Delhi District Court
Ram Kishan vs Shri Tushar Yadav on 15 April, 2014
IN THE COURT OF SH. PITAMBER DUTT; ADJ (CENTRAL)17,DELHI
Suit No. 99/2005
Unique Case ID No. 0240C0672452005
Ram Kishan
S/o Shri Ram Prasad
262-A, Naharpur, Sector-VII
Rohini, Delhi
.......Plaintiff
Versus
Shri Tushar Yadav
S/o late Sh. K.S. Yadav
R/o H.No. 58, Road No. 42
Punjabi Bagh, New Delhi
.........Defendant
Date of Institution of Suit : 29.07.2005
Date when reserved for orders : 22.03.2014
Date of Decision : 15.04.2014
JUDGMENT
1 Vide this judgment I shall decide a suit for declaration and mandatory injunction filed by the plaintiff against the defendant. The brief facts necessitated in filing the present suit are given as under:-
2 That plaintiff was allotted a plot bearing No. 13, admeasuring 321.5 sq meters, situated at Pocket-B, Sector-26, Rohini, Delhi in the year 2004. The plaintiff entered into an agreement to sell dated 27.11.2003 with defendant whereby they agreed to share the profit out of the sale of the said plot in the ratio of 33% and 67%. The plaintiff sold the said plot with the consent of the defendant to one Sh. Parmod Garg and executed necessary sale document in his favour, but Sh. Parmod Garg had not paid the full sale consideration amount. Later on a compromise was arrived between the plaintiff and said Parmod Garg with the intervention of respectable persons of the locality whereby Sh. Parmod Gard agreed to pay a sum of Rs. 25 lacs to the plaintiff and the said dispute was settled.
Suit no.99/05 1/153 That an agreement dated 14.09.2004 was executed between the plaintiff and defendant. The plaintiffs paid the profit of the said plot to the defendant and after receiving entire agreed amount he put his signature on the original agreement. The defendant, however, claimed that Rs. 10 lacs is due against the plaintiff. The intention of the defendant become dishonest and in order to pressurised the plaintiff and to extort money from him, he filed a false complaint against the plaintiff 21.4.2005 with Police Station, Punjabi Bagh due to which plaintiff had to file an anticipatory bail under Section 438 Cr.P.C.
4 That plaintiff has cancelled all the document executed by him in favour of the defendant in respect of the said plot but defendant in connivance of the local police unnecessarily harassing the plaintiff. Due to the above act of the defendant, the plaintiff has left with no other alternative to file the present suit. On the basis of the aforesaid averments, the present suit has been filed for adjudication.
5 Pursuant to the summons, defendant appeared and filed written statement taking preliminary objection that suit has not been valued properly; that the plaintiff has not approached the court with clean hands and suppressed the material facts. That suit is barred under section 34 of Specific Relief Act. That suit is bad for non-joinder of necessary parties. 6 On merit, it is averred that plaintiff and his wife approached the defendant and offered to sell allotment of plot bearing no. 13, Pocket-B, Sector 26, Rohini for a total sale consideration of Rs. 8 lacs. The defendant agreed to purchase the allotment of the said plot. An agreement to sell dated 27.11.2003 was entered between the parties and defendant paid the entire sale consideration time to time and the plaintiff and his wife executed a receipt for the said amount. The plaintiff and his wife also executed separate registered will and GPA in favour of the defendant. Subsequent to agreement to sell, the defendant was regularly in touch with the plaintiffs and his wife who always been assuring the defendant that DDA has not issued any demand letter to them.
Suit no.99/05 2/157 The defendant subsequently came to know that the plaintiff and his wife were directly corresponding with the DDA in order to defeat the valuable right of the defendant. The plaintiff and his wife despite having left with no title in the said plot fraudulently with dishonest intentions sold the said plot to Smt. Chandrakanta Khera. When the defendant confronted the plaintiff and his wife, both of them were apologetic and in order to wriggle out from the situation. The plaintiff and his wife offered to pay a sum of Rs. 15 lacs to the defendant.
8 The defendant accepted the said offer and an agreement dated 14.09.2004 was entered into in that regard. The plaintiff and his wife paid a sum of Rs. 5 lacs in cash to the defendant and had undertaken to pay the remaining amount of Rs. 10 lacs at the time of execution of the lease deed in their favour. On 07.10.2004 the lease deed was executed in their favour. Subsequently they executed sale documents in favour of Smt. Chandrakanta Khera and also received the remaining sale consideration.
9 The defendant requested the plaintiff and his wife to pay him the remaining sum of Rs. 10 lacs as per the agreement dated 14.09.2004. They requested the defendant to give them three days time because Smt. Chanderkanta had given them a pay order which required three days to get encash. But plaintiff and his wife avoided to make the payment without any justified reason and on 13.10.2004 they flatly refused to pay the amount to the defendant. It is denied that agreement dated 27.11.2003 has no value in the eyes of lat. It is also denied that defendant ever consented to the plaintiff to sell the said plot to Sh. Parmod Garg. It is stated that plaintiff has only paid a sum of Rs. 5 lacs as per the agreement dated 14.09.2014 and the balance amount of Rs. 10 lacs has been illegally withheld by the plaintiff. All other averments have been denied. It is prayed that suit be dismissed with cost.
10 The plaintiff has filed replication to the written statement filed by the defendant thereby denied the averments made in the written statement and reiterated the averments made in the plaint.
Suit no.99/05 3/1511 On the basis of the pleadings of the parties, Ld. Predecessor of this court vide order dated 22.08.2006 framed the following issues for adjudication:-
1. Whether the plaintiff is entitled to a decree of declaration as prayed for ? OPP
2. Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for? OPP
3. Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD
4. Whether the suit is barred under Section 34 of Specific Relief Act? OPD
5. Whether the suit is barred under section 41 (i) of Specific Relief Act? OPD
6. Whether the suit is bad for non-joinder of necessary parties? OPD
7. Relief
12 In order to prove her case, plaintiff has examined himself as PW-1 and reiterated the averment made in the plaint in his examination in chief. PW-1 exhibited the agreement to sell 27.11.2003 as Ex. PW-1/1, Copy of Compromise Deed as Ex. PW-1/2, Agreement dated 14.09.2004 Ex. PW-1/3, application dated 16.07.2005, 23.07.2005 as Ex. PW-1/4 & 5, Notice dated 30.10.2004 as Ex. PW-1/6, Reply dated 9.11.2004 as Ex. PW-1/7, Postal receipt and UPC as Ex. PW-1/8 & 9 and A.D card is Ex. PW-1/10.
13 The plaintiff has also examined Sh. Karan Singh as PW-2. He deposed in his examination in chief that an agreement Ex. PW-1/3 bears his signatures at point A. The plaintiff had paid a sum of Rs. 5 lacs to the defendant in his presence. After 2-3 months the plaintiff had paid a sum of Rs. 10 lacs to the defendant in his presence and after taking a sum of Rs. 10 lacs, defendant signed at Mark B. Rupees 10 lacs had been paid by the plaintiff to the defendant in his presence. At that time one Rajesh was also present. Both these witnesses have been throughly cross-examined by ld. counsel for the defendant.
14 In order to answer the claim of the plaintiff, defendant has examined himself as DW-1 and reiterated the averment made in the written Suit no.99/05 4/15 statement in his examination in chief. DW-1 exhibited the agreement to sell dated 27.11.2003 as Ex. DW-1/1, Receipt Ex. DW-1/2, Possession letter Ex. DW-1/4, Will Ex. DW-1/5 and GPA Ex. DW-1/6, Special Power of Attorney Ex. DW-1/7, Affidavit as Ex. DW-1/8, Indemnity Bond Ex. DW-1/9, Receipt dated 18.01.2004 as Ex. DW-1/12, dated 25.01.2004 as Ex. DW-1/13, dated 5.01.2004 as Ex. DW-1/14, letter dated 21.06.2009 as Ex. DW-1/18, Copy of agreement dated 14.09.2004 as Ex. DW-1/19, Notice dated 13.01.2004 as Ex. DW1/21, complaint to DCP as Ex. DW-1/24.
15 The defendant has also examined Sh. Abhishek Kumar from Sub- Registrar office, Pitampura as DW-2 who brought record of document Ex. DW-1/4 to 7 and Special Power of attorney dated 27.11.2003 as Ex. DW-2/1. The defendant has also examined Sh. Sunny Aggarwal as DW-3 and Sh. Rajesh Yadav as DW-4, both these witnesses have reiterated the averment made in written statement in their examination in chief. All DWs have been throughly cross-examined by ld. counsel for the plaintiff.
16 The Defendant has also examined Sh. Raj Kumar Rana, dealing Assistant from LAB Residential from DDA as DW-5 who brought the file of the case in question.
17 I have heard ld. Counsel for the parties and perused the pleadings, evidence and documents placed on record. My issue wise findings is as under:-
18 Issue No. 1: Whether the plaintiff is entitled to a decree of declaration as prayed for ? OPP The plaintiff has taken a plea that he was allotted a plot bearing No. 13, admeasuring 321.5 sq meters, situated at Pocket-B, Sector-26, Rohini Delhi in the year 2004. He entered into an agreement to sell 27.11.2003 with defendant for sharing the sale proceed of the above plot in the ratio of 33 & 67 %. The plaintiff sold the said plot initially to one Sh. Parmod Garg for a total sale consideration of Rs. 25 lacs and thereafter to Smt. Suit no.99/05 5/15 Chanderkanta Khera. The plaintiff paid the entire share of the defendant in the sale proceed of the said plot and an agreement dated 14.09.2004 was entered into between the parties. But, in order to pressurized the plaintiff the defendant filed a false complaint in which plaintiff had to obtain anticipatory bail. As per the plaintiff he has already cancelled all the documents executed by him in favour of the defendant and the agreement dated 14.09.2004 is required to be declared as null and void as the entire agreed amount has already been paid by the plaintiff to the defendant.
19 The defendant has taken a plea that the plaintiff and his wife approached him and offered to sell the allotment of their plot bearing No. 13, admeasuring 321.5 sq meters, situated at Pocket-B, Sector-26, Rohini Residential Scheme, Rohini, Delhi. The defendant agreed to purchase the allotment of the said plot for a total sale consideration of Rs. 8 lac. An agreement to sell dated 27.11.2003 was executed between the parties and defendant paid the entire sale consideration of Rs. 8 lacs to the plaintiff and his wife against the receipt. The plaintiff and his wife also executed separate registered will, GPA and other documents in his favour. The plaintiff subsequently sold the said plot fraudulently to one Smt. Chanderkanta Khera. When defendant confronted the plaintiff and his wife, they felt sorry and in order to wriggle out from said situation they offered him to pay a sum of Rs. 15 lacs. The defendant accepted the said offer and an agreement dated 14.09.2004 was entered into. The plaintiff and his wife paid Rs. 5 lacs in cash and undertaken to pay the remaining amount of Rs. 10 lacs at the time of execution of lease deed but plaintiff has failed to pay the said amount till date. As per the defendant plaintiff has no right to cancel the documents executed by him in his favour and the agreement dated 14.09.2004 is not required to be declared as null and void as plaintiff has failed to fulfill his obligation till date.
20 In order to substantiate their plea both the parties have led their respective evidence.
Suit no.99/05 6/1521 An examination of the pleadings and evidence led on record shows that the plaintiff was alloted plot bearing No. 13, admeasuring 321.5 sq meters, situated at Pocket-B, Sector-26, Rohini Residential Scheme, Rohini, Delhi by the DDA. The plaintiff agreed to sell the said plot to the defendant vide agreement to sell dated 27.11.2003. As per the plaintiff the said agreement was entered into between the parties in order to share the profit of the sale proceed of the said plot whereas as per the defendant vide agreement to sell dated 27.11.2003 the plaintiff and his wife have sold their plot for total sale consideration of Rs. 8 lacs and received the entire sale consideration.
22 The plea of the plaintiff is that the agreement dated 27.11.2003 was not an agreement to sell but same was entered into for sharing the profit of the sale proceed of plot bearing No. 13, admeasuring 321.5 sq meters, situated at Pocket-B, Sector-26, Rohini Residential Scheme, Rohini, Delhi . The plaintiff has reiterated the said fact in Para 3 of his examination in chief. The plaintiff has placed on record the photocopy of the agreement dated 27.11.2003 as Ex. PW-1/1, but has not placed on record the original of the said agreement. As per the plaintiff the original of the said agreement is in possession of the defendant. During cross-examination PW-1 admitted that the alleged agreement dated 27.11.2003 Ex. PW-1/1 was executed alongwith other documents. He admitted that Ex. PW-1/1 does not bear the photograph of the parties nor the same attested by the notary. He denied that Ex. PW-1/1 is forged and fabricated document and same has been forged and fabricated by him with ulterior motive. PW-1 has admitted during cross-examination that the defendant had paid a sum of Rs. 8 lacs at the time of entering into agreement to sell with the plaintiff. He admitted that agreement Ex. PW-1/D1 was executed between the plaintiff and defendant which bears his signatures at point A on each page. He also admitted that Ex. PW-1/D2 also executed by him which bears his signatures at point C. PW-1 has also admitted that receipt Ex. PW-1/D2, GPA Ex. PW-1/D4 and D5, Will Ex. PW-1/D6 & D7 were also executed in favour of the defendant.
Suit no.99/05 7/1523 A perusal of the agreement to sell Ex. PW-1/D1 and other documents Ex. PW-1/D2 to D7 clearly shows that plaintiff and his wife Smt. Asha Yadav had agreed to sell their plot to defendant for a total sale consideration of Rs. 8 lacs which they received vide receipt Ex. PW-1/D4. The agreement to sell Ex. PW-1/D1 bears the photographs of the plaintiff , his wife as well as of the defendant. It also bears their signatures on each and every page.
24 The agreement to sell Ex. PW-1/D1 contain no stipulation that plaintiff and defendant had agreed to share the profit of the sale proceed of the plot in the ratio of 67 & 33 % as sought to be pleaded by the plaintiff. No doubt, that agreement Ex. PW-1/1 contains the said clause but the plaintiff has failed to place the original of the said agreement on record. The defendant has confronted the plaintiff with the original agreement dated 27.11.2003 which has been exhibited as Ex. PW-1/D1. In the said agreement there is no such stipulation that the profit of the sale proceed shall be shared by the plaintiff and the defendant in the ratio of 67% & 33 % as mentioned in photocopy of the agreement to sell Ex. PW-1/1.
25 The onus to prove the fact that plaintiff and defendant had entered into any such transaction whereby it was agreed between the plaintiff and the defendant that they would share the profit of the sale proceed of the plot allotted to the plaintiff in the ratio of 67% & 33% is upon the plaintiff, but plaintiff has failed to discharged the said onus by leading cogent evidence on record. The plaintiff has failed to place the original agreement to sell Ex. PW-1/1. The plaintiff has pleaded in the plaint that agreement dated 27.11.2003 was entered into between the plaintiff and defendant. The defendant has placed on record the original agreement to sell during the cross-examination of PW-1 which has been exhibited as Ex. PW-1/D1. There is material differences in the photocopy of agreement Ex. PW-1/1 as well as in the original agreement to sell Ex. PW-1/D1.
Suit no.99/05 8/1526 In the photocopy of agreement Ex. PW-1/1 there is stipulation that ratio of profit of of the first party shall be 33 % and second party shall be 67% whereas there is no such stipulation in the original agreement to sell Ex. PW-1/D1. It is not the case of the plaintiff that two agreement to sell were executed between the plaintiff and the defendant out of which one agreement to sell contained such stipulation whereas another was not having such stipulation. Thus only one agreement to sell was executed between plaintiff and defendant on 27.11.2003, original of which has been placed by the defendant Ex. PW-1/D1 which has no such stipulation as pleaded by the plaintiff.
27 The above fact thus clearly shows that agreement to sell Ex. PW-1/1 is not the exact copy of the original agreement dated 27.11.2003 Ex. PW-1/D1 which was executed between the plaintiff and defendant. The plaintiff has thus failed to prove on record that agreement to sell Ex. PW-1/1 was entered into between the plaintiff and defendant whereby defendant agreed to share the profit of the sale proceed of the said plot.
28 The aforesaid fact thus clearly shows that plaintiff and his wife had agreed to sell their plot bearing No. 13, admeasuring 321.5 sq meters, situated at Pocket-B, Sector-26, Rohini Residential Scheme, Rohini, Delhi to the defendant vide agreement to sell dated 27.11.2003 Ex. PW-1/D1 for a total sale consideration of Rs. 8 lacs which they duly received and they also executed documents like registered GPA, SPA and other documents in favour of the defendant. The plaintiff and his wife has thus executed all these documents after receiving the entire sale consideration of Rs. 8 lac, therefore plaintiff was not entitled to cancel these document unilaterally.
29 The plaintiff has further taken a plea that he sold the plot in question to Sh. Parmod Garg for a total sale consideration of Rs. 25 lacs and out of the sale proceed he paid the profit in respect of the said plot to the defendant and an agreement dated 14.09.2004 was executed after receiving the entire agreed amount. As per the plaintiff he has paid the Suit no.99/05 9/15 entire amount to the defendant as agreed vide agreement dated 14.09.2004 Ex. PW-1/3. The defendant has controverted the said plea and pleaded that plaintiff and his wife had no right to sell the said plot after selling the same to the defendant, but they fraudulently sold the same to one Smt. Chanderkanta Khera. When defendant confronted the said fact they felt sorry and offered to pay him a sum of Rs. 15 lacs in lieu of his claim qua the said plot. As per the defendant plaintiff has paid a sum of Rs. 5 lac in cash at the time of execution of agreement dated 14.09.2004 and undertaken to pay the remaining sum of Rs. 10 lacs but he has failed to pay the same till date.
30 An examination of the pleadings and evidence led on record clearly shows that plaintiff and defendant had entered into an agreement dated 14.09.2004 Ex. PW-1/3 whereby plaintiff and defendant settled their dispute amicably with the intervention of the persons of the locality. Vide said agreement plaintiff agreed to pay a sum of Rs. 15 lacs to the defendant in lieu of his claim and paid a sum of Rs. 5 lacs in cash. The plaintiff has also agreed to pay the remaining amount of Rs. 10 lacs to the defendant at the time of execution of lease deed in favour of other persons. As per the plaintiff he has paid the remaining amount of Rs. 10 lacs to the defendant in the month of December 2004. But plaintiff has not any material whatsoever on record which can show or suggest that any such amount was paid by the plaintiff to the defendant.
31 The plaintiff has reiterated the said plea in para 7 of his examination in chief. During cross-examination PW-1 deposed that he paid amount in cash but no receipt was given by the defendant regarding the payment of Rs. 10 lacs. He admitted that Ex. PW-1/3 was executed with the consent of both the parties.
32 The plaintiff has also examined Sh. Karan Singh who is one of the witness of the agreement Ex. PW-1/3. The said witness in his examination in chief has deposed that after two or three months the plaintiff had paid a Suit no.99/05 10/15 sum of Rs. 10 lacs to the defendant in his presence and after taking a sum of Rs. 10 lacs by the defendant he signed at Mark B. He further stated that when Rs. 10 lacs which was paid by the plaintiff to the defendant one Rajesh was also present. During cross-examination Karan Singh deposed that no receipt or agreement was executed on the payment of Rs. 10 lacs. He further stated that alleged payment of Rs. 10 lacs was paid by the plaintiff to the defendant 5-6 months ago from today. He cannot tell the exact date of alleged payment. He cannot tell when the agreement to sell Ex. PW-1/3 was executed.
33 The plaintiff has examined Sh. Karan Singh to substantiate his plea that Rs. 10 lacs as agreed by him vide agreement dated 14.09.2004 Ex. PW-1/3 was paid by to the defendant. PW-2 in his examination has deposed that Rs. 10 lacs was paid by the plaintiff to the defendant after two-three months in cash in his presence. But during his cross- examination he deposed that no receipt was executed at the time of making payment of Rs. 10 lacs. Surprisingly, during cross-examination PW-2 has deposed that the said amount of Rs. 10 lacs was paid by the plaintiff to the defendant 5-6 months ago from today. The said testimony of Karan Singh was recorded on 3.11.2010 thus as per PW-2 amount of Rs. 10 lacs may have been paid by the plaintiff to the defendant sometime in May or June 2010 whereas as per the plaintiff he paid Rs. 10 lacs to the defendant in December, 2004. No material whatsoever has been placed by the plaintiff to show that he paid Rs. 10 lacs in cash to the defendant in December 2004 or at any time thereafter.
34 The defendant has examined himself as DW-1 and reiterated in Para 26 & 27 of his examination in chief that he only received a sum of Rs. 5 lacs from the plaintiff and thereafter no amount was paid by the plaintiff. During cross-examination DW-1 denied that plaintiff paid the remaining amount as per Ex. DW-1/19 to him in October, 2004. He also denied that he put signatures at point B on agreement Ex. DW-1/19 subsequently after getting remaining amount from the plaintiff. He also denied that remaining amount was paid to him by the plaintiff in the presence of Karan Singh.
Suit no.99/05 11/1535 The defendant has also examined Sh. Rajesh Yadav as DW-4, the another witness of agreement Ex. PW-1/3. The PW-2 Karan Singh deposed in his examination that amount of Rs. 10 lacs was paid in the presence of Sh. Rajesh Yadav. The said witness in para 5 of his examination in chief has deposed that plaintiff paid a sum of Rs. 5 lacs to the defendant and a sum of RS. 10 lacs was to be paid by him. During cross-examination, DW-4 admitted that as per Ex. DW-1/19 a sum of Rs. 5 lacs given to the defendant. He further deposed that plaintiff had not paid any amount thereafter in his presence.
36 The plaintiff has sought to raise a plea that he paid the entire amount of Rs. 15 lacs as agreed by him vide agreement dated 14.09.2004 Ex. PW-1/3 to the defendant and nothing remained due and recoverable against him, therefore, agreement Ex. PW-1/3 is required to be declared as null and void. The onus to prove the fact that he has paid the amount of Rs. 15 lacs to the defendant as agreed vide agreement Ex. PW-1/3 is upon the plaintiff, but plaintiff has failed to put forth any cogent material on record on the basis of which it can be concluded that he had paid Rs. 15 lacs to the defendant as agreed vide agreement Ex. PW-1/3.
37 A perusal of the agreement Ex. PW-1/3 shows that the plaintiff had paid a sum of Rs. 5 lacs in cash and had agreed to pay remaining amount of Rs. 10 lacs at the time of execution of lease deed. The plaintiff has not placed any material whatsoever on record which can show or suggest that he had paid remaining amount of Rs. 10 lacs to the defendant after the execution of lease deed as agreed by him vide agreement Ex. PW-1/3. He has also failed to lead any cogent evidence on record which can substantiate his plea that he paid Rs. 10 lacs in cash to the defendant in December 2004 or on any other day in compliance of agreement dated 14.09.2004 Ex. PW-1/3. The plaintiff has thus failed to prove on record that he has paid the entire amount of Rs. 15 lacs as agreed by him vide agreement dated 14.09.2004 Ex. PW-1/3. As plaintiff has failed to perform his part as per the agreement Ex. PW-1/3, therefore, he cannot be allowed Suit no.99/05 12/15 to say that agreement dated 14.09.2004 Ex. PW-1/3 is required to be declared as null and void.
38 In view of the above facts and circumstances, I am of the considered view that plaintiff has failed to prove on record that he is entitled to seek declaration of the agreement dated 14.09.2004 executed between the plaintiff and defendant as null and void. The plaintiff has failed to discharge the onus of issue no. 1, same is accordingly decided against the plaintiff.
39 Issue no. 2: Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for ? OPP In view of my finding on issue no. 1, I am of the considered view that plaintiff is not entitled for decree of mandatory injunction as sought by him against the defendant by way of present suit. The Plaintiff has failed to discharge the onus of issue no. 2, same is also decided against the plaintiff.
40 Issue no. 3: Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD The Defendant has taken a plea that plaintiff has not valued the suit property properly for the purpose of court fees and jurisdiction. The plaintiff has controverted the said plea in the corresponding pare of his replication.
41 The plaintiff has filed a suit for declaration and mandatory injunction. Vide this suit plaintiff has sought declaration that agreement dated 14.09.2004 may be declared as null and void. The plaintiff has valued suit for the purpose of court fees and jurisdiction for the relief of declaration as Rs. 200/- The agreement dated 14.09.2004 was entered into between the plaintiff and the defendant whereby plaintiff had agreed to pay a sum of Rs. 15 lacs to the defendant. By way of present suit plaintiff is seeking declaration of the agreement dated 14.09.2004 as null and void. The Suit no.99/05 13/15 plaintiff was thus required to pay the court fees on the consideration amount of the agreement dated 14.09.2004 Ex. PW-1/3. The plaintiff was thus required to value the suit on a sum of Rs. 15 lacs which is the consideration of the agreement Ex. PW-1/3. The plaintiff has thus wrongly valued the suit for the purpose of court fees. The plaintiff is required to value the suit for court fees at Rs. 15 lacs and he is required to pay court fees over the said amount.
42 In view of the above facts and circumstances, I am of the considered view that plaintiff has not properly valued the suit for the purpose of court fees and has not paid the requisite court fees. The Defendant has successfully discharged the onus of issue no. 3, same is accordingly decided in favour of the defendant.
43 Issue No. 4: Whether the suit is barred under Section 34 of Specific Relief Act? OPD Issue No. 5: Whether the suit is barred under Section 41 (i) of Specific Relief Act? OPD The onus to prove issue no. 4 & 5 is upon the defendant, however, ld. counsel for the defendant at the time of advancing final argument made a statement that he does not want to press issue no. 4 & 5 framed vide order dated 22.08.2006. He prayed that issue no. 4 & 5 may be decided as not pressed.
In view of the statement of ld. counsel for defendant, issue no. 4 & 5 are hereby decided as not pressed.
44 Issue No. 6: Whether the suit is bad for non-joinder of necessary parties? OPD The defendant has taken a plea that present suit is bad for non- joinder of necessary parties as wife of the plaintiff Smt. Asha Yadav was the necessary party. The plaintiff has controverted the said plea in the corresponding para of the replication.
Suit no.99/05 14/1545 An examination of the pleading and evidence led on record shows that plaintiff has filed the present suit for declaration and mandatory injunction whereby he has prayed that agreement dated 14.09.2004 Ex. PW-1/13 may be declared as null and void. The agreement dated 14.09.2004 Ex. PW-1/3 was entered into between plaintiff and defendant only. The wife of plaintiff Smt. Asha Yadav was not the party to the agreement Ex. PW-1/3. The defendant has pleaded that suit is bad for non-joinder of necessary parties but he has failed to point out as to how and in what manner Smt. Asha Yadav, wife of the plaintiff is necessary party in the present suit.
46 In view of the above facts and circumstances, I am of the considered view that defendant has failed to prove on record that the present suit is bad or non-joinder of necessary parties. The defendant has failed to discharge the onus of issue no. 6, same is accordingly decided against the defendant.
47 Relief In view of the above facts and circumstances, the suit filed by the plaintiff for declaration and mandatory injunction is dismissed, however, parties shall bear their cost respectively. Plaintiff is directed to pay the deficient court fees within 30 days from today. Decree Sheet be accordingly prepared. File be consigned to record room after due compliance.
Announced in the open court (PITAMBER DUTT)
15th April, 2014 Additional District Judge
Delhi
Suit no.99/05 15/15
Suit no.99/05 16/15
Suit no.99/05 17/15