Delhi District Court
Smt. Deepa Tomar vs Inder Paul Singh on 4 July, 2011
IN THE COURT OF SH. REETESH SINGH
ADDITIONAL DISTRICT JUDGE-01 (NORTH-EAST)
KARKARDOOMA COURTS, DELHI
CS No. 18/08
Date of Institution of Suit : 21.11.2008
Date on which Reserved for Order : 02.06.2011
Date of Judgment/Order : 04.07.2011
Case I.D. Number : 02402C0828412008
IN THE MATTER OF:-
Smt. Deepa Tomar,
W/o Sh. Jitender Singh,
D/o Sh. Satpaul Singh,
R/o E-32/5, Khajuri Khas,
Delhi-110094.
.......Plaintiff.
Versus
1.Inder Paul Singh,
S/o Sh. Sukhdev Singh,
R/o 7/60, Patti Chudharan Baraut,
Uttar Pradesh.
2.Smt. Kamlesh,
W/o Sh. Inder Pal Singh,
R/o 7/60, Patti Chaudharan Baraut,
Uttar Pradesh.
.......Defendants.
CS No. 18/08 Page No. 1 of 14
O R D E R:
1. By this order I shall decide issue no.1 framed by the ld. Predecessor of this court on 23.5.09 which reads as under:
"Whether the suit is within limitation? OPP
2. Facts necessary for the purpose of this order are that the plaintiff has filed this suit for recovery of dowry articles and stridhan against the defendants, who are her father in law and mother in law. It is stated in the plaint that the plaintiff was married with Jitender Singh, son of defendants on 6.5.01 at Shahdara Delhi according to Hindu rites and ceremonies. It is stated that for the marriage, father of the plaintiff spent an amount of about Rs.5 lakhs on dowry, jewelery, clothes and other items to the satisfaction of the defendants. It is stated that after the marriage, plaintiff entrusted all the items given to her by her father to the defendants including jewelery worth about Rs.1,00,000/- It is averred that both the defendants kept the said articles assuring the plaintiff that the same would be made available to her whenever she required them. It is stated that despite the said assurance defendant specifically refused to hand over the dowry articles to the plaintiff.
3. It is further averred in the plaint that the defendant no.1 and defendant no.2 harbored ill will on the plaintiff on the pretext of her bringing less dowry and it is alleged that the defendant no.1 even attempted to overpower the plaintiff with the intention to outrage her modesty. It is averred that the defendants further tortured CS No. 18/08 Page No. 2 of 14 the plaintiff demanding Rs.2 lakhs to set up the business of the husband of the plaintiff. It is averred that plaintiff could not bear the torture anymore and witnessing the same her husband Jitendra Singh left the plaintiff at her maternal home and did not return to his own house. It is stated that plaintiff is not aware of the whereabouts of her husband Jitender Singh.
4. It is further averred that in order to harass the plaintiff, defendant no.1 lodged a false complaint against the plaintiff and her father in PS Baraut being FIR No.198/03 u/s 364, 506 and 120B IPC. It is averred that the plaintiff on her part made a complaint against the defendants before the CAW Cell Seelampur Delhi with respect to the dowry demands. It is averred that on 11.11.03 a compromise was entered into between the plaintiff and the defendants and the defendants obtained signatures of the plaintiff and her father on a compromise deed. It is averred that the defendants orally told the father of the plaintiff that they would make payment of Rs.6 lakhs in lieu of return of dowry articles but the said assurance was not written in the compromise dated 11.11.03. it is averred that on 11.11.03 after signing of the compromise deed, defendant who was accompanied with 14 to 15 persons declined the request of the father of the plaintiff to pay Rs.6 Lakhs in lieu of the dowry articles and therefore the plaintiff filed a suit for declaration and permanent injunction against the defendant no.1 to restrain him from using the compromise deed dated 11.11.03.
CS No. 18/08 Page No. 3 of 14
5. It is further averred in the plaint that subsequently on 19.01.2004 defendant No. 1 made telephone call to the plaintiff asking her to make illicit relations with him and promised her that if she agreed to his overtures, he would call her husband at his residence. It is stated that the plaintiff once again approached the CAW Cell Seelampur for reopening of her complaint against the defendants as they had failed to make payment of rupees six lacs in lieu of dowry articles. It is averred that plaintiff thereafter served a notice dated 31.07.2008 on the defendants calling upon them to make payment of rupees six lacs or to return the dowry articles. Since they failed to comply with the terms of the notice, plaintiff filed the present suit seeking direction to the defendant no. 1 & 2 to return dowry articles or rupees six lacs alongwith the interest @ 18 % p.a. from the date of institution of the suit till receipt of the amount.
6. Joint written statement was filed by defendant no. 1 & 2. In which among others it was submitted that the suit of plaintiff was barred by limitation as well as under order 2 rule 2 C.P.C. It was contended by the defendants that plaintiff in league with her father was responsible for the murder of their son Jitender Singh who has been missing since 2003. It is stated that after the son of the defendants disappeared they received a written note stating that their son had been murdered. Upon verification it was found that the note was in the handwriting of the plaintiff and the defendants suspected that the plaintiff and her father had CS No. 18/08 Page No. 4 of 14 murdered their son and it was for this reason that they lodged an FIR in PS Baraut U.P against the plaintiff and defendant No. 1. It is averred that as a counter blast to the FIR lodged by the defendants plaintiff had filed a false and vexatious complaint against them in the CAW Cell Nanakpura, Delhi, alleging dowry harassment. It is submitted that with intervention of the parties well wishers a compromise was effected between the plaintiff and defendants before the CAW Cell on 11.11.2003 in which defendants agreed to withdraw their FIR lodged against the plaintiff and her father in PS Baraut and in return in the plaintiff would withdraw her complaint against the defendants with regard to dowry demands and recovery of dowry articles.
7. It is further submitted by the defendants that subsequently on 22.01.2004 the plaintiff filed suit no. 13/04 in the court of Ld. District Judge Tis Hazari courts for annulment of compromise deed dated 11.11.2003 and to restrain the defendants from using the said compromise deed before any competent authority or court. It is stated that the said suit was returned by the order dated 12.08.2004 by the court of Ld. ADJ, under the provision of O.7 R.10 C.P.C, to be filed before the appropriate court having pecuniary jurisdiction. It is stated that the present suit has been filed on 21.11.08 seeking recovery on the same cause of action on which the earlier suit was filed and therefore, suit is barred by limitation.
8. Before proceeding any further it will be worthwhile to note that the evidence CS No. 18/08 Page No. 5 of 14 of the plaintiff in this matter has been concluded. Plaintiff has examined herself as PW 1, her father Satpaul Singh as PW-2, Pramod Kumar as PW -3, Rishipal as PW 4 and Ashok Kumar as PW 5. At the stage of cross examination of PW 1 an application under order 7 rule 11 C.P.C was filed seeking rejection of the plaint on the ground of limitation. Since evidence of the plaintiff was in progress application of the plaintiff under order 7 Rule 11 C.P.C was kept pending till conclusion of plaintiff evidence. Reply to the said application was filed by the plaintiff and thereafter, the matter was fixed for argument on issue No. 1 with respect to limitation and application of defendants under order 7 rule 11 C.P.C.
9. Counsel for the defendants has argued that the admitted facts of the case are that on 11.11.03 a compromise was entered into between the plaintiff and defendants which was signed by the plaintiff, her father Satpaul Singh and the defendants. In the said compromise it was agreed between the parties that the defendants would withdraw their FIR registered in PS Baraut, U.P. and the plaintiff would withdraw her complaint against them in CAW Cell. Counsel for defendants has submitted that a per the said agreement the plaintiff had stated that she had no remaining claim against the defendants which would include the claim for return of dowry/stridhan articles. Counsel for defendants submit that subsequently on 22.1.04 the plaintiff had filed the suit no.13/04 in the court of Ld. ADJ Delhi praying for annulment of the compromise dated 11.11.03. He submits that in para CS No. 18/08 Page No. 6 of 14 6 of the said suit (Ex.PW2/D1) plaintiff had averred that at the time of compromise dated 11.11.03 the defendant had orally told the father of the plaintiff that he would make payment of Rs.6.5 lacs on or before 11.1.04 but the defendants failed to make payment of the said amount. Counsel for defendants submitted that on the basis of these averments the plaintiff has filed the said suit on 22.1.04 for declaration of annulment compromise dated 11.11.03. No other relief in the nature of recovery of promised amount of Rs.6.5 lacs was sought against the defendants. The said suit was returned to the plaintiff by the court of Ld. ADJ by order dated 12.8.04 on the ground of lack of pecuniary jurisdiction. After more than 4 years and 3 months thereafter the plaintiff has filed the present suit for recovery of Rs.6 lacs.
10. Counsel for defendants therefore submit that the suit would be barred on account limitation as well as under the provisions of order 2 rule 2 CPC. It is argued that in the suit no.13/04 plaintiff had clearly averred that defendant had agreed to make payment of Rs.6.5 lacs in lieu of dowry articles on or before 11.1.04 and therefore cause of action for recovery of the said amount accrued in favour of the plaintiff on 11.1.04 and therefore suit for recovery ought to have been filed within 3 years thereof. Counsel for defendants further argued that in suit no. 13/04 plaintiff had not claimed any relief with regard to recovery of Rs.6.5 lacs although cause of action for the same accrued as per the plaintiff on 11.1.04. As CS No. 18/08 Page No. 7 of 14 per Order II rule 2 CPC, plaintiff is required to claim the entire relief as available on a particular cause of action and the plaintiff not having claimed the relief for recovery in suit no.13/04, the present suit for recovery would be barred under Order II rule 2 CPC.
11. Counsel for plaintiff on the other hand has argued that as per terms of the agreement dated 11.11.03 (Ex.PW3/1) the defendants were obliged to withdraw their FIR lodged against the plaintiff and her father in PS Baraut and since the defendant failed to do so, the cause of action for the plaintiff to file a suit for recovery of the promised amount of Rs.6 lacs in lieu of dowry articles would remain subsisting. Counsel for plaintiff argued that the cause of action for filing suit no.13/04 was non-compliance of the terms of the agreement dated 11.11.03 on the part of the defendants i.e. withdrawal of their criminal case. He submitted that on that date no cause of action had accrued for seeking recovery of dowry articles. He submitted that even otherwise till such time the defendants remained in possession of the dowry articles of the plaintiff the cause of action would remain subsisting in favour of the plaintiff.
12. Heard the submissions of the parties. Perused the record.
13. Facts relating to the marriage of the parties on 6.5.01, entering into an agreement dated 11.11.03, filing of the suit by the plaintiff on 22.1.04, return of the said suit on 12.8.04 for lack of pecuniary jurisdiction and filing of the present suit CS No. 18/08 Page No. 8 of 14 on 21.11.08 are not in dispute. Issue before this court is whether the suit filed by the plaintiff is barred by limitation as well as under the provisions of Order II Rule 2 CPC.
14. PW1, plaintiff in her evidence by way of affidavit has stated in para 15 thereof that on 11.11.03 a compromise was entered into between the plaintiff and defendant no.1 in terms of which defendant no.1 agreed to withdraw his complaint against the plaintiff and her father regarding kidnapping and abduction of her son and plaintiff on her part agreed to withdraw her case before the CAW Cell. She has further stated on oath that defendants were orally asked to make payment of Rs.6 lacs but immediately after signing of the agreement dated 11.11.03 the defendant violated the same and plaintiff filed her first suit on 22.1.04 for annulment of compromise dated 11.11.03. In her cross examination PW1 admitted the terms of compromise on 11.11.03 and that on 12.11.03 she and her father had made the statement before the IO of the CAW Cell that they did not wish to pursue her complaint. She has also stated that she filed a civil suit for annulment of the compromise dated 11.11.03.
15. PW2 Sat Paul Singh father of the plaintiff also lead his evidence by way of affidavit. In his cross examination he too admitted the compromise dated 11.11.03 as well as the plaint of suit no.13/04 which was exhibited as Ex.PW2/D1. He admitted that the said suit was returned on 12.8.04. He also admitted to have CS No. 18/08 Page No. 9 of 14 made statement on 11.11.03 before CAW Cell stating that the matter was compromised.
16. PW3 Pramod Kumar in para 15 of his evidence by way of affidavit has stated that father of plaintiff met him after 10 to 15 days of the agreement dated 11.03 stating among others that the defendants did not pay Rs.5 lacs to the plaintiff as promised. PW3 proved the compromise deed dated 11.11.03 as PW3/1.
17. From the evidence lead by the plaintiff it is clear that the parties had entered into a compromise dated 11.11.03. It is also clear that on 22.1.09 plaintiff had filed a suit for annulment of an agreement dated 11.11.03. Plaint of suit no.13/04 has been proved as Ex.PW2/D-1. Para 6 of the said complaint reads as under:
"6. That on 11.11.2003 the defendant accompanied 14-15 persons arrived at Delhi with a written compromise deed and the accompanied persons of the defendant got signatures of the plaintiff and her father upon the compromise deed in token of acceptance and they orally told her father of the plaintiff to make the payment of Rs.6.5 lacs till 11.1.04, but the defendant failed to make the payment on account of compensation and dowry articles of the plaintiff. The father of the plaintiff contacted to the witnesses of the compromise deed for compelling the defendant to make the payment which has not been reduced into writing in the compromise deed dated 11.11.2003. The accompanied persons of the defendant were under the influence of the defendant and they declined the request of the father of the plaintiff as such that defendant and his accompanied persons committed fraud with the plaintiff and her father and obtained signatures of the plaintiff and father of the plaintiff upon the compromise deed dated 11.11.2003 by way of misrepresentation."
(Emphasis supplied) CS No. 18/08 Page No. 10 of 14
18. From a perusal of the para 6 of the plaint of the suit no.13/04 it is clear that as per the plaintiff herself the defendant no.1 had stated that he would pay Rs.6.5 lacs to the plaintiff on or before 11.1.04 but the defendant no.1 did not pay the amount as promised. The relief claimed in the plaint of suit no.13/04 reads as under:
"a) to pass a decree of declaration by way of annulment of compromise dated 11.11.2003, in favour of plaintiff and against the defendant: and
b) to restrain the defendant, his family members and associates from using the compromise deed dated 11.11.2003 before any competent authority of court of law, by way of passing a decree of permanent injunction in favour of the plaintiff and against the defendant: and
c) cost of the suit may please be awarded in favour of the plaintiff and against the defendant."
19. From a consideration of the reliefs claimed in the suit no.13/04 it is also apparent that plaintiff has not sought any decree for recovery of dowry articles / stridhan from the defendants in the said suit.
20. As per articles 68 to 71 of the Indian Limitation Act 1963 the limitation for filing the suit for return of articles wrongfully retained is 3 years from the date on which cause of action accrued. The same read as under:-
PART VI--Suits Relating To Movable Property Description of suit Period of limitation Time from which period begins to run CS No. 18/08 Page No. 11 of 14
68. For specific movable property lost, or acquired by theft, or dishonest misappropriation or conversion. Three Years When the person having the right to the possession of the property first learns in whose possession it is.
69. For other specific movable property. --do-- When the property is wrongfully taken.
70. To recover movable property deposited or pawned from a depositary or pawnee.
--do-- The date of refusal after
demand.
71. To recover movable property deposited
or pawned, and afterwards bought from
the depositary or pawnee for a
valuable consideration.
Three years When the sale be-
comes known to the plaintiff.
21. In the opinion of this court as per the averments made in para 6 of suit no.
13/04 cause of action to file the suit for recovery of the dowry articles arose in favour of the plaintiff on 11.11.04 when the defendant despite of assurance did not pay the said amount as promised. Cause of action having accrued in favour of the plaintiff on 11.1.04, suit for recovery of dowry articles ought to have been filed within three years thereof, i.e. on or before 10.1.07. Present suit admittedly has been filed on 21.11.08. Hence suit of the plaintiff for recovery of dowry articles is clearly barred by the law of limitation.
22. That apart from the above the suit of the plaintiff would also be barred under CS No. 18/08 Page No. 12 of 14 Order II Rule 2 CPC. The same reads as under:-
"2. Suit to include the whole claim.--(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim.--Where a plaintiff omits to sue in re-
spect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs.--A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation.--For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of ac- tion."
(Emphasis supplied)
23. The intendment of order 2 rule 2 CPC is that the plaintiff should claim the entire relief which is available to him on a particular cause of action. The plaintiff had filed a suit on 22.1.04 only for declaration that the agreement dated 11.11.03 be annulled. Although cause of action had also accrued in favour of the plaintiff for recovery of dowry articles on 11.11.2004, no relief with regard to the same was claimed by her in suit no.13/04. In the opinion of this court the suit of the plaintiff is also barred under Order 2 rule 2 CPC as it is no longer available for the plaintiff to claim relief for recovery of the said articles as she had failed to do so in her earlier CS No. 18/08 Page No. 13 of 14 suit filed on 22.1.04.
24. Accordingly issue no.1 is decided in favour of the defendants and against the plaintiff. It is held that the suit of the plaintiff is barred by the limitation. It is also held that the suit of the plaintiff is barred under Order II rule 2 CPC. Suit of the plaintiff is dismissed. Application of the plaintiff u/o 7 rule 11 CPC is disposed of accordingly.
25. File be consigned to the record room.
Dictated to the Steno and Announced in the Open Court today i.e. 04.07.2011 (REETESH SINGH) Addl. Distt. Judge-01 (NE) Karkardooma Courts, Delhi CS No. 18/08 Page No. 14 of 14 CS No. 18/08 Page No. 15 of 14