Delhi District Court
Manoj Kumar vs . Vijay Kumar Jindal & Ors. on 18 February, 2016
Manoj Kumar vs. Vijay Kumar Jindal & Ors.
In the Court of Additional District Judge02, South District, Saket Court
Complex, Sixth Floor, Room No. 602, New Delhi.
In the matter of :
RCA No. 09/2015
Unique No. 02406C0176602015
Date of filing : 28.05.2015
Date of Institution : 29.05.2015
Decision reserved on : 03.02.2016
Date of Decision : 18.02.2016
Sh. Manoj Kumar, S/o Late Sh. Om Prakash
R/o J7B, Lane No. 15,Sainik Farm,
New Delhi110062. ....Appellant
(Plaintiff in main suit)
Versus
1. Sh. Vijay Kumar Jindal, s/o Late Ramesh Chand Jindal
2. Sh. Sushil Kumar Jindal, s/o Late Ramesh Chand Jindal
3. Sh. Suresh Kumar Jindal, s/o Late Ramesh Chand Jindal
4. Smt. Kanti Devi W/o Late Ramesh Chand Jindal
All r/o D172, Saket, New Delhi17.
Also atD1/504, Mayfair Tower, Charmwood,
Faridabad (Haryana)
5. Sh. Rohit Jain, S/o Sh. J.K. Jain,
R/o 965, Sector 15, Faridabad121007, Haryana.
6. Sh. Siddharth Verma, S/o Late Sh. B.P. Verma
R/o BPH2, ATS, Geens1, Noida201307 (U.P.)
7. Delhi Financial Corporation
Govt. of NCT, 3738, Industrial Area, Dblock,
Janak Puri, New Delhi110058.
through its Assistant Collector (R)
8. Smt. Praveen Kaur, D/o Late Avtar Singh,
R/o 3, Jai Singh Road, New Delhi.
Also at D172, Saket, New Delhi. ...Respondents
(Defendants in main suit)
RCA no. 9/15 Page no. 1 of 12
Manoj Kumar vs. Vijay Kumar Jindal & Ors.
JUDGMENT
(On appeal under section 96 read with Order XLI rule 1 and rule 23A CPC arising from order dated 18.04.2015 of the Court of Civil Judge, South, Saket in CS No. 488/14, Manoj Kumar vs. Vijay Kumar Jindal & Ors.) 1.1 (Introduction) - The appellant/ plaintiff filed suit for permanent injunction and defendants no. 5, 6 and 8 had filed an application u/o VII rule 11 CPC, the court of Sh. Vishal Pahuja, Civil Judge02, South (hereinafter referred as trial court) by order dated 18.04.2015 allowed the application by holding that the suit is not maintainable as it is hit by section 41(h) of Specific Relief Act, consequently the plaint was rejected. That is why the appellant/ plaintiff assails the said order in the present appeal. However, no formal decree was drawn by the trial court, the appellant assails the impugned order/decree in the present appeal. Moreover, the trial court has not mentioned the relevant facts in the impugned order, but it needs introduction.
1.2 (Facts of the appellant's case) - In nutshell, as per amended plaint, the appellant/ plaintiff and respondents no. 1 to 4/ defendants entered into an Agreement to purchase & sell dated 16.01.2010 of property D172, Saket, New Delhi (built on area measuring 229.996 sq. meter) for a total consideration amount of Rs. 4 crore, an earnest amount of Rs. 11 lacs was paid by the appellant to the respondents 1 to 4, vacant and physical possession of one bed room along with attached bathroom and toilet and a kitchen at the first floor of the property was given to the appellant. The balance amount was to be paid by the appellant on fulfilling the terms and conditions of the agreement. The appellant also paid another amount of Rs. 20,50,000/ to the respondents 1 to 4, since the respondents were in need of financial assistance so that they may RCA no. 9/15 Page no. 2 of 12 Manoj Kumar vs. Vijay Kumar Jindal & Ors.
prosecute writ petition and thereby total amount of Rs. 31,50,000/ was paid by the appellant to the respondents 1 to 4. In April 2010, the appellant approached the respondents to perform their obligations and appellant also approached the respondent in May 2010 to pay the balance consideration amount but respondent failed to take the appropriate steps to transfer the property to the plaintiff. However, the respondents arranged and paid a sum of Rs. 7 lac to the appellant to be adjusted, since a sum of Rs. 20,50,000/ was given to the respondents to meet their certain obligations. Consequently, a sum of Rs. 24,50,000/ was paid as consideration amount to the respondents 1 to 4. Whereas, the respondents connived with their accomplices as they were keeping eyes on the suit property i.e. one bedroom, attached bathroom and toilet and kitchen on the first floor. The respondents and their accomplices tried to enter forcibly and to occupy the property despite they have no right, since the possession was given to the appellant after receipt of part payment. The plaint further narrates allegations that there were caveats vis a vis notices were issued to the respondents 5, 6 & 7 and court had also appointed a local commissioner who reported that the possession of first floor is with respondents no. 5. The respondents 1 to 4 illegally sold the property to respondents 5 & 6 and the said respondents 5 & 6 in connivance of respondents 1 to 4, in order to defeat the object of the case, got the property demolished but appellant's right still exist in the property, he cannot be dispossessed from the rights and interest created in his favour. Moreover, the respondents also started new construction, the appellant filed an application u/s 151 CPC. The appellant also came to know that respondents no. 5 & 6 in connivance with respondents no. 1 to 4 have further sold the property to respondent no. 8/ Smt. Praveen RCA no. 9/15 Page no. 3 of 12 Manoj Kumar vs. Vijay Kumar Jindal & Ors.
Kaur on 15.07.2011. (it was date 15.07.2011, when then Civil Judge had allowed an application u/o VI rule 17 CPC to amend the plaint and by another order of 15.07.2011 rejected the plaint but the latter order dated 15.07.2011 was set aside in appeal RCA no. 6/11 by judgment dated 10.12.2012 by the then appellant court, the case came back to trial court). That is why the suit was filed for relief of injunction against dispossession and para 24 of the plaint narrates that appellant is not claiming any alternate relief of recovery but to permit him to institute further suit, by virtue of u/o II rule 2 (3) CPC. The appellant had sought relief against dispossession of the plaintiff from the land in ratio of the possession held by him.
2.1 (Plea of respondents 5, 6 & 8 in application u/o VII rule 11 CPC) - The respondents 5, 6 & 8 filed an application u/o VII rule 11 CPC that respondents 1 to 4 transferred/ sold the property to respondents 5 & 6, the appellant himself states that the suit property was demolished and there was vacant land, which do not show physical possession of plaintiff, consequently the appellant had not claimed relief of specific performance of contract, which was the efficacious remedy available, therefore, the suit for injunction was not maintainable.
2.2 (Plea of appellant) - Whereas the appellant had opposed the application that by order dated 15.07.2011, on the one side application u/o VI rule 17 CPC was allowed and without affording any opportunity to file amended plaint, by another order dated 15.07.2011 the plaint was dismissed but the first appellant court set aside the latter order, consequently the application u/o VII rule 11 CPC was not maintainable. Moreover, the appellant had also filed an application U/s 151 CPC for appropriate directions against the respondents since many developments RCA no. 9/15 Page no. 4 of 12 Manoj Kumar vs. Vijay Kumar Jindal & Ors.
took place during the pending of suit.
2.3 (Findings of trial court) - The trial court considered the plea of both sides and it held, firstly the order dated 15.07.2011 does not bar to consider the further application u/o VII rule 11 CPC as the case is to be dealt as per law and secondly the suit for injunction is not maintainable in its present form as the suit is hit by section 41 (h) of Specific Relief Act. The plaint was rejected by order dated 18.04.2015.
3.1 (Appellant's plea in appeal) - The appellant reiterates its case in the appeal, along with the proceedings held earlier and appellant assails order dated 18.04.2015 that the same is contrary to the facts, law and the developments taken place during pending of the suit. The appellant also narrates his case, which has already been mentioned in para 1.2 above.
In nutshell, the appellant had reserved his right u/o II rule 2 (3) CPC for leave to prosecute the case for injunction and not claiming alternate relief (however, during arguments Ld. Counsel Sh. Kumar Vivek, Advocate clarified on query by court that there is no formal order or leave by the court nor there were arguments on this point). The appellant was given part possession of property, the suit for injunction simpliciter was maintainable as at that material point of time the appellant was in possession of property, there was threat to dispossession and no other relief was to be claimed. The respondents 1 to 4 were paid part money, even appellant had given amount to aid respondents 1 to 4 to meet their financial obligation to prosecute the writ petition in the Hon'ble High Court of Delhi. The respondents 1 to 4 are having amount of Rs. 24,50,000/ from appellant but they turned dishonest. They forcibly occupied the property. Moreover, respondents 5 & 6 admits that they purchased the property from respondents no. 1 to 4 and local commissioner's report RCA no. 9/15 Page no. 5 of 12 Manoj Kumar vs. Vijay Kumar Jindal & Ors.
does not reflect version of appellant. The respondent no. 8 purchased the property on 15.07.2011, when previously impugned order was passed by the trial court.
There was no reason to invoke section 41(h) of the Specific Relief Act or to reject the plaint, particularly appellant's application u/s 151 CPC was pending for adjudication. The appellant is protected by section 53A of Transfer of Property Act.
3.2 Sh. Kumar Vivek, Advocate for appellant, has also reiterated similar submissions that the possession was handed over to the appellant after receipt of part consideration amount, the respondents 1 to 4 were paid further amount, the appellant was protected by provisions of Transfer of Property Act and suit for injunction was to be filed, it was rightly filed. Therefore, the said order is liable to be set aside as the only remedy available with the appellant was to file suit for injunction, the possession of said property was with the plaintiff and there was no occasion to seek relief like possession. The application U/s 151 CPC was filed because of rights in favour of appellant but plaint was rejected without disposal of that application, it is like a premature order. The appellant further derives reason from the following case law: A1 Smt. Shakuntala vs. Hira Nand Sharma and Ors., AIR 1986 Delhi 27, while dealing with injunction application U/o XXXIX rule 1 and 2 CPC in suit for permanent injunction by tenant against landlord, it was held that to prevent a landlord from evicting tenant, the possession with tenant is very strong factor in favour of tenant for granting the temporary injunction.
A2 Sudhir Tyagi & Ors. vs. Subhash Tyagi, 179 (2011) Delhi Law Times 780 (para 7) "(7). There is no doubt that Section 54 of the Transfer of Property Act necessarily acknowledges that a transfer of immovable property has to be by way of a registered document. The plaintiff had however not set up his title in the suit RCA no. 9/15 Page no. 6 of 12 Manoj Kumar vs. Vijay Kumar Jindal & Ors.
property; in a suit for injunction, question of title does not necessarily have to be gone into. Provisions of Section 53A of the Transfer of Property Act are a defence which is available to the defendant; such a person whose physical possession is established cannot be dispossessed without due process of law. In the instant case, the general power of attorney and will coupled with the specific averment made in the plaint that on the same day, physical delivery of the suit property had been given to the plaintiff weighted in the mind of first appellant Court to hold that the plaintiff was, in fact, in legal possession of the suit property. The suit could not have been thrown out on the ground that such a suit is not maintainable. The cause of action had clearly been deciphered in the plaint. Plaintiff was in legal possession in view of the aforenoted documentary evidence as also his specific plea that on the date of the execution of the said documents, physical possession of the suit property had been handed over to him; a suit for permanent injunction was well maintainable. There was no bar to it. Section 38 of the Specific Relief Act, 1963 also presupposes that an injunction may be granted to the plaintiff where the right of the plaintiff is being threatened. There is no infirmity in the impugned judgment."
4.1 (Plea of respondents) - Respondents no. 1 to 4 & 7 put their appearance through their respective counsels, however, when it was scheduled for final arguments, they abstained from appearance. 4.2 However, the other respondents 5, 6 & 8 appeared through their counsel Sh. Ashim Vachher, Advocate, they filed formal reply and also made their submissions. In nutshell, the respondents 5, 6 & 8 request that allegations against them are wrong and they deny it. There is no flaw in the findings given by the trial court, rather it is based on features of the case as well as the law applicable to the situation in hand. They also narrate the facts like the respondents 1 to 4 had mortgaged the property in favour of Central Bank of India way back in March/ April 2000, they were the absolute owner of the property. The respondents 1 to 4 on the one side and respondents 5 & 6 on the other side entered into agreement for purchase of property for Rs. 5,60,00,000/ after seeking permission from the Central Bank of India. The reply also dispute about the claim made by the appellant with regard to tender of payment of Rs.
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20,50,000/ or so on vis a vis the so called agreement dated 16.01.2010 is an unregistered document having no force in the eyes of law. They also dispute possession of part of the property with the appellant, the appellant was never in possession of suit property. The appellant filed suit for injunction and he has not sought any relief/ prayer of declaration and possession.
Since the simpliciter suit for injunction was not maintainable, no question arises of impleading anyone as a party to the petition and plaint was rightly rejected since the suit is hit by section 41 (h) of Specific Relief Act that despite permission to amend the plaint on some aspect but the appellant had not sought any amendment to suit for declaration or for other relief. There is no merit in the appeal, it deserves dismissal. 4.3 During oral submissions, Ld. Counsel for respondents 5, 6 & 8 has reiterated the same submissions that appeal is abuse of process of the law, particularly the appellant was never in possession of the said property and suit for injunction simpliciter was not maintainable. The appellant also refers provisions of order II rule 2 (3) CPC, however the appellant had never pressed his request under such provision nor there is any leave by the court, consequently the suit ought to have been filed for declaration, possession and other reliefs, which are the efficacious remedy available which appellant failed to avail. Moreover, the time for availing such efficacious remedy has also expired. There was no reason to perverse the findings given by trial court. Ld. Counsel also derives reasons from the following precedent/ case law: R1 Anathula Sudhakar vs. P. Buchi Reddy (dead) by LRs & Ors., (2008) 4 Supreme Court Cases 594 (para 13, 13.1 to 13.3) "13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/ or possession with RCA no. 9/15 Page no. 8 of 12 Manoj Kumar vs. Vijay Kumar Jindal & Ors.
injunction as a consequential relief, are well settled. We may refer to them briefly. 13.1 Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. 13.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. 13.3 Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction."
R2 Razia Begum vs. Delhi Development Authority & Ors., 215 (2014) Delhi Law Times 290 (DB) (para 88). The plaintiff filed suit for declaration, possession and permanent injunction, however the plaint was rejected u/o VII rule 11 CPC and it was held "(Para 88) ....The plaintiff claims that under the Right to Information Act she learnt that the DDA had executed the conveyance in favour of defendant no. 4. Despite knowledge thereof, the plaintiff has not made a prayer for cancellation of the conveyance deed. The plaintiff could be entitled to decree of possession only after she had established her title to the flat and entitlement to the possession thereof. Given the fact that the property stood conveyed by a registered instrument in favour of defendant no. 4, certainly the plaintiff would not be entitled to the relief of possession unless the appellant was granted cancellation thereof."
R3 Virgo Industries (Eng.) Private Limited vs. Venturetech Solutions Private Limited, (2013) 1 Supreme Court Cases 625 (para 14 & para 17). While dealing with the provisions of order II rule 2 (2) and (3) CPC, it was held "(14). The averments made by the plaintiff in CSs No.s 831 and 833 of 2005, particularly the pleadings extracted above, leave no room for doubt that on the dates when CSs Nos. 831 and 833 if 2005 were instituted, namely, 28.8.2005 and 9.9.2005, the plaintiff itself had claimed that facts and events have occurred which entitled it to contend that the defendant had no intention to honour the agreements dated 27.07.2005. In the aforesaid situation it was open for the plaintiff to incorporate the relief of specific performance along with the relief of permanent injunction that formed the subject matter of the above two suits. The foundation for the relief of permanent injunction claimed in the two suits furnished a complete RCA no. 9/15 Page no. 9 of 12 Manoj Kumar vs. Vijay Kumar Jindal & Ors.
cause of action to the plaintiff in CSs Nos. 831 and 833 to also sue for the relief of specific performance. Yes, the said relief was omitted and no leave in this regard was obtained or granted by the court.
(17). ....that Order 2 Rule 2 CPC seeks to avoid multiplicity of litigations on the same cause of action. If that is the true object of the law, on which we do not entertain any doubt, the same would not stand fully subserved by holding that the provisions of Order 2 Rule 2 CPC will apply only if the first suit is disposed of and not in a situation where the second suit has been filed during the pendency of the first suit. Rather, Order 2 Rule 2 CPC will apply to both the aforesaid situations."
R4 Sucha Singh Sodhi (Deceased) through LRs vs. Baldev Raj Walia & Anr., 208 (2014) Delhi Law Times 258 [para 28 (b), (c) & (e)]. While dealing with the provisions of order II rule 2 (2) and (3) CPC, it was held "28. (b) a later suit for such relief is contemplated only with the leave of the Court which leave naturally will be granted after due satisfaction and for good and sufficient reason;
(c) that the cardinal requirement for application of the provisions contained in Order 2 Rule 2 (2) & (3), CPC therefore is that the cause of action in the later suit must be the same as in the first suit;
(e) a reading of the plaint in the first suit for permanent injunction showed clear averments to the effect that the defendant had vide letter refused to perform the agreement and returned advance amount received; the plaintiff had also pleaded that the defendant was attempting to frustrate the Agreement between the parties; the said pleadings left no room for doubt that on the date of institution of the first suit for permanent injunction, it was the case of the plaintiff that the defendant had no intention to honour the Agreement to Sell; in the said situation, it was open for the plaintiff to incorporate the relief of specific performance along with the relief of permanent injunction and the foundation for the relief of permanent injunction claimed in the earlier suits furnished a complete cause of action to the plaintiff to also sue for the relief of specific performance; yet the said relief of specific performance was omitted and no leave in this regard was obtained or granted by the Court;
5.1 (Findings on appeal) - The rival contentions are considered, in view of features of the case, as set up by the appellant, the findings/ reasons given by the trial court in the impugned order, material on record, statutory provisions of law particularly section 41 of the Specific Relief Act, 1963 and the case law presented.
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Manoj Kumar vs. Vijay Kumar Jindal & Ors.
5.2 For the following reasons, the appeal is dismissed:
(i) It is matter of record that appellant had filed suit for permanent injunction
to restrain the respondents against dispossession of appellant. The relief of
permanent injunction sought is for perpetual time against respondents.
(ii) On plain reading of the plaint, it asserts that in April and May 2010 appellant had approached respondent nos. 1 to 4 to perform his obligation and also asked the respondents to perform their obligations, it infers that the appellant was intending to perform his contract to pay the balance amount, by asking the respondent no. 1 to 4 to perform their obligation to complete the sale transaction. Thus, when suit was filed for permanent injunction, the appellant was also required to seek relief of specific performance of contract but suit for such relief was not filed.
(iii) It is matter of record of para 24 of the plaint, that appellant is filing the suit for injunction and without other alternate relief. However, alternative relief means that a party is entitled for a single relief but out of possible two or more alternative reliefs. Whereas, suit for injunction is not alternative relief of specific performance but both the reliefs are main reliefs of suit for specific performance of contract to materialize the transaction and also for injunction/ restrain order.
Moreover, it is also matter of record that the appellant never pressed for nor there is leave of the court under Order II rule 2 (3) CPC to reserve right to appellant for filing further suit for other relief. The appellant has omitted relief of specific performance of contract.
(iv) On the plain reading of prayer/relief clause of injunction, the appellant is seeking perpetual injunction against the respondents for infinite time and without any rider that it would be till specific performance of contract is carried.
(v) Section 41 of the Specific Relief Act, 1963 enumerates principles when injunction may be refused and it cannot be granted; section 41(h) thereof lays down that when there equally efficacious relief can certainly be obtained by any other usual mode of proceedings except in case of breach of trust. As per appellant's own plea/ allegations, the equally efficacious relief was of specific performance of agreement but it was not claimed. Although, the trial court order is not specifically worded so, but it conveys so.
(vi) It would not give any benefit to the appellant that there was application u/s 151 CPC or other application, since simpliciter suit for injunction is not substitute of other substantive and equally efficacious remedy of specific performance of agreement.
5.3 In view of the above, appeal fails. The appeal is dismissed. Both
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Manoj Kumar vs. Vijay Kumar Jindal & Ors.
sides will bear their own costs. Decree sheet be drawn accordingly. 5.4 Copy of this judgment be notified to the trial with TCR and the trial court is directed to draw the decree forthwith in terms of section 2(2) of CPC, as similar directions were also given in another case that on the eve of rejection of plaint, a formal decree is required to be drawn. The appeal file is consigned to record room.
Announced in the open Court today (Inder Jeet Singh) on Thursday Magha 29, Saka 1937 Additional District Judge02 (South) Saket / New Delhi /18.02.2016 RCA no. 9/15 Page no. 12 of 12 Manoj Kumar vs. Vijay Kumar Jindal & Ors.
RCA No. 09/15
18.02.2016
Present : Proxy counsel for appellant/ plaintiff.
None for respondents/ defendants no. 1 to 4.
Proxy counsel for respondents/ defendants no. 5, 6 & 8. None for respondent no. 7.
It is judgment day today. Vide separate judgment announced today, the appeal is dismissed. However, both the parties will bear their own costs. Decree sheet be drawn accordingly.
Copy of this judgment be notified to the trial with TCR and the trial court is directed to draw the decree forthwith in terms of section 2(2) of CPC, as similar directions were also given in another case that on the eve of rejection of plaint, a formal decree is required to be drawn. The appeal file is consigned to record room.
(Inder Jeet Singh)
ADJ02 (South), Saket
M New Delhi /18.02.2016
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