreement to sell and while considering the issue of maintainability of the suit with regard to bar of jurisdiction of the civil courts under the Delhi Land Reforms Act, the Hon'ble Delhi High Court observed thus "The plaintiff has not filed the present suit for declaration of Bhumidhari rights in respect of the land. The tenor of the plaint shows that the plaintiff has filed this suit for declaration of his title to the suit on the ground that he had purchased it from its owner. It is well established that a Revenue Court is not competent to decide title in respect to an agricultural land. Thus, the present suit of the plaintiff for declaration of title and permanent injunction is not covered under specific matters enumerated in Schedule I of the Act and, therefore, the Civil Court has jurisdiction to entertain the present suit......
....the agreement to sell dated 8.6.1981 is the foundation of the present suit. As per Section 54 of the Transfer of Property Act, an immovable property gets conveyed only by registered sale deed. Therefore, unless there was a registered document of sale in favour of the proposed transferee agreement holder, the title of the land would not get divested from the vendor and would Suit No. 401/97 10 remain in his ownership. Thus, despite the alleged agreement to sell in favour of the plaintiff, that had taken place on 8.6.1981, the suit land which continued to remain in the ownership of the defendant No. 1 could be legally conveyed to any other person by a registered document. Admittedly, the plaintiff has not filed any suit against the defendant No. 1 for specific performance of the agreement dated 8.6.1981. It is axiomatic that mere agreement to sell creates no legal interest or right in the property which is the subject matter of the agreement. (Ram Baran Prasad v. Ram Mohit Hazra and Ors.,Satyabrata Ghose v. Mugneeram Bangur and Co, and Anr., ). Therefore, it must be held that by mere agreement to sell, the plaintiff got no interest in the suit land. Consequently, he could not be said to be having any legal interest to entitle him to file the present suit." (Emphasis supplied by me).
15. Even in the present case the plaintiff has not sought specific performance of the alleged agreement to sell, and has merely sought a declaration that she is the owner in possession of the suit property since she had purchased the same from the deceased defendant who did not execute sale deed in her favour. For seeking the declaration of ownership, the plaint must clearly show the right/entitlement of the plaintiff on which the plaintiff bases such a claim. The pleadings are silent on whether there was a written agreement to sell or an oral agreement to sell and if it was written then there is no such agreement on record. As held by the Hon'ble Delhi High Court in Cdr. Bhupinder Singh Rekhi's case (supra) mere agreement to sell would not create any legal interest or right in the property thus plaintiff has got no Suit No. 401/97 11 interest in the suit land and consequently does not have the locus or the legal right to file the present suit. The plaint must disclose a cause of action and the right of the plaintiff to institute the proceedings which is absent in the present case. Therefore, I am of the considered view that the plaint does not disclose a cause of action in favour of the plaintiff and must be rejected under order 7 rule 11 (a) C.P.C.
16. The bar of limitation as alleged in the written statement is also apparent and a pure question of law in the facts of the case because the plaintiff states in the cause of action paragraph that the cause of action arose on 10.02.71 when the suit land was allegedly sold to the plaintiff by the defendant and on each day thereafter and also on 01.04.1978 since the defendant kept mum and did not execute a sale deed in favour of the plaintiff. Section 3 of the Limitation Act casts a duty on the court to see whether the bar of limitation is attracted to a suit. The provisions of Article 58 of the Limitation Act 1963 apply in the present suit and the prescribed period for bringing the suit is three years from the date the cause of action first accrues. There is no averment as to whether there was an oral agreement or a written one and regardless of whether the same was written or oral, as the cause of action as per the plaint itself arose on 10.02.71 i.e. on the date of the transaction and the plaintiff has brought a suit for declaration, the plaintiff was required to bring a suit within three years from this date and no explanation is given as to why it was not so brought within the statutory period. In fact, apart from a mere averment that the cause of action was continuing which it was not, and stating that the defendant had kept mum till 01.04.1978, the limitation period does not get extended. In my opinion, the plaint is Suit No. 401/97 12 barred by limitation. Even on this count, the plaint must be rejected as being barred by the law of limitation under order 7 rule 11 (d) CPC.
17. A sympathetic view on the account of long years having elapsed since the filing of the suit is not warranted especially since the trial in this case has not even commenced. In any case, it would rather be against the interest of justice to allow the present suit to continue which is inherently defective and barred by law.
18. The plaint of the plaintiff is rejected under order 7 rule 11 (a) and (d) CPC but without any order as to costs in the peculiar facts of the present case.
Decree sheet be prepared accordingly.
File be consigned to the record room.
Announced in the open court ANJANI MAHAJAN
On 20.10.2012. Civil Judge - 02 (North)
20.10.2012
Suit No. 401/97 13
20.10.2012 Suit No. 401/97
Present: None.
Vide separate order of even date the application of the plaintiff U/o 6 R 17 CPC is dismissed and the application of the defendant U/o 7 R 11 CPC is allowed. Plaint of the plaintiff is rejected under order 7 rule 11 (a) and (d) CPC but without any order as to costs in the peculiar facts of the present case.
Decree sheet be prepared accordingly.
File be consigned to the record room.
ANJANI MAHAJAN Civil Judge 02 (North)/THC Delhi/ 20.10.2012 Suit No. 401/97 14