Delhi District Court
Sarla Aggarwal W/O Sh. Sunil Kumar ... vs Attar Singh on 12 September, 2013
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IN THE COURT OF MS. PREETI AGRAWAL GUPTA:
ADJCumJUDGE: MACT1 (NORTH): ROHINI: DELHI
Civil Suit NO. 114/13.
Sarla Aggarwal W/o Sh. Sunil Kumar Aggarwal
....... Plaintiffs.
1.Attar Singh S/o Sh. Hukum Singh @ Hukmi
2. Ram Kumar Aggarwal S/o S.R. Aggarwal
3. Ashok Aggarwal S/o S.R. Aggarwal
4. Vinod Rana S/o Mahavir Singh
5. VKR Infrastructure (P) Ltd.
.........Defendants.
1. Vide this common order, the applications under disposal as detailed hereinunder are being disposed of:
(1) An application U/o 39 Rule 1 & 2 r/w Sec 151 CPC of the plaintiff.
(2) Applications U/o VII rule 11 r/w Section 151 CPC filed by the defendant nos. 2 to 5.
(3) An application U/o 8 Rule 1 & 10, Order 12 Rule 6 r/w Section 151 CPC on behalf of plaintiff.
(4) An application U/s 151 CPC of the defendant no. 4 .
2. Before considering the merits of each applications as CS No. 114/13 Sarla Aggarwal Vs. Attar Singh :2: aforesaid , the brief and relevant facts of the case are that the plaintiff claims to be the bonafide purchaser of the property land bearing Municipal no. 473A/474, Lawrence Road ( as per Khatauni No. 794/782, mutated during the year 195455) situated in Village Chaukari Mubarakabad, Rampura,Delhi35, to the extent of 1155 sq. yds. being unpartitioned and unspecified portion in the entire suit premises. The present suit has been filed for seeking Decree of Declaration and Injunction in respect of the aforesaid suit property against the defendants. It is the case of the plaintiff that she purchased 1155 sq. yds. of undivided portion of the suit premises, hereinafter referred to as suit property, by way of registered Sale Deeds dt.23.12.2011 from defendant no. 1, namely Attar Singh . It is claimed that the husband of the plaintiff entered into an Agreement to Sell dt. 18.10.11 with defendant no. 1 for purchase of the suit property and thereafter, the sale was completed vide Sale Deeds dt.23.12.11, executed by defendant no.1. It is also claimed that legal and constructive possession of the suit property was also handed over to the plaintiff at the time of registration of the Sale Deeds dt. 23.12.2011. It is the case of the plaintiff that two tenants namely Har Karan Dass Deep CS No. 114/13 Sarla Aggarwal Vs. Attar Singh :3: Chand and Sh. Dharam Pal who are in actual physical possession of part of the suit premises, as tenants, duly attorned the plaintiff as their landlady, after the sale of the said portion of the land.
3. A brief description of past ownership of the land measuring 3400 sq. yds. as per khasra no. 180 min. in village Chaukari Mubarkabad of which the suit property is a part, has been averred in the plaint. It is stated that this abovestated land of 3400 sq. yds. was owned by one Hukum Singh @ Hukmi survived by three sons. One of these three sons, Kamal Kumar was unmarried and went missing and after lapse of legal time, was presumed to be dead and hence, the property owned by said Hukum Singh @ Hukmi was inherited by defendant no. 1 i.e Attar Singh and his brother Phool Singh. They had some disputes between them which were resolved by vide family settlement dt.23.02.07 by which defendant no. 1 became owner of undivided portion of 1865 sq. yds. and his brother Phool Singh became owner of 1535 sq. yds., undivided and unspecified. The further history detailed prior to alleged purchase of suit property by the plaintiff, as described in the plaint is that the defendant no. 1 sold 710 sq. yds. of land out of his share, to two different purchasers and sold remaining 1155 sq. yds. undivided CS No. 114/13 Sarla Aggarwal Vs. Attar Singh :4: and unpartitioned portion to the plaintiff which is the suit property. It is also the case of the plaintiff that as per mutual agreement between the erstwhile owner defendant no. 1 and his brother the rent of tenants namely M/s Har Karan Dass Deep Chand and Sh. Dharam Pal was being collected by defendant no. 1 and the interests to collect the rent from afore named tenants were transferred to the plaintiff at the time of execution of Sale Deeds dt. 23.12.11 in respect of the suit property and that she was attorned by these tenants as their landlady, on intimation by the erstwhile owner defendant no. 1.
4. It is the case of the plaintiff that the tenant Mr. Dharampal was approached by some persons on or around 01.04.12 claiming to be office bearers of defendant no. 5, claiming rent on the basis of some Sale Deeds showing that defendant no. 5 had purchased the said land from defendant no. 1 vide four registered Sale Deeds, two dt. 10.09.2010 & other two dated 25.10.2010 , all allegedly executed by defendant no. 2. It is averred that defendant no. 2 committed forgery , fraud and criminal breach of trust upon defendant no. 1 and claimed himself to be attorney of defendant no. 1 in respect of the suit property on the basis of forged and fabricated GPA dt. 23.10.01, allegedly executed by defendant no. 1 in favour of defendant no. 2. It is claimed that the aforesaid four Sale Deeds in respect of the suit property, in CS No. 114/13 Sarla Aggarwal Vs. Attar Singh :5: favour of defendant no. 5 have been executed by defendant no. 2 on the basis of a forged and fabricated GPA dt. 23.10.01. It is case of the plaintiff that a criminal complaint has been lodged by her against defendants no. 2 to 5 in respect of the aforesaid alleged criminal acts .
5. The further averments in the plaint are mainly description of the alleged Sale Deeds which are subject matter of the suit and grounds and contentions of the plaintiff, in support of her case. By way of this suit, a Decree of Declaration has been prayed in respect of alleged GPA dt. 23.10.2001 and four Sale Deeds in question, in favour of defendant no. 5, to be declared null and void, etc. as well as Decree of Injunction against the defendants seeking restraint from creation of any third party right, interest or encumbrance qua the suit property, on the basis of the said documents.
6. The defendants were duly served with the summons and defendant no.1 has filed his written statement. In the written statement filed on behalf of defendant no. 1, Preliminary Objection has been taken that he is an unnecessary party. However, it is the case putforth by defendant no. 1, who is admittedly the erstwhile owner of the suit property, that he has sold his entire unpartitioned and undivided share in the property in question . The defendant no. 1 has averred that he CS No. 114/13 Sarla Aggarwal Vs. Attar Singh :6: duly executed Sale Deed dt. 23.12.11 in respect of the suit property in favour of the plaintiff which was duly registered and has denied the execution of alleged GPA dt. 23.10.01 in respect of the suit premises, in favour of defendant no. 2. It is alleged that the GPA dt. 23.10.01 in favour of defendant no. 2 is forged, fabricated and manipulated document and that the Sale Deeds in question have been executed and got registered on the basis of invalid GPA, thereby denying any right, title or interest of defendant no. 5, upon the suit property/ part of suit premises. It is further the case of defendant no. 1 that he had served a letter of attornment dt. 23.12.11 upon his two tenants namely M/s Har Karan Dass Deep Chand and Sh. Dharam Pal in favour of the plaintiff for payment of rent to her. It is claimed that the rights and interest of defendant no. 1 in the suit property were transferred in favour of the plaintiff by way of bonafide Sale Deeds dt. 23.12.2011 and that he had no pending interest therein. It is explained and claimed by defendant no. 1 that there were 3 4 other tenants in the suit premises, besides the area of 2720 sq. yds. which is in possession of the abovenamed two tenants. It is averred that these other tenants in the property were paying rent to brother of defendant no. 1 Phool Singh. He has supported the case of the plaintiff. Defendant no. 1 has thereafter, stopped appearing and was proceeded exparte vide order dt. 01.10.2012 .
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7. Number of miscellaneous applications came up for hearing during the progress of the case. Most of these applications were dealt with and disposed of, as warranted at the appropriate stage of the case, vide relevant orders. There are applications filed U/o VII rule 11read with section 151 CPC, on behalf of the defendant no. 2 to 5 separately, besides other applications also pending for disposal. It is worth mentioning that the application U/o 8 rule 1 read with section 151 CPC filed on 27.08.2012 was disposed off vide orders of the court dt. 06.09.2012 by which the applicant/defendant no. 4 was allowed the opportunity to file written statement subject to costs. Earlier similar opportunities were granted to defendants no. 2 and 3 for filing their written statement. Till date, no written statement has been filed on behalf of defendants no. 2 to 5 .
8. It is in the above detailed backdrop that the applications under disposal as above detailed are being considered one by one, after duly appreciating the contentions of the ld. Counsels, applicable law on the facts of the applications, the averments and pleadings on record and the documents relied upon by each side , to the extent necessary for the purpose of disposal of the applications. The applications are being dealt with and disposed of as under:
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9. Looking into the nature of the applications under disposal, it is most relevant to first determine the applications U/o VII rule 11read with section 151 CPC filed on behalf of the defendants. It is considered that the outcome of this application shall have bearing on the maintainability of the suit of the plaintiff and accordingly, the relevance of other pending applications under disposal.
10.1. The application U/o VII rule 11read with section 151 CPC filed by the defendant no. 4 raises various objections to the filing of the suit mainly U/o VII rule 11(a), (b)and (d) and has prayed for rejection of the plaint denying its maintainability and valuation for the purpose of court fees and jurisdiction of this court. It is the case of the defendant that the suit of the plaintiff is barred by limitation as one GPA executed in 2001 has been challenged and that the suit has been filed in 2012, much beyond the limitation of 3 years. Also, it is the case of the defendant no. 4 that this court has no pecuniary jurisdiction to try the suit on the ground that the four Sale Deeds challenged by the plaintiff by way of the present suit are to be valued at Rs.3.20 crores, as per the total value of the Sale Deeds in question. The application also challenges the existence of any cause of action in favour of the plaintiff and against the defendants. The applications filed on the same aspect, on behalf of defendants no. 2,3 and 5 are also raising the same grounds CS No. 114/13 Sarla Aggarwal Vs. Attar Singh :9: for praying for rejection of the plaint and need no repetition. 10.2. As such, as already observed, replies to these applications under order VII rule 11r/w section 151 CPC of defendants no. 2 to 5 have not been filed or sought to be filed. Accordingly, the applications are being jointly considered after appreciating the facts and law on the points involved. On behalf of the defendants, the limitation of the suit is challenged on the ground that the subject matter of challenge before the court involves GPA made and executed in the year 2001. It is not a disputed question of law that the limitation period is three years or that the suit has been filed in the year 2012. However, the suit for Declaration and Injunction has been filed by the plaintiff seeking various reliefs against the defendants thereby seeking Declaration of Nullity in respect of the alleged GPA dt.23.10.01 purportedly executed by defendant no. 1 in favour of defendant no. 2, as well as four Sale Deeds executed on the basis of said GPA by defendant no. 2 in favour of defendant no. 5 which are dated 10.09.10 and 25.10.10. The case of the plaintiff is based on the averments and allegations that her tenant Dharampal was approached and threatened by agents of defendants no. 3 to 5 on or around 01.04.12 which was communicated to her by the said tenant when she went to the suit property to collect rent from him. It is her case that she came to knowledge about the said claim of CS No. 114/13 Sarla Aggarwal Vs. Attar Singh :10: defendants no. 3 to 5 about execution of the four Sale Deeds in favour of defendant no. 5 in respect of undivided and unpartitioned area of the suit property which are claimed to have been executed in Sept. & Oct. 2010 by defendant no. 2 as GPA of defendant no. 1. 10.3. It is a settled preposition of law that dismissal of the suit is different from rejection of the plaint as the consequences of rejection are different from dismissal. While the first provides a right in favour of the plaintiff to approach the court by bringing a fresh action on the same cause of action, second operates as a resjudicata. It is further settled preposition of law that for the purpose of deciding an application under Order VII Rule 11 CPC, the court is not required to see the defence of the defendant but has to see the plaint and documents as filed on record. Reliance placed on 2010 (6) RLR (Civil) 355 titled Brihanmaharashtra Sugar Syndicate Ltd. Vs. Oriental Insurance Co. Ltd.
10.4. The alleged cause of action is dated around Ist April 2012 when the plaintiff claims to have gained knowledge about the alleged demand on behalf of defendant no. 5, staking a claim of ownership over part /whole of the suit property on the basis of certain Sale Deeds CS No. 114/13 Sarla Aggarwal Vs. Attar Singh :11: which are subject matter of challenge in the suit. Therefore, period of limitation shall commence only with effect from the alleged knowledge to the plaintiff. The alleged GPA of the year 2001 which is also challenged is the basis upon which the alleged four Sale Deeds in question have been executed by defendant no. 2 in favour of defendant no. 5. Written Statement of defendant no. 1 has already been filed denying the execution of the said GPA and thereby denying any passing of knowledge regarding the said GPA of year 2001 to the plaintiff, any earlier than the claim period of knowledge on and around 01.04.2012. In these facts and circumstances, the present suit can not be stated to be barred by law of limitation at this stage and it shall be a question of evidence if any earlier date of knowledge about execution of GPA allegedly in 2001 can be proved by either of the defendants. 10.5. The other objection has been raised on maintainability of the suit stating that the decree of declaration has been prayed on an unspecified land portion on the basis of concealed facts and illusive drafting. In this regard, the averments in the plaint have been appreciated . The plaintiff has claimed her rights to the extent of 1155 sq. yds. in the property land i.e. suit property , being unpartitioned and unspecified portion. The prima facie Sale Deed relied upon by the plaintiff is a registered Sale Deed dt.23.12.2011 from CS No. 114/13 Sarla Aggarwal Vs. Attar Singh :12: defendant no. 1 in respect of the suit property claiming transfer of undivided interest of 1155 sq. yds. of land of suit premises, in favour of the plaintiff. It is also the case of the plaintiff that legal and constructive possession of the suit property passed on to the plaintiff by notional transfer of rights to receive rent from two tenants Dharampal and partnership firm Har Karan Dass Deep Chand who are in actual and physical possession of substantial portion the suit land. As averred, it is not the prima facie case of the plaintiff that she has any defined or definite right over the identified portion of suit premises in possession of the two tenants Dharampal and the firm Harkaran Dass Deep Chand and has stated in the plaint itself that it was a matter of convenient arrangement between the erstwhile owners of the suit premises to collect rent from various tenants on the suit land. 10.6. The concept of "prima facie case" has been defined in celebrated case titled Gujrat Bottling Co. Ltd. Vs. Coca Cola Company & Ors. [(1996) (16) PTC 89 (SC)], wherein the Hon'ble Apex Court observed :
" Prima facie case" means that the Court should be satisfied that there is a serious question to be tried at the hearing, and there is a probability of plaintiff obtaining the relief at the conclusion of the trial on the basis of the CS No. 114/13 Sarla Aggarwal Vs. Attar Singh :13: material placed before the Court. " Prima facie case" is a substantial question raised both side which needs investigation and a decision on merits. The Court, at the initial stage, cannot insist upon a full proof case warranting an eventual decree..... fair question is raised for determination, it should be taken that a prima facie case is established. The real thing to be seen is that the Plaintiff's claim is ....... frivolous or vexatious. The purpose is to preserve status quo until the question before the Court is finally disposed of....."
10.7. After duly considering the various contentions and legal arguments and law, it is clear that mere supporting the plaintiff by defendant no. 1, through whom the plaintiff claims her right, it can not be said that the suit was collusive as the main reliefs have been prayed against the defendants no. 2 to 5 and defendant no. 1 may be a necessary party. There is nothing to show at this stage, that the plaintiff is legally incompetent to seek the reliefs claimed merely because she claims her rights over the suit property on the basis of undivided interest by way of claimed registered Sale Deed dt. 23.12.11. The defendants no. 2 to 5 shall have appropriate opportunity to bring relevant evidence and material on record to contest the suit of the plaintiff on merits but at this stage, no ground for rejection of the plaint due to alleged collusion, concealment of facts or illusive drafting have been prima facie shown.
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10.8. Now, the aspect of "pecuniary jurisdiction" shall be
examined which was the most hotly contested ground raised by the defendants calling for rejection of the plaint. It is the case of the defendants that the plaintiff has under valued the present Suit for Declaration and Consequential relief of Injunction in respect of the suit property by not valuing it at Rs.3.2 crores which was the total value of the four Sale Deeds which are subject matter of challenge before the court. In this regard, reliance has been placed by the defendants on the law laid down by Hon'ble High Court of Delhi in AIR 1971 ,Delhi 249, in case titled as M/s Ranchhoddas Shamji Khirani and Another Vs. Mrs. Balwant Kaur Malik , AIR 1971 Delhi 249, wherein Hon'ble High Court studied various provisions of Courtfees and Suits Valuations Court fees Act (1870) (as amended by Punjab Courtfees ( Amendment Act, 1953), in particularly, S.7 (iv) (c) Second Proviso. It was held that in suits covered by S.7 (iv) (c) which are with reference to any property, the proviso will apply only if the valuation of the suit can be made in the manner provided for by Cl. (v) of S.7. The Hon'ble High Court held:
"The proviso requires that the valuation of a suit for declaration and consequential relief with reference to property has to be calculated in the manner provided for by Cl. (v) of Section 7 of the Courtfees Act. The intention is, therefore, clear that the proviso is to apply to only such suits where calculation can be made in accordance CS No. 114/13 Sarla Aggarwal Vs. Attar Singh :15: with Cl. (v) of S. 7. It is, therefore, a matter of construction and not of adding words to the proviso to say that the word "property" refers only to such property the value of which can be calculated in the manner provided for by Cl. (v) of Section 7 and to no other suits.
Upon this construction, no difficulty in applying the
proviso to any type of suit would arise. We are,
therefore, of the opinion that in suits covered by Section 7 (iv) (c) which are with reference to any property, the proviso will apply only if the valuation of such a suit can be made in the manner provided for by Cl. (v) of Section
7. Obviously, the value of the present suit with reference to the prayers made in a Cls. (a) and (b) can not be made in such a manner and, therefore, the valuation placed by the petitioners with reference to the prayer in Cls. (a) and
(b) has to be upheld."
"The Courtfees Act is a taxing statute. It is open to the State to impose different levies of courtfee in respect of different types of suits. According to our construction, suits falling under Section 7 (iv) (c) with reference to property other than land, houses and gardens will form one class while similar suits with reference to land, houses and CS No. 114/13 Sarla Aggarwal Vs. Attar Singh :16: gardens will form another class. We do not see why there can not be any intelligible differentia on this basis."
10.09. Further reliance has been placed upon the authority of Hon'ble High Court of Punjab in Civil Revision Number 279 of 1954 in case titled Ram Kanwar Kidarmal & Ors. Vs. Naurang Rai Kundan Lal. It was considered that order passed by the trial Court that Section 7 (v) of the Courtfees Act, 1870 applied to the plaint and the value of the suit should be fixed at the market value of the property for the purposes of court fee and jurisdiction. The Hon'ble High Court of Punjab, while allowing the Revision Petition held that "in the present case, lease rights were involved which admittedly were property and therefore, court fee must be paid on these rights and not on market value of immoveable property which was subject of lease." 10.10. The other authorities relied upon by the plaintiff have also been appreciated. It has been held by Hon'ble Madhya Pradesh High Court In Shabbir Hussain And Ors. Vs. Naade Ali And Ors, AIR 2002 MP 160, law has been discussed in the facts of the case before the court as under:
"Now the allegations in the plaint are that the plaintiffs CS No. 114/13 Sarla Aggarwal Vs. Attar Singh :17: are the owners of the house and the defendants are their tenants; the defendants No.s 1 to 3 have now started claiming to be coowners of the house and thus a cloud has been cast on the title of the plaintiffs and for removal of that cloud they are seeking the relief of declaration of title and also the consequential relief of permanent injunction as mentioned above. The relief of injunction in this case flows from the relief of declaration claimed by the plaintiffs. The two reliefs are not independent or unrelated. The valuation of the suit for purposes of courtfees should be as per Section 7
(iv) (c) of the Act and not according to Article 17 (iii) of Schedule II and Section 7 (iv) (d) of the Act. But for the said reliefs as prayed in the present case the market value of the house is not the criterion. The plaintiffs claim to be in juridical possession of the house through their tenants. They are not seeking possession of the house on the basis of their title. The suit under Section 7 (v) (c) of the Court fees Act is required to be valued "according to the amount at which at which the relief sought is valued". The real basis of valuation is the value of the relief sought. Normally, the plaintiff is at CS No. 114/13 Sarla Aggarwal Vs. Attar Singh :18: liberty to value the relief claimed. The Court can correct it if it is arbitrary... The real relief claimed is the removal of the cloud cast on the title of the plaintiffs by the acts of the defendants. The subject matter of the suit covered by the reliefs of declaration and injunction is the cloud that has been cast and not the value of the property. The valuation of the said relief of declaration and injunction at Rs. 600/ is proper and it can not on the facts pleaded in this case be said to be arbitrary or outrageous.
In the present case, the relief of declaration and permanent injunction has been properly valued as per Section 7 (iv) (c) of the Courtfees Act and thus the order of the trial Court to value the same on the basis of the market value of the house is incorrect."
10.11 It has been further held by Hon'ble Bombay High Court in Chhotey Lal Kalidas Vs. Laxmidas Mayaram & Ors. AIR 1959 Bombay 517:
"Section 7 of the Courtfees Act by Clause (iv) (c) prescribes the method of computation of Courtfee payable in suits to obtain a declaratory decree where CS No. 114/13 Sarla Aggarwal Vs. Attar Singh :19: consequential relief is claimed. In such a suit the Courtfee is to be computed according to the amount at which the relief sought is valued in the plaint but subject to the provisions of Section 8A with a minimum fee of Rs. 10. By section 8 A, it is provided :
"If the Court is of opinion that the subject matter of any suit has been wrongly valued it may revise the valuation and determine the correct valuation and may hold such inquiry as it thinks fit for such purpose."
Evidently under Section 7, Clause (iv) (c), the plaintiffs have the right to put their own valuation on the subjectmatter of the suit, and it is on the valuation put by the plaintiffs that the Courtfee is exigible. By Section 8 of the Suits Valuation Act, 1887, in suits falling under section 7 (iv) ( c) the value determinable for the computation of Court Fees, and the value for purposes of jurisdiction, are to be the same: that is, the valuation adopted by the plaintiff for computing the Courtfees governs the jurisdiction of the Court in which the suit is instituted...
The suit falls expressly within the
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description of a suit to obtain a declaratory decree
where consequential relief is prayed under Section 7
(iv) (c) of the Courtfees Act, and, therefore, it does not fall within the scope of the residuary Article 17 (vii) of Schedule II."
10.12. Finally, the authority of Hon'ble Apex Court in Suhrid Singh @ Sardool Singh Vs. Randhir Singh & Ors. in Civil Appeal Nos. 28112813 of 2010, has been appreciated wherein laid down the binding law on the subject is laid down as under:
"Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a nonexecutant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or nonest, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A and B - two brothers. 'A' executes a Sale Deeds in favour 'C'. Subsequently 'A' wants to avoid the sale 'A' has to it, he has to sue for a declaration that the deed executed by 'A' is invalid/void and nonest/illegal and he is not bound by CS No. 114/13 Sarla Aggarwal Vs. Attar Singh :21: it. In essence both may be suing to have the deed set aside or declared as nonbinding. But the form is different and court fee is also different. If 'A' the executant of the deed seeks cancellation of the deed, he has to pay advalorem court fee on the consideration stated in the Sale Deeds. If 'B', who is a nonexecutant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 and not under Article 17 (iii) of Second Schedule of the Act. But if 'B', a nonexecutant, is not in possession, and he seeks not only a declaration that the Sale Deeds is invalid, but also the consequential relief of possession, he has to pay an advalorem court fee as provided under Section 7 (iv) (c) of the Act ."
10.13. The above discussed and cited preposition of law has been appreciated in light of the facts of this case. Vide present suit, the plaintiff has challenged alleged GPA of 2001 and consequent four Sale Deeds allegedly executed by defendant no. 1 in favour of defendant no. 2 in Sept. & Oct. 2010 in respect of part /whole of the suit property and has filed the Suit for Declaration and Injunction seeking that the abovesaid documents CS No. 114/13 Sarla Aggarwal Vs. Attar Singh :22: be declared nonest and null and void. However, it is the case of the plaintiff that she is in notional and constructive possession of the suit property through the tenant Dharampal & firm Harkaran Dass Deep Chand. It is not disputed by any of the defendant that the tenants Dharampal and firm Harkaran Dass Deep Chand are in physical and actual possession of substantial area of suit premises which is larger than the share of the plaintiff in the suit premises. It is the case of the plaintiff, as averred that by virtue of family settlement between the erstwhile owners Attar Singh ( defendant no. 1) and his brother, the shares of rent paid by the tenants upon the suit premises was divided for the purpose of convenience. It is the case of the plaintiff that she is the owner of undivided share of the suit property to the extent of 1155 sq. yds. but has claimed the attornment of tenancy by said tenant Dharampal and firm Harkaran Dass Deep Chand in her favour on acquiring the right, title and interest on the portion measuring 1155 sq. yds. in the undivided suit premises.
10.14. Looking into the entirety of facts, as per law above discussed, it is to be prima facie seen if the plaintiff can claim herself to be in physical possession of the suit property, as on the date of filing of the suit. In view of the afore discussed facts and also considering the averments in the written statement of defendant no. 1, prima facie plaintiff was in constructive and notional possession of the suit property , as on the date of the suit.
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Therefore, as per law laid down by the Hon'ble Apex Court in Suhrid Singh @ Sardool Singh Vs. Randhir Singh & Ors. Civil Appeal Nos. 28112813 of 2010, the Suit for Declaration and Consequential relief of injunction shall be governed by virtue of provisions under section 7 clause (iv) (c ) of the Court Fees Act, for the purpose of computation of court fees . For the purpose of valuation and jurisdiction under the Suits Valuation Act, 1887, the value of the suit for purpose of jurisdiction shall be the same as the value determinable for computation of court fees for suit falling under section 7 (iv) ( c) of Court Fees Act . Therefore, the plaintiff is within her legal rights to value the relief under Section 7 (iv) (c) of Court Fees Act. There is nothing prima facie to show that suit is bad for deficiency of court fees or want of pecuniary jurisdiction.
10.15. In view of the detailed findings on various aspects raised before the court, at this stage, no case is made out for rejection of the plaint. The applications of each defendants no. 2 to 5 stand dismissed for want of merits.
11.1. By way of application u/o 39 rules 1 & 2 read with section 151 CPC filed alongwith the plaint, the plaintiff has prayed for grant of ad interim orders, pending the suit, for restraining the defendants and their CS No. 114/13 Sarla Aggarwal Vs. Attar Singh :24: agents, assignees from creating any third party right, interest or encumbrance in respect of the suit property on the basis of the alleged GPA dt. 23.10.01 and consequent four sale deeds which are the subject matter of the suit for declaration of these documents as cancelled/ null and void with consequential relief of injunction. The plaintiff has prayed for adinterim injunction, pending the suit.
11.2. Before examining the entitlement of the plaintiff to the ad interim reliefs claimed in the application under disposal, the law relevant should be examined. The law Relating to grant of adinterim injunction under order 39 Rule 1 & 2 is well settled to be restated. The plaintiff in order to succeed for grant of adinterim injunction has to establish the trinity principles of strong prima facie case, balance of convenience & irreparable loss & injury which cannot be compensated in monetary terms. Judgments of superior courts in this regard are many however the principles outlining grant or refusal of interlocutory injunction are culled down by our own Hon'ble High Court in International Hotels Ltd. Vs. NDMC AIR 2001 Delhi 425 as under :
i. Plaintiff has a prima - facie case to go for trial. ii. Protection is necessary from that species of injury known as irreparable loss before his legal right can be established.
iii. That the mischief of inconvenience is likely to arrive from withholding injunction will be greater that what it CS No. 114/13 Sarla Aggarwal Vs. Attar Singh :25: is likely to arise from grant of it.
Besides for obtaining the equitable relief of injunction which is both temporary and discretionary, one has to approach the court with clean hands and without concealment of material facts. In addition thereto the injury to the plaintiff must be actual and substantial. The application should have been made with promptness and improper and unexplained delay may be fatal.
11.3. The crux of various judgments laying down well established principles of law pertaining to the equitable interim relief can be seen from the celebrated Gujrat Bottling Co. Ltd. Vs. Coca Cola Company & Ors.
[(1996) (16) PTC 89 (SC)], wherein the Hon'ble Apex Court observed :
".....The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh need against another and determine where the "balance of convenience" lies'.
The law on what "prima facie case" means has already CS No. 114/13 Sarla Aggarwal Vs. Attar Singh :26: been reproduced during discussion in the former application and needs no repetition here.
11.4. As such, as above discussed, no reply or written statement has been filed. However, the application was strongly opposed during the court proceedings . Written statement has been filed by defendant no. 1. Defendant no. 1 is admittedly the erstwhile owner of the undivided share in suit property. The plaintiff claims her undivided ownership over the suit property to the extent of 1155 sq. yds. by virtue of registered Sale Deed dt. 23.12.11, executed by defendant no. 1 and the execution of the same is admitted by defendant no. 1. Whereas, defendant no. 2 to 5 have individually opposed the case of the plaintiff , alleging that defendant no. 5 had purchased the undivided share of defendant no. 1 Attar Singh by way of four registered Sale Deeds, two dated 10.09.2010 and other two dated 25.10.2010, all allegedly executed by defendant no. 2. It is the case putforth by the defendants no. 2 to 5 that defendant no. 1 executed a GPA dt. 23.10.01 in favour of defendant no. 2 on the basis of which the alleged four Sale Deeds in favour of defendant no. 5 which are subject matter of challenge, were allegedly executed. In the back drop of these contested facts , the adinterim application is to be considered. 11.5. It is a prima facie case that the plaintiff claims ownership of CS No. 114/13 Sarla Aggarwal Vs. Attar Singh :27: suit property on the basis of registered Sale Deeds in her favour, claimed through the erstwhile owner /defendant no. 1. The defendant no. 1 has filed his written statement admitting the execution of the alleged Sale Deeds in favour of the plaintiff. The plaintiff claims notional and physical possession of the suit property through tenants Dharam Pal and its firm Harkaran Dass Deep Chand who are stated to have attorned the plaintiff as her landlady, at the instance of defendant no. 1. The defendant no. 5 also claims to be the owner of undivided share in the suit premises on the basis of four registered Sale Deeds dt. 10.09.10 & 25.10.10 . The plaintiff has claimed lack of knowledge regarding any such Sale Deeds qua the suit property in favour of defendant no. 5 prior to about April 2012. It is also pertinent to note that GPA dt. 23.10.01 allegedly executed by defendant no. 1 in favour of defendant no. 2 as per leave of defendants no. 2 to 5 is alleged to be a false and fabricated document by the plaintiff and defendant no. 1. The four Sale Deeds under challenge are admittedly consequent to the GPA dt. 23.10.01 and the alleged executant of these Sale Deeds in favour defendant no. 5 is defendant no. 2 on the basis of said GPA which is a notarised document.
11.6. It has been further examined that prima facie , the entire suit premises are undivided and unpartitioned and in actual and CS No. 114/13 Sarla Aggarwal Vs. Attar Singh :28: physical possession of the tenants. It is disputed question between the plaintiff and defendants no. 2 to 5 as to who is the landlord of the tenants Dharampal and its firm Harkaran Dass Deep Chand qua the suit property. The plaintiff has alleged that the defendant no. 5 has no right, title or interest on the basis of alleged four Sale Deeds in question, qua the suit property. Some criminal complaints are also pending for the ownership claims over the suit premises. The GPA dt. 23.10.01 and four Sale Deeds on the basis of said GPA are sought to be declared null and void by way of Decree of Declaration in the present suit. The consequential relief of permanent injunction against defendants has also been prayed claiming the right of the plaintiff over the suit property as owner thereof. It is not out of place of mention that the claim of the defendants no. 2 to 5 is also by way of registered sale documents but admittedly, they are executed by defendant no. 2 on the basis of a purported GPA dt. 23.10.01 which is not a registered document, besides a denied document by alleged executant defendant no. 1. Therefore, the plaintiff has been able to show a prima facie case that she shall suffer irreparable loss and injury if any further third party interests are created in the suit property. 11.7. It is also considered that the defendants no. 2 to 5 claim ownership of defendant no. 5 over the overlapping undivided interest CS No. 114/13 Sarla Aggarwal Vs. Attar Singh :29: claimed by the plaintiff in the suit property. It is also equitable and necessary for the court , to pass such adinterim orders which may prevent mischief and may give rise to multiplicity of litigation. Prima facie facts of the case also tilt the balance of convenience in favour of the plaintiff and against defendants no. 2 to 5. In any case, once clouds have eclipsed the claimed rights of plaintiff and defendant no. 5 over the suit property, it shall be in the interest of all the parties to pass ad interim orders to prevent further complexity. 11.8. In view of the above discussion and facts, the defendants are restrained from creating any third party right, title or interest in the suit property, pending the suit. The plaintiff is granted adinterim relief against the defendants, subject to the due process of law. The interim application U/o 39 rules 1 & 2 r/w section 151 CPC of the plaintiff, is accordingly, allowed.
12.1. The court shall now consider the application U/s 151 CPC of the defendant no. 4. Again, no formal reply has been filed. By way of this application , the defendant no. 4 has prayed for grant of adinterim orders against the plaintiff seeking to restrain them from creating any third party right, sale, interest or encumbrance in respect of the suit property, on the basis of disputed Sale Deeds in favour of the plaintiff. The applicant/defendant no. 4 as Director of defendant no. 5 CS No. 114/13 Sarla Aggarwal Vs. Attar Singh :30: has also sought permission to affix the board on the suit property regarding the pendency of this case.
12.2. The law for grant of adinterim orders has already been discussed in the former application hereinabove. The defendant no. 5 claims ownership of a portion of undivided suit premises and also claims ownership over substantial other undivided shares through associates and directors. The defendant has admitted that the tenants are in actual physical possession of the suit premises. It has already been appreciated that during the pendency of the suit, this court should exercise its judicial discretion in favour of justice and fair play and it shall be equitable to pass such orders to prevent multiplicity of litigation between the parties. Therefore, it is in justice and equity to direct the plaintiff to maintain status quo in respect of her alleged ownership over the suit property on the basis of claimed Sale Deed dt. 23.12.11. The application of the defendant no. 4 is accordingly , allowed as above.
13.1. Now, the application U/o 8 rule 1 & 10 read with section 151 CPC, of the plaintiff shall be considered. It is the case of the plaintiff that despite service of the defendants no. 1 to 3 for 29.05.2012, and repeated opportunities, the defendants have not filed written statement within 30 days or even after the period of 90 days. The defendant no. 4 appeared on 16.07.12 and vide orders dt.
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27.08.12, the defendant no. 5 through defendant no. 4 who is its
Director was also asked to file written statement . On application of defendant no. 4 under order 8 rule 1 CPC, vide orders dt. 06.09.12 , defendants were granted opportunity on 01.10.2012 subject to costs of Rs. 3,000/ imposed upon defendant no. 4. It is prayed that the defence of defendant no. 2 to 5 be struck off as they have resorted to dilatory tactics by moving false, frivolous and misconceived application and failing to file written statement.
13.2. The provisions of law U/o 8 CPC for filing of written statement by the defendant lay down a duty upon the defendant to state his defence within 30 days from service of summons upon him. Order 8 rule 1 CPC, further stipulates the extension of time , not later than 90 days from the date of service of summons for filing of written statement. The well settled law on this aspect has been laid down in Salem Advocate Bar Association, Tamilnadu Vs. Union of India; AIR 2005, SC 3353. It has been held by the Hon'ble Apex Court that the provisions contained in order 8 rule 1 CPC is directory, keeping in view the need for expeditious trial of civil cases. It was further held that the court may extend time beyond the upper time limit of 90 days, only in exceptionally hard circumstances. It was observed by the Hon'ble Supreme Court that the discretion of the court to extend CS No. 114/13 Sarla Aggarwal Vs. Attar Singh :32: the time should not be so frequently and routinely exercised so as to nullify the period fixed by legislature U/o 8 rule 1 CPC. 13.3. The above settled principle of law shall be appreciated in facts of this case. The defendants no. 2 to 5 were duly served and have admittedly not filed their respective written statements and replies despite lapse of time as per law under order 8 rule 1 CPC. Instead of filing written statements, the application U/o 7 rule 11 read with section 151 CPC was filed. As such, filing of these applications do not extend the time limit under order 8 rule 1 CPC for filing written statements. There were numbers of dates of hearing till the application has been taken up for disposal. The defendants no. 2 to 5 have not tendered any feasible or reasonable explanation for not stating each one's defence by way of written statements, within the stipulated time as per law. However, since the applications U/o 7 rule 11 read with section 151 CPC are being also disposed of by this common order, it is deemed in the larger interest of justice, in exercise of discretionary power of this court to grant one more opportunity to the defendants no. 2 to 5 to file written statement on payment of extension costs of Rs. 5,000/, upon each defendants no. 2 to 5, payable to the other side. Pending previous costs be also paid for filing written statement. With this liberty, the application of the plaintiff is disposed of.
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14. As per orders hereinabove passed,
(i) The application U/o 39 Rule 1 & 2 r/w Sec 151 CPC of the plaintiff stands allowed as per orders .
(ii) The Applications U/o VII rule 11 r/w Section 151 CPC filed by the defendant nos. 2 to 5 stand dismissed as per orders.
(iii)The application U/o 8 Rule 1 & 10, Order 12 Rule 6 r/w Section 151 CPC on behalf of plaintiff stands dismissed with opportunity to each defendant no. 2 to 5 to file written statement subject to conditions as per order.
(iv) The application U/s 151 CPC of the defendant no. 4 stands allowed as per order.
Ordered accordingly.
ANNOUNCED IN THE OPEN (PREETI AGRAWAL GUPTA)
COURT ON 12.09.2013. ADJ/PO, MACT (NORTH)
ROHINI, DELHI.
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Civil Suit No. 114/13
12.09.2013:
Present: Ld. Counsel for parties.
Vide separate order, the applications under disposal as per order dt. 30.08.2013 have been disposed of as under:
(i) The application U/o 39 Rule 1 & 2 r/w Sec 151 CPC of the plaintiff stands allowed as per orders .
(ii) The Applications U/o VII rule 11 r/w Section 151 CPC filed by the defendant nos. 2 to 5 stand dismissed as per orders.
(iii)The application U/o 8 Rule 1 & 10, Order 12 Rule 6 r/w Section 151 CPC on behalf of plaintiff stands dismissed with opportunity to each defendant no. 2 to 5 to file written statement subject to conditions as per order.
(iv)The application U/s 151 CPC of the defendant no. 4 stands allowed as per order.
Case to come up for written statement of defendants on 16.12.2013.
(PREETI AGRAWAL GUPTA) ADJ/PO, MACT (NORTH) ROHINI, DELHI.
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CS No. 114/13 Sarla Aggarwal Vs. Attar Singh