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[Cites 8, Cited by 0]

Delhi District Court

H.K Oberoi (Deceased) vs Atma Ram Properties Pvt Ltd on 16 May, 2024

IN THE COURT OF SUMIT DASS, ADJ­02 & WAKF TRIBUNAL/
  NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW
                       DELHI.

RCA/DJ No. 7/2018

Sh. H. K. Oberoi (Deceased)
Through L R
R.K. Oberoi
S/o Late Sh. H.K. Oberoi
R/o L­2, Hauz Khas,
New Delhi
                                                     ...........Appellant/(defendant no.1)

                                    VERSUS


1. M/s. Atma Ram Properties (P) Ltd.,
8­First Floor, Atma Ram Mansion,
Scindia House, Connaught Circus,
New Delhi - 110001

                                                         ......Respondent no.1(Plaintiff)
2. Union of India
Through its Chief Secretary,
Ministry of Urban Development,
Land & Development Office,
Nirman Bhawan, New Delhi
                                               ......Respondent no.2(defendant no.2)

RCA no. 07/2018
H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr.                                     1/49
 Date of institution of appeal                            :   29.01.2018
Date on which Judgment reserved                          :   29.04.2024
Date on which judgment pronounced                        :   16.05.2024
Decision                                                 :   Appeal Allowed.


                                    JUDGMENT

1. Present appeal is directed against the order dated 23.12.2017 passed by Sh. Rajinder Kumar, Ld. JSCC­Cum­ASCJ­Cum­Guardian Judge (West), Delhi in Civil Suit No.7582/2016 titled as M/s. Atma Ram Properties (P) Ltd. Vs. Sh. H. K. Oberoi & Anr whereby and whereunder the Ld. Trial Court was pleased to decree the suit preferred by the plaintiff/respondent no.1.

2. Aggrieved against the said adjudication the appellant/ defendant no.1 in the suit had preferred the instant appeal - the plaintiff was arrayed as respondent no.1 and defendant no.2 - Union of India was arrayed as respondent no.2 in the present appeal.

3. For the sake of convenience, parties shall be de­noted as per their rank before the Ld. Trial Court ­ the appellant as defendant no.1 ­ RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 2/49 respondent no.1 as plaintiff and respondent no.2/Union of India as defendant no.2.

4. Notice of the appeal was given. Parties have appeared and contested the same. TCR has been called. The same has been perused.

4.1 Ideally the fact narration as done by the Ld. Trial Court would have suffice/ adopted for the sake of convenience but in my opinion the Ld. Trial Court had glossed over certain facts for which it is important that I should re­write the facts in little detail.

4.2 The suit was filed before the Ld. Trial Court by one M/s. Arya Dharam Sewa Sangh through its attorney Sh. S. K. Jain. Two defendants were arrayed­ Sh. H. K. Oberoi & Union of India as defendant no.1 and 2 respectively. The said plaintiff is distinguished/separate from M/s Atma Ram Properties Pvt. Ltd. ­ the company who later on was substituted in place of Arya Dharam Sewa Sangh U/o 22 Rule 10 of the Code of Civil Procedure, 1908 [in short CPC]. As such Arya Dharma Sewa Sangh shall be referred to as original plaintiff for the sake of clarity. This distinction between original plaintiff and plaintiff referred as above i.e. Atma Ram Properties RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 3/49 has been at many places blurred/overlapped by the Ld. Trial Court and commonly referred to as one party/plaintiff in the impugned judgments - as such this is also an impelling factor for me to re­write the facts.

4.3 M/s. Arya Dharma Sewa Sangh, the original plaintiff had preferred the suit praying for the relief of mandatory and permanent injunction. It was pleaded therein as here under :

(i) Plaintiff is a non­profit Religious and Charitable Trust duly registered under the Societies Registration Act and Sh. S. K. Jain is duly constituted attorney and was competent to sign and verify the petition on behalf of the plaintiff. It was further the case of the plaintiff that it owns a valuable property named as Krishna Bhawan situated on a plot of land measuring 0.372 acres or 16,203 sq. ft. and numbered as Plot No. 1, H­ Block, Connaught Circus, New Delhi together with a 2 storeyed building thereon, which forms a part of the private office­cum­shopping area. The plot was acquired by the plaintiff on perpetual lease from the Govt. of India through the Chief Commissioner of Delhi, the predecessor to the L & DO the defendant No.2 vide perpetual lease deed dated 30.03.1948.
(ii) It was further pleaded that the defendant no.1 was the tenant/sub lessee of plaintiff for a shop located on the ground floor of the RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 4/49 building being shop No. H­43 fetching the rent of Rs.136.13 per month.
(iii) One of the conditions of the said perpetual lease mandated that no addition or alteration would be made in structure except with the permission of the lessor. The lessor's right having now been vested in L& DO, Ministry of Urban Development, Govt. of India, Nirman Bhawan, New Delhi.
iv) Defendant No. 2 had intimated the plaintiff vide their letter dated 16.06.1993 that defendant No.1 had illegally constructed the structure measuring 326 sq.ft. and also an area of 4'x6"x7"­6" and also intimated that these illegal constructions were existing since 31.03.1986 and vide their letter dated 11.11.1993, defendant no.2 had asked damages to the tune of Rs. 5,52,039/­ calculated from 31.01.1986 to 31.03.1994 by way of penalty/partial regularization charges/damages for the said unauthorized construction/and to remove the unauthorized construction failing which the defendant No.2 would exercise its option for re­entry and cancellation of the perpetual lease thus, depriving the plaintiff of its valuable property.
(v) It was further case of the plaintiff that defendant no.1 was RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 5/49 under a legal obligation to get the breaches regularized after making the payment of the penalty/damages as per demand of the Defendant No.2 or to settle the matter with defendant No.2 and also to remove the unauthorised construction or regularise the same forthwith. It was further case of the plaintiff that defendant no. 1 was served with an subsequent notice dated 20.12.93 and vide the said notice it was called upon to remedy the breaches by clearing all penalties, damages and charges for contravention of terms of perpetual lease, remove the unauthorised construction or regularize the same but instead of complying with the notice defendant No.1 has replied and had alleged that the unauthorised construction as alleged by defendant no.2 is all regularised and payments of demand raised by defendant no.2 from time to time has since been all paid off by them.
(vi) It was further case of the plaintiff that defendant no.1 has no right to use the premises till the breaches are regularised as required by defendant no. 2 and not to deal with the premises in the manner contrary to the terms of the perpetual lease deed.
(vii) It was further case of the plaintiff that defendant no.2 has made the allegation of breaches committed by defendant No.1 but the RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 6/49 same was informed to the plaintiff only on 11.06.1993 for the first time.

It was further the case of the plaintiff that under the perpetual lease defendant No.2 had the right to remove or demolish any alteration in or additions to the building but instead defendant No.2 accumulated the damages and did not exercise their aforesaid right with malafide intention inspite of the fact that they had full knowledge of the same as far back as 1986. Further the plaintiff is an large non­profit religious and charitable trust owning several properties and was unaware of the facts and nature and extent of the unauthorised construction carried out by the defendant no.1 and as such was innocent and is being punished by issuance of threats vide said notices, and defendant No.2 has nо right to cancel the lease especially when they preferred not to exercise their right to remove the additions and alterations made as far back as in the year 1986 when they were seized of the acts and still failed to remove the same till date. The plaintiff had prayed for the following reliefs in the suit :

"i) A decree of Mandatory injunction be passed against the defendant No. 1 directing him to restore the premises immediately to its original condition and further directing *the defendant No.1 to get past misuse regularised from the L&DO after satisfying their RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 7/49 conditions and defd. No.2 be restrained by issuing permanent prohibitory injunction from cancellation of lease deed dt. 30.3.48 and rentering.
ii) Defendant No. 1 be also restrained permanently from using the tenanted premises till they comply with the notices of the L&DO, Nirman Bhawan, New Delhi."

5. Written Statement

i) The defendant no.1 had contested the suit by way of filing the written statement, wherein, he had raised the objection of ownership of the substituted plaintiff over the property plot no.1, H­Block. It was further contended in preliminary objections that the plaintiff company had not filed any amended plaint and as such there was no cause of action against the defendant. On merits it was contended that the contents of the plaint pertaining to the suit being filed, signed by Sh. S.K.Jain being the constituted attorney was denied. Further it was contended that a partnership concern under the name and style as Oberoi Optician had been a tenant under the trust known as Arya Dharma Sewa Sangh. It was further contended that neither the deceased H. K. Oberoi was a tenant in respect of the shop in shop no. H­43, ground floor, nor defendant no.1 but the concern Oberoi Optician, was the tenant in RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 8/49 respect of the shop of ground floor. The defendant no.1 had in toto denied the contents made in the plaint. Dismissal of the suit was sought for.

5.1 Replication was filed by the plaintiff to the written statement of defendant no.1 wherein contrary averments were denied as false and incorrect and corresponding averments were reiterated and re­ affirmed.

6. Separate written statement was filed by defendant no.2. It was contended that there was no cause of action and as such the suit was liable to be dismissed. Further the suit was liable to be dismissed for want of notice U/s 80 of CPC. On merits, it was contended that the lease of the plot was in the name of Lakshmi Niwas Birla vide lease deed which was executed on 30.03.1948 and the property was mutated in the name of the original plaintiff in the record of defendant no.2 vide letter dated 13.01.1967. It was further contended that there was no privity of contract between defendant no.1 and defendant no.2. It was further stated that the property was inspected by the field staff of defendant no.2 and it was noted that unauthorized constructions were carried out and there was a mezzanine floor measuring 326 fq. Feet and unauthorized RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 9/49 shed was also constructed behind the shop of Oberoi Opticians, which breaches were notified to the plaintiff on 16.06.1993 whereafter the plaintiff had requested for regularization and the same was offered temporarily on 11.11.1993 and upto 31.03.1994. Dismissal of the suit was sought for.

7. Before proceeding further it would be trite to note the developments which happened during the proceedings. The suit was filed on 28.01.1994. The first order of importance is dated 06.09.1997 whereby the application U/o 22 Rule 10 CPC preferred by the plaintiff Atma Ram Properties was allowed and Atma Ram Properties was permitted to be substituted in place of original plaintiff Arya Dharam Sewa Sangh. Some part of the order is important which for the sake of convenience I am quoting as here under:

ORDER ON APPLICATION U/O ORDER 22Rule 10 CPC .........Arguments heard on the application from the counsel for applicant and the defdts.
It is argued by the ld. Cl. for defdts that the present application U/o 22 R 10 CPC is not maintainable and the applicant can not be substituted in place of the pltf.
RCA no. 07/2018
H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 10/49 I have considered arguments of the parties and have gone through the relevant provisions of law Order 22 Rule 10 CPC provides that "In other cases of assignment, creation or devolution of any interest during pendancy of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
In the present case, applicant has placed on record the photocopy of registered sale deed executed between this applicant and the pltf.
It is settled law that at the stage of considering application u/o 22 R 10 CPC Court only has to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit by or against the person on when the interest has devolved by assignment or devolution. For that matter, it is not necessary for court to conduct a detailed enquiry at this stage Further, the word 'interest' in this rule means 'interest in the suit property and it is the interest of the person who is party to the suit. Thus, applying these principles to present facts, it is clear that applicant had purchased the entire property from the plaintiff by way of registered sale deed executed on 31.08.1995.
Hence, the interest of pltf in subject matter of the present suit has devolved on the applicant. Therefore, I am of the RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 11/49 vies that applicant is the proper person to be substituted in place of pltf.
As regards, the args. of ld, cl, for defds, in respect of limitation, I an of the view that there is no substantial delay which could have prejudiced the rights of the defts of & the less, if any, suffered by the deft, is such which can be compensated by way of cost, Hence, in view of my above discussion application of pltf U/o 22 Rule 10 CPC is allowed, subject to payment of cost of Rs. 600/­ by pltf. to defdts.
Application of applicant is allowed, he be substituted in place of pltf and amended memo be placed on record within 10 days from the date of order by applicant new pltf."
7.1 This order in a manner brought Atma Ram Properties Pvt.

Ltd. to the fore as it asserted its rights on the basis of the sale deed executed by Arya Dharam Sewa Sangh with respect to the property under the tenancy of the defendant no.1. The said sale deed was executed on 31.03.1994.

7.2 The defendant no.1 also expired and was substituted in terms of order dated 26.04.2010. Issues were settled in terms of order RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 12/49 dated 07.02.2011. Same read as under :

i. Whether the plaint was not signed, verified and instituted by a duly authorized person ? OPD ii. Whether Sh. Atma Ram Properties Pvt. Ltd. , are the owners or the lessee of the suit property ? OPP iii. Whether the defendant no.1 is a tenant in respect of shop no.H­43, at Ground Floor of the building known as Krishna Bhavan situated at plot no.1, H­Block, Connaught Circus, New Delhi ? OPP iv. Whether Oberoi optician ­ a Partnership firm was a tenant in respect of the said premises under the original plaintiff, if so, its effect ? OPD v. Whether the defendant no. 1 had raised illegal construction in the said premises in the form of mezzanine measuring 326 sq. ft. and unauthorized shed measuring 4'.6''x7'.6''? OPP vi. Whether the defendant no. 2 had intimated the original plaintiff about the existence of said unauthorized construction in the said premises vide letter dated 16.06.1993 ? OPP vii. Whether the defendant no. 2 had imposed damages to the extent of Rs. 5,52,039/­ for the period from 31.01.1986 to 31.03.1994 by way of penalty/partial regularization charges in respect of the unauthorized construction in the said premises and also asked to remove RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 13/49 the unauthorized construction vide letter dated 11.11.1993 ? OPP viii. Whether the defendant no.1 had violated the terms of perpetual lease deed dated 30.03.1948 ? OPP ix. Whether the defendant no.1 was under legal obligation to get the breaches regularized after payment of the penalty/charges as demanded by the defendant no.2 and further, to remove the unauthorized construction in the said premises ? OPP x. Whether the plaintiff is entitled to relief of mandatory injunction, as prayed in the prayer clause no. (i) ? OPP xi. Whether the plaintiff is entitled to relief of permanent injunction, as prayed in the prayer clause no. (ii) ? OPP xii. Relief.
7.3 Proceeding further one important application was filed whereby additional documents were allowed. The same were permitted in terms of order dated 13.07.2017 [though in the order at one place the date has been written as 13.07.2016]. The operative part of the order is contained in para no.7. The same is as here under :
RCA no. 07/2018
H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 14/49 "The perusal of record shows that the present matter pertains to the year 1994 and it has now to be disposed of by 05.12.2017. The delay in the present matter is attributable to both the sides. Consequently, in the interest of justice in order to prevent any further delay in the trial of the present matter, the present application is allowed and order dated 18.10.2016 is set aside. The application of the plaintiff under Order 7 Rule 14(1) and (3) CPC is allowed and accordingly, the plaintiff is allowed to produce 1) office copy of legal notice dated 20.12.1993 issued by the original plaintiff/ Arya Dharam Sewa Sangh to Sh. H.K.Oberoi and 2) reply dated 03.01.1994 given by Sh. H.K.Oberoi in response to said legal notice."
7.4 The case gained momentum in the year 2017 itself wherein it was observed that the matter had to be disposed of by 05.12.2017. This observation is there in the order dated 13.07.2017. Though I may add herein that for disposal of the application U/o 47 Rule 1 CPC which resulted in the order dated 13.07.2017 the matter was infact kept for orders on multiple occasions.
7.5 PW­1 was examined, partly cross examined on 24.07.2017 whereafter his cross examination was concluded on 07.09.2017. Again PW­4 Mukesh Kumar Tinna was examined, cross examined and discharged on 14.09.2017. PW­5 was examined, cross examined and discharged on 23.09.2017. PW­6 Ankita Anand was examined, cross RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 15/49 examined and discharged on 01.11.2017 and on the said date PE was closed. From the ordersheets the status of other witnesses was not clear but the evidence has been recorded of the following witnesses :
i) PW­1 S.Dasan who is the Manager of the plaintiff company.

He had deposed by way of an affidavit Ex. P­1 and had proved the documents i.e. certificate of incorporation of company Ex. PW­1/1, extract of resolution dated 30.07.1994 as Ex. PW­1/2, sale deed dated 31.03.1994 as Ex. PW­1/3, certified copy of perpetual lease deed dated 30.04.1948 as Ex. PW­1/4, notice dated 20.12.1993 as Ex. PW­1/5 and the reply dated 03.01.1994 alongwith envelops as Ex. PW­1/6.

He was duly cross examined.

ii) PW­2 was S.K.Sharma, LDC from the office of Sub­ Registrar ­ III, Asaf Ali Road, Delhi. He had proved the sale deed in favour of the plaintiff executed by Arya Dharma Sewa Sangh which was duly registered as document no.2253 in book no.1 on pages 1 to 249 dated 31.03.1994 which was registered with the Sub Registrar, Asaf Ali Road.

iii) PW­3 was L.Gangte, Asstt. From the L&DO, Ministry of RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 16/49 Urban Development, Nirman Bhawan and he had proved the perpetual lease deed dated 30.03.1948 as Ex. PW­3/1 and the letters dated 11.05.1994, 16.06.1994 and 11.11.1993 issued by L & DO to Arya Dharma Sewa Sangh which were Ex. PW­3/2 to Ex. PW­3/4. He had also brought on record the mutation letter dated 20.10.2015 issued by L& DO which was Ex. PW­3/5. This witness's cross examination was not concluded.

iv) PW­4 was Mukesh Kumar Tinna. He was a witness from L&DO, Nirman Bhawan and had produced the summoned record which were collectively exhibited as Ex. PW­1/4[already exhibited]. He was cross examined. He admitted that the order of mutation was passed on application/proforma dated 10.07.2015 which was filed by Ms. Atma Ram Properties Pvt. Ltd. ­ the copies whereof were Ex. PW­4/2 (colly.). He admitted that alongwith mutation letter copy of the demand notice was also sent to the applicant concerned which was exhibited as Ex. PW­ 1/D4. He also admitted that as per the record no payment was made by on behalf of M/s Atma Ram Properties in response to the demand notice. He also deposed that before issuance of the mutation letter the property was in the name of Arya Dharam Sewa Sangh.

RCA no. 07/2018

H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 17/49

v) PW­5 was V.K.Mishra. He was the Administrator of Arya Dharam Sewa Sangh. He had deposed by way of an affidavit Ex. PW­ 5/A and have proved the documents i.e. the copy of Certificate of Registration of Arya Dharam Sewa Sangh as Ex. PW­5/1 and the copy of the GPA dated 15.07.2005 as Ex. PW5/2. The copy of the legal notice issued by the Counsel under instructions calling upon the defendant no.1 to remove the unauthorized construction was Ex. PW­5/4.

He was duly cross examined. He stated that he joined in the year 2005. In the same breadth he stated that he joined in October 1992. He stated that he had met Mr. S.K.Jain prior to 2005 in the year 1992 when he had joined. He also stated that he had met S.K.Jain lastly in the year 2004 at the time of his retirement. He stated that none of the trustees had authorized him to appear in this case. He volunteered that he had come to the Court on the basis of Power of Attorney in his favour and no one has authorized him to appear/depose in this case. Mr. Sanjay Aggarwal was the counsel of the original plaintiff. He denied the suggestion that no resolution was passed in his favour.

PW­6 was Ankita Anand, SDM, Chanakya Puri, New Delhi who had brought the summoned record i.e. the certificate of registration, RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 18/49 memorandum, rules and regulations which were proved as Ex. PW­6 (colly.).

8. PE was closed on 01.11.2017. On 22.11.2017 DW­1 was examined and cross examined. Sole witness was R.K.Oberoi. He had deposed vide affidavit. He was duly cross examined. He admitted that he continued to pay rent to Arya Dharam Sewa Sangh till the year 1994 whereafter he started paying rent to M/s Atma Ram properties. One letter dated 20.05.1967 addressed to Arya Dharam Sewa Sangh was put to him which was exhibited as Ex. DW1/P1. He admitted that an eviction petition was filed by Arya Dharam Sewa Sangh and in which vide order 25.10.1994 the name of the plaintiff was changed. He deposed that he was not aware that the sanctioned plan for the mezzanine floor was cancelled by L&DO by order dated 27.04.1967. He also admitted that his father kept on paying misuse charges which was in the name of Arya Dharam Sewa Sangh. He also deposed that he was not aware whether his father had complied with the letters dated 16.06.1993 and 11.11.1993. He also deposed that he is ready to comply with the demand letters.

9. Arguments were adduced before the Ld. Trial Court on and RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 19/49 subsequently in terms of order dated 23.12.2017 (the impugned order) the suit was decreed.

10. Delving on the findings on the issues all the issues have been decided adverse to the defendants and in favour of the plaintiff.

11. I have heard the arguments advanced by Sh. Gurmehar Sistani, Ld. Counsel appearing on behalf of defendant no.1/appellant who had raised three fold submissions and contended that - (i) Arya Dharam Sewa Sangh was a registered society and had illegally disposed of the property in contravention to its own memorandum/objective of the society. The transfer to M/s Atma Ram Properties Pvt. Ltd. i.e. the sale was declared as invalid in a connected case of M/s Atma Ram Properties v/s M/s Pal Properties in a judgment rendered by the Ld. ADJ, Central­ 09 in CS No.149/11. No doubt the matter is pending before the Hon'ble Appellate Court however, all the facts were dealt therein i.e. Arya Dharam Sewa Sangh, a charitable society could not have disposed of the property in the manner so done by it. (ii) Secondly he contended that they/H.K.Oberoi the partnership concern would only be liable or accountable had they constructed the so called illegal construction without the consent of the plaintiff and in contravention to the conditions RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 20/49 of the lease deed . In short the construction was with the consent of the plaintiff, to his knowledge and later on the plaintiff had somersaulted and filed the present proceedings which otherwise also was only filed as a pre cursor to transfer the property/facilitate the transfer of the property so that the litigation would also be in a manner contested later on by M/s Atma Ram Properties Pvt. Ltd. (iii) Thirdly he contended that Sh. C.M.Chadha had not stepped into the witness box. PW­5 Sh. V.K.Mishra is also a stranger to the controversy. He was not even authorized to depose. The original plaint has not at all being proved in accordance with law. As such the plaintiff's suit should have been dismissed.

11.1 Repelling the aforesaid contentions Mr. Amit Sethi appearing on behalf of plaintiff/respondent no.1 contended that all such pleas have been taken by the defendant no.1 before the Ld. Trial Court - before the Ld. ARCT as well wherein proceedings are pending now only for quantification of misuser charges. Technical, hyper pendantic pleas and arguments are being adopted which have got no legal basis. Defendant no.1's witness i.e. DW­1 himself had categorically admitted that they had tendered the rent to M/s Atma Ram Properties Pvt. Ltd. - admittedly they had also raised construction over the property once the RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 21/49 permission to construct was revoked. These two aspects perse coupled with the fact that the demand letters have also been proved in accordance with law - same itself means that the construction carried out was in contravention to the terms of the perpetual lease deed which impaired the right of the plaintiff in the suit property. So much so that there was a threat of re­entry. As such he contends that there is no infirmity in the order passed by Ld. Trial Court directing them to remove the constructions by way of mandatory injunction. He further submits that the other issues are pending before Ld. ARCT with regard to the quantification of misuser charges.

12. Written arguments were also filed.

I have carefully gone through the record. As noted herein above the need for penning down the facts in detail was because of the fact that the Ld. Trial Court had based the judgment/the impugned order on one particular aspect that the construction which was carried out by defendant no.1 was against the wishes or contrary to that of the original plaintiff and accordingly the original plaintiff could have also sued the defendants qua the said aspect which litigation the plaintiff/ M/s Atma Ram Properties Pvt. Ltd. could have taken forward as they had been substituted.

RCA no. 07/2018

H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 22/49 In this regard, to my mind the crucial question which the Ld. Trial Court had not posed or decided in the impugned order and which is the core issue is whether the construction which was carried out by defendant no.1 was on its own or was carried out with the approval or consent of the original plaintiff. This, to my mind is the moot point which would form the outcome of the present appeal or determine the present appeal.

12.1 Profitably reference in this regard can be made to the communications which have been made interse parties particularly the legal notices exchanged before filing of the present suit and the same were brought on record by the plaintiff by moving an application U/o VII Rule 14 CPC which was allowed in terms of order dated 13.07.2017. For the sake of convenience I am quoting the same as here under as it would throw light on the controversy involved :

Registered AD Mr. H. K. Oberoi, Shop No. 43, Connaught Circus, H­Block, New Delhi Dear Sir, Under instructions from and for and on behalf of my RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 23/49 clients M/s Arya Dharma Sewa Sangh, A Society duly registered under the Societies Registration Act, having its office at 1, Doctor's Lane, Gole Market, New Delhi, I hereby serve you with the following notices­
1. That my aforesaid client is n Lesson of the property situated on plot No. 1, Block­H, Connaught Circus, New Delhi (hereinafter called the "said property"). The lease was granted in favour of my aforesaid Clients by the Government of India, vide perpetual lease deed dated 30.3.19 (hereinafter called the "Perpetual Lease"). One of the conditions of the said lease was/is that "No additions and alterations would be made in the structure except with the permission of the lessor". The Lessor's right has now vested in L&DO, Ministry of Urban Development, Government of India, Nirman Bhavan, Now Delhi.
2. That you are a tenant under my aforesaid clients with respect to a shop bearing No. 43 (hereinafter called the "said shop") in the said property and that you are subject to and governed by all the terms end conditions as contained in the said Perpetual Lessee.
3. That vide their letter dated 16.6.93, the L&DO have intimated that you have carried out certain unauthorized construction in the said shop under your tenancy. This has completely taken my client by surprise as from their records they do not find any permission or sanction having been given for carrying out such unauthorized/illegal alterations, additions or constructions. This matter becomes serious especially when such additions, alterations or construction are violative of the municipal bye laws so as to form a breach of the condition of the Perpetual Lease. A copy of the said letter dt. 16.6.93 is RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 24/49 enclosed herewith wherein the branches made by you have been clearly mentioned and it has been mentioned that you have illegally constructed structure of 326 sq.ft and also an area of 4x6"x7"­6". Please note that your name has been mentioned as Ohri in the letter received from LDO. Vide their notice dated 11.11.93, copy of which is enclosed herewith the L&DO has demanded a sum of Rs. 5,52,039/­ (Rupees five lac fifty two thousand thirty nine only) being damages for the breaches committed by you.
4. That you have made unauthorized additions/alterations in the premises in total violation and contravention of terms of the Perpetual Lease thereby causing serious damage and affording the Principal Lessor a chance for cancellation of lease and re­entry over and above the claim for damages and penalty.
5. That vide notice dated 11.11.93, the L&00 has also threatened to re­enter the premises by exercising their rights in the perpetual lease as per terms thereof.
6. That you have dealt with end continue to deal with the premises in contravention of the terms of the Perpetual Lease and are therefore liable end obliged to clear all the penalties, damages and charges for such contravention as levied by L & DD or any other statutory authority and also to restore the promises to its original condition by removing the unauthorized construction/ alteration/ addition made by you.

1, hereby on behalf of my clients call upon you to made the payment of Rs. 5,52,039/­ to my clients or to L&DO directly under intimation tο my clients within 15 days on the receipt of this letter, as also remove the branches RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 25/49 and/or regularize the same forthwith failing which your lease shall be treated as terminated and my clients shall be compelled to initiate adequate adequate legal proceedings for eviction, claim for damages, injunction and other legal remedies available to them. You are also called upon to pay a sum of Rs. 550/­ (Ra. five hundred fifty only) as the cost of this notice, to which please not.

Copy kept in my office for future reference and action.

Yours faithfully, (SATISH CHANDER KAPOOR) Advocate ..............................................................................

Dated 03.01.94 U­ADSS­94 Mr. Satish Chander Kapoor 101 - Rakesh Deep, Yusuf Sarai Commercial Complex New Delhi.

Dear Sir, This has reference to your letter dated 20. 12. 93 received by me on 25. 12. 93.

I am quite surprised to read the contents of your letter dated 20.12.93, and in particular reference to para 3rd. I would like to inform you that our lessee of the property M/S. Arya Dharma Sewa Sangh had obtained prior Sanction of Flans of the Mezzanine from N.D.M.C (P/Copy RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 26/49 of the letter and F/Copy of sanctioned Plan for your ready reference.) is all regularized. Any payment of amount raised by the L & DO time to time has since been all paid off through M/S. Arya Dharma Sewa Sangh.

Yours faithfully, H.K. Oberoi.

12.2 Certain other communications are also important. I am quoting the same as here under :

(1)
From : The Dy. Land & Development Officer, New Delhi. 
             To       : The Arya Dharam Sewa Sangh
                        Arya Niwas,
                        1, Doctor's Lane, New Delhi.
Sub : Premises situated on a plot in Block­H, known as New Asiatic Building, New Delhi.
"I am directed to say that the building plan forming the subject matter of scheme no.8 and sanctioned by the New Delhi Municipal Committee vide their Resolution No. 49 dated 06.01.1967 were received in this office under New Delhi Municipal Committee endorsement No. SA/4933074/HP dated 16.01.67 and were put up to the Chief Commissioner, Delhi for approval under the lease. I, however regret to say that the Chief Commissioner, Delhi has declined to grant permission for the additional construction to be put up on the above premises in RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 27/49 accordance with the said plans. He may, however, reconsider his decision aforesaid provided you :
i) Furnish an undertaking in writing to execute and get registered at your cost a supplemental lease deed providing for payment by you of additional ground rent @ Rs. 971/­ per annum in perpetuity for the additional construction to be put up in accordance with the plans referred to above with effect from 06.01.1967 the date of the sanction of plans and,
ii) make payment of undermentioned dues in respect of the above premises forthwith :­
a) Additional ground rent for additional construction above referred to for the period 06.01.67.
b) Cost of preparation of supplemental lease deed.

You are requested to furnish an undertaking referred to above and also pay the dues above mentioned amounting to Rs. 510.45 within 15 days of the date of issue of this letter, failing which the building plans above referred to passed vide New Delhi Municipal Committee, Resolution No. 49 dated 06.01.67 shall be deemed to have been rejected under the lease and any construction made by you in pursuance of the said plans shall be unauthorized."

................................................................................

             (2)
                        Department of Architecture
                 New Delhi Municipal Committee, New Delhi

             No.SA/4810/BP/F.                            Dated 10.01.1967

RCA no. 07/2018
H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr.                      28/49
              To
                      The Trustee
                      Hindu Arya Dharam Sewa Sangh Trust,
                      New Delhi.

             Sub      Plans for 'H' Block, Connaught Circus, New Delhi.

             Dear Sir/Madam,

I am directed to refer to your application dated 16.04.66 on the subject cited above and to inform you that the plans have been sanctioned by the Committee vide resolution no. 49 dated 06.01.67.

You are therefore requested to deposit a sum of Rs. 0.66p as balance of plan submission fee so that further action could be taken in this respect.

Yours faithfully for senior Architect NDMC: New Delhi"

................................................................................
             (3)

                         NEW DELHI MUNICIPAL COMMITTEE
                             CHALLAN FOR PAYMENT OF CASH
             Head of Accounts MB(s)                      Building Deptt.
                                                         Bill No._____________

             Please received rupees Sixty Paise only
             From Arya Dharam Sewa Sangh

                                         Balance of PSR
                                   Rs. 0.66 p Date 11.01.67
RCA no. 07/2018
H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr.                           29/49
 12.3              Perusal of the same reveals that the plan for carrying out the
construction was in the name of Arya Dharam Sewa Sangh. It was not in the name of defendant no.1 or that the defendant no.1 had on its own carried out the construction without the knowledge of Arya Dharam Sewa Sangh. The plans were infact sent to the concerned authorities which had passed the same/concurred with the same but it had imposed certain other conditions which had to be complied with by the original plaintiff Arya Dharam Sewa Sangh [referred to in document Mary Y]. In a manner Arya Dharam Sewa Sangh had sought for the construction of those structure which now they are complaining as being illegal and in violation of the lease deed. Suffice to note herein that way back in the year 1967 said communication (Mark Y) was addressed to that of Arya Dharam Sewa Sangh and misuser charges subsequently were also deposited by/in the name of Arya Dharam Sewa Sangh. I fail to understand that in the teeth of such documents/admission made therein by Arya Dharam Sewa Sangh wherein they themselves knew about the factum of the construction having been carried out and consequence thereof which may also probably include the benefits, if any which they would have taken from the said additional construction(s) from the defendant no.1 or like other placed persons at that relevant point of time, they cannot now resile from the same and file a suit claiming or adopting RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 30/49 altogether a different stand or pleading in a manner innocence as to the actual facts for the reason that they are a charitable trust.
12.4 Further the construction sought by Arya Dharam Sewa Sangh is of the year 1967 - around that time when Arya Dharam Sewa Sangh had come into picture as mutation was done in their favour in the year 1967. For nearly two and a half decades nothing was complained and in fact damages were also paid by Arya Dharam Sewa Sangh in its own name.
12.5 The triggering cause of action to my mind for filing the suit is because of the fact of the impending transaction with M/s Atma Ram Properties Pvt. Ltd.
Perusal of the sale deed itself reveals that M/s Atma Ram Properties Pvt. Ltd. had given part payment to the original plaintiff in the year 1992 itself and ultimately in the year 1994 the sale deed was executed. Thus, behind the scenes M/s Atma Ram Properties Pvt. Ltd ­ the plaintiff was active or well aware about the actual state of affairs. In this regard I may note the reply of L&DO before Ld. ARCT which I am quoting as here under[parts whereof] :­ RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 31/49 The present Appeal is not maintainable and is llable to be dismissed by submitting that the premises situated in Block H, Plot No. 1, Connaught Place, New Delhi was held on Perpetual Lease deed executed on 30.03.1948 in favour of Seth Lakshmi Niwas Birla, admeasurment 16203.098 sq.ft.. (0.37197 acre). Subsequently the property was mutated in the name of Arya Dharma Seva Sangh vide mutation letter dated 13.01.1967 (Annexure­1). After mutation of the property, inspection of the premises have been carried out from time to time and have reported a number of unauthorized construction. Vide letter dated 10.05.1993, M/s Atma Ram Properties (P) Ltd, through it Advocate, submitted Agreement to Sell dated 19.04.1993 executed between Arya Dharma Seva Sangh and M/s Atma Ram Properties (P) Ltd. and requested to intimate the payable Govt. dues for execution of Sale Deed. Terms/demand letter dated 11.11.1993 (Annexure­2) was offered to the lessee i.e. the Trustee, Arya Dharam Seva Sangh. The lessee did not comply with the demand raised vide letter dated 11.11.1993. The lessee through Its Attorney submitted certified copy of Sale Deed dated 31.03.1994 and requested for mutation. Another demand letter dated 18.2.1998 (Annexure­3) was issued which was also not complied with by the, 26 lessee. Therefore, mutation was not carried out by the office of answering respondent No.
2. and as per records the property still stands in the name of Arya Dharma Seva Sangh.
That the contents of para 5 of the appeal are denied for want of knowledge. It is submitted that as per covenants of Perpetual Lease Deed dated 30.3.1948, the lessee cannot carry out additions and alterations without prior consents RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 32/49 of the lessor, in writing. It is, further, submitted that the premises was inspected on. 20.07.1968, 20.4.1974, 20.9.1976, 12.1.1984, 31.1.1986 and 5.2.1993 and a number of unauthorized construction were reported and demand for Govt. dues was raised vide letters dated 11.11.1993 and 18.2.1998. Further, demand was also filed before ARC on 3.3.2003 (Annexure­4) In the matter of M/s Arya Dharam Seva Sangh V/s M/s CHEMCO in No. E­ 37/1994. It Is further submitted here that the privity of contract is between lessor and lessee. Hence, the office of Answering Respondent No. 2 does not recognize the tenants of the property. It is further submitted that the contents of the preliminary. objections mày kindly be read as part and parcel of this para which are not repeated here for the sake of brevity.
That in reply to the contents of para No. 8, it is submitted that M/s Atma Ram Properties (P) Ltd vide letter dated 10.5.1993 has furnished a copy of Agreement to Sell dated 19.4.1993 executed between Arya Dharma Seva Sangh and M/s Atma Ram Properties (P) Ltd. and requested the office of Answering Respondent No. 2 to inform the payable Govt. due for execution of Sale Deed. Accordingly, the Answering Respondent vide letter dated 11.11.1993) raised a demand to the lessee for the outstanding Govt. dues. Instead of complying with the term demanded on 11.11.1993, the lessee filed a copy of Sale deed executed on 31.3.1994 and requested the office of the Answering Respondent No. 2 for mutation. Another demand letter dated. 18.2.1998 was also raised which was not complied with by the lessee. Therefore, mutation was not carried out by the office of Answering Respondent no. 2.
RCA no. 07/2018
H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 33/49 The said reply reveals that M/s Atma Ram Properties Pvt. Ltd. had sought for approval of the sale documents and also the quantification of misuser charges and instead of paying the same or otherwise getting the same cleared, Arya Dharam Sewa Sangh (original plaintiff) had filed suits/eviction petition and thereafter proceeded to dispose of the property in favor of M/s Atma Ram Properties Pvt. Ltd. by way of execution of the sale deed.
12.6 Dehors for a moment excluding the objection as to the fact that whether the society/original plaintiff could have sold the property to M/s Atma Ram Properties Pvt. Ltd. the very fact that M/s Atma Ram Properties Pvt. Ltd. was active even before the filing of the suit and later on they had acquired interest in the property by way of a sale deed which was of Rs. 1.55 crores and a copious documents running into 250 pages itself implies that they would have done the due diligence in acquiring the property as transaction spanned for two years before final culmination leading to registration of the sale deed. All such facts were not even touched least to say considered by the Ld. Trial Court. Merely because an order U/o 22 Rule 10 CPC was passed which even otherwise was on a prima facie view of the matter does not mean that all such RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 34/49 material facts cannot be considered or brushed aside or concealed beneath the carpet.
12.7 In fact M/s Atma Ram Properties Pvt. Ltd. was a pivotal player at that point of time and was communicating with L&DO with regard to dues etc. on the basis of an Agreement to Sell which has not been placed on record. Those communications are much prior to the sale deed. C.M.Chadha, the Director of the plaintiff company has filed affidavits alongwith numerous applications which he has filed/preferred in the suit but still he has not stepped into the witness box/shied away for reasons best known to him. To my mind his not deposing or facing the test of cross examination itself is a circumstance which goes adverse to the case of the plaintiff. Reliance in this regard can be made to the judgment of Janki Vashdeo Bhojwani & anr. V/s Indusind Bank reported in AIR 2005 SC Hon'ble Apex Court has observed as under :
"Apart from what has been stated, this Court in the case of Vidhyadhar vs. Manikrao and Another, (1999) 3 SCC 573 observed at page 583 SCC that "where a party to the suit does not appear in the witness­box and states his own case on oath and does not offer himself to be cross­examined by the other side, a presumption would arise that the case set up by him is not correct". In civil dispute the conduct of the RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 35/49 parties is material. The appellants have not approached the Court with clean hands."

12.8 Delving further the testimony of PW­1 S.Dasan to my mind is woefully short of evidentiary value for the reason as first of all he had deposed in a stereo­typed manner. He was no privy to the transaction interse the plaintiff and the original plaintiff. All such facts pleaded in the plaint pertained to facts interse Arya Dharam Sewa Sangh and the defendant no.1. However he had made a pertinent admission that Rs. 9 crore dues were pending with respect to the whole property but the mutation was carried out as the authority concern had issued a demand letter at the time when mutation was carried out and the said demand letter was received by M/s Atma Ram Properties Pvt. Ltd.

12.9 Viz a viz the authorization of S.K. Jain to file the plaint, plaintiff has relied upon the testimony of PW­5 V.K.Mishra. Curiously this witness admitted that none of the trustees had authorized him to depose on behalf of plaintiff. He volunteered that he had come to the Court on the basis of the Power of Attorney in his favour. Still, he had filed a detailed affidavit narrating all those facts. He appears to be a witness solely introduced to cure the defect with respect to the fact that S.K.Jain had not stepped into the witness box.

RCA no. 07/2018

H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 36/49 12.10 Importantly the power of attorney of PW­5 V.K.Mishra makes an interesting reading. Certain paragraphs are important and I am quoting the same as here under :

NOW KNOW YE AND THESE PRESENTS WITNESS that subject to the general superintendence of the Board of Trustees the Society doth hereby nominate, constitute and appoint in its place and stead put and depute the said Attorney for it in its name on its behalf and on its account and for its use to do and execute all or any of the following acts, deeds and things throughout India.
1.To manage the properties of the Society and for the purpose to let out improve, add or otherwise arrange matters relating thereto acting jointly with any one of other Attorneys namely Messrs M.L. Anand, P.K. Khanna and J.P. Agrawal.

To initiate, commence, prosecute, defend and continue all action suits and other legal proceedings that are now pending or which may hereafter be commenced by or against the Society or on its behalf in any Court of Justice, Civil, Criminal, Revenue or labour both Appellate and Original and to appear before all Courts of Justice, Magistrates and other officers for the recovery of any debt or other sums of money, right, title, interest claim, property, matter or thing whatsoever now due or payable or deliverable or to become due and payable or deliverable or in anywise belonging to the Society by any means or on any account whatsoever and to give evidence and to swear and file any affidavit in any suit or proceedings including appeals.

To appoint solicitors, counsels, advocates, vakils, pleaders, RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 37/49 muktears or other legal practitioners or agents.

To sign warrant of attorney, vakalatnamas and other authorities to sign an verify plaints, written statements tabular statements, petitions and other documents.

9. To prefer appeals and to apply for reviews and revisions against any decrees or orders.

10. To apply for execution of decrees and orders, to draw moneys from any Court, Accountant general Official Receiver or other authorities and to give effectual receipts and discharge thereof.

11. To accept service of writ of summons, subpoenas, notices and other legal processes.

12. Generally to do all such acts, deeds and things as may be necessary to exercise the above powers on behalf of the Society.

And we do hereby agree to ratify and confirm and agree at all times during the continuance of these presents to ratify and confirm whatever the said attorney shall lawfully do or cause to be done in respect of the matters aforesaid by virtue hereof."

Sh. V.K.Mishra was only given the authority insofar as deposing in cases which are commenced by or on its behalf (society) in any Court. The original plaintiff (society) ceased to be the plaintiff in RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 38/49 the present case owing to the substitution - the present is not a case in which the society is the plaintiff. Rather the society had walked away and the plaintiff is now M/s Atma Ram Properties Pvt. Ltd. The general power of attorney given in his favour does not empower him to depose in the present case pertaining to third parties. Hence, the need for specific resolution.

12.11 Thus, on both counts non examination of C.M.Chadha as well as the fact that there is no resolution in favour of PW­5 V.K.Mishra the plaintiff case has to suffer.

12.12 Delving further much stress has been laid on the admission which has been made by defendant no.1 R.K.Oberoi during his testimony. The import of the letter in para 12.2 which I have extracted herein above mandated that certain stipulation had to be performed by Arya Dharam Sewa Sangh. It does not say that the construction which was carried out was illegal or rendered illegal but it was subject to certain compliances/ conditions to be fulfilled by the lessee.

The predecessor in interest of the defendant no.1 in his reply had stated that they are paying the damages which are being paid by RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 39/49 Arya Dharam Sewa Sangh. Thus, at best the right of the original plaintiff was only to ensure the recovery of damages as it was the consenting party and the construction was carried out at their behest and they were paying damages. Reference in this regard to the letter dated 16.06.1993 Ex. PW­3/3 some part thereof is extracted as hereunder :

"To The Trustee Arya Dharam Sewa Sangh Arya Niwas, 1 Doctor's Lane, New Delhi­11001.
Sub Premises situated on plot no.1,Block­H known as Connaught Circus, New Delhi.
Dear Sir, I am to refer to your letter dated 10.11.81 on the above subject and to inform you that the following breaches stands regularized temporarily upto 14.07.80 vide this office letter dated 31.10.79.
1. Unauthorized shed at 2nd floor in the back side in portion occupied by Indian Plastic area 14'x10'­9'.
2. Unauthorized AC sheet shed at first floor in portion of Smt. Shanti area 11'x5'­9'.
3. Unauthorized mez. area 31 sq.feet in the shop occupied by M/s Oberoi."
RCA no. 07/2018

H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 40/49 The same reveals that damages were being paid till the year 1980 and received by L&DO - paid by Arya Dharam Sewa Sangh. As such the question of complaining as to the construction being contrary to the wishes of the original plaintiff is completely not made out.

12.13 Further in the legal notice which was replied by the defendant no.1 himself there is a mention that siteplans are annexed therein. Plaintiff had not filed said siteplans alongwith the notices at the time of placing on record the additional documents allowed by order dated 13.07.2017. The defendant no.1/ appellant had filed those documents alongwith the application U/o 41 Rule 27 CPC. However the said documents are otherwise apparent or admitted from the communication Mark Y which has been addressed to the original plaintiff [extracted herein above].

It is but apparent that the construction was approved/approval was sought by the original plaintiff himself and now the plaintiff cannot claim to the contrary or cannot efface itself once it had communicated with the authorities concern and owned up the construction.

RCA no. 07/2018

H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 41/49

13. Further in any suit irrespective of the pleadings or specific exception having been taken the first and important aspect to consider is the aspect of limitation. The suit for mandatory injunction was filed. The limitation for seeking the relief of mandatory injunction necessarily is three years from the accrual of cause of action. It is not a continuous cause of action as construction has been completed to the knowledge of the plaintiff way back in the year 1967 or even as per the affidavit of PW­1 S.Dasan it was completed in the year 1986/notice in the year 1986 . In fact the relief of mandatory injunction is barred by limitation qua the plaintiff being a consenting party at the time of raising of construction or otherwise having acquiesced with the same.

13.1 Reference profitably can be made to the judgment passed by Ld. Apex Court in the cases titled as State Bank of India v/s M.J.James, (2022) 2 SCC 301 and reiterated in the judgment Bichitra Nand Behera v/s State of Orissa, Indiankanoon.org./doc/181537618 The relevant paragraphs are as here under :

(State Bank of India v/s M.J.James) "A right not exercised for a long time is non­existent. Doctrine of delay and laches as well as acquiescence are applied to non­suit the litigants who approach the court/appellate authorities belatedly without any justifiable RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 42/49 explanation for bringing action after unreasonable delay.
........However, this general principle would not apply when, on consideration of the facts, the court concludes that the respondent had abandoned his rights, which may be either express or implied from his conduct. Abandonment implies intentional act to acknowledge, as has been held in paragraph 6 of Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Others. 15 Applying this principle of acquiescence to the precept of delay and laches, this Court in U.P. Jal Nigam and Another v. Jaswant Singh and Another, 16 after referring to several judgments, has accepted the following elucidation in Halsbury's Laws of England:
"12. The statement of law has also been summarised in Halsbury's Laws of England, para 911, p. 395 as follows:
"In determining whether there has been such delay as to amount to laches, the chief points to be considered are:
(i) acquiescence on the claimant's part; and
(ii) any change of position that has occurred on the defendant's part.

Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 43/49 reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches.

29.Before proceeding further, it is important to clarify distinction between 'acquiescence' and 'delay and laches'. Doctrine of acquiescence is an equitable doctrine which applies when a party having a right stands by and sees another dealing in a manner inconsistent with that right, while the act is in progress and after violation is completed, which conduct reflects his assent or accord. He cannot afterwards complain. 17 In literal sense, the term acquiescence means silent assent, tacit consent, concurrence, or acceptance, 18 which denotes conduct that is evidence of an intention of a party to abandon an equitable right and also to denote conduct from which another party will be justified in inferring such an intention. 19 Acquiescence can be either direct with full knowledge and express approbation, or indirect where a person having the right to set aside the action stands by and sees another dealing in a manner inconsistent with that right and inspite of the infringement takes no action mirroring acceptance. 20 However, acquiescence will not apply if lapse of time is of no importance or consequence.

30. Laches unlike limitation is flexible. However, both limitation and laches destroy the remedy but not the right. Laches like acquiescence is based upon equitable considerations, but laches unlike acquiescence imports even simple passivity. On the other hand, acquiescence implies active assent and is based upon the rule of estoppel in pais. As a form of estoppel, it bars a party afterwards from complaining of the violation of the right. Even indirect RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 44/49 acquiescence implies almost active consent, which is not to be inferred by mere silence or inaction which is involved in laches. Acquiescence in this manner is quite distinct from delay. Acquiescence virtually destroys the right of the person. Given the aforesaid legal position, inactive acquiescence on the part of the respondent can be inferred till the filing of the appeal, and not for the period post filing of the appeal. Nevertheless, this acquiescence being in the nature of estoppel bars the respondent from claiming violation of the right of fair representation."

13.1 The suit perse itself is liable to be dismissed on the principle of acquiescence the plaintiff having accepted the constructions. The so called notices which were issued impending the filing of the suit by the Authority concerned to my mind were based or projected to be the cause of action for filing of the suit whereas the said notices were only qua the original plaintiff and it had to comply with the same. The same could not have been made the basis for initiating any action against the defendant no.1 except had the original plaintiff paid the dues whereafter the same could have been recovered from the defendant no.1. No relief of mandatory injunction could have been granted as there is no obligation casted upon the defendant no.1 which could be enforced by way of a decree of mandatory injunction.

RCA no. 07/2018

H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 45/49 13.2 Interestingly though this litigation has been carried out for 23 years till the judgment was delivered, in between the Authority concerned notwithstanding the huge arrears of Rs.9 Crores had carried out the mutation in the year 2015. Ingeniously or if I may use the word 'innovatively' mutation was carried out and simultaneously demand letter was issued to M/s Atma Ram Properties Pvt. Ltd. If the outstanding dues are not insisted upon or otherwise mutation carried out by the Authority concerned in my opinion there is no threat whatsoever of re­entry into the property. It is thus rendered as an academic issue - or ceases to be any threat. The Ld. Trial Court had skipped altogether this aspect and mechanically passed the impugned order treating the threat of re­entry as subsisting one when the authority concerned had by its own action proceeded to mutate the property or not to consider the outstanding due as any impediment. As such the threat of re­entry being vehemently projected actually does not exist or survive.

14. Much arguments were addressed by the Ld. Counsel for the appellant relying on the judgment of M/s Atma Ram Properties Pvt. Ltd. v/s Pal Properties rendered by Ld. ADJ­09, Central, Tis Hazari to contend that sale between original plaintiff and plaintiff is invalid.

RCA no. 07/2018

H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 46/49 The said matter is pending in appeal. As such to my mind not much assistance can be taken from the said judgment. However independently I have perused the record. The sale deed as mentioned above is a copious document of more than 250 pages and the same has been executed by attorney P.K.Khanna and M.L.Anand in favour of the company. A further perusal of the record reveals that the memorandum of the society (Arya Dharam Sewa Sangh) particularly the amended one reveals that Rule 14 is only a general rule which says that trustees shall act by majority at a meeting and three shall form a forum. However, the article 17B which to my mind is the article whereby the property could have been disposed of which is as under :

The trustee shall be at liberty to sell, assign or transfer any property or asset of the trust for nominal/concessional consideration to Bombay Hospital Trust and Birla Industries Group Charity Trust provided it all the trustees have consented in writing to such a transfer notwithstanding what is contained in Rule 14. This rule shall be deemed to have been in full force with retrospective effect.
Clause 14 which states that the decision shall be taken by rule of majority and minimum 3 shall be the forum is not a general repository to dispose of the property. The only clause which I could read is clause 17 B which specifies that the trustees can dispose of the RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 47/49 properties to charities. Though to contend that this aspect could not be taken note of in the present case owing to the fact that the defendant no.1 had admitted the plaintiff as the landlord has some merit but to my mind given the documents which have been filed which expressly mandates that the property can be disposed of to charities it was imperative upon the plaintiff at least to satisfy this Court that the sale was also free from doubt/suspicion. He could do so by leading evidence to the effect that the society had the power to dispose of the property at the first place to the plaintiff. In short from the record I have not been able to locate any clause in the society's memorandum that the society's property which is vested in the trustees could have been sold to the plaintiff company who admittedly is not a charitable trust or otherwise running any sort of hospital.

15. In view of the above discussion the findings which have been rendered by Ld. Trial Court to my mind are erroneous. Insofar as issue no.1 is concerned the plait has not been proved in accordance with law. The findings on issue no.1 are returned accordingly against the plaintiff. Insofar as issue no.5 is concerned the findings are modified as the defendant no.1 has raised the construction with the consent and taking into loop the original plaintiff. Similarly findings on issue no.6 & RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 48/49 7 are concerned, the same have to be read in the light of the findings herein above that the construction was of the year 1967 and well known to all and it was not merely of any recent vintage much less on 16.06.1993. Further the letter dated 11.11.1993 also pertained to the original plaintiff/relatable to him who had sought for the construction at the first place. Coming to the findings on issue no. 10 and 11 the same are erroneous and the plaintiff/original plaintiff cannot seek a decree of mandatory injunction against the defendant no.1 neither their relief against re­entry survive owing to the mutation having been carried out.

16. The upshot of the aforesaid discussion is that the appeal is allowed. The order dated 23.12.2017 passed by Sh. Rajinder Kumar, Ld. JSCC­Cum­ASCJ­Cum­Guardian Judge, West, Delhi is set aside. The suit preferred by the plaintiff stands dismissed.

No order as to cost. Decree sheet be prepared accordingly. File be consigned to Record Room. SUMIT Digitally signed by SUMIT DASS Pronounced in open Court on 16.05.2024 DASS Date: 2024.05.16 13:02:30 +0530 (Sumit Dass) Additional District Judge-02 & Waqf Board New Delhi District, Patiala House Courts New Delhi RCA no. 07/2018 H.K.Oberoi v/s M/s Atma Ram Properties (P) Ltd. & Anr. 49/49