Delhi District Court
Sh. Arjun Singh vs Smt. Rachna on 21 January, 2022
IN THE COURT OF MS. DEEKSHA RAO : CIVIL JUDGE-04: CENTRAL DISTRICT: TIS HAZARI COURT: NEW DELHI Civil Suit No. 94776/16 IN THE MATTER OF Madan Lal (deceased ) through LRs. 1.
Sh. Arjun Singh, S/o Late Sh. Madan Lal, R/o 3894, Kanhiya Nagar, Tri Nagar, Delhi.
2. Smt. Meena, W/o Sh. Ved Prakash, R/o Pipalwala Bagh, Near Chest Clinic, Gulabi Bagh, Delhi.
3. Smt. Jawala, W/o Late Sh. Sohan Singh, R/o 3/0 C-21, Amar Colony, Kamruddin Nagar, Nangloi, Delhi.
4. Smt. Usha, W/o Sh. Kanwar Singh, R/o Village Dholadi, P.O. Khas Modi Nagar, District, Meerut, U.P.
5. Smt. Asha, W/o Sh. Avinesh, R/o C-622, Chawla Colony, Ballabhgarh, Haryana. ... Plaintiffs Versus
1. Smt. Rachna W/o Sh. Prem Shanker.
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2. Sh. Prem Shanker, S/o Late Sh. Madan Lal.
Both R/o 3849/9, Kanhiya Nagar, Tri Nagar, Delhi.
3. Sh. Anil Kumar, S/o Sh. Kailash Chand Gupta, R/o C-3/46-A, Keshav Puram, Lawrence Road, Delhi.
4. Sh.Sunil Kumar, S/o Sh. Dalal Singh, R/o E-22, Rause Avenue Road, Delhi.
5. Sh. Rohtas, S/o late Sh. Khazan Singh,
6. Smt. Mahendri, W/o Sh. Rohtas Both R/o 3849/9, Kanhiya Nagar, Tri Nagar, Delhi. ... Defendants Date of filing : 31.05.2004 Date of Institution : 31.05.2004 Date of pronouncing judgment : 21.01.2022 SUIT FOR CANCELLATION OF DEEDS INSTRUMENTS. I.E. G.P.A SETS AND DEMAND OF ORIGINAL SALE DEED FROM DEFENDANT NO.1.
Vide this judgment, I shall dispose of the present suit filed by Late Sh. Madan Lal plaintiff no.1 and his son plaintiff no. 2 against the defendants for cancellation of deed instruments i.e. GPA sets and for demand of original sale deed CS No.94776/2016 Madan Lal and Another versus Rachna and Others Page no. 2 of 26 from defendant no.1. The brief facts necessary for the disposal of the case may be described as under :-
Plaintiff's case as per the plaint.
1. Plaintiff no.1 purchased a plot measuring 83 sq. yds. as part of Khasra No.103, situated in Tri Nagar, Ganeshpura-A, area of village chaukari Mubarakabad, Delhi on 17.01.1967, through registered Sale Deed from its owner Sh. Ram Phal son of Shri Choudhary Kanhiya and raised construction over the plot and the same is now identified as house No.3849/9, Kanhiya Nagar, Tri Nagar, Delhi-35 (hereinafter referred to a suit property). Plaintiff no.2 is the elder son and the defendant no.1 is daughter in law of the plaintiff no.1.
2. In the beginning of year 2000, the wife of the plaintiff no.1 became seriously ill and defendants no.1 and 2 had no work and plaintiff no.2 was living separately and there was need of money for the treatment of the wife of plaintiff no.1, hence defendants no.1 and 2 advised plaintiff no.1 to let-out one portion of the suit premises on the lease. Plaintiff no.1 act-
ing on their advice agreed to execute lease deed. In the month of April 2000, defendants no.1 and 2 asked plaintiff no.1 to go to the office of Sub Registrar for executing the rent deed. Plaintiff no.1 had full faith in defendants no.1 and 2 and on CS No.94776/2016 Madan Lal and Another versus Rachna and Others Page no. 3 of 26 their directions plaintiff no.1 signed and put his thumb impres- sion on papers on 27.4.2000.
3. However, after the death of his wife the behaviour and attitude of defendants no.1 and 2 became rude and careless towards Plaintiff no.1 so much so that defendant no. 1 and 2 threatened the plaintiff to falsely implicate him in case of dowry and they also flatly refused to handover the original sale deed to the plaintiff regarding the suit property.
4. Plaintiff no.1 after the said refusal called the tenant and requested him to pay the rent to him on which the tenant said that he is not a tenant, but he is the owner of the said portion i.e. 33 sq. yds., out of the suit premises. Thereafter, plaintiff no.1 filed a suit against defendant no.1 and 2 for permanent injunction and for production of sale deed in original on 14.01.2003.
5. Defendant no. 1 and 2 filed their written statement in the said suit on 25.1.2003 through which it came to the knowledge of the plaintiff no.1 that defendants no.1 and 2, deceitfully and cheatingly became successful to obtain his signatures on the G.P.A. set of the suit property which was executed in favour of defendant no.3 and later on the defendant no.3 executed G.P.A. set in favour of defendant no.4 regarding the suit prop-
CS No.94776/2016Madan Lal and Another versus Rachna and Others Page no. 4 of 26 erty and later on, defendant no.4 executed G.P.A. set in favour of defendant no.1 and 5.
6. All the defendants have committed fraud against the old aged, helpless plaintiff no.1. Hence, the present suit seeking the relief that deeds executed in favour of defendant no.3, 4, 5 and 1 be cancelled.
7. Written statements were filed on behalf of defendants no. 1, 2, 3, 5 and 6. Defendant no. 4 was proceeded ex-parte vide order dated 19.03.2010.
Defendant's case as per the written statement.
8. In the written statement filed on behalf of defendants no.1 and 2, one of the objections taken is that the plaintiff has mentioned approximate value of property as Rs.25,00,000/- (Rs. Twenty Five Lacs) in the plaint and the suit is accordingly beyond the pecuniary jurisdiction of this court.
9. It is stated that plaintiff no.1 had sold the entire suit prop- erty of 83 sq. yds. to defendant no. 3 against a valuable con- sideration by executing proper sale documents in his favour in- cluding registered G.P.A. and will on 27.4.2000 and thereafter the property has exchanged many hands.
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10. At the instance of Smt. Javitri plaintiff no. 1 had sold the property to defendant no.3 and later had given a letter of pos- session in writing to (defendant no.4) i.e. the subsequent pur- chaser before shifting from the suit property. Neither the plain- tiff no.1 nor plaintiff no.2 are the owner of the property nor they are in possession of their individual right in any manner. It is further stated that defendant no. 4 was in the process of de- molishing the suit property and at that time defendant no. 1 ap- proached defendant no. 4 and purchased 55 sq.yds. out of the 83 sq.yds. of the suit property for consideration on 02.03.2001 against registered GPA, agreement to sell etc. The remaining 23.40 sq.yds. was sold by defendant no. 4 to one namely Sh. Murari. The said Murari raised three storeyed structure on the said area and further sold it to Mr. Balram Soni and he further sold it to defendant no. 5 and 6 who are in the present occupa- tion of the said portion of the suit property.
11. In the preliminary objections of the written statement filed on behalf of defendant no. 3 it is stated that suit of the plaintiff is time barred in respect of seeking relief regarding cancella- tion/revocation of the deeds/documents as the same falls be- yond the purview of the limitation prescribed in law and also the suit is bad for misjoinder of parties and accordingly the present suit deserves out right dismissal.
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12. It is submitted that plaintiff no.1 executed the following documents in favour of the defendant No.3 i.e. Receipt dated 27.4.2000, Registered General Power of Attorney, Sale Deed, Registered Will, affidavit of the even date and possession let- ter dated 10.10.2000, which were signed by plaintiff no. 1 in sound state of mind without any coercion, undue pressure and without any fraud. After purchasing the property from plaintiff no.1, defendant no.3 became the bona fide purchaser of the said property after paying the due consideration. As a bona fide purchaser of the suit property, he sold suit property to de- fendant no.4.
13. In written statement filed on behalf of defendant no. 5, defendant no. 5 submits that he became bona fide purchaser of property bearing No.3849/9, area measuring 33 ½ sq. yds. for sale consideration of Rs.1,10,000/- by purchasing the same from its original owner Sh. Balram Soni against registered GPA, agreement to sell etc.
14. In written statement filed on behalf of defendant no.6, who is wife of defendant no.5, defendant no. 6 submits that Sh. Balram Soni was the owner of registered property i.e. 33 ½ sq. yds. and from him defendant No.5 and 6 have pur- chased the said portion and not the plaintiff as alleged. It is stated that before sale Sh. Balram Soni was running his fac-
CS No.94776/2016Madan Lal and Another versus Rachna and Others Page no. 7 of 26 tory unit with electric/power connections in this premises for manufacturing T.V. and C.D./D.V.D. spare parts. Due to imple- mentation of Master Plan Delhi, the non-conforming industries were banned in the residential area and hence, Sh. Balram Soni opted to sell out said portion of the suit property. It was purchased by the answering defendant no.6 and her husband defendant No.5 in their joint name. Shri Balram had purchased the said portion from Shri Murari based on registered Sale Deed, whereas, Shri Murari had purchased it from defendant no.4 who in turn had purchased it from defendant no. 3 and defendant no. 3 had purchased it from plaintiff no.1 against valuable consideration.
15. Replication was filed on behalf of plaintiffs to the written statements of defendants wherein the plaintiff has reiterated and reaffirmed the contents of their plaint and denied all the averments of the defendants.
Issues:-
16. Out of the pleadings of the parties, vide order dated 15.04.2006, the following issues had been framed by the court.
1. Whether the plaintiff is entitled for a decree of cancellation as prayed in prayer clause A, i.e. cancellation of power of attorney executed in favour of defendant no.
CS No.94776/2016Madan Lal and Another versus Rachna and Others Page no. 8 of 26 1, 3,4 and 5 ?OPP.
2. Whether the plaintiff is entitled for the relief sought in prayer clause B? OPP.
3. Whether the plaintiff is entitled for the return of original sale deed executed in favour of defendant no. 1 and 2 ? OPP.
4. Whether the documents viz. Power of attorney/sale deed etc. executed by plaintiff no. 1 in favour of defendants were without any consideration / under mis representation, if so, its effects? OPP.
5. Whether the suit is time barred as claimed ? OPD.
6. Whether suit is bad for mis joinder and non joinder of necessary parties as claimed ? OPD.
7. Whether suit has not been valued properly for the purpose of court fees and jurisdiction? OPD
8. Whether the suit is barred order 2 Rule 2 CPC as claimed ? OPD.
9. Whether suit is not maintainable in its present form ? OPD.
10. Relief.
Plaintiff's Evidence:-
17. In order to prove their case against the defendant, the plaintiff's side got examined two witnesses.CS No.94776/2016
Madan Lal and Another versus Rachna and Others Page no. 9 of 26 PW-1 was Madan Lal, plaintiff no.1 in the present suit who tendered his evidence affidavit which is Ex. PW1/A. PW-2 was Arjun Singh who tendered his evidence affidavit which is Ex. PW2/A. Thereafter, on conclusion of the cross examination of plaintiff's witnesses, on 10.09.2012 plaintiff's evidence was closed.
Defendant's Evidence.
18. To disprove the case of the plaintiffs, eight witnesses were examined on behalf of the defendants.
DW1 was Sh.Dharam Raj, who was the summoned witness from Property Tax Department and had brought the complete set of summoned record in respect of property no. 3190/3849, Kanhiya Nagar, Delhi.
DW-2 Sh. Romanus Ekka, who was the summoned witness from the Record Room, Tis Hazari Courts, Delhi and had brought the summoned record pertaining to the case title Madan Lal v. Prem Shankar and ors., goshwara no. 297-RA dated 21.04.2004.
DW-3 was Smt. Rachna, who tendered her evidence by way of affidavit which is Ex.DW-3/A. DW-4 was Sh. Prem Shankar, who tendered his evidence by way of affidavit which is Ex.DW-4/A. DW-5 was Sh. Anil Gupta, who tendered his evidence CS No.94776/2016 Madan Lal and Another versus Rachna and Others Page no. 10 of 26 by way of affidavit which is Ex. DW-5/A. DW-6 was Sh. Sant Lal Saini who tendered his evidence by way of affidavit which is Ex.DW-6/A. DW-7 was Sh. Sameer Vats, who was the summoned witness from sub-Registrar Office, Pitampura, Delhi and had brought the summoned record pertaining to the Will dated 02.03.2001 executed by defendant no. 4 in favour of defendant no. 1.
DW-8 (wrongly stated as DW-7) was Sh. K.K. Sharma, who was the summoned witness and had deposed as to the execution of GPA dated 02.03.2001.
Thereafter, on conclusion of defendant's evidence DE was closed on 04.06.2015.
Findings:
19. I have perused the written submissions filed on behalf of both the parties and have also perused the case record in detail. On the basis of the evidence/material available on record, the issue wise findings of this Court are as under:-
Issue no. 1, 2, 3 and 4.
20. Since these issues are interconnected, they are being taken together for discussion and disposal by way of common findings. Onus to prove these issues was upon the plaintiffs.CS No.94776/2016
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21. It is stated by plaintiffs in their written submissions that in view of the oral as well as documentary evidence, the plaintiffs have successfully proved that the defendants got executed a GPA set from plaintiff no. 1 on false pretext of executing a rent deed. It is submitted that plaintiff no.1 is a simpleton man whose trust was misused by defendant no. 1 and 2. It is submitted that the present suit may kindly be decreed and the said documents which is a result of fraud may kindly be cancelled.
22. On the other hand, it is submitted by Ld. counsel for the defendants that plaintiff no. 1 sold the suit property against a valuable consideration on 27.04.2000 which amount was used by plaintiff no. 1 for the treatment of his wife, his own operation and also gave part of the amount to his married daughter and to plaintiff no. 2 for the purchase of a flat in Begumpur area. It is further stated that plaintiff no.1 in garb of the cancellation is actually seeking declaration of title of ownership of suit property which he has sold by registered document to defendant no. 3 herein. It is argued that plaintiff no.1 had executed the document in the presence of witnesses so there cannot be a possibility that he was not having knowledge about the execution of GPA set. It is further argued that the GPA set was executed in the presence of witnesses and was later registered so a presumption of truth is attached to the CS No.94776/2016 Madan Lal and Another versus Rachna and Others Page no. 12 of 26 document and its validity and sanctity cannot be questioned on the basis of mere averments. It is argued that the plaintiff has to prove its case by leading cogent and convincing evidence and the validity of a registered document does not become doubtful upon mere assertions. It is submitted that the present suit is devoid of merits and may kindly be dismissed.
23. After taking into consideration the rival contentions and after carefully perusing the material available on record, it transpires that it is a stand taken by plaintiff no.1 that he was the owner of the suit property and defendant no 1 and 2 approached him to put the suit land on rent and plaintiff no. 1 acted in good faith and went with defendant no. 1 and 2 for execution of a rent deed, however, they got him to execute a GPA set in favour of defendant no. 3. In the present case plaintiff no.1 has pleaded that he was tricked by the defendants and fraud was played upon him. It is to be noted that original sale of the property was made in favour of defendant no. 3 and thereafter subsequently it has been purchased by other defendants i.e. defendant no. 1, 2, 4, 5 and 6. Hence, it is primarily the validity of the GPA, agreement to sell etc. executed in favour of defendant no. 3 which needs to be considered as to whether the same was obtained by fraud or was it a genuine transaction.CS No.94776/2016
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24. Before proceeding further to decide the present case, this court has to see the nature and extent of proof which has to be established by the plaintiffs in their favour. It is a settled proposition that civil cases are decided upon balance of probabilities whereas in the criminal cases the burden has to be discharged beyond shadow of any reasonable doubt.
However, in civil cases where fraud or misrepresentation is pleaded and registered documents are challenged, the burden upon the plaintiff is to prove beyond shadow of any reasonable doubt that a fraud was played upon him.
A "fraud" is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. As was observed in S.P. Changalvaraya Naidu v. Jagannath (1994 (1) SCC 1.
At this stage, it is necessary that a reference is made to Order 6 Rule 4 of Code of Civil Procedure which lays down "Particulars to be given where necessary :- In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading."
A careful perusal of this provision reveals that in a suit CS No.94776/2016 Madan Lal and Another versus Rachna and Others Page no. 14 of 26 where the grounds of fraud / misrepresentation are raised, burden upon the plaintiff is very strict, to specifically plead fraud or misrepresentation and to prove the same, beyond shadow of any reasonable doubt. Reliance is placed upon an authority titled as Smt. Bhana Vs. Krishan Kumar and others [2013 (1) R.C.R. (Civil) 184] wherein it was held that Order 6 Rule 4 specifically provides that the plaintiff has to give details of misrepresentation, fraud or breach of trust and the particulars have to be exemplified in the form of dates and items in the pleadings.
In Union of India v. C. M. Patel & Co., (AIR 1976 SC
712), the Supreme Court has stated as follows: "It is well settled that fraud like any other charge of a criminal offence whether made in civil or criminal proceedings, must be established beyond reasonable doubt; per Lord Atkin in A. L. N. Narayanan Chettiyar v. Official Assignee, High Court Rangoon, AIR 1941 PC 93. However suspicious may be the circumstances, however strange the coincidences, and however grave the doubts, suspicion alone can never take the place of proof. In our normal life we are sometimes faced with unexplainable phenomenon and strange coincidences, for, as it is said, truth is stranger than fiction.
25. In order to prove its case, the plaintiff got examined himself as PW1. He asserted that he never executed any GPA CS No.94776/2016 Madan Lal and Another versus Rachna and Others Page no. 15 of 26 set in favour of the defendant no. 3 and the alleged documents are a result of fraud played upon him. However, during the course of cross-examination the plaintiff no. 1 admitted that he himself went to the office of Sub Registrar for execution of the document. It is nowhere disputed that the stamp papers were brought and that the same were executed by plaintiff no. 1 in favour of defendant no. 3. The documents were executed in the presence of two attesting witnesses and was later registered before the Sub Registrar, Delhi, thus, a presumption of truth is attached to the document which cannot be assailed on the mere averments of plaintiff no.1. None of the attesting witness has been examined on behalf of the plaintiffs to substantiate the claim of plaintiff no.1 that he was under the impression that rent deed was being executed by him. At this stage, it would be relevant to state that in his cross examination it has been deposed by the PW-1 that on being asked by the sub-Registrar that whether he was selling or buying the property he stated that he was there to buy the property. From this, it can be deciphered that PW-1 was conversent of the fact that property was being sold and purchased and no question of it being rented out was there. Even the scribe writer has not been brought before the court by plaintiff who could have deposed what document was scribed and whether he was told something else by the defendants.
CS No.94776/2016Madan Lal and Another versus Rachna and Others Page no. 16 of 26 Nothing affirmative, has come out of the testimony of PW-2 as to the fact that fraud was played upon PW-1. In his cross examination, it has been deposed by PW-2 that he is not aware as to the contents of the present suit and that no relief has been sought by him in the present suit. It is also to be noted that nowhere it has been stated by PW-1 or by PW-2 that PW-1 was illiterate, was not of sound mind or was otherwise in any way incapable of understanding the nature of transaction that was carried out before the sub-Registrar Office. Plaintiff no. 1 was undisputedly of old age but merely on the basis of the same a presumption cannot be raised that he was incapable of understanding or was otherwise devoid of power of reasoning. Nowhere has it been pleaded nor has any evidence been led on the said fact. Further, in GPA, SPA and Will dated 02.03.2001 Ex. 2/10, Ex.2/13 and Ex.2/19 executed in favour of defendant no. 1 by defendant no. 4 one of the attesting witness is plaintiff no. 1. Nothing has been stated on behalf of plaintiffs in their pleadings as to the facts why plaintiff no. 1 signed the said documents as a witness. No cogent evidence has been led on behalf of the plaintiffs to show as to how and in what form fraud has been committed against plaintiff no. 1 by defendant no. 1 and 2 in getting the property sold in favour of defendant no. 3.
Even if assuming for the sake of arguments that documents were got executed from plaintiff no.1 through fraud CS No.94776/2016 Madan Lal and Another versus Rachna and Others Page no. 17 of 26 by defendant no. 1 and 2 then also it is not clear as to how the said transaction would have materially benefited defendant no. 1 and 2 as later on for a valuable consideration a portion of the suit property was purchased by defendant no. 1. On the other hand, it is an admitted position of parties that wife of plaintiff no. 1 was ill and there was no income. This clearly gives rise to a situation for selling the suit property for a valuable consideration. The receipt showing payment of Rs.80,000/- to plaintiff no.1 by defendant no3 shows that the contract was not without consideration.
26. In view of the above discussion and settled legal position, this court feels unconvinced to believe that the plaintiff no. 1 was not aware that a GPA set etc was executed by him and not rent deed as alleged by the plaintiffs.
Therefore, as a sequel of my discussion above, issues no.1,2,3 and 4 are decided against the plaintiffs and in favour of the defendants.
Issue no.5
27. Whether the suit is time barred as claimed ? OPD.
The onus to prove this issue was upon the defendants. No evidence has been led by the defendants to prove that the suit was filed beyond the period of limitation.
As per Article 59 of the Schedule of Period of Limitation CS No.94776/2016 Madan Lal and Another versus Rachna and Others Page no. 18 of 26 in the Limitation Act, the period of limitation is 3 years for seeking cancellation of document. Further the period of limitation starts from the date when the plaintiff firstly comes to know about the facts entitling him to such a declaration. It is pertinent to mention here that the plaintiff has sought declaration that the GPA set dated 27.04.2000 be cancelled. The present suit has been filed on 31.05.2004. The period of limitation shall be reckoned from the date when the plaintiff came to know about the execution of GPA set and not from the date when the same was executed. The plaintiff asserts that he came to know about the execution of said GPA set when the defendants filed written statement in another suit in the court of Ms. Navita Kumari, Civil Judge on 25.01.2003. Accordingly, as far as this relief is concerned, the suit is within limitation. This issue is decided in favour of the plaintiffs and against the defendants.
Issue no.6 and 9.
28. Whether suit is bad for mis joinder and non joinder of necessary parties as claimed ? OPD.
Whether suit is not maintainable in its present form ? OPD.
The onus to prove the present issues was upon the defendants. Both the issues are being taken together as they are inter connected to each other. It is submitted by defendant CS No.94776/2016 Madan Lal and Another versus Rachna and Others Page no. 19 of 26 no. 1 and 2 in the written statement that the present suit is not maintainable for want of misjoinder and non-joinder of necessary and proper parties that is Sh.Murari Lal, Sh.Balram Soni and Smt. Mahindri as they are in actual possession of the suit property. Similarly, it has been stated by defendant no. 3, 5 and 6 in their written statements that the present suit is bad for misjoinder and non-joinder of the parties.
In the replication it has been submitted by plaintiffs that at the time of filing of the present suit defendant no. 5 claimed himself to be the owner of certain part of the suit property and accordingly, he has been impleaded as party in the present suit.
The main point under consideration in the present suit is whether the GPA, agreement to sell etc. executed by plaintiff no. 1 in favour of defendant no. 3 was genuine or not. The rights of the other parties to the suit property flows from the validity of the documents executed in favour of defendant no. 3 by plaintiff no.1.
It has been stated by the defendants in their written statements that defendant no. 5 and 6 have purchased the said portion of the suit property from Sh. Balram Soni and Sh. Balram Soni had purchased it from Sh. Murari Lal. It is an admitted position that defendant no. 5 and 6 are in the present occupation of the said portion of the suit property and they have been impleaded as a party in the present suit. Further, CS No.94776/2016 Madan Lal and Another versus Rachna and Others Page no. 20 of 26 defendant no. 1 and 2 have stated to have bought the property from defendant no. 4 who in turn had purchased it from defendant no. 3.
In view of the above, this court is of the view that the present suit is not bad for misjoinder and non-joinder of necessary parties. Accordingly, the present issue is decided against the defendants and in favour of the plaintiffs.
Issue no.7.
29. Whether suit has not been valued properly for the purpose of court fees and jurisdiction? OPD The onus to prove the present issue was upon the defendants. It is submitted by the defendants that the plaintiffs in their plaint have stated the value of the suit property to be approximately 25 lacs and the same is beyond the pecuniary jurisdiction of this court.
In the replication filed on behalf of the plaintiffs it is stated that the present suit is not for possession, partition or of any such matter which relates with the title of the suit property and accordingly, the suit has been properly valued and is within the jurisdiction of this court.
It would be relevant at this point to refer to the observations of the Hon'ble Delhi High Court in Smt. Indu Gulani @ Indu Pahuja and Ors. v. Sh. Sant Pal Singh decided on 24.09.2014, CRP no. 145/2014 wherein it was held CS No.94776/2016 Madan Lal and Another versus Rachna and Others Page no. 21 of 26 that "I would like to note that the Supreme Court recently in the judgment in the case of Suhrid Singh @ Sardool Singh v. Randhir Singh and Ors (2010) 12 SCC 112 has held that if a person is not a party to a document i.e. document is not admitted to be signed by him, then in such a case there is no need of seeking relief of cancellation of the document and it is enough if declaration is sought for. The difference between seeking relief of cancellation of the document and for declaration as regards the invalidity of the document has the affect as held by the Supreme Court on the court fees to be payable in the suit because if the suit is for cancellation of the sale deed, court fees will have to be paid as per the value of the sale deed, but in a suit for declaration that the sale deed is void, court fees has to be paid only on the amount at which relief sought is valued in the plaint. Besides the aspect of difference in court fees, there is also an aspect of difference in the period of limitation in a suit for declaration qua invalidity of the sale deed and in a suit filed for cancellation of the sale deed. In my opinion, there can be separate periods of limitation which may arise on different occasions with respect to seeking declaration with respect to the pleaded invalidity of a sale deed, and cause of action arises qua the plaintiff when the disputed sale deed/ document is sought to be got declared null and void in the eyes of law".
The present suit has been filed for cancellation of GPA CS No.94776/2016 Madan Lal and Another versus Rachna and Others Page no. 22 of 26 etc. executed in favour of defendant no. 3, 4, 5 and 1. The plaintiff has valued the suit for the purpose of court fees and jurisdiction at Rs.500/-.
Plaintiff no. 1 has sought the cancellation of the GPA, agreement to sell etc. executed in favour of defendant no. 3 of which plaintiff no. 1 is one of the executing party. The consideration amount in the said documents is stated to be Rs.80,000/-. The court fees has been valued at Rs.500/- instead of Rs.80,000/-. Accordingly, in view of the above discussion, this issue is decided against the plaintiff and in favour of the defendants.
Issue no. 8.
30. Whether the suit is barred order 2 Rule 2 CPC as claimed ? OPD.
The onus to prove the present issue was upon the defendants. Defendants no 1 and 2 contended that the present suit is barred under Order 2 Rule 2 CPC because plaintiff had earlier filed a suit for permanent injunction against defendant no 1 and 2. The plaintiff intentionally and deliberately has filed this fresh suit for multiplicity of suits in order to harass and drag the defendants in frivolous litigation. The intention of plaintiff is malafide as he has sought no amendment or permission from the court for filing any other case. Therefore, suit is barred under Order 2 Rule 2 CPC.
CS No.94776/2016Madan Lal and Another versus Rachna and Others Page no. 23 of 26 Order 2 Rule 2 of the Code lays down the general principle that the suit must include whole claim which the plaintiff is entitled to make in respect of a cause of action and if he does not do so then he is visited with the consequences therein.
Order 2 Rule 2 with its sub-rules reads as follows:-
"2. Suit to include the whole claim-
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
A mere look at the provision shows that once the plaintiff comes to the court of law for getting any redress basing his case on his existing cause of action, he must include in his suit the whole claim pertaining to that cause of action. But if he gives up the part of the claim based on the same cause of ac-
CS No.94776/2016Madan Lal and Another versus Rachna and Others Page no. 24 of 26 tion or omits to sue in connection with the same, then he can- not subsequently resurrect the said claim based on the same cause of action. So far as Sub rule (3) is concerned before the second suit of the plaintiff can be held to be barred by the same, it must be shown that the second suit is based on the same cause of action on which the earlier suit was based and if the cause of action is same in both the suits and if in the ear- lier suit plaintiff had not sued for any of the reliefs available to him on the basis of that cause of action, the reliefs which he had failed to press into service in that suit cannot be subse- quently prayed for except with the leave of the court. It must, therefore, be shown by the defendants for supporting their plea of bar of Order 2 Rule 2 sub-rule ( 3) that the second suit of the plaintiff is based on the same cause of action on which its earlier suit was based and that because he had not prayed for any relief and had not obtained leave of the court in that connection, he cannot sue for that relief in the present suit.
In the present case, plaintiff no.1 earlier filed a suit for permanent injunction and for production of original sale deed against defendant no. 1 and 2 and it has been submitted by plaintiff no.1 that when defendant no 1 and 2 filed written statement in that suit, at that time he came to know about the alleged sale of the suit property to defendant no. 3, 4, 5 and 1 and thereafter, he filed the present suit.
CS No.94776/2016Madan Lal and Another versus Rachna and Others Page no. 25 of 26 No evidence has been led by the defendants to substan- tiate their claim that the plaintiffs were aware of the said facts at the time of the filing of the earlier suit. The defendants have failed to discharge the onus of this issue, same is accordingly decided against the defendants.
RELIEF
31. In view of the above mentioned issue wise findings, the suit of the plaintiffs is hereby dismissed. No order as to costs.
32. Decree Sheet be drawn accordingly.
33. File be consigned to Record Room after due compliance.
Digitally
signed by
DEEKSHA
DEEKSHA RAO
RAO Date:
2022.01.21
17:27:47
+0530
(Deeksha Rao)
CJ-04, Central,THC/Delhi
Announced in the open Court on this 21st day of January, 2022 This judgment consists of 26 signed pages.
CS No.94776/2016Madan Lal and Another versus Rachna and Others Page no. 26 of 26