Delhi District Court
Smt. Chand Kiran vs Delhi Development Authority on 16 November, 2012
Suit No. 136/2008
IN THE COURT OF MS. RICHA GUSAIN SOLANKI
CIVIL JUDGE(WEST):TIS HAZARI COURTS: DELHI
Suit No. 136/2008
Smt. Chand Kiran
Wife of Sh. Nand Gopal Bachhas
R/o 3130, Gali Sushila,
Turkman Gate, Delhi.
..............Plaintiff
Versus
Delhi Development Authority,
Through its Vice Chairman,
Vikas Sadan, I.N.A.,
New Delhi110023.
...........Defendants
Date of institution : 21.04.2008
Arguments heard on : 09.10.2012
Date of decision : 16.11.2012
JUDGMENT: This is a suit for mandatory injunction. The brief facts as averred in the plaint are as follows:
1. It is the case of the plaintiff that she is the lawful and bonafide allottee of the janta flat bearing No. 22, FST, Pocket9, BlockG, Sector15, Rohini, Delhi110085 (hereinafter referred to as 'suit property') allotted to her by Chand Kiran Vs. DDA 1/10 Suit No. 136/2008 defendant and she is holding the lease hold rights in respect of the suit property. The physical possession of the suit property was handed over to the plaintiff by the defendant on 04.07.1994 and since then she is in possession thereof. The plaintiff has already deposited a substantial amount towards the price of the said flat and a total sum of Rs 41,942.11 paisa till 1994. As per the knowledge of the plaintiff, the price of the suit property was Rs 67,700/ against which the plaintiff has made the payment of Rs 41,942.11 paisa. Plaintiff has always been ready and willing to pay the balance. The plaintiff wanted to get the lease hold rights in respect of the suit property converted into free hold and she has always been ready and willing to pay the balance price as well as to perform other formalities for the said purpose and to show her such intentions, she has written letter but she has not received any response from the defendant. In all her three letters she has made request to know the balance payable and the formalities to be completed but she has not received any reply. Finally she served a legal notice dated 01.10.2003 calling upon the defendant to supply the full information and intimate her the amount payable by her and the formalities to be completed by her for getting the leasehold rights of her flat converted into free hold but the defendant despite the service of the said notice did not care and the said notice remained unheeded.
Chand Kiran Vs. DDA 2/10 Suit No. 136/2008
2. Therefore, plaintiff filed the present suit praying that a decree of mandatory injunction be passed in favour of the plaintiffs and against the defendant directing the defendant/DDA, its officers and officials to intimate the exact balance amount towards the price of the Flat bearing No. 22, FST, Pocket9, BlockG, Sector15, Rohini, Delhi110085 and the formalities to be complied with by the plaintiff and to convert the lease hold rights of the plaintiff with regard to the suit property into free hold.
3. In the written statement filed on behalf of defendant/DDA, it is stated that no valid cause of action arises in favour of the plaintiff as against the defendant. The application for conversion could have been filed by the plaintiff without resorting to filing of the suit against the DDA. Furthermore, plaintiff can obtain the requisite information regarding conversion and the formalities therefore from the DDA's inquiry counter no. 11, DBlock, Vikas Sadan, New Delhi23. The present suit has been filed to cover up the persistent and deliberate defaults on the part of plaintiff/allottee regarding non payment of the installments in terms of the demandcumallotment letter which categorically mentions the schedule of payment and amount of installments etc. Allotment stands already cancelled and communicated vide letter dated 03.04.2008 on account of persistent defaults of the plaintiff in making the payment of installments Chand Kiran Vs. DDA 3/10 Suit No. 136/2008 as per schedule mentioned in the demandcumallotment letter.
The plaintiff was allotted a Janta Flat bearing No. 22, FST, Pocket9, BlockG, Sector15, Rohini, Delhi110085 int he draw of lots held on 15.03.1990 on hire purchase basis. The demandcumallotment letter block dated 24.04.199003.05.1990 was issued to pay the cost of the flat as per the schedule mentioned therein. The last date of making initial deposit with interest was 01.08.1990 and the balance cost of the flat was to be deposited in 240 installments @ Rs 652.91 paisa commencing from 10.07.1990. On receipt of payment and required documents, the possession letter was issued to the plaintiff on 11.04.1994 and the possession was taken over on 04.07.1994 by the allottee. A notice dated 01.10.2003 was received from the plaintiff seeking the information/formalities for conversion from leasehold into freehold. DDA sent reply to the statutory notice of the plaintiff vide letter dated 20.11.2003 informing that Ms. Chand Kiran had not applied for conversion into freehold. The plaintiff's advocate was requested to advise the plaintiff to apply for conversion from leasehold to freehold as per the DDA's booklet available on DDA's inquiry Counter no. 11, so that her case could be processed for conversion. The details as calculated by the Finance Wing (Housing), DDA, the amount due in respect of suit property is also provided in the written statement. It has further stated Chand Kiran Vs. DDA 4/10 Suit No. 136/2008 that the Finance Wing (Housing) has stated that if the flat is restored the plaintiff would be liable to pay the restoration charges amounting to Rs 5,000/ and the balance 23 monthly installments regularly from 10.08.2008 to 10.06.2010. But since no application for conversion has ever been received by the DDA from the plaintiff the question of conversion into freehold is out of context.
4. The plaintiff filed replication to the written statement of defendants wherein the plaintiff reiterated and reaffirmed the contents of the plaint and denied the averments made by the defendants in their written statement. It is further submitted that as per information of the plaintiff before making the request for conversion the outstanding balance against the flat is to be cleared and therefore, the plaintiff wanted to know the exact amount to be paid by her against the flat in respect of which the application is to be made. The said outstanding figure of Rs 38,640/ came to knowledge of the plaintiff when this written statement is filed. The plaintiff deposited the said amount of Rs 40,065/ on 03.02.2009. The plaintiff has denied receiving any alleged reply dated 20.11.2003. The details provided in WS are stated to be unwarranted and illegal. The said cancellation is stated to be illegal, improper, injust and baseless.
5. Vide order dated 06.02.2009 following issues had been framed by my Chand Kiran Vs. DDA 5/10 Suit No. 136/2008 Ld. Predecessor :
1. Whether the plaintiff has no cause of action to file the present suit? OPD
2. Whether the suit of plaintiff is barred by the law of limitation? OPD
3. Whether the plaintiff is entitled to decree of mandatory injunction, as prayed for? OPP
4. Relief.
6. Plaintiff examined only one witness in her support. PW1, Sh. Nand Gopal Bacchas, entered the witness box on 17.03.2011 and tendered his affidavit Ex PW1/1 in evidence which states the same facts as are stated in the plaint. He relied on Ex PW1/2 which is the copy of possession letter. Ex PW1/3 is the certified copy of order passed by Hon'ble Ms Justice Usha Mehra. Ex PW1/4 is the certified copy of order passed by Hon'ble M Justice J.K. Mehra. Ex PW1/5 are the copies of challans. Copies of plaintiff's letters to defendants are Ex PW1/6. Copy of notice dated 01.10.2003 to the defendant and copy of its postal receipt, AD card are Ex PW1/7.
In his cross examination, he stated that he has no knowledge as regards any conversion scheme of DDA as is mentioned in his affidavit and plaint. He stated that he had applied for conversion by Ex PW1/6. He admitted that he did not make any inquiry regarding conversion at Vikas Sadan, where information was available without any Chand Kiran Vs. DDA 6/10 Suit No. 136/2008 hindrance and free of cost. He stated that he did not know of cancellation prior to filing of the suit.
7. Defendant also examined only one witness in its support. DW1, Sh. S.K. Malik, Assistant Director, entered the witness box on 16.04.2012 and tendered his affidavit Ex DW1/X in evidence which states the same facts as are stated in the written statement. He relied on Ex DW1/1 which is the copy of demand cum allotment letter and Ex DW1/2 which is the copy of possession letter. Copy of cancellation letter is Ex DW1/3. Copy of reply to legal notice dated 01.10.2003 is Ex DW1/4.
8. I have heard the parties and have perused the record carefully.
9. Issue wise findings are as under:
Issue no.1: Whether the plaintiff has no cause of action to file the present suit? OPD The onus of proving this issue was on the defendant. It is the case of defendant that plaintiff never applied for conversion and therefore, no cause of action has arisen in her favour. It is not the case of plaintiff too that she ever applied for conversion or approached any DDA office or DDA office at Vikas Sadan to inquire about the conversion. On the other hand, she admits in her replication that she was not aware of the balance amount due from her and thus did not apply for Chand Kiran Vs. DDA 7/10 Suit No. 136/2008 conversion. It is not her case that she applied for conversion on prescribed form and the same is not being processed. The stand of the plaintiff is very strange. Without inquiring about the process of conversion and applying for conversion, plaintiff filed the present suit seeking mandatory injunction to convert the leasehold rights into freehold. There was no cause of action for the plaintiff to have filed the present suit without first applying for conversion.
I also find merit in the contention of ld SLO that the information sought by plaintiff was provided in the written statement itself and then even the remaining prayer of the plaintiff had become infructuos.
Accordingly, this issue is decided against the plaintiff and in favour of the defendant.
10. Issue no.2: Whether the suit of plaintiff is barred by the law of limitation? OPD The onus of proving this issue was on the defendant. Perusal of the plaint and annexed documents reveal that the last letter sent by plaintiff to defendant for the purpose of conversion was written in the year 2003. It is plaintiff's case that no reply was received from the defendant in reply to letter Ex PW1/7. Thus the cause of action, is any, should have lastly arisen in the year 2003. The present suit has been filed in the year 2008. Clearly the same, having been filed after 3 years Chand Kiran Vs. DDA 8/10 Suit No. 136/2008 after 2003, is barred by limitation.
Accordingly, this issue is decided against the plaintiff and in favour of the defendant.
11. Issue no.3: Whether the plaintiff is entitled to decree of mandatory injunction, as prayed for? OPP The onus of proving this issue was on the plaintiff. The first and the foremost point to be considered is that the plaintiff has not entered the witness box. The power of attorney Ex PW1/D1 in favour of PW1 does not state why the plaintiff has chosen not to appear in the Court. Ex PW1/D1 states that PW1 is conversant with the facts of the case however PW1 deposed that he knew nothing about any conversion scheme floated by DDA as is mentioned in the plaint and also in his affidavit. It is settled law that the plaintiff who chooses not to enter the witness box runs the risk of an adverse inference being drawn against him. It is bounden duty of a party personally knowing whole of the facts to give evidence and subject himself to cross examination. Non appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case. Reliance is placed on the judgment of the Privy Council in the case of Gurbaksh Singh v Gurdial Singh cited at AIR 1927 PC 230.
The prayer of the plaintiff is twofold. First she seeks Chand Kiran Vs. DDA 9/10 Suit No. 136/2008 information as regards the exact amount due from her and the formalities to be complied for conversion. This information has already been supplied in the written statement. Secondly, plaintiff seeks conversion of leasehold rights into freehold. Admittedly plaintiff has not applied for conversion as yet. The allotment also stands cancelled on date and there is no prayer for setting aside such cancellation. There is then no question of directing the defendants to convert the rights over the suit property.
Accordingly, this issue is decided against the plaintiff and in the favour of the defendant.
12. Issue no.4: Relief In view of the aforesaid discussion, suit of the plaintiff is dismissed. Costs of suit in favour of defendants and against plaintiff. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open Court on 16.11.2012 at 04:00 PM (Richa Gusain Solanki) Civil Judge (West) THC, Delhi/ 16.11.2012.
Chand Kiran Vs. DDA 10/10