Delhi High Court
Neeta Sarda & Ors vs Aditya Sarda & Ors on 5 September, 2018
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 5th September, 2018.
+ RFA No.461/2016
NEETA SARDA & ORS ..... Appellants
Through: Mr. Ravi Gupta, Sr. Adv. with Mr.
Ashok Jain, Mr. Gaurav Kejriwal,
Mr. Aniket Bhattacharyya and Mr.
Arjun Aggarwal, Advs.
Mr. Gaurav Kejriwal, Adv. for
Appellant No.3.
versus
ADITYA SARDA & ORS ..... Respondents
Through: Mr. Sachin Datta, Sr. Adv. with Mr.
Shakil Ahmed, Mr. Rajat Sehgal, Mr.
Vikas Mehta, Mr. Apoorv Khatar
and Ms. Rijuta Mohanty, Advs. for
R-1,2&3.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) impugns the order [dated 25th May, 2016 in CS No.390/15 (Case ID No.02406C0458992010) of the Court of the Additional District Judge-05 (South)] in a suit filed by the four appellants and respondent No.7 against the respondents No.1 to 6/defendants.
2. The appeal came up first before this Court on 19 th July, 2016 when the counsel for the respondents no.1,2&3 appeared on caveat. Though various orders have been passed in this appeal from time to time but it is deemed appropriate to mention the same in seriatim. Suffice it is to state that the appeal was admitted for hearing on 12th February, 2018. None RFA No.461/2016 Page 1 of 27 appears for the respondents no.4 to 6. However, the senior counsel for the appellants/plaintiffs and the senior counsel for the respondents/defendants no.1,2&3 states that the counsel for respondents no.4 to 6, have not been participating at any stage of the proceedings from which this appeal arises.
3. The senior counsel for the appellants/plaintiffs and the senior counsel for the respondents/defendants no.1,2&3 have been heard.
4. The appellants/plaintiffs instituted the suit from which this appeal arises, pleading (i) that the property no.243-244 ad measuring 2957 sq. yds., Westend Marg, Saidulajaib, Tehsil Mehrauli, New Delhi was the joint property of the parties to the suit; (ii) that the appellants No.1&3/plaintiffs and the respondents/defendants no.1,3,4&5 only were however in possession of the property; (iii) that the property was being used by the parties for residential purposes; (iv) that the various disputes amongst the family members were referred to an arbitrator who rendered an Arbitral Award dated 18th July, 2009; (v) that under the said award the subject property was allocated to appellant No.2/plaintiff and respondent No.2/defendant and their respective families in such a way that both the said parties, along with their families had 50% undivided share each in the property; (vi) that a limited part of the Arbitral Award had however been challenged by the respondent/defendant no.2, by filing an application under Section 34 of the Arbitration and Conciliation Act, 1996 and which proceedings were pending; however there was no challenge to the Arbitral Award to the extent that it related to the subject property; (vii) that even in the absence of the Award, the appellants no.1&2/plaintiffs of the one part, the respondents/defendants no.1 to 3 of the second part and RFA No.461/2016 Page 2 of 27 respondents/defendants No.4 to 6 of the third part, had 1/3rd share each in the property; (viii) that the property was in the joint control and possession of the parties; (ix) that the construction of the property is such that all the doors of all the rooms open into other rooms and are interconnected; (x) that only members of the family can stay in the property and the presence of any outsider would cause interference; (xi) that there was no demarcation of areas between the parties to the suit; (xii) that while the appellants/plaintiffs had been using four rooms on the first floor of the property, the respondents/defendants no.1,2&3 were using four rooms on the ground floor of the property and all other portions were being used in common;
(xiii) that there were other litigations also between the family members;
(xiv) that the respondents/defendants were threatening to convert the property to commercial use and which would interfere with the residence of the appellants/plaintiffs in the property; and, (xv) that the respondents/defendants were also threatening to sell the suit.
Accordingly, the following reliefs were claimed in the suit: -
(i) permanent injunction restraining the respondents/defendants from inducting and/or permitting any outsider or any third party who are not the family members of Sarda brothers, to come inside the property and to occupy any portion of the property and to indulge in acts causing nuisance to the other family members; and,
(ii) permanent injunction restraining the respondents/defendants from parting with possession of the property and/or creating any third party interest in the property and/or from changing RFA No.461/2016 Page 3 of 27 the nature and use of the property from residential to non-
residential or commercial.
5. The plaint in the suit aforesaid was accompanied with an application for interim relief claiming temporary injunction on the same lines as claimed permanently in the suit.
6. Though the respondents/defendants no.1,2&3 contested the suit by filing a written statement but the need to refer to the contents thereof is not felt. The learned Additional District Judge, before whom the suit was pending, vide order dated 10th March, 2011 allowed the application of the appellants/plaintiffs for interim relief and restrained "the defendants, their men, agents, associates from inducting or permitting any stranger, outsider or third person who are not family members of Sarda Brother to come inside the property or occupy or stay therein or to indulge any such act which may cause nuisance or annoyance to the family members and they are also further restrained from selling, assigning, transferring or parting with the property wholly or partially or from changing the nature of the suit property to commercial till the disposal of suit. However, it would not prevent the defendants or their family members from using or enjoying the property for residential purposes."
7. Vide the same order dated 10th March, 2011, the following issues were also framed in the suit:-
"1. Whether the suit is liable to be dismissed because of the parties are co-owner of the suit property? OPD/1-3
2. Whether the suit is barred under section 38 and 41 of the Specific Relief Act, 1963? OPD/1-3 RFA No.461/2016 Page 4 of 27
3. Whether the suit is based on misrepresentation and concealment of facts, plaintiffs filed the suit without clean hands, if so, its consequences? OPD/1-3
4. Whether the plaintiffs, particularly plaintiff no.1, is deriving benefit of her own wrongs? OPD/1-3
5. Whether the plaintiffs are entitled for decree of permanent injunction as prayed in clause 33(b) of the plaint? OPP
6. Whether the plaintiff is entitled for decree of permanent injunction in prayed in clause 33(c) of the plaint? OPP
7. Relief."
8. The respondents/defendants no.1,2&3 preferred First Appeal, being FAO No.233/2011 against the aforesaid interim order and on 26 th May, 2011, the following order was passed in the said appeal:-
"Certain proposals are being discussed so that each of the party can enjoy their portions of the property without in any manner limiting or hindering the other persons to use his portion of the property. I am sure that the learned senior counsels will advise their clients and a modality will be drawn up which is mutually acceptable.
List for consideration on 1st June, 2011. Counsels for the parties agree that they will take an adjournment in the trial court on the next date of hearing which is stated to be 30.5.2011".
9. Thereafter, on 27th May, 2011 the following order was passed in the appeal aforesaid:-
"Counsel for the parties state that they will give an agreed name of the Architect to suggest the division of user/occupation/enjoyment of the suit premises.RFA No.461/2016 Page 5 of 27
List for hearing on 8th August, 2011."
10. On 8th August, 2011, the following order was passed in the appeal aforesaid:-
"1. It is agreed between the counsel for the parties that M/s. Kothari Associates (Pvt.) Ltd., G-65, Connaught Place, Above J and K Bank, New Delhi - 110 001 (Phone Nos.23325040 and 23324628) are appointed as Architects to suggest a mode/modality so that each party can enjoy his respective share without hindrance by other party. Counsel for the parties agree that they will bear the expenses of the Architect equally. The Architect shall prepare his report within a period of 3 months from today. The Architect will hear the appropriate representations which would be made by the respective parties or their representatives for deciding the enjoyment and use of the property. Counsel for the parties also agree that on the whole, the report of the Architect would be acceptable to them, except in case of grave prejudice.
2. List for further proceedings on 30.11.2011, the date already fixed.
3. Counsel for the parties also agree that they will seek adjournment in the suit pending before the Trial Court.
4. Dasti to counsel for the parties."
11. On 15th April, 2014, the appeal aforesaid was disposed of vide the following order, after reproducing the order dated 8th August, 2011:-
"2. This appeal actually stands compromised in terms of the order dated 8.8.2011 except a common architect has to be appointed in terms of the order dated 8.8.2011 because the architect which was appointed in terms of the order dated 8.8.2011 has not RFA No.461/2016 Page 6 of 27 filed any report.
3. Since the main suit will be pending before the trial court, let further proceedings with respect to appointment of architect, and working out of modalities in terms of the order dated 8.8.2011 take place before the trial court.
4. Interim orders passed by this Court will continue for the purpose of ensuring further steps to be taken in terms of the order dated 8.8.2011 passed by this Court. It is agreed that though the interim order is continued, parties will ensure that no unnecessary nuisance or disturbance is caused to the other valid residents/occupants of the property in question.
5. It is also agreed that none of the parties will take unnecessary adjournments before the trial court for implementation of the order dated 8.8.2011, and which unnecessary adjournments can be penalized by the trial court by imposing heavy costs on the parties seeking unnecessary adjournments.
6. Parties to appear before the District and Sessions Judge, Saket Courts, Delhi on 19.5.2014 and the District and Sessions Judge will mark the suit for disposal to a competent court in accordance with law and for acting in accordance with the order dated 8.8.2011. Appeal is disposed of accordingly."
12. Thereafter, before the Suit Court, the following happened:-
(i) on 2nd June, 2014, the counsel for the respondents/defendants no.1,2&3 stated that the respondents/defendants no.1,2&3 were finalising the name of the architect and would submit the same to the plaintiffs within two to three days thereof;
(ii) the parties/counsels could not arrive at a consensus as to the architect and vide order dated 4th August, 2014, the learned RFA No.461/2016 Page 7 of 27 Additional District Judge appointed one Mr. Balbir Verma as Architect, to prepare the report in terms of the order dated 8 th August, 2011 supra in appeal;
(iii) on 22nd December, 2014, it was informed that Mr. Balbir Verma was not residing at the address given;
(iv) on 3rd January, 2015, the counsel for the appellants/plaintiffs proposed the name of one Mr. Jai Parkash Gupta, Architect but the same was not acceptable to the counsel for the respondents/defendants no.1,2&3;
(v) on 4th April, 2015, the counsel for the respondents/defendants no.1,2&3 stated that no settlement was possible with the appellants/plaintiffs and an architect be appointed by the Court;
(vi) on 10th September, 2015, the Suit Court appointed Mr. Sumit Maity, Architect to submit report in terms of order dated 8 th August, 2011 supra in the appeal;
(vii) on 1st October, 2015, the appellants/plaintiffs objected to the appointment of Mr. Sumit Maity and again attempts to appoint an architect commenced;
(viii) on 2nd December, 2015, the Court recorded that despite best efforts of the Court the parties could not come at a consensus as to the name of the architect; however the parties had agreed that the appellants/plaintiffs will appoint one architect and the respondents/defendants no.1,2&3 would appoint another RFA No.461/2016 Page 8 of 27 architect and the two architects would mutually select the third architect and the panel of architects would then submit a common, independent or majority report in terms of order dated 8th August, 2011;
(ix) on 7th January, 2016, it was reported that the architects of the parties could not arrive at a consensus as to the third architect;
(x) on 10th February, 2016, the Court, of its own, appointed Mr. M.D. Bhudhiraja, Architect but with the consent of the parties and if he was not available, then Mr. S.M. Soni, Architect and if he was also not available, then Mr. Om Prakash, Architect as the third architect; and,
(xi) in the order dated 10th February, 2016, the appointment was recorded as for 'partition' of the property; in the subsequent order dated 9th March, 2016, at the instance of appellants / plaintiffs and with the consent of respondents / defendants no.1 to 3, it was clarified that the appointment was not to suggest mode of partition of the property but to suggest mode of enjoyment of respective shares of the parties, without hindrance by the other party.
13. The senior counsel for the appellants/plaintiffs and the senior counsel for the respondents/defendants no.1,2&3, on enquiry state that all the three architects i.e. the architect of the appellants/plaintiffs, the architect of the respondents/defendants no.1,2&3 and the third architect Mr. S.M. Soni gave separate reports and there is no unanimity between the three reports. The senior counsel for the respondents/defendants no.1,2&3 further states, RFA No.461/2016 Page 9 of 27 that while the architect of the respondents/defendants no.1,2&3 made alternate suggestions in his report, the architect of the appellants/plaintiffs did not make any suggestions and merely listed the requirements of the appellants/plaintiffs. On enquiry, it is stated that the report of Mr. S.M. Soni, the third architect, is not tallying with the other two reports except with one of the options in the report of the respondents/defendants no.1,2&3. The senior counsel for the appellants/plaintiffs however states that Mr. S.M. Soni has accepted the report of the architect of the respondents/defendants no.1,2&3 in totality.
14. The appellants/plaintiffs then filed an application under Section 151 of the CPC before the Additional District Judge, objecting to the report of Mr. S.M. Soni.
15. The learned Additional District Judge, vide the impugned order dated 25th May, 2016, has dismissed the application aforesaid of the appellants/plaintiffs objecting to the report of Mr. S.M. Soni and disposed of the suit, reasoning (i) that the report of Mr. S.M. Soni was in accordance with the consent order dated 10th February, 2016; (ii) that Mr. S.M. Soni had called both the parties for presenting their opinions for use of the property; (iii) that Mr. S.M. Soni had reported that his suggestions are based on 'as is where is' basis, wherein no major external additions are to be made; (iv) that Mr. S.M. Soni had suggested construction of a different entrance lobby to the separate portions occupied by the parties and implementation of the report of Mr. S.M. Soni would ensure total privacy without any hindrance to peaceful living on the ground and first floor of the property; (v) that some additions/alterations will have to be carried out for RFA No.461/2016 Page 10 of 27 the said purpose; (vi) that though it was the objection of the appellants/plaintiffs that the changes could not be carried out without obtaining sanction from the Municipal Corporation of Delhi (MCD) but the appellants/plaintiffs had themselves suggested changes, which also required sanction from the authorities; and, (vii) that the appellants/plaintiffs had been unable to come up with any alternate workable modality. Thus, the report of Mr. S.M. Soni was accepted and ordered to be implemented and the suit disposed of.
16. I may notice that no decree sheet was prepared.
17. The prayer in this appeal is for setting aside of the impugned order dated 25th May, 2016 and for a direction to the Suit Court to dispose of the suit on merits, after taking evidence of both the parties.
18. Vide order dated 22nd August, 2016 in this appeal, the parties were referred to mediation. Mediation however remained unsuccessful. On 31 st October, 2017, on the application of the appellants/plaintiffs for stay of the impugned order, the counsel for the respondents/defendants made a statement that the respondents/defendants shall not insist on the personal appearance of appellant No.1 before the Executing Court. Vide subsequent order dated 15th December, 2017, the execution of the impugned order was stayed. Vide order dated 29th January, 2018, a commission was issued to visit the premises and to report on the status and condition of the property, the number of rooms on each floor of the property, whether anyone was residing in the property and who is in possession of which portions of the property. On 12th February, 2018, the appeal was admitted for hearing and the stay granted of execution vacated. It was however directed that neither party will induct any third party into the property or allow any person RFA No.461/2016 Page 11 of 27 except their family members to occupy or use the portions of the property in their occupation as reported by the Commissioner. It was further noted that the respondents/defendants were in full control and possession of the ground floor of the property and the keys of the first floor were directed to be handed over by the respondents/defendants to the appellants/plaintiffs.
19. The appellants/plaintiffs preferred Special Leave Petition (C) No.6762/2018 against the order dated 12th February, 2018 in this appeal. Though vide order dated 26th March, 2018 of the Supreme Court, the SLP was dismissed but this Court was requested to dispose of this appeal expeditiously.
20. Vide order dated 8th May, 2018 in this appeal, after hearing the counsels for some time, it was ordered that the report of Mr. S.M. Soni, Architect, in terms whereof the suit from which this appeal arises was disposed of vide the impugned order, be perused by the Municipal Authorities to confirm if the alterations in the property suggested in the said report would be permissible as per the Bye-Laws and whether the additions and alterations required to be carried out as per the report could be carried out and if so, on what terms. Notice was accordingly issued to the standing counsel for South Delhi Municipal Corporation (SDMC). On the next date i.e. 28th May, 2018, on perusal of the affidavit on behalf of SDMC, it was found that the stand of the SDMC was that as per the prevailing Bye-Laws, the alterations/additions suggested in the report of Mr. S.M. Soni, Architect were not permissible as the property was located in an unauthorised colony.
21. I have at the outset enquired, whether any proceedings for partition of the subject property are pending.
22. While the senior counsel for the appellants/plaintiffs states that RFA No.461/2016 Page 12 of 27 partition of the subject property has also been claimed in a suit amongst the members of the family to which the parties belong, pending in the Calcutta High Court, the senior counsel for the respondents/defendants no.1,2&3 stated that the subject property was not subject matter of the suit for partition in Calcutta. However, as an afterthought, the senior counsel for the respondents/defendants no.1,2&3 states that if the senior counsel for the appellants/plaintiffs is stating that the subject property is also subject matter of the suit for partition in Calcutta, then it must be correct.
23. Being of the prima facie opinion (i) that the order dated 8th August, 2011 reproduced above of this Court in FAO No.233/2011 does not contain a compromise within the meaning of Order XXIII Rule 3 of the CPC of all the disputes subject matter of the present suit; (ii) that compromise in the absence of the respondents/defendants no.4 to 7 otherwise also was not possible; (iii) that the order disposing of the suit is in the nature of partitioning the property, without following the procedure prescribed in law relating to suits for partition and without complying with the provisions of the Partition Act, 1893; (iv) that the compromise, even if any, and the impugned order do not satisfy the requirement under Order XXIII Rule 3 CPC of being lawful and requires additions / alterations not permitted by law to be carried out in the property, the senior counsel for the respondents/defendants no.1,2&3 has been called upon first to argue, why the appeal should not be allowed and the impugned order set aside.
24. The senior counsel for the respondents / defendants no.1 to 3 argues, that (a) it is possible in law to compromise the disputes, between the parties, even outside the scope of the suit; (b) the aspect of illegality of the RFA No.461/2016 Page 13 of 27 compromise cannot be gone into at this stage and has to be the subject matter of execution; (c) it has never been the plea of appellants / plaintiffs that the compromise is illegal or for any other reason not binding on the appellants / plaintiffs; (d) even if Mr. S.M. Soni, Architect has in his report suggested additions / alterations not permitted by law to be made in the property, this Court in terms of the order dated 8th August, 2011 aforesaid, is required to carry out the changes therein and serve the purpose of carving out portions of the property which the parties can use without hinderance from each other; for instance, the boundary walls, suggested in the report of Mr. S.M. Soni, Architect to be constructed in the open areas of the property, can be substituted by hedges and other modifications required to be carried out through the medium of brick and mortar can be carried out by substituting the same with glass or wooden partitions; (e) the order dated 8 th August, 2011 has attained finality as no challenge was made thereto by any of the parties and this Court cannot, in appeal against the final order in the suit in terms of the order dated 8th August, 2011, pass any other order except an order in terms of the order dated 8th August, 2011; at best the modalities are required to be changed by this Court by amendment of the report of Mr. S.M. Soni, Architect; (f) the parties, even after the order dated 8th August, 2011, have at various places repeatedly reaffirmed the Agreement dated 8th August, 2011; and, (g) the respondents / defendants no.1 to 3, inspite of having the ground floor of the property for the last ten years, are residing in the tenanted property at a huge financial loss to themselves owing to there being no exclusivity and privacy of the said ground floor from the first floor of the property in occupation of the appellants / plaintiffs.
RFA No.461/2016 Page 14 of 2725. Per contra, the senior counsel for the appellants / plaintiffs (i) draws attention to the prayer clause in the plaint, to show that only a decree for permanent injunction restraining the respondents / defendants from selling, assigning, transferring, parting with possession and/or creating any third party interest in the property and from changing the nature and user of the property was claimed; (ii) that FAO No.233/2011 was preferred by the respondents / defendants no.1 to 3 against the order of interim injunction in the said suit; (iii) that this Court, vide order dated 15th April, 2014, while disposing of the said appeal has continued the said interim order and further ordered that the parties will ensure that no unnecessary nuisance or disturbance is caused to other valid residents / occupants of the property;
(iv) that in terms of the order dated 15th April, 2014 disposing of FAO No.233/2011, a common architect was to be appointed by the parties before the Suit Court; (v) that the parties could not arrive at a consensus before the Suit Court as to the common architect; (vi) that in this appeal also, vide order dated 12th February, 2018, both the parties have been restrained from causing any hindrance or nuisance in the occupation and possession of the other parties and both the parties have been restrained from inducting any third party into the said property or from allowing any person except their family members to occupy and use the portion of the suit property in their respective occupation; and, (vii) that in fact the suit can be disposed of in terms of the said orders, by setting aside the impugned order.
26. The senior counsel for the respondents / defendants no.1 to 3, by way of rejoinder contends that (a) the appellants / plaintiffs also in their plaint in para no.9 admitted that the arbitral award, insofar as with respect to the RFA No.461/2016 Page 15 of 27 subject property, has not been challenged; (b) as per the said arbitral award, the subject property has fallen to the share of the appellants / plaintiffs and respondents / defendants No.1 to 3 only and the respondents / defendants no.4 to 7 have no share therein; (c) under the arbitral award, there is no demarcation of portions of the property between the appellants / plaintiffs and the respondents / defendants no.1 to 3; and, (d) the respondents / defendants no.1 to 3, inspite of being in occupation of the ground floor of the property, are unable to shift therein owing to the interim order which prohibits the parties from allowing any outsider into the premises; owing to the said order, even the tutor of the children in the family of respondents / defendants no.1 to 3 cannot enter the property.
27. In terms of order dated 2nd December, 2015 in the suit, as noted above, the parties agreed that the appellants / plaintiffs will appoint one architect and the respondents / defendants no.1 to 3 would appoint another architect and the two architects would mutually select the third architect and the said panel of architects would then report in terms of order dated 8 th August, 2011. However ultimately, vide order dated 10th February, 2016 in the suit, as also noted above, the third architect was appointed by the Court. I have thus again enquired from the counsels, whether the said panel of three architects has given a unanimous report in terms of which the suit has been disposed of vide the impugned order.
28. While the senior counsel for the appellants / plaintiffs states that all the three architects have given separate reports each at variance with the other, the senior counsel for the respondents / defendants no.1 to 3, though does not dispute that the three architects gave separate reports, but states RFA No.461/2016 Page 16 of 27 that while the architect nominated by the respondents / defendants no.1 to 3 gave alternate proposals / suggestions in terms of order dated 8 th August, 2011 supra, the architect nominated by the appellants / plaintiffs did not give any suggestion and merely reiterated the purpose required to be served and the third architect Mr. S.M. Soni has accepted one of the alternative suggestions made in the report of the nominee architect of the respondents / defendants no.1 to 3, though not in exact terms.
29. The senior counsel for the respondents / defendants no.1 to 3, in his arguments, disputes the affidavit on behalf of SDMC to the effect that additions / alternations as suggested in the report of Sh. S.M. Soni, Architect cannot be carried out under the law. I have thus enquired from the senior counsel for the appellants / plaintiffs, under which law are the same permitted to be carried out, without seeking any permissions / sanctions.
30. The senior counsel for the respondents / defendants no.1 to 3 vaguely refers to the municipal laws.
31. Attention of the senior counsel for the respondents / defendants no.1 to 3 is however invited to Bye-law 2.14 of the Unified Building Bye Laws for Delhi, 2016 prescribing the works which can be carried out without seeking building permit and it has been enquired from the senior counsel for the respondents / defendants no.1 to 3, how any of the suggestions in the report of Mr. S.M. Soni, Architect fall within the said bye-law.
32. No answer has been forthcoming.
33. In fact, since it is not in dispute that the subject property is situated in an unauthorized colony, the same will be governed by the National Capital RFA No.461/2016 Page 17 of 27 Territory of Delhi Laws (Special Provisions) Second Act, 2011 under Section 3(2) of which, status quo as on 1st January, 2006 is required to be maintained with respect to properties in an unauthorised colony.
34. The senior counsel for the respondents / defendants no.1 to 3 does not controvert.
35. The senior counsel for the respondents / defendants no.1 to 3, during the hearing, has also argued that the appellants / plaintiffs were in fact required to prefer a separate appeal, i.e. a FAO, against the order of dismissal of objections to the report of Mr. S.M. Soni, Architect preferred before the Suit Court and having not preferred the said appeal, cannot be heard to contend before this Court that the changes required to be carried out are contrary to the law.
36. Besides the fact that the application containing objections has been dismissed vide the same order by which the suit has been disposed of and not by a separate order, I have enquired from the senior counsel for the respondents / defendants no.1 to 3, under which law a separate appeal is required to be filed.
37. No answer is forthcoming.
38. Attention of the senior counsel for the respondents no.1 to 3 is invited to Section 105 of the CPC, permitting other orders to be challenged in appeal against the final order.
39. Faced therewith, the senior counsel for the respondents / defendants no.1 to 3 has not pressed the said argument.
RFA No.461/2016 Page 18 of 2740. No merit is found in any of the contentions of the senior counsel for the respondents / defendants no.1 to 3 for the following reasons:
A. The order dated 8th August, 2011 in FAO No.233/2011 records the agreement of the counsels for the parties (i) that M/s Kothari Associates (Pvt.) Ltd. be appointed as architects to suggest a mode / modality so that each party can enjoy his/her respective share without hindrance by other parties; (ii) that the parties will bear the expenses of the architect equally; (iii) M/s Kothari Associates (Pvt.) Ltd., Architects will prepare a report after hearing the representations of the parties for deciding the enjoyment and use of the property; and,
(iv) that on the whole, the report of architect would be acceptable to the parties, except in case of grave prejudice. It would thus be seen that the report to be prepared by M/s Kothari Associates (Pvt.) Ltd.
was not made absolutely binding on the parties. It was not binding on the parties in case of grave prejudice.
B. Though Section 20 of the Evidence Act, 1872 constitutes as admissions, statements made by persons to whom a party to the suit have expressly referred for information in reference to a matter in dispute but since the report of M/s Kothari Associates (Pvt.) Ltd. was permitted to be not acceptable by the parties in the case of grave prejudice, in the event of any of the parties claiming the report to be causing grave prejudice to him / her, the statement of M/s Kothari Associates (Pvt.) Ltd. contained in the report could not constitute an admission of the party claiming prejudice.
C. The compromise was thus not absolute but contingent upon the RFA No.461/2016 Page 19 of 27 report of M/s Kothari Associates (Pvt.) Ltd. not causing grave prejudice to either of the parties. Such a contingent compromise does not fall within Order XXIII Rule 3 of the CPC (See Jaywantraj Punamiya Vs. H. Choksi & Co. Pvt. Ltd. (1997) 10 SCC 193).
D. That the compromise, even otherwise is not in accordance with the Order XXIII Rule 3 of the CPC and is not contained in any writing signed by the parties and is merely contained in the order dated 8th August, 2011 supra.
E. In any case, M/s Kothari Associates (Pvt.) Ltd., whose report was agreed to be acceptable except in grave prejudice, did not submit any report. The compromise thus failed.
F. However, this Court, vide order dated 15th April, 2014, disposed of FAO No.233/2011 observing "this appeal actually stands compromised in terms of the order dated 8th August, 2011" but further recorded that "a common architect has to be appointed in terms of order dated 8th August, 2011 because the architect who was appointed in terms of the order dated 8 th August, 2011 has not filed any report." However, the order dated 8th August, 2011 contained an agreement to appoint M/s Kothari Associates (Pvt.) Ltd. only and not any architect and further contained an agreement to be bound by the report of M/s Kothari Associates (Pvt.) Ltd. and not of any other architect. The order dated 15th April, 2014 does not record a fresh agreement of the parties or their counsels to appointment of any other common architect.
G. The order dated 15th April, 2014 disposing of FAO RFA No.461/2016 Page 20 of 27 No.233/2011 directs that "further proceedings with respect to appointment of architect, and working out of modalities in terms of order dated 8th August, 2011 take place before the trial court" and further directs the Suit Court 'to dispose of the suit in accordance with law and for acting in accordance with order dated 8th August, 2011'. Therefrom, it is abundantly clear that what was compromised was not the suit and no decree was passed in the suit and the suit was to be disposed of. It also follows that there was no agreement for appointment of any common architect by the parties and the same was a direction of the Court. It will have sanctity as a direction / order of the Court and not as a compromise.
H. It is further clear from a perusal of the subsequent order sheets in the suit as noted above that the parties could not arrive at a consensus for appointment of a common architect. The Suit Court also gave a go bye to the said direction with the consent of the parties and the parties instead agreed to appointment of a panel of architects as aforesaid.
I. However, it is again admitted that the panel of architects did not give a unanimous report but each of the three members thereof gave separate reports. Though the senior counsel for the respondents / defendants no.1 to 3 has contended that the nominee architect of the appellants / plaintiffs did not make any suggestions and the final report of Mr. S.M. Soni, Architect is in broad conformity with the report of the nominee architect of the respondents / defendants no.1 to 3 but the impugned order neither finds so nor discusses the report RFA No.461/2016 Page 21 of 27 of any other member of the panel except of Mr. S.M. Soni, Architect. Thus, even if it can be said, though it does not strictly follow, that M/s Kothari Associates (Pvt.) Ltd. stood substituted by the panel of architects, there is no report of the panel.
J. Thus, the suit cannot be said to have been disposed of in terms of order dated 8th August, 2011.
K. Moreover, now it is quite clear that considering the location of the property in an unauthorized colony, no additions / alternations works whatsoever can be carried out therein and no permission therefor can also be sought as envisaged in the order dated 8th August, 2011 supra. The compromise thus, even if any, is unlawful.
L. Order XXIII Rule 3 of the CPC requires the Court to dispose of a suit in terms of the compromise, only if the agreement arrived at between the parties is lawful. Here, it is found that the agreement between the parties, to carry out additions / alternations in the property so that the two sets of the parties can enjoy their respective share without hindrance by other party, is contrary to law.
M. The senior counsel for the respondents / defendants no.1 to 3, inspite of the compromise being illegal, unlawful and envisaging actions to be done in violation of municipal and other laws enacted to serve public purpose, is wanting this Court to put its imprimatur on an agreement which is not lawful and which is contrary to Order XXIII Rule 3 of the CPC. The Court thus cannot possibly dispose of the suit in terms of the compromise. The Suit Court has certainly erred in not considering all the said aspects and being swayed by the RFA No.461/2016 Page 22 of 27 order dated 8th August, 2011 of this Court. In fact, in the order dated 15th April, 2014 disposing of the appeal in which the order dated 8th August, 2011 was passed also, the direction to the Suit Court was to dispose of the suit "in accordance with law" though "acting in accordance with the order dated 8th August, 2011". Once it is concluded that the disposal of the suit by the impugned order is not "in accordance with law" and cannot be in accordance with law by acting in accordance with the order dated 8 th August, 2011 as it has played itself out, there was no option except to abandon the compromise, even if any.
N. The agreement contained in the order dated 8th August, 2011 is also not found to be lawful for the reason of it amounting to partition of the property without following the procedure prescribed by law therefor. I have in fact wondered as to what is the difference remaining between a decree for partition by metes and bounds and an agreement for carrying out changes in the property to enable each party to enjoy his / her portion without hindrance from the others.
O. Rather, from a perusal of the site plan of the property, it appears that the property is constructed like a single residential house and is incapable of partition by metes and bounds.
P. The parties, in the agreement contained in the order dated 8 th August, 2011, though agreed that the report of M/s Kothari Associates (Pvt.) Ltd. would not be acceptable if it causes grave prejudice, did not agree on a determination of what was to constitute grave prejudice i.e. whether it would be a claim by either party, of RFA No.461/2016 Page 23 of 27 the report causing grave prejudice to itself or a claim by both the parties, of the report causing grave prejudice to them. The parties certainly did not agree on any modality for determination whether the claim of any one party, of the report causing grave prejudice to him / her, was valid or not. In the absence of the same, the Court cannot take upon itself to determine the said modality. The agreement contained in the order dated 8th August, 2011 is found to be unworkable and vague for this reason also, again not amounting to a lawful compromise.
Q. In the light of the provisions of NCT of Delhi Laws (Special Provisions) Second Act aforesaid, commencing any works in the property, as suggested in the report of Architect S.M. Soni, is likely to result in sealing of the property and which will definitely cause grave prejudice to appellants/plaintiffs who are admittedly residing there.
R. I have in fact asked the senior counsel for the respondents / defendants no.1 to 3 that if according to the respondents / defendants no.1 to 3, the property subject matter of the suit was not the subject matter of partition suit in Kolkata and not the subject matter of challenge again in Kolkata, to the arbitral award amongst the family members, what prevented the respondents / defendants no.1 to 3 from suing for partition of the property. All that the respondents / defendant no.1 to 3 are pleading is that they are suffering owing to exclusive use, without disturbance from the appellants / plaintiffs, of the portion of the property in their occupation being not available and RFA No.461/2016 Page 24 of 27 the respondents / defendants no.1 to 3 being compelled to stay in tenanted premises but without realizing that the respondents / defendants no.1 to 3 are themselves to blame for the same. The respondents / defendants no.1 to 3, without taking the appropriate remedy in law, cannot seek the remedy in a proceeding in which the said relief cannot be granted and merely by contending prejudice to themselves.
41. Though I had also felt, as recorded above, that the suit could not have been disposed of in terms of compromise between appellants / plaintiffs and the respondents / defendants no.1 to 3 only and in the absence of respondents / defendants no.4 to 7 but on further consideration, I am of the view, that it is open to some of the parties to a suit also to enter into the compromise which compromise of course will not be binding on the other parties to the suit.
42. The impugned order/judgment/decree is thus set aside.
43. I may record that though there is no decree in terms of the impugned order but still I have entertained this Regular First Appeal, which under Section 96 of the CPC lies only against a decree, because Section 2(2) of the CPC defines a decree as meaning any formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and the impugned order is found to satisfy the said test.
44. The question however still remains as to what is the order to be passed after setting aside of the impugned order.
RFA No.461/2016 Page 25 of 2745. Though the appellants / plaintiffs in the memorandum of appeal have sought remand of the suit for adjudication in terms of the issues framed therein while disposing of the application for interim relief, but considering the nature of the reliefs claimed in the suit, it is felt that there is no need therefor.
45. Supreme Court in Anathula Sudhakar Vs. P. Buchi Reddy (2008) 4 SCC 594 has held that in a suit for injunction simpliciter, complicated questions as to title will not be adjudicated. Both the senior counsels also are agreeable to the disposal of the suit in terms of the interim orders therein, save that the senior counsel for the respondents / defendants no.1 to 3 contends that the same order should follow against the appellants / plaintiffs also and the interim orders as stand do not permit even the tutor of the children of the respondents / defendants and other guests of the family of the respondents / defendants to even enter into the property.
46. The senior counsel for the appellants / plaintiffs states that the orders made in this appeal equally bind both the parties but has no objection to the same being clarified.
47. The senior counsel for the appellants / plaintiffs however contends that the appellants / plaintiffs, in the plaint in the suit have made categorical averments of the respondents / defendants no.1 to 3, without residing themselves on the ground floor, letting in unsocial elements into the said ground floor of the property and have sought relief in the suit with respect thereto also.
48. Considering the aforesaid, while allowing the appeal and setting aside the impugned order, the suit is disposed of by restraining appellants / RFA No.461/2016 Page 26 of 27 plaintiffs as well as the respondents / defendants no.1 to 3 by a decree of permanent injunction from alienating, encumbering or parting with possession of any part of the property aforesaid and / or from inducting any person other than their close family members into possession or occupation of any part of the property and / or from using the property for any purpose other than residential. However, it is clarified that the order restraining the parties from inducting any other person into use or occupation of the property shall not prevent the parties from, if their family members are residing in the property, allowing their guests and visitors to enter the property for short durations of time or for use of the property along with themselves as their guests and will not also prevent the parties from, while residing in the property, allowing their domestic help to reside along with themselves but under their control and supervision, in appropriate portions of the property, residence of such domestic help wherefrom does not cause annoyance or loss of privacy to the other party.
49. The parties are left to bear their own costs.
Decree sheet be drawn.
RAJIV SAHAI ENDLAW, J SEPTEMBER 05, 2018 'pp/gsr'..
(Corrected and released on 13th October, 2018).
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