Delhi District Court
Sh. Dinesh Johar vs Ms. Shanti Constructions on 14 March, 2026
IN THE COURT OF A.S.J.(SFTC)
(PRESIDED OVER BY: ANIL CHANDHEL)
EAST DISTRICT, KKD COURTS, DELHI
CNR No. DLET01-000904-2026
(Old CNR No.DLWT01-000013-1996)
CS No.87/2026
(Old Civil DJ No. 608926/2016)
Dinesh Johar
(Through LRs)
S/o Late Sh. Surinder Nath Johar,
R/o 39/4, Ground Floor, Old Rajinder Nagar,
New Delhi-110060. ......Plaintiff
Versus
1. M/s Shanti Construction Co.
2/19, Old Rajinder Nagar, New Delhi-110060.
2. Gajinder Pal Ahuja (through LRs)
S/o Sh. Bhim Sain Ahuja,
R/o 2/19, Old Rajinder Nagar,
New Delhi-110069.
3. Sarin Kumar Arora,
S/o U. C. Arora,
R/o 290, Double Storey, (Ground Floor),
New Rajinder Nagar, New Delhi-110060.
4. Municipal Corporation of Delhi
Through its Commissioner,
Town Hall, Chandni Chowk,
Delhi-110006. ....Defendants.
Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 1 of 60
Civil No. 87/2026
SUIT FOR POSSESSION, MANDATORY
AND PERMANENT INJUNCTIONS AND
RECOVERY OF MONEY
DATE OF INSTITUTION : 22.05.1996
JUDGMENT RESERVED ON : 26.12.2026
JUDGMENT PRONOUNCED ON : 14.03.2026
JUDGMENT
1. The Plaintiff has filed the present suit, against the Defendants, for possession of the suit property, i.e., F-275, Rajinder Nagar, New Delhi - 110060, alongwith other prayers of mandatory injunction, permanent injunctions and recovery of money. The suit has been initially instituted before the Hon'ble High Court of Delhi and subsequently, on account of change in the pecuniary jurisdiction, was transferred to District Courts, Tis Hazari, Delhi on 27.11.2003. The Plaintiff and the Defendant No.2 died during pendency of the present suit and their legal representatives have been impleaded on record.
2. The facts stated in the Plaint:
The facts, as set out in the plaint, are summed up in brief in the paras hereinbelow:
Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 2 of 60 Civil No. 87/2026 i. The Plaintiff's father, namely late Surinder Nath Johar, was allottee of the property No. F-275, New Rajinder Nagar, New Delhi-110060. After the death of late Surinder Nath Johar, the aforesaid property was substituted in the names of the Plaintiff and his brother, namely Mr. Anil Johar, in equal proportion, vide letter of mutation issued by the Land and Development office. As per the settlement between the Plaintiff and his brother, the Plaintiff took the rear portion of the aforesaid property and his brother Mr. Anil Johar took the front portion of aforesaid property.
ii. The Defendant No.1 was a partnership concern and the Defendant No.2 and 3 were its partners. The Plaintiff entered into a collaboration agreement dated 12.12.1994 with the Defendant No. 1 to 3 with regard to the suit property, i.e., his share in the property bearing No. F-275, New Rajinder Nagar, New Delhi-110060. The Defendants No.1 to 3 agreed to develop and construct the suit property as per the terms of the aforesaid collaboration agreement. The Plaintiff, in furtherance of the collaboration agreement dated 12.12.1994, also executed two power of attorneys in favour of the Defendant No.1 to 3 for getting the plans sanctioned and for other incidental purposes.
Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 3 of 60 Civil No. 87/2026 iii. In terms of Clause-15 of the Collaboration Agreement, the Defendant No.1 to 3 agreed to provide alternative accommodation to the Plaintiff. The Defendants No.1 to 3 had to start the construction after demolishing the old structures. The Plaintiff alongwith family had to shift from the suit property to some other accommodation on rent and the Defendant No.1 to 3 were liable to make payment of rent of the same, as per the terms of collaboration agreement, till the possession of newly constructed building was handed over to the Plaintiff.
iv. The Plaintiff shifted alongwith his family from the suit property to House No. F-287, New Rajinder Nagar, New Delhi on monthly rent of Rs.5,500/- from January, 1995. The rent from January, 1995 to March, 1995 was paid by the Defendants No.1 to 3. Thereafter ground floor of house No. 23/42, Rajinder Nagar, New Delhi was taken on rent at monthly rent of Rs.5,500/- from April, 1995 and the rent was paid by the Defendant No.1 to 3 only up-to May, 1995 and thereafter, it was paid by the Plaintiff from June, 1995 till date. The Defendant No.1 to 3 never paid the rent since June, 1995 till date. The Defendant No.1 to 3 committed breach of the Collaboration Agreement as they failed to pay Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 4 of 60 Civil No. 87/2026 the rent for the alternative accommodation for the Plaintiff till delivery of the possession of the newly built house.
v. The Plaintiff paid rent from June, 1995 till February, 1997 @ Rs.5500/- per month and thereafter on 01.09.1997 till date @ Rs.6,000/- per month. The Defendant No.1 to 3 were liable to pay an amount of Rs.5,04,000/- to the Plaintiff, however on account of law of limitation, the Plaintiff had claimed rent only for last three years period immediately preceding the date of institution of the amendment application since 01.05.1999 for an amount of Rs.2,16,000/- besides interest of Rs.50,000/- as interest @ 18% per annum with costs. The Defendant No.1 to 3 were further liable to make payment of rent paid by the Plaintiff from the date of institution of the present suit till handing over the possession of the newly built first floor to the Plaintiff as per terms of the Collaboration Agreement.
vi. As per the terms of the aforesaid agreement, the Defendant No.1 to 3 agreed to provide the Plaintiff with complete first floor along with all fittings and fixtures and undertook to pay a sum of Rs.16,25,000/- (Rupees Sixteen Lakhs Twenty Five Thousand only). The Defendants No.1 to 3 were Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 5 of 60 Civil No. 87/2026 entitled to have the other portions, which could be legally constructed after getting the plans sanctioned from the Municipal Authorities.
vii. As per clause 7 of the aforesaid agreement, the Defendant No.1 to 3 were under an obligation to prepare the necessary plans and designs for construction and to get the same sanctioned from the Municipal Corporation of Delhi. The Defendant No. 1 to 3 failed to provide copies of the sanctioned plans to the Plaintiff, but continued with the construction work at the site giving the impression to the Plaintiff that the work was being carried out in accordance with sanctioned plans.
viii. The proposed building plans filed by the Defendants No.1 to 3 were rejected by the Defendant No.4 and the Defendant No.1 to 3 had raised unauthorized construction in the suit property without obtaining the sanction plans. The Plaintiff came to know about the construction in the suit property being unauthorized from the official documents of the Defendant No.4. The aforesaid unauthorized construction was liable to be demolished. Since the Defendant No.4 did not demolish the aforesaid unauthorized construction, therefore, the Plaintiff was constrained to file the present suit.
Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 6 of 60 Civil No. 87/2026 ix. The Defendant No.1 to 3 also failed to pay the agreed amount of Rs.16,25,000/- to the Plaintiff in terms of clause 5 of the aforesaid agreement. On account of the aforesaid default on the part of the Defendants No. 1 to 3, the Plaintiff issued a letter to the Defendants on 07.07.1995 and intimated the Defendants that the agreement of collaboration executed between the parties stood cancelled and in furtherance of the same, the Plaintiff got the power of attorneys duly canceled from the office of Sub- Registrar. Despite receiving the aforesaid letter, the Defendant No. 1 to 3 failed to stop the construction activities and consequently, the Plaintiff sent a legal notice dated 30.01.1996 to the Defendant No. 1 to 3 by registered A.D. post.
x. After cancellation of the Collaboration Agreement dated 12.12.1994, the Defendant No. 1 to 3 were left with no right, title or interest in the property, which was owned by the Plaintiff. The Defendant No.1 to 3 also had no right, title or interest in the suit property under the terms of the Collaboration Agreement.
xi. The Defendant No.1 to 3 did not get the sanction plans from the Defendant No. 4 and have erected the building without sanction plans and the Municipal Authorities were contemplating to seal Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 7 of 60 Civil No. 87/2026 the property. The Defendant No.1 to 3 were trying to put certain unauthorized people into the property so as to forcibly occupy the property. The Defendant No. 1 to 3 were also trying and attempting to sell off the various portions of the property under the garb of having Collaboration Agreement and the Power of Attorney in their favour.
xii. The Defendants are liable to demolish the unauthorized construction of the suit property and further the Defendant No.1 to 3 are liable to handover the possession of the suit property to the Plaintiff. The Defendants No. 1 to 3 are also liable to make payment of the rent as undertaken by them.
On the basis of above-mentioned averments, the Plaintiff has prayed for possession of the suit property along with prayers of permanent injunction. The Plaintiff has also prayed for mandatory injunction seeking directions against the Defendant for demolition of unauthorized construction in the suit property. The Plaintiff has further prayed for recovery of amount of rent for substituted accommodation in terms of clause 15 of the Collaboration Agreement.
3. Service of the Defendant & the Written Statement:
3.1. The Defendants were duly served with the summons of the present suit. The Defendant No.1 to 3 have filed joint Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 8 of 60 Civil No. 87/2026 written statement and denied the contentions of the plaint.
The relevant averments made in the written statement and constituting the defence of the Defendant No.1 to 3 are being summed in brief hereinbelow:
i. The agreement dated 12.10.1994 is not properly stamped and registered in accordance with law and the suit based on the aforesaid agreement was not maintainable.
ii. The Defendant No. 1 to 3 were not aware as to what settlement had taken place between the Plaintiff and his brother. No legal demarcation of the property was done between the two brothers. The said Collaboration Agreement was only with regard to the rear portion of the premises, which was being occupied by the Plaintiff. At that time, the other brother had already constructed his side of the land and had done the same without sanction plans. The premises in question could not be constructed in part and when it was pointed by the Defendant No.1 to 3, the Plaintiff assured to manage the same and on the basis of such assurance, the Defendants No.1 to 3 executed the Collaboration Agreement.
iii. Although it was mentioned in the Collaboration Agreement that the Defendants No.1 to 3 would apply for the sanction of the plans, but it was for the Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 9 of 60 Civil No. 87/2026 Plaintiff to ensure that the plan would get sanctioned because normally the plans were not sanctioned for constriction of part of the premises. Under the Collaboration Agreement the Defendant No.1 to 3 provided the Plaintiff with alternative accommodation at F-287, New Rajinder Nagar, 2nd Floor in January, 1995 at monthly rental of Rs.5,000/-. Subsequently, the answering Defendants provided the accommodation at 23/42 Old Rajinder Nagar, in August 1995 at monthly rent of Rs.5,000/- plus Rs.10,000/- as security. The Defendant No.1 to 3 used to give cash to the Plaintiff with respect to the rent, in addition to an amount of Rs.9,20,000/-.
The rent in the present case was given up to March, 1996 against which receipts were given by the Plaintiff.
iv. The Defendant No.1 to 3 had agreed to provide the Plaintiff the complete first floor along with the fittings and fixtures as well as sum of Rs.16,25,000/-. However, this was in consideration that the Defendants would be able to do construction on the premises for which a plan would be got sanctioned by the Plaintiff and then the Defendants would give the first floor to the Plaintiff. Even otherwise, as per law only the Plaintiff or the person in whose name the property exists in the municipal records could only apply to Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 10 of 60 Civil No. 87/2026 the concerned authorities of the Municipal Corporation of Delhi. The Defendant No.1 to 3 were only instrumental to look after the progress of the sanction of the plans and to make visits if any required for the sanction of the plan in the office of Municipal Corporation of Delhi. For all intent and purposes, it was incumbent upon the Plaintiff to apply and get sanctioned of the plans and in case there was any refusal from the Municipal Corporation of Delhi, the Plaintiff would have informed the Defendant No.1 to 3 well within the time that the sanction of the plans had been refused by the concerned authorities of the Municipal Corporation of Delhi so that that the amount on the construction would not have been spent by the Defendants and the agreement should have been cancelled.
v. The Defendant No.1 to 4 made a site plan and gave it to the Plaintiff for getting the same sanctioned from the requisite authorities. The Plaintiff informed the answering Defendants that the plans were signed by the Plaintiff and his brothers and then submitted to the authorities and the Plaintiff further told the Defendants that they could start the work while the plans were getting sanctioned. The Defendants came to know later on that the plans had Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 11 of 60 Civil No. 87/2026 been rejected as the sanction was not given for part of the premises.
vi. The assurance to get the plan sanctioned was given by the Plaintiff because he said that he would be able to get the application for sanctioning of plans signed by his brother and, therefore, the plans would be deemed to be sanctioned for the entire building and not only for the premises, which would be constructed by the answering Defendants. The Plaintiff had already given an assurance that he would take care of all the misuse charges regarding unauthorized construction on the premises, which had been so spelt out in the mutation law and that it was only in these circumstances that the Defendants agreed to sign the collaboration agreement because only then the venture would be profitable to all the parties.
vii. When the Defendants took up the matter with the Plaintiff, the Plaintiff told the Defendants that they should carry on making additions/alternations to the already existing structure of two stories, which were standing on the land. However, such additions/alternations, the Plaintiff further told the Defendants to carry on the construction for another two floors even though the plans were not Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 12 of 60 Civil No. 87/2026 sanctioned, which the Defendants did on his request.
viii. The Plaintiff had not informed about refusal of the sanction of the plan by the Municipal Corporation of Delhi. The Defendant No.1 to 3 had spent huge amount of Rs.20,00,000/- on the construction of the property. The Plaintiff used to sit at the site to look after the construction and the material used in the construction so that no mishappening would take place. The Plaintiff had not informed about refusal of the building sanction plan, therefore, the Defendants suffered loss to the extent of Rs.20,00,000/-, which was spent on the construction of the property. Later it transpired that it was the Plaintiff, who made complaints to the concerned authorities of the Municipal Corporation of Delhi.
ix. The Defendants had already paid a sum of Rs.9,20,000/- for which receipts were executed by the Plaintiff and had also paid rent till March, 1996. The Defendants had not defaulted in any manner to fulfill their part of obligation under the aforesaid agreement. The building was raised at the expense of the Defendant No.1 to 3 at the instructions and guidance of the Plaintiff.
x. Even after issuance of letter dated 07.07.1995, the Plaintiff had alleged that he had cancelled the Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 13 of 60 Civil No. 87/2026 Collaboration Agreement and he had accepted the money after the alleged cancellation and issued receipts for the said money. The amount accepted by the Plaintiff even after the service of the aforesaid alleged legal notice shows that the Plaintiff was interested that the construction should go on in the property and thus, there was no cancellation of the agreement and the Defendants had right, title and interest in the premises both by virtue of collaboration agreement and even otherwise.
xi. The Defendants had only sold the upper ground floor to one Mr. Handa around February, 1996 on the basis of an Agreement to Sell and no other portions of the premises were sold to any other person. The cancellation of Collaboration Agreement as well the alleged Power of Attorneys was illegal. The Plaintiff was aware of the fact that upper ground floor of the property in dispute was sold and the possession of the same was transferred to Mr. O. P. Handa.
xii. The premises had been constructed with the tacit consent of the Plaintiff. All the portions above the second floor were completely demolished by the MCD on various dates. Even the second floor was partly demolished and was not habitable. The outer Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 14 of 60 Civil No. 87/2026 portion of the lower ground floor had also been demolished by the MCD and the remaining portion of the premises were left in possession of the Defendants except the portion with Mr. Handa.
3.2. The Defendant No.4 is Municipal Corporation of Delhi and has been arrayed as a party for limited aspect of allegations pertaining to unauthorized construction in the suit property and consequential prayer of demolition. The averments made in the written statement of the Defendant No.4 are being reproduced hereinbelow:
i. The suit of the Plaintiff was barred by the provisions of Section 477 and 487 of D. M. C. Act for want of service of statutory notice upon the Defendant No.4.
ii. The Defendant No.4 received an application with regard to the suit property, i.e, F-275, New Rajender Nagar, New Delhi, for sanction of building plan vide file no. 28/B/KBZ/95 dated 10.02.1995. The application with regard to the building plan was rejected by the Defendant No.4 by its Building Plan Committee on 05.07.1995 and the rejection letter was sent to the owner/builder on 24.08.1995.
iii. The owner of the suit property constructed the building without any sanctioned building plan and Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 15 of 60 Civil No. 87/2026 raised a building from ground floor to fourth floor with 100% coverage and projections on Municipal Land. The owner/builder encroached to the extent of four and half feet on the rear side and two feet nine inches (approx.) on the side (lengthwise) of the plot.
iv. The Defendant No. 4 initiated and took action against the unauthorized construction carried out at the suit property under Section 343/344 of the Delhi Municipal Corporation Act, 1957. The Defendant No.4 booked the said unauthorized construction vide file No. B/UC/KBZ/95/181 on 21.07.1995 and thereafter a demolition order was passed on 31.07.1995 in respect of unauthorized construction so booked.
v. The roof of the second floor was punctured and the front side projections at second floor were damaged/punctured on 01.08.1997 in demolition action. The roof of the second floor was further punctured on 02.08.1997 and the boundary walls of the outer side was also punctured. On 04.05.1997, 05.08.1997 and 06.08.1997, the roof of second floor was further punctured and the side projections on the second floor were punctured.
Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 16 of 60 Civil No. 87/2026 vi. On 07.10.1998, the Defendant No.4 booked the unauthorized construction of two rooms, one kitchen, one toilet at fourth floor vide file No. B/UC/KBZ/98/246. Thereafter on 13.10.1998, a demolition Order in respect of such booked unauthorized construction was passed after following the due process.
vii. On 13.10.1998 in another demolition action in suit property, walls of two rooms, one kitchen and one toilet at fourth floor were demolished. The Defendant No.4 had also taken action under Section 349 of the D. M. C. Act, 1997, thereby issued and served upon Mr. G. P. Ahuja and Mr. Anil Johar, owners/builder, a vacation notice No.D/EE(B)KBZ/98/732 dated 09.10.1998. Thereafter, an action under Section 345-A of the D.M.C. Act was initiated for sealing of the suit property. Firstly, on 07.01.1999, the property was sealed at two points, i.e., one point at second floor and one at third floor. On 22.12.2000, a file for de- sealing of the property was put up before the Competent Authority with a view to take demolition action in the suit property. On 26.12.2000, in a major demolition action, the slabs of third floor were cut-down with gas cutter and after the action taken, the second floor and third floor were re- sealed.
Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 17 of 60 Civil No. 87/2026 viii. On 03.04.2001 in a demolition action in the suit property, the outer walls at second floor were completely demolished. On 09.08.2001, with prior permission to de-seal and re-seal the property in question, from the Competent Authority, a demolition action was carried out in the suit property in which the partition walls at Ground floor were demolished. After the demolition action, the building was sealed at the entrance at one point on the same day. On 05.12.2001 in an encroachment removal programme on the rear side of the property, walls of two rooms were demolished and also the extended platform was demolished.
4. The facts stated in the Replication:
4.1. The Plaintiff has filed the replication to the written statements of the Defendants, wherein the Plaintiff has traversed the contents of same and has made the denials, reiterating the averments of the plaint. The Plaintiff in replication to the written statement of the Defendant No.1 to 3 has admitted that he had received Rs.9,20,000/- from the Defendants in pursuance of the collaboration agreement.
5. Issues:
5.1. On the basis of the pleadings of the parties, the following Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 18 of 60 Civil No. 87/2026 issues were framed on 09.07.2018: -
i. Whether the Defendant Nos.1 to 3 have committed breach of terms of collaboration agreement dated 12.12.1994, if so, its effect?
OPP.
ii. Whether the Plaintiff had right to cancel the collaboration agreement dated 12.12.1994 vide letter dated 07.07.1995 and power of attorney dated 10.01.1995? OPP iii. Whether the Defendant Nos. 1 to 3 were entitled to sell upper ground floor of the suit property by virtue of collaboration agreement dated 12.12.1994 and power of attorney dated 10.01.1995? OPD iv. Whether the Plaintiff is entitled to decree of possession of the suit property as prayed vide prayer clause (c)? OPP v. Whether the Plaintiff is entitled to decree of mandatory injunction as prayed vide prayer clause
(d) & (e)? OPP vi. Whether the Plaintiff is entitled to decree of permanent injunction as prayed vide prayer clause
(a) & (b)? OPP Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 19 of 60 Civil No. 87/2026 vii. Whether the Plaintiff is entitled to recover an amount of Rs.2,66,000/- as per clause 15 of the collaboration agreement and an amount of Rs.6,000/- per month, as prayed vide prayer clause (g)? OPP viii. Whether the Plaintiff is entitled to pendente lite and future interest, if so, at what rate? OPP ix. Relief.
6. The Plaintiff's Evidence:
6.1. The Plaintiff's legal representatives have led their evidence and have examined one witness in support of their case. The son of the Plaintiff has himself appeared as PW-1 and reiterated the contentions of the plaint in the examination-in-
chief. The PW-1 has exhibited and relied upon the following documents in his examination-in-chief:
i. Exhibit PW-1(OSR): Copy of letter of Mutation issued by L & DO;
ii. Exhibit PW1/2: Copy of Collaboration Agreement (OSR);
iii. Exhibit PW1/3 (46 in number): Copy of rent receipts;
iv. Exhibit PW1/4 (OSR): Copy of cancellation of SPA;
Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 20 of 60 Civil No. 87/2026 v. Exhibit PW1/5 (OSR): Copy of cancellation of GPA;
vi. Exhibit PW1/6 (OSR): Copy of cancellation of Will;
vii. Mark-B:Copy of Legal Notice;
viii. Exhibit PW1/8 (colly): Returned envelops (two)
along with two separate AD Cards;
ix. Mark-C:Copy of letter dated 25.07.1995;
x. Mark-A:Copy of letter dated 07.07.1995.
The PW-1 was cross-examined by Ld. Counsel for the Defendants and was discharged upon conclusion of his cross examination.
7. The Defendant's Evidence:
7.1. The legal representatives of the Defendant No.2 have led their evidence and have examined one witness in support of the case. Ms. Priyanka, the daughter of the Defendant No.2, has appeared as D2W1. The D2W1 has reiterated the averments of the written statement in her examination in chief. The D2W1 has exhibited and relied upon the following documents in her examination-in-chief:
i. Exhibit D2W1/1: Receipt dated 30.11.1994; ii. Exhibit D2W1/2: Receipt dated 05.04.1995; iii. Exhibit D2W1/3:Receipt dated 09.01.1995; iv. Exhibit D2W1/4:Receipt dated 01.12.1995;
Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 21 of 60 Civil No. 87/2026 v. Exhibit D2W1/5:Receipt dated 21.12.1995; vi. Exhibit D2W1/6: Receipt dated 10.01.1995; vii. Exhibit D2W1/7:Receipt dated 12.12.1994.
The D2W1 was cross-examined by Ld. Counsel for the Plaintiff and was discharged upon conclusion of her cross examination.
7.2. The Defendant No.3 has also led his evidence and has examined himself as D3W1. The Defendant No.3 has examined himself as D3W1 and has reiterated the averments of written statement in his examination in chief. The D3W1 has exhibited and relied upon the following documents in his examination-in-chief:
i. Exhibit D3W1/1: Receipt dated 30.11.1994.
The D3W1 was cross-examined by Ld. Counsel for the Plaintiff and was discharged upon conclusion of his cross examination.
8. Submissions of the Parties.
8.1. Ld. Counsel for the Plaintiff has submitted that the Defendant No.1 to 3 committed breach of the collaboration agreement and raised construction without obtaining any requisite building sanction plan. It is submitted that it was duty of the Defendant No.1 to 3 to obtain the requisite Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 22 of 60 Civil No. 87/2026 building sanction plan in terms of the collaboration agreement and therefore, unauthorized construction raised by them entitled the Plaintiff to revoke the agreement and once the agreement is revoked, the Plaintiff is entitled to possession of the suit property. It is submitted that the Defendant No.1 to 3 were liable to make payment of the house rent of the Plaintiff, which was paid upto May, 1995 and is to be paid till the possession. The arguments have only been addressed in part and have not been concluded on behalf of the Plaintiffs. The Plaintiff was granted liberty to file the written submission, which was also not filed and right to file written submission was closed on 26.12.2025.
8.2. Ld. Counsel for the Defendant No.1 to 3 have submitted that the collaboration agreement as well as the power of attorneys executed by the Plaintiff were irrevocable in nature and the Plaintiff was not entitled to revoke the same. It is submitted that the construction in the suit property was raised upon the assurance of the Plaintiff, who had undertaken to obtain the building sanction plan and failed to obtain the same. It is submitted that the building in question was in joint ownership of the Plaintiff and his brother and other family members and concurrence of the Plaintiff's brother was also required to obtain the building sanction plan. It is submitted that the Plaintiff mislead the Defendant No.1 to 3 to spend the money on the construction of the building and subsequently tried to wriggle out of the agreement in the Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 23 of 60 Civil No. 87/2026 name of construction being unauthorized, which was raised at the instructions and assurance of the Plaintiff that he would obtain the building sanction plan. It is submitted that the defendant No.1 to 3 have already sold the upper ground floor to Mr. O.P. Handa and transferred the possession of the same. It is submitted that the Defendant No.1 to 3 had fulfilled their part of the agreement by constructing the suit property and therefore, the Plaintiff was not entitled to cancel the agreement or power of attorneys in question.
8.3. Ld. Counsel for the Defendant No.4 has submitted that the Defendant No.4 has already taken action against the portions of unauthorized construction in the suit property and the prayer for mandatory injunction does not survive.
9. Conclusions on Issues and reasons for such conclusions:
9.1 Issue No. 1: Whether the Defendant Nos.1 to 3 have committed breach of terms of collaboration agreement dated 12.12.1994, if so, its effect? OPP.
9.1.1. The onus to prove the Issue No. 1 is upon the Plaintiff. The suit property is half (rear portion) of the property No. F-275, New Rajinder Nagar, New Delhi-110060. It is case of the Plaintiff that his father was owner of the property No. F-275, New Rajinder Nagar, New Delhi-110060 and after death of Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 24 of 60 Civil No. 87/2026 their father, the aforesaid property was substituted in the names of the Plaintiff and his brother namely Anil Johar. It is stated that the Plaintiff and his brother divided the aforesaid property in terms of a settlement, whereby the suit property came to share of the Plaintiff. It is stated that the Plaintiff executed a collaboration agreement dated 12.12.1994 with the Defendant No.1 to 3 for construction and development of the suit property at their costs. It is stated that the Plaintiff was to be paid Rs.16.25,000/- and was to be given the fully constructed first floor from the newly constructed and developed property. It is stated that the construction was to be raised in accordance with applicable by-laws and the Defendant No.1 to 3 were obligated to obtain building sanction plan from the Defendant No.4 for raising the construction. It is stated that the Defendant No.1 to 3 raised the construction without obtaining any requisite building sanction plan and thus breached the terms of the agreement.
It is stated that the Defendant No.1 to 3 were also liable to make payment of rent for alternative accommodation of the Plaintiff, however they had paid rent only till May, 1995 and did not pay any amount subsequently. It is stated that the Plaintiff issued a legal notice and cancelled the collaboration agreement as well as the power of attorneys executed by him. Accordingly, the Plaintiff has sought the prayer of possession of suit property, permanent injunction, mandatory injunctions and payment of amount of rent for alternative accommodation from the last three years prior to filing of the Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 25 of 60 Civil No. 87/2026 amendment application in suit till handing over the possession of newly constructed first floor.
9.1.2. The Defendant No.1 to 3 has admitted about execution of the collaboration agreement dated 12.12.1994 and power of attorneys in their favour. It is stated in the written statement that the suit property was rear portion of property No. F-275, New Rajinder Nagar, New Delhi-110060 and remaining part was in possession of the Plaintiff's brother, who had raised construction in the aforesaid front half portion without any building sanction plan. It is stated that the sanction plan could not be obtained for construction of the premises in part and when this was pointed out to the Plaintiff, he assured the Defendant No.1 to 3 that he would manage the same and only in these circumstances, the Defendant No.1 to 3 executed the collaboration agreement with the Plaintiff. It is stated that even though it was mentioned in the collaboration agreement about the Defendants to apply for the building sanction plan, however it was for the Plaintiff to ensure sanction plans as normally the plans were not sanctioned for part of the premises. It is stated that the Defendants were informed by the Plaintiff that the plans were got signed by the Plaintiff's brother and were submitted to authorities and the Defendants were told to start the construction, while the plans were getting sanctioned. The Defendant No.1 to 3 raised construction at request and assurance of the Plaintiff, who used to supervise the process of construction. It is stated Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 26 of 60 Civil No. 87/2026 that the Defendant No.1 to 3 had given Rs.9,20,000/- to the Plaintiff and had further paid rent for alternative accommodation till March, 1996 in cash against the receipts. It is submitted that the construction in the suit property was raised at request of the Plaintiff and after receiving Rs.9,20,000/-, the Plaintiff was not entitled to cancel the aforesaid agreement. The Plaintiff has admitted in the replication to the written statement of the Defendant No.1 to 3 that he had received an amount of Rs.9,20,000/- from the Defendants No. 1 to 3.
9.1.3. The Defendant No.4 is the MCD, which has stated that it has demolished several parts of the suit property in demolition drive against the unauthorized construction/structure in the premises and extent of the demolition is not disputed either by the Plaintiff or by the Defendant No.1 to 3.
9.1.4. The execution of the collaboration agreement dated 12.12.1994 is not disputed. The factum of construction raised without sanction plan in an unauthorized manner is also not disputed. The factum of Plaintiff issuing a legal notice dated 07.07.1995 for cancellation of the collaboration agreement is also not disputed, however it is stated that the Plaintiff was not entitled to cancel the same. The Plaintiff has stated that the Defendant No.1 to 3 were liable to obtain building sanction plan in terms of the collaboration agreement and they have raised unauthorized construction in the suit Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 27 of 60 Civil No. 87/2026 property, whereas the Defendant No.1 to 3 have stated that the aforesaid construction was raised at assurance of the Plaintiff about the building sanction plan to be obtained by him. Therefore, the core question to be determined is who was responsible for obtaining the building sanction plan.
9.1.5. The aspects of building sanction plan are mentioned in greater detail in the Collaboration Agreement. The Collaboration agreement dated 12.12.1994 is Exhibit PW- 1/2(OSR) and the same is being reproduced hereinbelow:
"COLLABORATION AGREEMENT This Indenture is executed at New Delhi, on this 12 day of December, 1994, Between Shri Dinesh Johar, son of Shri Surender Nath Johar resident of F-275, New Rajinder Nagar, New Delhi, hereinafter called the FIRST PARTY;
AND M/s. Shanti Constructions Co. having its office at 2/19, Old Rajinder Nagar, New Delhi, acting through its partners Shri Gajinder Pal Ahuja, son of Sh. Bhim Sen Ahuja, and Shri Sarin Kumar, Arora, son of Shri U.C.Arora, hereinafter called the SECOND PARTY/BUILDER;
The terms and expressions First & Second party hereinused shall mean and include them their heirs, successors, legal representatives, administrators, executors, nominees, and assigns etc. WHEREAS, the first party is absolute owner and in possession of Half portion of property bearing No. F- 275, situated at New Rajinder Nagar, New Delhi, Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 28 of 60 Civil No. 87/2026 measuring 24' x 24', lies on Opp. Flat/Plot No.F-434 & F-435.
AND WHEREAS, the aforesaid first party being unable to construct the structure on said property from her/his own to construct the same, funds has requested to the second party/at its own cost and expenses and the second party/builder has agreed to construct the same on the following agreed terms and conditions hereinafter appearing.
NOW THIS INDENTURE WITNESSETH AS UNDER:
1. That the aforesaid First party hereby assures the second party that his title to the said property is good, and the said property is free from all sorts of encumbrances, such as prior sale, gift, mortgage, litigations, liens, charges, surety, security, notification and acquisition etc. and if proved otherwise or second party suffers any losses on account thereof, then the first party shall make good the losses thus suffered by the second party or their nominees.
2. That the first party and the second party have mutually agreed to construct the said property in the manner stated hereinbelow:-
i) Lower Ground Floor ii) Upper Ground Floor
iii) First floor iv) Second floor
v)Third floor and its roof;
3. That the builder/second party will apply for and obtain the requisite permissions sanctions and approvals for the construction from the corporation.
4. That the second party/builder shall give to the first party the entire FIRST FLOOR without above rights of the said property after completion of construction work alongwith all fittings and fixtures installed therein, as mentioned hereinbelow in this indenture. All remaining portions except first floor shall remain with the second party who then can use, Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 29 of 60 Civil No. 87/2026 enjoy, hold and/or sell the same to any intending purchaser(s).
5. That the second party has agreed to make the following payments to the first party for the transaction in the manner stated hereinbelow:-
i) Rs. 2,00,000/- at the time of signing of this agreement;
ii) Rs. 6,00,000/- at the time of handing over the physical possession; and execution of Power of Attorney in favour of builder/nominees.
iii) Rs. 2,00,000/- after 1½-2 months from the date of signing of this agreement or handing over the possession;
iv) Rs. 4 lacs after four months from the date of this agreement;
v) Rs. 2,25,000/- after delivering the possession of the premises to intending purchaser(s);
5. That the first party will, render all the necessary assistances required by the second party in this behalf and in this connection the owner/first party shall grant, simultaneously with the execution of this agreement General Power of Attorney, clothing the builders with the necessary powers and authority to enable them to take all necessary steps for the implementation of the second scheme, including entering into agreement of the sale for the proposed built floor which lies on the share of the builder/second party, receiving money, and issuing receipts thereof, executing and getting registered the sale deeds in favour of the prospective purchasers of the said portions.
6. That the builder/second party, shall after surveying the premises and the surroundings, decide absolute plans, designs, specifications and materials etc.
7. The builder shall, therefore, prepare the necessary plans and designs and submit the same to the concerned authorities for sanction. In the preparation of such plans, the builder may engage and employ such Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 30 of 60 Civil No. 87/2026 as architects, planner, engineers, draftsmen, labour (skilled and unskilled) and other as they may consider fit. such plans or designs and other applications for necessary permissions and approval shall be submitted by the builders on behalf of and in the name of the first party to L&DO/MCD or other concerned authorities in the matter, including the Govt. and local authorities in the matter for necessary permissions, sanctions and approvals etc. for the construction and also for the sale of the build portion lower ground, upper ground floor, first floor, second floor and third floor with terrace, with the formalities given in the plans at its own cost and expenses and responsibility in their sole discretion make such variations in the designs or the plans at their own risk as it may deem fit and necessary or as may be required by the sanctioning authorities. The builders shall keep the owners informed of the progress in the matter of receipt of these permissions sanctions and approvals etc.
8. That the builders will start the construction over the said property within the stipulated period and signing of this agreement and getting the plans etc. approved and sanctioned from these authorities. The builder is also competent to start booking of their portions of the property when the construction goes at such cost and other terms and conditions as they deem fit and receive the sale price thereof including earnest money part payment etc from the prospective buyers and give receipts thereof and the owners of the said property shall not interfere in any manner whatsoever. In case of any dispute between the parties the owners shall not be liable and responsible in any manner and the promoters/builders are fully competent to construction to any person of any community the owners shall not raise any objection for the same. The Ist party owners Shri Dinesh Johar, will have no concern with the portions belongs to the said builder.
9. That the owners hereby assure the builders that they will execute further documents to further buyers of Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 31 of 60 Civil No. 87/2026 the share of the builder in favour of the person/s nominated by the builders_ The owners will not demand any further amount for selling these floors from the builder.
10. That agreement to sell and other documents in respect of the shares of the builders in favour of the prospective buyers shall be executed by the owners and builders, and the same shall in addition to the ownership right in the particular floor, also convey to the purchaser of undivided indivisible and impartiable rights of ownership in the said premises in ratio which the covered area of the floors taken together. The cost of the floor concerned shall be inclusive of the sale ownership right in the said premises.
11. That the owners have assured the representative of the builders that the said premises in completely free from all encumbrances, charges, claims, litigations etc. whatsoever.
12. That the owners hereby constitute the builders as their attorney for making of applications to the various authorities for the mutation on permissions, approvals, sanctions etc. required for the construction, completion of said Lower Ground floor, Upper Ground floor, First floor, Second Floor and third floor with terrace, and for the provisions of facilities therein and for the due discharge of the builder other obligations and functions under these presents. The owner further take and agree to execute within a month of the receipt of the request in this behalf by the builder such other deeds, documents, writings, papers and authorities as may be necessary or desirable for the speedy execution of these projects in accordance with the terms of this agreement.
13. That the property taxes such as house tax etc. relating to the said premises will be paid by the owners upto the date of completion of construction work and delivering the possession of respective portion and Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 32 of 60 Civil No. 87/2026 thereafter the same shall be proportionately shared by the builder/intending purchasers.
14. That the expenses for getting this agreement executed/registered and also further agreements and sale deeds in this respect will be payable either by the builders or by the purchasers of said proposed floors i.e. share to the share of the builder and not by the owners.
14. That nothing in the terms of this agreement shall be deemed to constitute a partnership as between the parties hereto or to constitute the agent of the other save to the extent specifically stated.
15. That the builders will provide the owners with the alternative accommodation, if required by owners.
16. That any differences whatsoever arising between the parties hereto touching the terms of or any way connected with this agreement shall be referred to the arbitrators of two arbitrators, one arbitrator to be nominated by each of the parties hereto. The arbitration proceedings shall be held at delhi and the courts at Delhi alone will have jurisdiction in the matter.
17. That the builder will provide jet water tube well, over or separately tank, head water tanks, auto start's switch, under ground wiring for TV Antena & Telephone. Ist floor will consist of two bed rooms and two bathrooms, one drawing-dining, one kitchen, four ceiling fans, three exhaust fans, two geysers, xxx marble flooring in all rooms, glace tiles upto 7' in bathrooms, woodwork in the kitchen, one sub-meter will be installed, P.O.P covering all roof of all rooms, one show case in drawing room.
18. The builder will give one year free service in any defect in the building i.e. water & sewerage, wiring or any other doors windows, almirahs or paints.
Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 33 of 60 Civil No. 87/2026
19. This agreement is executed with mutually understanding of both, the parties. There will be only one staircase for all the floors.
IN WITNESS WHEREOF, the owners and the builder have signed this Indentre on the day, month and year first above written, in the presence of witnesses."
In terms of Clause 3 of the collaboration agreement, the Defendant No.1 to 3 had to obtain the requisite building sanction plan and necessary approval for construction. In terms of clause 6 of the Exhibit PW-1/2, the Defendant No.1 to 3 had to survey the property for deciding the absolute plans for construction. In terms of 7 of the Exhibit PW-1/2, it was incumbent on the builder, i.e., the Defendant No.1 to 3, to prepare necessary plans and designs and submit the same to authorities for sanction. The Clause 8 of the Exhibit PW-1/2 empowers the builder to raise construction and obligates him to obtain building sanction plan. In terms of Clause 12 of the Exhibit PW-1/2, the builder, i.e., the Defendant No.1 to 3, were made attorneys of the Plaintiff to obtain necessary permission and sanctions for construction.
9.1.6. The aforesaid clauses are exhaustive and unambiguous and do not leave any iota of doubt that the builder, i.e., the Defendant No.1 to 3, were responsible for preparing the plans & designs and submit the building/construction plan to the appropriate authority for obtaining the requisite building sanction plan for construction. The Plaintiff has stated that in order to facilitate and perform the aforesaid acts, the Plaintiff Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 34 of 60 Civil No. 87/2026 had executed a registered general power of attorney and registered special power of attorney in favour of the Defendant No.1 to 3. Though the aforesaid power of attorneys are not filed or relied upon in evidence, however the factum of the aforesaid attorneys being executed by the Plaintiff for empowering the Defendant No.1 to 3 to do all incidental acts in furtherance of the collaboration agreement has not been disputed by the Defendant No.1 to 3. The Plaintiff has filed registered cancellations deeds of the aforesaid power of attorneys and relied upon the same as Exhibit PW-1/4 and Exhibit PW-1/5.
9.1.7. Ld. Counsels for the Defendant No.1 to 3 have placed reliance upon the cross-examination of the PW-1 dated 11.10.2018, 06.02.2019 and 11.07.2023. This Court has gone through the aforesaid cross-examination of the PW-1. The PW-1 has admitted that there was no legal partition and the contentions of settlement between the Plaintiff and his brother rested on oral averments. The PW-1 admits in the cross-examination dated 28.07.2023 that the property bearing No.275, New Rajinder Nagar, Delhi is a single unit and undivided property. He further admits that construction in the portion of his uncle Mr. Anil Johar was unauthorized and he had also received a notice for demolition, however no demolition was carried out. The PW-1 has further admitted that the Plaintiff was aware about transfer of the upper ground floor to Mr. O. P. Handa prior to institution of the Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 35 of 60 Civil No. 87/2026 suit. The PW-1 was not aware about the period of rent being paid or being due to be paid. Though the PW-1 has stated in the examination in chief that the amount of Rs.9,20,000/- was returned by his father, however there is no such contention in the plaint and the replication and further the manner of aforesaid repayment or any document pertaining to same could not be pointed out by the PW-1. Therefore, the repayment of Rs.9,20,000/- by the Plaintiff to the Defendant No.1 to 3 has not been proved by the PW-1. The PW-1 has denied the suggestion that the Plaintiff was responsible for sanction of the plans from MCD.
9.1.8. The PW-1 is son of the Plaintiff, who was 5 years old at the time of the execution of the Collaboration Agreement and there is only limited relevance of his testimony. However, even if his testimony of the PW-1, in view of submissions of Ld. Counsels for Defendant No.1 to 3, is read in entirety, the only aspect emerges from the same is that suit property is part of the property No.F-275 and other half portion was in possession of the Plaintiff's brother. There is no document on record to show as to whether the construction of the portion other than the suit property was unauthorized. Further there is nothing on record to conclude that the sanction plan of the suit property could not have been issued as being half of the property No.F-275. The letter of rejection of the building sanction plan or record of the Defendant No.4 was not sought to be produced either by the Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 36 of 60 Civil No. 87/2026 Plaintiff or by the Defendants.
9.1.9. If the contentions of the Defendant No.1 to 3 are assumed to be true and it is assumed that the suit property was not legally partitioned, the other part was unauthorizedly constructed and building sanction plan could not be issued in part, even then the Defendant No.1 to 3 were well aware about the same at the time of execution of the collaboration agreement and willingly went ahead with the same. It is stated in para No.3 of reply on merits of written statement that the suit property was half portion of the property No.F- 275, New Rajinder Nagar, New Delhi-110060 and other half portion was in possession of the brother of the Plaintiff and the building sanction plan could not be issued in part and when the aforesaid aspect was pointed to the Plaintiff, he assured that he would manage the aforesaid building sanction and under these circumstances, the collaboration agreement was executed between the Plaintiff and the Defendant No. 1 to 3. It can be inferred from the aforesaid averments that the Defendant No.1 to 3 were aware of the situation of the building even prior to execution of the aforesaid collaboration agreement. It is nowhere stated by the Defendant No.1 to 3 that they were not aware of the aforesaid aspects prior to execution of the collaboration agreement, however they merely stated that they entered into the collaboration upon the assurance of the Plaintiff that he would manage the building sanction plan and further asked Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 37 of 60 Civil No. 87/2026 them to construct the suit property, while he would get the building sanction plan after getting the same signed from his brother. The aforesaid plea stated in written statement of the Defendant No.1 to 3 is in contradiction to the terms of the document admitted and proved against them, i.e., Exhibit PW-1/2, which specifically casted the obligations on the Defendant No.1 to 3 to obtain the building sanction plan. Therefore, the aforesaid contentions are required to be assessed in terms of Section 91 and 92 of the Indian Evidence Act, 1872. Section 91 of the Indian Evidence Act, 1872 is being reproduced hereinbelow:
"91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document.
When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained."
Section 92 of the Indian Evidence Act, 1872 further provides the conditions or circumstances or extent, to which the oral evidence may be given in contradiction to the terms and conditions of the written agreement/instrument. Section 92 Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 38 of 60 Civil No. 87/2026 of the Act of 1872 is being reproduced hereinbelow:
"92. Exclusion of evidence of oral agreement:
When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:
Proviso (1): Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, 1[want or failure] of consideration, or mistake in fact or law.
Proviso (2): The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document.
Proviso (3): The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.
Proviso (4): The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 39 of 60 Civil No. 87/2026 required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
Proviso (5): Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:
Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.
Proviso (6): Any fact may be proved which shows in what manner the language of a document is related to existing facts."
9.1.10. The Hon'ble Supreme Court of India has explained the scope of Section 91 and Section 92 and the objective of exclusion of oral evidence in contradiction of written agreement in "V. Anantha Raju and Ors. Vs. T.M. Narasimhan and Ors.:
AIR2021SC5342", and the relevant observations of the Hon'ble Court are being reproduced hereinbelow:
"21. This Court in the case of Roop Kumar v. Mohan Thedani MANU/SC/0276/2003 : (2003) 6 SCC 595 has elaborately considered the earlier judgments of this Court on the issue in hand and has held as under:
12. Before we deal with the factual aspects, it would be proper to deal with the plea relating to scope and ambit of Sections 91 and 92 of the Evidence Act. 13. Section 91 relates to evidence of terms of contract, grants and other disposition of properties reduced to form of document. This Section merely forbids proving the contents of a writing otherwise than by writing itself; it is covered by the ordinary Rule of law of evidence, applicable not merely to solemn writings of the sort named but to others known Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 40 of 60 Civil No. 87/2026 sometimes as the "best evidence rule". It is in reality declaring a doctrine of the substantive law, namely, in the case of a written contract, that all proceedings and contemporaneous oral expressions of the thing are merged in the writing or displaced by it. (See Thayer's Preliminary Law on Evidence, p. 397 and p. 398; Phipson's Evidence, 7th Edn., p. 546; Wigmore's Evidence, p. 2406.) It has been best described by Wigmore stating that the Rule is in no sense a Rule of evidence but a Rule of substantive law. It does not exclude certain data because they are for one or another reason untrustworthy or undesirable means of evidencing some fact to be proved. It does not concern a probative mental process -- the process of believing one fact on the faith of another. What the Rule does is to declare that certain kinds of facts are legally ineffective in the substantive law; and this of course (like any other ruling of substantive law) results in forbidding the fact to be proved at all. But this prohibition of proving it is merely that dramatic aspect of the process of applying the Rule of substantive law. When a thing is not to be proved at all the Rule of prohibition does not become a Rule of evidence merely because it comes into play when the counsel offers to "prove" it or "give evidence" of it; otherwise, any Rule of law whatever might be reduced to a Rule of evidence. It would become the legitimate progeny of the law of evidence. For the purpose of specific varieties of jural effects -- sale, contract etc. there are specific requirements varying according to the subject. On the contrary there are also certain fundamental elements common to all and capable of being generalised. Every jural act may have the following four elements: (a) the enaction or creation of the act; (b) its integration or embodiment in a single memorial when desired; (c) its solemnization or fulfilment of the prescribed forms, if any; and (d) the interpretation or application of the act to the external objects affected by it.
14. The first and fourth are necessarily involved in every jural act, and second and third may or may not become practically important, but are always possible elements.
15. The enaction or creation of an act is concerned with the question whether any jural act of the alleged tenor has been consummated; or, if consummated, whether the circumstances attending its creation authorise its avoidance or annulment. The integration of the act consists in embodying it in a single utterance or memorial -- commonly, of course, a written one. This process of integration may be required by law, or it may be adopted Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 41 of 60 Civil No. 87/2026 voluntarily by the actor or actors and in the latter case, either wholly or partially. Thus, the question in its usual form is whether the particular document was intended by the parties to cover certain subjects of transaction between them and, therefore, to deprive of legal effect all other utterances.
16. The practical consequence of integration is that its scattered parts, in their former and inchoate shape, have no longer any jural effect; they are replaced by a single embodiment of the act. In other words, when a jural act is embodied in a single memorial all other utterances of the parties on the topic are legally immaterial for the purpose of determining what are the terms of their act. This Rule is based upon an assumed intention on the part of the contracting parties, evidenced by the existence of the written contract, to place themselves above the uncertainties of oral evidence and on a disinclination of the courts to defeat this object. When persons express their agreements in writing, it is for the express purpose of getting rid of any indefiniteness and to put their ideas in such shape that there can be no misunderstanding, which so often occurs when reliance is placed upon oral statements. Written contracts presume deliberation on the part of the contracting parties and it is natural they should be treated with careful consideration by the courts and with a disinclination to disturb the conditions of matters as embodied in them by the act of the parties. (See McKelvey's Evidence, p. 294.) As observed in Greenlear's Evidence, p. 563, one of the most common and important of the concrete Rules presumed under the general notion that the best evidence must be produced and that one with which the phrase "best evidence" is now exclusively associated is the Rule that when the contents of a writing are to be proved, the writing itself must be produced before the court or its absence accounted for before testimony to its contents is admitted.
17. It is likewise a general and most inflexible Rule that wherever written instruments are appointed, either by the requirement of law, or by the contract of the parties, to be the repositories and memorials of truth, any other evidence is excluded from being used either as a substitute for such instruments, or to contradict or alter them. This is a matter both of principle and policy. It is of principle because such instruments are in their own nature and origin, entitled to a much higher degree of credit than parol evidence. It is of Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 42 of 60 Civil No. 87/2026 policy because it would be attended with great mischief if those instruments, upon which men's rights depended, were liable to be impeached by loose collateral evidence. (See Starkie on Evidence, p. 648.)
18. In Section 92 the legislature has prevented oral evidence being adduced for the purpose of varying the contract as between the parties to the contract; but, no such limitations are imposed Under Section 91. Having regard to the jural position of Sections 91 and 92 and the deliberate omission from Section 91 of such words of limitation, it must be taken note of that even a third party if he wants to establish a particular contract between certain others, either when such contract has been reduced to in a document or where under the law such contract has to be in writing, can only prove such contract by the production of such writing.
19. Sections 91 and 92 apply only when the document on the face of it contains or appears to contain all the terms of the contract. Section 91 is concerned solely with the mode of proof of a document with limitation imposed by Section 92 relates only to the parties to the document. If after the document has been produced to prove its terms Under Section 91, provisions of Section 92 come into operation for the purpose of excluding evidence of any oral agreement or statement for the purpose of contradicting, varying, adding orsubtracting from its terms. Sections 91 and 92 in effect supplement each other. Section 91 would be inoperative without the aid of Section 92, and similarly Section 92 would be inoperative without the aid of Section 91.
20. The two sections, however, differ in some material particulars. Section 91 applies to all documents, whether they purport to dispose of rights or not, whereas Section 92 applies to documents which can be described as dispositive. Section 91 applies to documents which are both bilateral and unilateral, unlike Section 92 the application of which is confined to only bilateral documents. (See: Bai Hira Devi v. Official Assignee of Bombay [ MANU/SC/0001/1958 : AIR 1958 SC 448].) Both these provisions are based on "best-evidence rule". In Bacon's Maxim Regulation 23, Lord Bacon said "The law will not couple and mingle matters of specialty, which is of the higher account, with matter of averment which is of inferior account in law." It would be inconvenient that matters in writing made by advice and on consideration, and which finally import the certain truth of the agreement Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 43 of 60 Civil No. 87/2026 of parties should be controlled by averment of the parties to be proved by the uncertain testimony of slippery memory.
21. The grounds of exclusion of extrinsic evidence are: (i) to admit inferior evidence when law requires superior would amount to nullifying the law, and (ii) when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.
22. This Court in Gangabai v. Chhabubai [ MANU/SC/0385/1981 : (1982) 1 SCC 4 : AIR 1982 SC 20] and Ishwar Dass Jain v. Sohan Lal [ MANU/SC/0747/1999 : (2000) 1 SCC 434: AIR 2000 SC 426] with reference to Section 92(1) held that it is permissible to a party to a deed to contend that the deed was not intended to be acted upon, but was only a sham document. The bar arises only when the document is relied upon and its terms are sought to be varied and contradicted. Oral evidence is admissible to show that document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties.
22. It could thus be seen that this Court has held that the integration of the act consists in embodying it in a single utterance or memorial -- commonly, a written one. This process of integration may be required by law, or it may be adopted voluntarily by the actor or actors and in the latter case, either wholly or partially. It has been held that the question that is required to be considered is whether the particular document was intended by the parties to cover certain subjects of transaction between them to deprive of legal effect of all other utterances. It has been further held that the practical consequence of integration is that its scattered parts, in their former and inchoate shape, have no longer any jural effect and they are replaced by a single embodiment of the act. It has been held that when a jural act is Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 44 of 60 Civil No. 87/2026 embodied in a single memorial, all other utterances of the parties on the topic are legally immaterial for the purpose of determining what are the terms of their act. It has been held that when persons express their agreements in writing, it is for the express purpose of getting rid of any indefinite ness and to put their ideas in such shape that there can be no misunderstanding, which so often occurs when reliance is placed upon oral statements. It has been observed that the written contracts presume deliberation on the part of the contracting parties and it is natural that they should be treated with careful consideration by the courts and with a disinclination to disturb the conditions of matters as embodied in them by the act of the parties. It has been held that the written instruments are entitled to a much higher degree of credit than oral evidence.
23. This Court has further held that Sections 91 and 92 of the Evidence Act would apply only when the document on the face of it contains or appears to contain all the terms of the contract. It has been held that after the document has been produced to prove its terms Under Section 91, the provisions of Section 92 come into operation for the purpose of excluding evidence of any oral agreement or statement for the purpose of contradicting, varying, adding or subtracting from its terms. It has been held that it would be inconvenient that matters in writing made by advice and on consideration, and which finally import the certain truth of the agreement of parties should be controlled by averment of the parties to be proved by the uncertain testimony of slippery memory. It has been held that when parties deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.
(Underlining Added) Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 45 of 60 Civil No. 87/2026 9.1.11. Thus oral evidence against the terms of a written document, in order to be admissible, has to fall within the purview of provisos to Section 92 of the Act of 1872. The plea of the Defendant No.1 to 3 is in contradiction to the terms of a written document and does not fall within any of the exceptions to Section 92 of the Act. The Defendant No.1 to 3 have willingly signed the agreement and therefore, it is not open for them to contend that the Plaintiff, prior to execution of the agreement, had given the assurance for obtaining the building sanction plan, which was not mentioned in the aforesaid agreement. It is also not the case of the Defendant No.1 to 3 that aforesaid aspect was hidden or concealed by the Plaintiff or they have come to know about the same subsequent to the signing of the Exhibit PW-1/2. Once the Defendant entered into agreement willingly, it is for them to plead and prove the exception(s) under Section 92 of the Act to make their defence admissible. The burden of proof, of the plea of Defendant No.1 to 3 being an exception, was upon the Defendant No.1 to 3 as their case would fail if no evidence were given by either side. The Defendant No.1 to 3 have examined two witnesses. The DW-1 was daughter of the Defendant No.2, who was thirteen years of age at the relevant time. The Defendant No.3 has reiterated merely the averment about the Plaintiff being responsible for obtaining the building sanction plan, which were challenged by the negative suggestions by the Ld. Counsel for the Plaintiff. However, in terms of written statement or affirmative Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 46 of 60 Civil No. 87/2026 evidence of the Defendant No.1 to 3, they have neither pleaded nor proved any fact, whereby the plea raised by them in contradiction to terms of Exhibit PW-1/2 can be considered to be an exception to Section 92 of the Act in order to be admissible.
9.1.12. Moreover, the Defendant No.1 to 3 were builders and therefore, the knowledge about the legal necessity of building sanction plan before commencing construction can be imputed to them. If at any point of time, they faced difficulty, then they could have pointed it in writing as it was their principal obligation agreed to in writing. Being the builder, the Defendant No.1 to 3 were well aware of the consequences of the raising unauthorized construction and action it would lead to. The aforesaid consequences have followed and the structure of premises has substantively been dismantled by the Defendant No.4. Even if the building sanction plan was not feasible, the ideal way for the Defendant No. 1 to 3 was to cancel the agreement to seek damages from the Plaintiff. At no point of time, they have asked the Plaintiff in writing to obtain a building sanction plan or about the same being his obligation. The agreement imposed the obligations on the Defendant No.1 to 3 to obtain the building sanction plan in unconditional and unambiguous terms. The terms of agreement do not leave any manner of doubt as to what was intended by the parties and any alternation of such written terms to spell out any different Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 47 of 60 Civil No. 87/2026 understanding is not be readily believed, however has to be credibly proved on record, which the Defendant No.1 to 3 have failed to prove, besides the aforesaid plea was also barred under Section 91 & 92 of Indian Evidence Act, 1872.
9.1.13. There is another reason, which proves the apparent falisity of contentions of the Defendant No.1 to 3 about the unauthorized construction being raised at the instructions of the Plaintiff. It is stated in para No.7 of the reply on merits of the written statement that the Plaintiff told the Defendants to make additions/alternations to the already existing structure and further asked them to raise construction for another two storeys even in absence of the plans. As per the Collaboration Agreement dated 12.12.1994, the Plaintiff was to get only one floor of the completed construction in the suit property along with Rs.16,25,000/-. The Plaintiff has no reason to ask the Defendant to raise two further unauthorized floors after first two storeys in the building. The aforesaid unauthorized floors would only have benefited the Defendant No.1 to 3 and the same would not have conferred any benefit or advantage upon the Plaintiff. It is also not case of the Defendants that they have agreed to pay anything additionally to the Plaintiff for the aforesaid two unauthorized floors.
9.1.14. Therefore, it has been established on record that it was the obligation of the Defendant No.1 to 3 to obtain building Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 48 of 60 Civil No. 87/2026 sanction plan and raise construction accordingly, which they have failed to do and the same amounted to breach of the collaboration agreement dated 12.12.1994. The Issue No.1 is decided in favour of the Plaintiff and against the Defendant No.1 to 3.
9.2. Issue No. 2: Whether the Plaintiff had right to cancel
the collaboration agreement dated
12.12.1994 vide letter dated 07.07.1995 and power of attorney dated
10.01.1995? OPP 9.2.1. The onus to prove the Issue No.2 is upon the Plaintiff. The Plaintiff has contended that the Defendant No.1 to 3 had committed breach and therefore, the Plaintiff had cancelled the collaboration agreement and general power of attorneys. It has been discussed and decided in the Issue No.1 that the Defendant No.1 to 3 have committed the breach of the collaboration agreement by raising construction without obtaining the requisite building sanction plan. The aforesaid discussion is not repeated herein, however the same is being relied upon. Once the breach of the Defendant No.1 to 3 is established, the Plaintiff was within his rights cancel the collaboration agreement. It is also not case of the Defendant Defendant No.1 to 3 that they tried to rectify/remedying the situation after the aforesaid breach. The unauthorized construction had further led to action of demolition by the Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 49 of 60 Civil No. 87/2026 Defendant No.4 and structure in the suit property has substantively been dismantled and rendered useless/sealed.
9.2.2. However, the aforesaid right of cancellation of the agreement is subject to one one caveat that the Defendant No.1 to 3 were made lawful attorneys by the Plaintiff and were permitted to accept booking towards the portions to be allotted to the Defendant No.1 to 3 and in case, if the rights of the third parties have been lawfully created, in terms of the transactions during the period of validity of the Collaboration Agreement, GPA and SPA, the Plaintiff can- not seek annulment of the aforesaid transactions in absence of such third parties.
9.2.3. It is submitted by Ld. Counsel for the Defendant No.1 to 3 that the Plaintiff has received Rs.9,20,000/- from the Defendant No.1 to 3 and therefore, he was not entitled to cancel the Collaboration Agreement. The Defendant No.1 to 3 have neither paid the remaining amount nor provided the completely constructed floor, as per the terms of the Collaboration Agreement and therefore they cannot resist cancellation of the Agreement only on the basis of part amount being paid to the Plaintiff. The Defendant No.1 to 3, at best, are entitled to seek refund of the aforesaid amount, which is subject to any damages, the Plaintiff may claim, however neither the refund has been sought nor damages have been claimed by the Plaintiff in the present suit.
Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 50 of 60 Civil No. 87/2026 Therefore, the Plaintiff was entitled to cancel the Collaboration Agreement, GPA and SPA. The Issue No.2 is accordingly decided.
9.3. Issue No.3: Whether the Defendant nos. 1 to 3 were entitled to sell upper ground floor of the suit property by virtue of collaboration agreement dated 12.12.1994 and power of attorney dated 10.01.1995? OPD 9.3.1. The onus to prove the Issue No.3 is upon the Defendant No.1 to 3. The collaboration agreement dated 12.12.1994 is Exhibit PW-1/2, however the general power of attorney and special power of attorney have neither been filed nor relied upon in evidence by the parties. In terms of the clause No.7, 8 and 9 of the collaboration agreement dated 12.12.1994, the builder was authorized to sell or receive booking against the portions to be allotted to him. The collective reading of the aforesaid clauses does not rule out any restriction about entering into any transaction even prior to completion of the construction, however the aforesaid right has also to be read in light of the performance of the agreement by the builder and not independent of the same, as it is also mentioned in the aforesaid clauses that in the event of any dispute with such third parties, the Plaintiff would not be liable. Moreover, if the builder did not perform his part, he could not seek enforcement of the promises he made to the third Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 51 of 60 Civil No. 87/2026 parties on the strength of peformance of his agreement with the Plaintiff. However, if any lawful interest is created by the builder in favour of the third parties, during the period of validity of the Collaboration Agreement, GPA and SPA, the Plaintiff cannot seek annulment of the aforesaid transactions in absence of such third parties.
9.3.2. It is stated by the Defendant No.1 to 3 that they have sold the upper ground floor to Mr. O.P. Handa in around February, 1996. Neither any document to show the aforesaid sale has been filed nor manner of the aforesaid sale is further explained. Merely it is mentioned that an Agreement to Sell was executed and possession was handed over. One important aspect of the matter is that the Plaintiff has issued the notice of cancellation for collaboration agreement on 07.07.1995. The Defendant No.1 to 3 do not dispute in the written statement (para 9 of reply on merits) that they have received the aforesaid notice. Once the Plaintiff has already issued the legal notice for revocation of the collaboration agreement and further had also registered the cancellation of the power of attorneys, it was not open to the Defendant No.1 to 3 to go ahead and enter into any transaction with the third parties. The aforesaid transaction/agreement to sell is stated to be executed after eight months of the cancellation of collaboration agreement and power of attorneys. If the aforesaid transaction had been executed within the currency of the validity of the agreement and attorneys, the situation Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 52 of 60 Civil No. 87/2026 would still be different. Once the dispute has already been initiated and the Collaboration Agreement/Attorneys being cancelled, it was not open for the Defendant No.1 to 3 to enter into any transaction on the strength of cancelled agreement and power of attorneys, more particularly without fulfilling their part of the agreement in question.
9.3.3. Therefore, the Defendant No.1 to 3 were not authorized to sell the upper ground floor of the suit property and the Issue No.3 is accordingly decided in favour of the Plaintiff and against the Defendant No.1 to 3.
9.4. Issue No.4: Whether the Plaintiff is entitled to decree of possession of the suit property as prayed vide prayer clause (c)? OPP 9.4.1. The onus to prove this Issue is upon the Plaintiff. In terms of the Issues discussed hereinabove, it has been held that the Defendant No.1 to 3 were guilty of breach of the collaboration agreement dated 12.12.1994. The Defendant No.1 to 3 had not come forward to rectify or remedying the instances of the breach in order to fulfill their obligation under the collaboration agreement. The Defendant No.1 to 3 have not filed any suit/counter-claim for specific performance of the collaboration agreement dated 12.12.1994, though it is doubtful that any such specific performance would have been granted to them in view of Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 53 of 60 Civil No. 87/2026 they being responsible for the breach. Once the Defendant No.1 to 3 are held responsible for breach of the collaboration agreement, which has made the suit property subject matter of statutory action for demolition and further the Defendant No.1 to 3, not being willing to remedy the breach and perform the agreement, they cannot oppose the Plaintiff's right to seek the possession of the suit property.
9.4.2. It is stated by the Defendant No.1 to 3 that the Plaintiff has received an amount of Rs.9,20,000/- from them. In terms of the agreement, the Defendant No.1 to 3 have undertaken to pay Rs.16,25,000/- and a completed first floor to the Plaintiff. Despite three decades being passed, neither the remaining amount of monetary consideration has been paid or tendered nor the Defendant No.1 to 3 are in position to offer the possession of completed first floor as promised. Therefore, the breach of the Defendant No.1 to 3 leads to restoration of status-quo ante with regards to rights of the parties and the Plaintiff is thus entitled to receive back the possession of the suit property. In so far as the amount of Rs.9,20,000/- is concerned, the Defendant No.1 to 3 could have sought refund of same, subject to right of the Plaintiff to seek damages against the breach attributable to the Defendant No.1 to 3. Neither the Plaintiff has sought damages nor the Defendant No.1 to 3 have sought refund of the aforesaid amount. Therefore, the Defendant No.1 to 3 cannot resist the possession being restored to the Plaintiff.
Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 54 of 60 Civil No. 87/2026 9.4.3. It has been stated by the Defendant No.1 to 3 that they have sold the upper ground floor of the suit property to one Mr. O.P. Handa and the possession of the same was also transferred to him. Even if the Defendant No.1 to 3 were not entitled to sell the upper ground floor to Mr. O.P. Handa or the transfer being only an Agreement to Sell and not a sale deed, it has not been disputed on behalf of the Plaintiff/LRs that the possession of the aforesaid floor was/is with Mr. O.P. Handa. The Defendant No.1 to 3 have stated in the written statement that possession of upper ground floor was with Mr. O.P. Handa. The Defendant No.3 has stated in his examination in chief that possession of the upper ground floor was with Mr. O.P. Handa and the same has not been challenged in cross-examination. The PW-1 has admitted that the Plaintiff was aware prior to the institution of the suit that the aforesaid floor was transferred to Mr. O.P. Handa. Therefore, the Plaintiff is not entitled to seek possession of the upper ground floor, without joining the aforesaid person in possession of the same, however the Defendant No.1 to 3 cannot oppose the prayer for possession of remaining part of the suit property in their possession.
9.4.4. Therefore, the Plaintiff is entitled to possession of the entire suit property except the upper ground floor. The Issue No.4 is accordingly decided.
Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 55 of 60 Civil No. 87/2026 9.5. Issue No.5: Whether the Plaintiff is entitled to decree of mandatory injunction as prayed vide prayer clause (d) & (e)?
OPP 9.5.1. The onus to prove the Issue No.5 is upon the Plaintiff. The aforesaid Issue is based on prayer clause (d) & (e) of plaint. In terms of the aforesaid prayer clauses, the Plaintiff has sought directions against the Defendant No.1 to 3 as well as against the Defendant No.4 for directing them to remove/demolish the unauthorized construction in the suit property. The Defendant No.4 has already taken substantive action for demolition of the portion unauthorizedly constructed in the suit property. The extent of aforesaid action has been mentioned in detail in the written statement filed by the Defendant No.4, which has not been disputed by either side. This Court is of the view that since the Defendant No.4 has already taken action against the acts of unauthorized construction, therefore, no fresh or further action is called for and the prayer No.(d) & (e) of the plaint have been rendered infructuous. The Issue No.5 is accordingly decided.
9.6. Issue No.6: Whether the Plaintiff is entitled to decree of permanent injunction as prayed vide prayer clause (a) & (b) ?
OPP Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 56 of 60 Civil No. 87/2026 9.6.1. The Plaintiff is the owner of the suit property and the Defendant No.1 to 3 have been seeking the right to possess the suit property through him. Since the Plaintiff has already been held entitled to prayer of possession of the suit property except the upper ground floor, the prayer of permanent injunction is merely incidental to the same. Therefore, the Plaintiff is entitled to prayer of permanent injunction with regard to the suit property, except the first floor thereof. The Issue No.6 is accordingly decided.
9.7. Issue No.7: Whether the Plaintiff is entitled to recover an amount of Rs.2,66,000/- as per clause 15 of the collaboration agreement and an amount of Rs.6,000/-
per month, as prayed vide prayer clause
(g)? OPP 9.7.1. The onus to prove this Issue is upon the Plaintiff. The Plaintiff has claimed arrears of rent paid by him for substituted accommodation with effect from 3 years prior to filing of the application for amendment and has further sought Rs.6,000/- per month during pendency of the suit and for future till possession of newly constructed first floor. The aforesaid right is based upon the clause 15 of the plaint, which is being reproduced hereinbelow:
"15. That the builders will provide the owners with the alternative accommodation, if required by owners."
Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 57 of 60 Civil No. 87/2026 9.7.2. Thus, in terms of the aforesaid clause the Defendant No.1 to 3 had to provide the Plaintiff with alternative accommodation, which they claim to have provided to the Plaintiff till March, 1996, whereas the Plaintiff claims the rent being paid till May, 1995. Be that as it may, this Court is of the view that the Plaintiff cannot seek payment for alternative accommodation, in terms of Clause 15, once the collaboration agreement was terminated by him. The Plaintiff could, at best, have claimed damages for breach of the agreement, which have not been claimed by him.
9.7.3. Moreover, the Plaintiff has already received Rs.9,20,000/-
under the collaboration agreement dated 12.12.1994. The Plaintiff has not claimed any damages and the Defendant No.1 to 3 has also not claimed any refund of the aforesaid amount. The Plaintiff has also not proved that the damages of the Plaintiff are greater than the amount received by him under the agreement, which permitted such claim for amount of rent in addition to amount already received by the Plaintiff. Therefore, the Plaintiff is not entitled to the amount claimed in terms of this Issue and the Issue No. 7 is decided against the Plaintiff and in favour of the Defendant No. 1 to
3. 9.8. Issue No.8: Whether the Plaintiff is entitled to pendente lite and future interest, if so, at what rate? OPP Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 58 of 60 Civil No. 87/2026 9.8.1. The Issue No.8 is dependent upon the outcome of Issue No.7, which has been decided against the Plaintiff, therefore, the Plaintiff is not entitled to any interest in terms of this Issue. The Issue No.8 is decided against the Plaintiff and in favour of the Defendant No.1 to 3.
10. Relief/Final Decision:
10.1. The suit of the Plaintiff is decreed for possession of the suit property, i.e., half/rear portion of the property No.F-275, New Rajinder Nagar, New Delhi, as mentioned in the plaint, except the upper ground floor of the aforesaid property. A decree for permanent injunction is also passed and the Defendant No.1 to 3 are restrained from creating any third party rights in the suit property except the upper ground floor thereof. The prayers of mandatory injunctions and recovery of money are declined. The Decree Sheet be drawn up accordingly. In case, the suit property is still sealed for any statutory violation, the directions passed in this judgment do not by itself amount to de-sealing of the suit property, however the Plaintiff shall remain at liberty to take appropriate steps for de-sealing of the property in accordance with law.
10.2. The Judgment in the present case was reserved by the undersigned, when the undersigned was posted as District Judge-04, West, THC, Delhi and subsequently before pronouncement of Judgment, the undersigned was Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 59 of 60 Civil No. 87/2026 transferred to this Court in terms of Transfer Order No.08/D-3/Gaz.IA/DHC/2026 dated 06.02.2026 issued by the Hon'ble High Court of Delhi and in terms of Note No.2 of the aforementioned Transfer Order, the present case was retained for pronouncement of Judgment and the same has been pronounced today. The Court Ahlmad is directed to send / handover the files of the present case to the Court Ahlmad of the Court of Ld. District Judge-
04, West, THC, Delhi and the files are further directed to be consigned to the Record Room after due compliance by the Court Ahlmad of Ld. District Judge-04, West, THC, Delhi.
Digitally signed by ANIL CHANDHEL ANIL Date:
CHANDHEL 2026.03.14
04:31:08
+0530
Announced in the open Court (ANIL CHANDHEL)
today on 14th of March, 2026 ASJ (Special FTC),
East, KKD, Delhi
14.03.2026
Dinesh Johar Vs. M/s. Shanti Construction & Ors. Page No. 60 of 60
Civil No. 87/2026