Delhi District Court
Raval Kaur vs Ranjit Kaur @ Bobby on 4 August, 2015
IN THE COURT OF MS. SAVITA RAO, ADDITIONAL DISTRICT
JUDGE01, (WEST), TIS HAZARI COURTS, DELHI
RCA No. : 10/13
Suit No. : 260/2012
In the Matter of :
1. Raval Kaur
W/o Late S. Satpal Singh
R/o 24/53A, Tilak Nagar, New Delhi
2. Jagjit Kaur
W/o Sh. Navneet Sharma
R/o Site - 1/282, Vikas Puri, New Delhi
3. Neelam
W/o Sh. Raju D/o Late Sh. Satpal Singh
R/o 24/53A, Tilak Nagar, New Delhi
.........Appellants
Vs.
1. Ranjit Kaur @ Bobby
W/o Late Sh. Harminder Singh
(S/o Late Sh. Satpal Singh)
2. Baby Tajinder Kaur @ Chinki
D/o Late S. Harminder Singh
3. Master Manpreet Singh @ Kirath
S/o Late S. Harminder Singh
RCA No. : 10/2013 1/11
Respondent no. 2 & 3 through their mother (R1)
Respondent no. 1 to 3
R/o L71, New Mahavir Nagar, Delhi
4. S. Manjit Singh
S/o Late Sh. Satpal Singh
R/o C45, Netaji Nagar
Near C Block Market, New Delhi
5. Surjit Kaur
W/o S. Jagdish Singh Anand
D/o Late S. Satpal Singh
R/o House no. 139, Gali no. 11
Block B2, New Mahavir Nagar, Delhi
6. Suman
W/o Lates Sh. Ravinder Singh
(S/o Late S. Satpal Singh)
7. Baby Anu
D/o Late Sh. Ravinder Singh
8. Master Ajit Singh @ Manni
S/o Late Sh. Ravinder Singh
Respondent no. 7 & 8
Through their Mother Respondent no.6
Respondent no. 6 to 8, R/o House no. 7
Block No. 20, Tilak Nagar, Delhi
9. A.K. Narang
RCA No. : 10/2013 2/11
C/o Narang Properties
A97/1, Ganesh Nagar
Near Tilak Nagar, Delhi - 18
.........Respondents
Date of Institution : 14.02.2013
Date of taking over the charge
in this court : 24.01.2015
Date of Arguments : 16.07.2015, 25.07.2015 & 4.08.2015
Date of Judgment : 04.08.2015
JUDGMENT
1. This is an appeal filed on behalf of appellants aggrieved by the judgment of Ld. trial court dated 19.11.2012 whereby in suit for specific performance, mandatory injunction and declaration filed by plaintiffs, plaintiffs were held entitled for the relief of specific performance of agreement to sell dated 22.12.2000 against defendant no.1, with consequential relief of possession of the suit property.
2. The plaintiffs had based their claim on the facts that property bearing no. 24/53A, Tilak Nagar, Delhi was originally given on perpetual lease to Late Sh. S. Satpal Singh by the President of India vide registered lease deed dated 11.11.1969, who died intestate leaving behind his wife and children. After his death, his wife got her name substituted in place of Late Sh. S. Satpal Singh followed by execution and registration of lease deed on 11.11.1999 in her favour. On 1.5.2000, the lease hold rights of said property were converted into free hold and thereafter defendant no.1 sold 30 sq. yds RCA No. : 10/2013 3/11 (from ground floor to third floor) out of the said property and the shops on ground floor of remaining 95 sq. yds and the third floor of the property was also sold later on by defendant no.1, with remaining ownership of only 95 sq. yds on first and second floor of the said property. Subsequently on 22.12.2000, defendant no.1 further sold the entire 2nd floor without roof rights of the property admeasuring 95 sq. yds in her ownership, to her son namely Harminder Singh for consideration of Rs. 20000/ vide agreement to Sell, Receipt, GPA, Will, Affidavit and possession letter etc. . However defendant no.5 also died on 5.8.2001 intestate leaving behind the plaintiffs as legal heirs. As stated, since the execution of abovesaid documents, Late Sh. S. Harminder Singh had been calling upon defendant no.1 to execute the sale deed in his favour but the same was delayed/avoided by defendant no.1 on one pretext or another. After the death of her husband, plaintiff no.1 approached defendant no.1 to execute the sale deed of suit property which was refused by defendant no.1 stating that she had already sold the suit property to defendant no.5 and a sale deed to this effect duly registered on 1.5.2007 was also shown to plaintiff no.1 . Due to the conduct of defendants no. 1, 5 & 6, plaintiff no.1 was forced to leave the suit premises after putting her locks on the same but thereafter she came to know that her goods had been removed from the suit property by defendants no. 1, 5 & 6 after breaking her locks. Hence plaintiffs were constrained to file the instant suit against the defendants.
3. In written statement filed on behalf of defendants, it was stated that the impugned documents were executed by defendant no.1 in favour of her RCA No. : 10/2013 4/11 son Late Sh. S. Harminder Singh without any consideration as the later was willing to raise a loan from some finance company, which documents were canceled during the life time of Late Sh. S. Harminder Singh as the said loan could not be arranged. Hence, the will and GPA were got canceled but the plaintiff no.1 somehow managed to take away those documents . It was stated that plaintiff no.1 never approached defendant no.1 for execution of the agreement to sell, who was not in possession of the suit property at any point of time and these are defendants no. 1 and 5 who are the owners of suit property.
4. In replication filed, contents of written statement were denied and those of plaint were reiterated and reaffirmed.
5. From the pleadings of parties, following issues were framed by Ld. trial court vide order dated 24.02.1999: (1) Whether the plaintiff is entitled to decree of specific performance as prayed for ? OPP (2) Whether the plaintiff is entitled for decree of mandatory injunction as prayed for in para 2 of the plaint? OPP (3) Whether the plaintiff is entitled for mandatory injunction as prayed for in para 3 of the plaint? OPP (4) Whether the plaintiff is entitled to decree of declaration as prayed for ? OPP (5) Whether the plaintiff is entitled to decree of possession as prayed for? OPP RCA No. : 10/2013 5/11 (6) Whether the plaintiff is guilty of suppression of material facts as prayed for ? OPD (7) Whether the suit is not properly valued for the purpose of court fees? OPD (8) Whether the suit of plaintiff is time barred? OPD (9) Relief
6. In support of its case, plaintiffs examined two witnesses whereas defendants despite giving several opportunities, failed to lead any evidence and DE was closed vide order dated 19.4.2012. Subsequently an application u/s 151 CPC was moved on behalf of defendants seeking recall of order dated 19.4.2012, which application was also dismissed by Ld. trial court vide its order dated 3.5.2012. After hearing final arguments, Ld. Trial court passed the impugned order which order is under challenge before this court. An application under order 41 rule 27 r/w. Section 151 CPC was also moved in the appeal for leading evidence on behalf of appellant no.2 on the ground that due to lapse and unprofessional conduct of previous counsel, appellant no.2 could not place the material documents nor could lead the evidence before ld. trial court. The said documents, as stated are very material for the just decision of the case and ends of justice would be better served by allowing appellant no.2 to file the said material documents and to lead evidence to prove that she was the absolute owner in possession of the suit property and neither respondents nor appellants no.1 & 3 have got any legal right and title over the suit property.
RCA No. : 10/2013 6/11
7. In reply to said application filed on behalf of respondents no.1 to 3, it was stated that the application is not maintainable under order 41 Rule 27 CPC as the said rule bars the parties to the appeal to produce additional evidence or documents or examination or witness in the Appellate court, except in some exceptional circumstances which are as follows:
(i) The trial court has refused to admit evidence, which or ought to have been admitted.
(ii) The evidence, which is ought to be produced was not within knowledge of the party.
(iii) In spite of exercise of due diligence, the evidence could not be produced in the trial court.
(iv) The appellate court requires any documents to be produced or any witness to be examined to facilitate in pronouncement of judgment.
(v) For any other substantial cause.
8. As argued by counsel for respondents, in the instant matter, none of the abovesaid circumstances are there to allow the appellant no.2 to produce the documents and lead the evidence because number of opportunities were given to appellant no. 2 for this purpose by Ld. trial court but they failed to produce the same and now only in order to delay the matter, instant application has been moved. Further, there is no merits in the documents sought to be produced which can destabilize the decree, passed by Ld. trial court and all the documents sought to be produced were within the knowledge of appellant no.2 as well as their counsel and there was no reason RCA No. : 10/2013 7/11 restraining them from not producing the said documents before Ld. trial court.
9. Perusal of trial court record reveals that despite giving several opportunities to lead DE, same was not led by defendants and opportunity to lead DE was closed by Ld. trial court vide its order dated 19.4.2012. Subsequently an application u/s 151 CPC was moved on behalf of defendants seeking recall of said order, which was also dismissed by Ld. trial court vide order dated 3.5.2012 . Said dismissal order dated 3.5.2012 was never challenged by the defendants. Oral allegation have been leveled against the conduct of previous counsel and no complaint had been placed on record having been filed against the counsel before Bar Counsel or any other authority. After the abovesaid query was put to the counsel for appellant, he decided to file the complaint against the counsel and filed the copy of the same on record. Though it is correct that the lapses on behalf of the appellants are apparent on record in not availing the opportunities to lead DE as well as in not challenging the order regarding closure of DE at least after the application seeking recall of that order was dismissed. However the fact remains that appellants are placing reliance upon the revocation of General Power of Attorney and the subsequent purchaser i.e. appellant no.2 who has in her favour the registered sale deed, therefore they deserve at least a chance to substantiate their respective pleas before Ld. trial court regarding being bonafide purchaser as well as regarding revocation of GPA.
10. Ld. counsel for appellant also argued regarding the matter being barred by limitation as well as that two of the defendants were minors RCA No. : 10/2013 8/11 whereas there was no order on the application regarding their mother having been appointed as their representative. Ld. counsel for appellant in support of his contention regarding matter being barred by limitation placed reliance upon IX (2014) SLT 698 Rathnavathi & Anr. Vs. Kavita Ganashamdas wherein it was observed that " if the date is fixed for performance of the agreement, then non compliance of the agreement on the date would give a cause of action to file suit for specific performance within three years from the date so fixed. However, when no such date is fixed, limitation of three years to file a suit for specific performance would begin when the plaintiff has noticed that the defendant has refused the performance of the agreement".
11. In Civil Revision No. 2261 of 2011 titled as Rajender Kumar Vs. Suresh Chand & Ors. and State of Rajasthan Vs. T. Sahani 2001(10) SCC 619, it was observed that " if additional evidence was produced at appellate stage, it was entirely for the court to consider at the time of hearing of appeal of merits to ensure whether the documents sought to be filed needed to be looked to pronounce its judgment in more satisfactory manner. The relevance of the document or additional evidence shall be such as that the court finds that it will have an important bearing to the ultimate decision to be reached by the court. This evidence cannot be taken up at preliminary hearing and leave the hearing of the appeal on merits be taken at a subsequent hearing. It must be done simultaneously. The proper procedure RCA No. : 10/2013 9/11 therefore shall be , the application must be taken up alongwith the appeal and if it finds that a party had a reason to produce additional evidence and the documents will have a bearing to the ultimate decision of the court different from the manner in which it was decided by the court below, the judgment of the court below shall be set aside and remanded for consideration in the light of the document brought before the appellate court for evidence ". In the instant matter, as already noted, the conduct of the appellants had not been appropriate before Ld. trial court in not diligently pursuing the case, which culminated in passing of decree against them , however it is settled law that when substantial justice and technicalities are pitted against each other, it is the cause of substantial justice which needs to be given preference. The delay caused in the matter and consequent inconvenience caused to the respondents in these circumstances must be compensated in terms of cost. Accordingly, appeal filed stands allowed with permission to appellants to file the necessary documents on record and to lead DE before Ld. trial court subject to cost of Rs. 20,000/, out of which Rs. 10,000/ shall be payable to opposite party and Rs. 10,000/ shall be deposited with Sai Vridh Ashram, Sadhu Savitri Sewa Samiti, R2B4, Nala Road, Nihal Vihar, Delhi, receipt of which shall be placed on record of Ld. trial court within one week. Affidavits of evidence of DWs/appellants be filed before Ld. trial court within 15 days with copies in advance to the counsel for respondents. Ld. trial court shall fix the date for cross examination upon which no adjournment shall be sought by the appellants on any ground whatsoever. It is made clear that if the appellants RCA No. : 10/2013 10/11 fail to avail opportunity to lead DE before Ld. trial court, the judgment passed by Ld. trial court shall hold good.
12. Appeal is disposed off in above terms. Parties are directed to appear before Ld. trial court on 17.8.2015. TCR alongwith copy of this order be sent back to the trial court. Appeal file be consigned to record room.
Announced in Open Court
on 04.08.2015 ( SAVITA RAO )
Additional District Judge01(West)/Delhi
RCA No. : 10/2013 11/11