Delhi District Court
Sh. Nizamuddin Ahmed vs Mohd. Nasiruddin on 31 May, 2016
IN THE COURT OF SH. GAURAV RAO, SENIOR CIVIL JUDGE CUM
RENT CONTROLLER ( SOUTH EAST), DISTRICT COURTS, SAKET,
NEW DELHI
CS No: 197/2016
Unique I/D No.02406C0208832016
Sh. Nizamuddin Ahmed
S/o Mohd. Zaheer
R/o Gali No. A246,
Gali No. 6, Jaitpur Extension,
Part II, Kalindi Kunj Road,
Badarpur, New Delhi110044. .....Plaintiff
Versus
1.Mohd. Nasiruddin S/o Sh. Zaheer Ahmed
2. Sh. Sikandar Ahmed S/o Sh. Zaheer Ahmed Both R/o A246/6, Khadda Colony, Gali No. 6, Jaitpur Extension, Part II, Badarpur, New Delhi - 110044. ....Defendants Date of institution of suit : 24.05.2016 Date on order/judgment : 31.05.2016 CS No.197/2016 Nizamuddin Ahmed Vs. Mohd. Nasiruddin and others 1/15 SUIT FOR PERMANENT AND MANDATORY INJUNCTION
1. The present suit for permanent and mandatory injunction has been filed by the plaintiff stating that he is the owner of the property bearing no. A246, Gali No. 6, Jaitpur Extension, Part II, Badarpur, New Delhi built up on the area of 50 sq. yards, consisting of three rooms, one common latrine bathroom and one kitchen (hereinafter referred to as suit property).
2. It is further the plaintiffs case that he had purchased the suit property out of/from his own earned money in the year 1992 from its erstwhile owner Sh. Madan Mohan S/o Sh. Mangal Ram R/o C20, DDA Flats, Kalkaji, New Delhi vide GPA agreement to sell and purchase, affidavit, receipt dated 15.09.1992.
3. It is further the case of the plaintiff that he allowed defendants who are his brothers to reside in one room each in the suit property as shown in green colour as permissible users and to vacate the same as and when requested to do so.
4. It is further the plaintiff's case that he requires the said room which CS No.197/2016 Nizamuddin Ahmed Vs. Mohd. Nasiruddin and others 2/15 was given to the defendants as his children have grown up and it has become difficult for him to adjust in one room, as shown in red colour in the site plan, with his four grown up children and his wife and therefore, he requested the defendants to vacate the suit property. However, the defendants failed to exceed to the request of the plaintiff. Hence, the present suit.
5. I have gone through the plaint.
6. As is evident from the plaint the plaintiff had prior to filing of the present suit, filed another suit through his wife, bearing no. 992/2013 titled as "Shahbrun Nisha Vs. Sikander Ahmed & Anr." (i.e. the defendants) before the court of Sh. Dinesh Kumar, Ld. Civil Judge (SE) which was withdrawn by the wife of the plaintiff vide proceedings dated 18.02.2014 with liberty to file a fresh suit.
7. After the withdrawal of the said suit another suit bearing no. 228/2014 titled as "Shahbrun Nisha Vs. Sikander Ahmed & Anr." was filed by the wife of the plaintiff (Smt. Shabrun Nisha) against the present defendants wherein the wife of the plaintiff claimed herself to be the owner of the suit property. It was claimed that the suit property which was earlier owned by her CS No.197/2016 Nizamuddin Ahmed Vs. Mohd. Nasiruddin and others 3/15 husband (plaintiff in the present suit) was sold by him to her on 22.04.2010. The said suit was also for mandatory and permanent injunction seeking the similar relief as has been sought in the present suit. Vide orders dated 18.08.2015 the suit was dismissed by the Ld. ADJ while observing as under:
"4. I have heard the arguments from both the sides on preliminary issues and have carefully gone through the entire record. I shall decide both the preliminary issues one by one.
5 Issue No. 1 : "Whether the plaintiff has any locus to file and maintain the present suit in her own name?"
As per plaint, plaintiff is the owner in possession of the suit property bearing no. A246/6, Khadda Colony, Gali No.6, Jaitpur Extention, Part2, Badarpur, New Delhi. Plaintiff has based her claim of ownership in the suit property on the basis of the GPA allegedly executed by her husband in her favour on 22.04.2010. Photocopy of said GPA has been placed on record. Perusal of the said document however shows that same is an unregistered document executed by plaintiff's husband in favour of plaintiff for appointing, nominating, authorizing her (plaintiff) as his true and lawful general attorney to do certain acts, deeds and things in his name and on his behalf in respect of the suit property, including filing or defending any suit concerning suit property in the Court of law on his behalf and in his name. However, no title has been created or transferred by the executant in respect of suit property in favour of attorney holder by said document.
6. Hence, even going by the terms and conditions of said GPA, no right has been conferred to the plaintiff to file the suit in respect of suit property in her own name. The attorney holder was authorized to file the suit as attorney on behalf of the actual owner whereas, the instant suit has been filed by the plaintiff not as an attorney of her husband but in her own name claiming herself to be the owner of the suit property. It is necessary to mention here that no right or title can be transferred in an immovable property through general power of attorney. As per the provisions of Transfer of Property Act, title in an immovable property can be transferred only through a registered sale deed/conveyance deed. Even in case of GPA sale, a practice which was prevalent in Delhi for transfer of immovable property prior to the judgment of Hon'ble Apex Court in Suraj Lamp & Industries Pvt Ltd v State of Haryana & Ors : (2012) 1 SCC 656, the whole set of documents such as GPA, agreement to sell, Will, possession letter & receipt coupled with handing over of physical possession were necessary for transfer of title. Whereas, in the instant case, except the GPA in favour of plaintiff, there is no other document filed by plaintiff showing transfer of title in her name. Possession is an incidence of ownership and can be transferred only by CS No.197/2016 Nizamuddin Ahmed Vs. Mohd. Nasiruddin and others 4/15 the owner of the property and only the owner either himself or through any other person authorized in that behalf, may sue for seeking possession of an immovable property.
7. Considering the material on record, plaintiff is neither the owner of the suit property nor she has filed the suit as attorney of her husband who as per GPA, is the owner of the suit property. In view thereof, she has got no locus standi to seek possession of any portion of the suit property. 7A. In is trite law that if upon meaningful reading of plaint it is manifestly vexatious and mertiless, in the sense of not disclosing a clear right to sue, the court should exercise his powers under Order 7 Rule 11 CPC and nip it in the bud. Reliance is placed on (1977) 4 SCC 467. As no right to sue vests in plaintiff to file the present suit against defendant, the suit is liable to be dismissed under Order 7 Rule 11 CPC. Issue no.1 is accordingly decided against the plaintiff and in favour of the defendants.
Issue No. 2 : "Whether the suit has been properly valued for the purpose of court fees and jurisdiction?"
9. At the outset, I may mention that the suit was originally filed for seeking relief of possession and permanent injunction but the same was subsequently amended for substituting the relief of possession with the relief of mandatory injunction. The amendments to this effect were allowed vide order dated 15.10.2014. In the amended plaint, plaintiff has sought decree of mandatory injunction for seeking directions against the defendants to hand over the possession of the respective rooms as shown in red and green colour in the site plan of the suit property. Plaintiff has also sought for relief of permanent injunction for restraining the defendants from creating any third party interest in the rooms in their possession. In para 21 of the plaint, plaintiff has valued the suit for the purpose of pecuniary jurisdiction at Rs. 16 lacs and for purposes of court fees, the relief of mandatory and permanent injunction has been valued at Rs. 130 each on which fixed court fees of Rs. 13 each has been paid by the plaintiff.
10. In Ashok Chaudhary Vs. Inderjit Sandhu 1998 (3) RCR (civil) 650, division bench of the Hon'ble Delhi High Court has laid down the law relating to court fees in respect of the suits filed for seeking recovery of possession from the licencee. In said judgment it was held as follows : "the true criterion for determining the question of court fee in such cases is the substance of the relief claimed as disclosed by the plaint taken as a whole and not merely the form in which the relief claimed is expressed. Thus, the averments in the plaint alone have to be looked into for the purpose of determining the court fee payable in the plaint. It has to be borne in mind that it is not the case of the plaintiff that the defendant no.2 was in joint possession of the suit premises along with the plaintiff. Reading the plaint as a whole, it becomes clear that the relief asked for the plaintiff squarely amounts to her having to get possession of the suit premises from the defendant no.2, who is in possession CS No.197/2016 Nizamuddin Ahmed Vs. Mohd. Nasiruddin and others 5/15 thereof and the plaintiff cannot secure the same by merely adding a prayer for mandatory injunction of the kind asked for in the plaint. Thus, the relief of recovery of possession of the suit premises is not a surplusage but is a substantive relief claimed by the plaintiff. The relief for recovery of possession prayed for is not a consequential to the relief of the mandatory injunction prayed for and, therefore, Section 7(v)(e) of the Court Fees Act is attracted to the substantive relief claimed in the plaint."
10. The aforementioned judgment of Hon'ble High Court was again relied upon by the Hon'ble Delhi High Court in the subsequent judgment in Deepak Gupta Vs. Praveen Kumar Gupta 2012 (6) AD (Delhi) 440 and it was held that though the suit for mandatory injunction for seeking possession from the licensee are maintainable but since it is not merely a simplicitor suit for mandatory injunction against the licensee but also involves the element of substantive relief of possession, the provision of Section 7(v)(e) of Court Fee Act would be directed and suit is required to be valued properly at the market value of the property.
11. From the aforementioned case law, it is clear that for determining the court fee the Court has to read the plaint as a whole to ascertain as to what relief has been actually sought by the plaintiff and nomenclature given to the relief hardly matters. Further, the plaintiff cannot be allowed to escape from his liability to pay appropriate court fee by clever drafting of plaint. As already noted above the suit was intially filed by the plaintiff for the relief of possession and permanent injunction and since an inquiry was raised by the court regarding improper valuation of suit, plaintiff moved an application under Order 6 Rule 17 CPC amending the prayer clause and substituting the relief of possession with relief of mandatory injunction. But, said amendment are still not going to help the plaintiff as what is to be seen is not the title of the suit but the substantive relief actually sought in the plaint. In the instant case, in the form of mandatory injunction, plaintiff is in effect seeking possession of property, for which he is required to pay the court fee as per the market value of the suit property. Accordingly, plaintiff is directed to correctly value the suit for the purpose of court fees and pay the requisite court fees thereon.
12. In view of my findings given on issue no.1, suit of the plaintiff is liable to be dismissed as the plaintiff lacks any locus standi to institute and maintain the same. The suit is accordingly rejected under Order 7 Rule 11 (9) CPC.
File be consigned to Record Room."
8. Despite the above observations made by the Ld. ADJ, particularly in Para 9 to 11, the present suit has been filed seeking the similar relief i.e. mandatory injunction with directions to defendants to hand over the possession CS No.197/2016 Nizamuddin Ahmed Vs. Mohd. Nasiruddin and others 6/15 of the suit property. It will be worthwhile to mention that the orders of the Ld. ADJ have not been assailed/challenged and instead the present suit has been filed. Such conduct and approach of the plaintiff is not acceptable. Without taking recourse to appropriate legal remedies he is merely doing forum hunting.
9. It will also be pertinent to highlight at this stage that there has been one more litigation in respect of the suit property i.e. civil suit for partition and permanent injunction bearing no. CS (OS) 152/2011 filed by the defendants against the plaintiff wherein the defendants made a statement on 12.07.2012 that they have settled the matter out of court. The matter was adjourned for 20.12.2012 and the orders passed on said date are not available to this court/have not been filed by the plaintiff for reasons best known to him.
10. Therefore, what emerges is that in respect of the suit property there already have been three litigations. Let that be the case in my opinion after the earlier suit bearing no. 992/2013 as discussed above was withdrawn by the plaintiff which necessarily in my firm opinion was withdrawn as he had not sought the appropriate relief i.e. relief of possession and after suit no. 228/2014 was dismissed by the court of Ld. ADJ Ms. Sunena Sharma while observing that simpliciter suit for injunction is not maintainable the plaintiff should have CS No.197/2016 Nizamuddin Ahmed Vs. Mohd. Nasiruddin and others 7/15 come up with suit for possession /suit seeking appropriate relief before the appropriate forum and not the present suit, moreso, when he is admittedly not in possession of the suit property. In "Anathula Sudhakar Vs. P. Buchi Reddy AIR 2008 SC 2033 it has been observed as under:
11. 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 injunction as a consequential relief, are well settled.
We may refer to them briefly.
11.1) 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.
11.2) 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.
11.3) 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 defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of 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.
17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
CS No.197/2016 Nizamuddin Ahmed Vs. Mohd. Nasiruddin and others 8/15
(c) But a finding on title cannot be recorded in a suit for injunction,unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.
11. In the earlier two suits the plaintiff's wife had claimed herself to the be the owner of the suit property. In the present suit the plaintiff claims himself to be the owner of the suit property. In the present suit he is absolutely silent regarding GPA dated 22.04.2010 which he executed in favour of his wife in respect of the suit property. Though in the present suit it is claimed that the earlier two suits were filed by the plaintiff through his wife, however, a bare perusal of the earlier suits/memo of parties would reveal that the suit was filed by Shabrun Nisha in her personal capacity and not for or on behalf of or as a authorized representative/attorney of the plaintiff. Hence the submissions regarding the same in the present suit false and incorrect. CS No.197/2016 Nizamuddin Ahmed Vs. Mohd. Nasiruddin and others 9/15
12. In the suit filed before the Ld. ADJ the valuation of the suit property for the purpose of pecuniary jurisdiction is shown as Rs. 16 lacs. In the present suit it has been valued at Rs. 130/ for the relief of permanent and mandatory injunction. Though relief in both the suits and in fact in all the suits is exactly the same.
13 Therefore, the manner in which so many litigations have been initiated by the plaintiff which have already been disposed of by the courts as discussed above, the plaintiff should not have file the present suit in the present form before the present court. This is nothing but an abuse of the process of law.
14. In case titled "C.B. Aggarwal Vs. P. Krishna Kapoor" AIR 1995 Delhi 154 Hon'ble High Court observed:
"It is true that in a civilised society, legal process is the machinery for keeping order and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for vindication for men's right and enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression; or to exert pressure so as to achieve an improper end."
15. In case titled Goyal MG Gases Pvt. Ltd. Vs. AIR Liquide Deutschland th Gmbh & Ors. CCPO No. 130/2005 in OMP No. 361/2004 decided on 19 October 2006 by Hon'ble High Court of Delhi it was held as CS No.197/2016 Nizamuddin Ahmed Vs. Mohd. Nasiruddin and others 10/15 under:
"Vexatious and frivolous litigation poses a number of threats to the efficient operation of any civil justice system. Those threats stem from the manner in which the vexatious and frivolous litigant conducts litigation before the courts. Such proceedings, apart, from the oppression and the harassment inflicted on the adversary, are extremely damaging to public interest. Judicial resources are valuable and scarce. The resources of the court are not infinite, especially in terms of judicial time. Therefore, administration of justice and interests of equity and fair play mandate that a party which succeeds is compensated by award of costs in respect of false or vexatious claims or defences. A faulting party may be required to pay to the other party such costs as would, in the opinion of the court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the court on that date and payment of such costs on the next date following the date of such order if unreasonable adjournments are taken by the parties. However, many unscrupulous parties take advantage of the fact that either costs are not awarded or nominal costs alone are awarded against the unsuccessful party. The legislature has recognised the need for imposition of costs and consequently, so far as the civil proceedings are concerned, has enacted Section 35 of the Code of Civil Procedure which provides for imposition of costs. The Hon'ble Apex Court was concerned with the manner in which the costs are imposed resulting in undue advantage being taken by parties of the fact that notional costs are awarded which do not deter or discourage persons from filing vexatious or frivolous claims or defences. ................ The courts have recognised the inherent power of the court to award costs in the interest of justice. .................................... In this background, there is yet another more imperative reason which necessitates imposition of costs. The resources of the court which includes precious judicial time are scarce and already badly stretched. Valuable court time which is required to be engaged in adjudication of serious judicial action, is expended on frivolous and vexatious litigation which is misconceived and is an abuse of the process of law. A judicial system has barely sufficient resources to afford justice without unreasonable delay to those having genuine grievances. Therefore, increasingly, the courts have held that such totally unjustified use of judicial time has to be curbed and the party so wasting precious judicial resources, must be required to compensate."
16. In Salem Advocate Bar Association Vs. Union of India (2005) 6 SCC 344 , Hon'ble Supreme Court observed as under:
CS No.197/2016 Nizamuddin Ahmed Vs. Mohd. Nasiruddin and others 11/15 "Judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded against the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. In a large number of cases, such an order is passed despite Section 35(2) of the Code. Such a practice also encourages the filing of frivolous suits."
17. In Morgan Stanley Mutual Fund Vs. Kartick Das (1994) 4 SCC, 225 the Hon'ble Supreme Court observed as under:
"There is an increasing tendency on the part of the litigants to indulge in speculative and vexatious litigation and adventurism which the fora seem readily to oblige. We think such a tendency should be curbed."
18. In Rajappa Hanamantha Ranoji v. Sri Mahadev Channabasappa & Ors . 2000(4) SCALE 692 the Hon'ble Apex Court held that such tendency deserves to be taken serious note of and curbed by passing appropriate orders including imposition of exemplary costs. In this behalf , the court observed as under:
"It is distressing to note that many unscrupulous litigants in order to circumvent orders of Courts adopt dubious ways and take recourse to ingenious methods including filing of fraudulent litigation to defeat the orders of Courts. Such tendency deserves to be taken serious notices of and curbed by passing appropriate orders and issuing necessary directions including imposition of exemplary costs."
19. In Satyender Singh V. Gulab Singh , MANU/DE/1047/2012 , the Hon'ble Delhi High Court following Dalip Singh v. State of U.P. (2010) 2SCC 114 observed that the courts are flooded with litigation with false and CS No.197/2016 Nizamuddin Ahmed Vs. Mohd. Nasiruddin and others 12/15 incoherent pleas and tainted evidence led by the parties due to which the judicial system in the country is choked and such litigants are consuming Court's time for a wrong cause. It was further observed as under:
"As rightly observed by the Supreme Court, Satya is a basic value of life which was required to be followed by everybody and is recognized since many centuries. In spite of cautions, courts are continued to be flooded with litigation with false and incoherent pleas and tainted evidence led by the parties. The judicial system in the country is choked and such litigants are consuming courts time for a wrong cause. Efforts are made by the parties to steal a march over their rivals by resorting to false and incoherent statements made before the court. Indeed, it is a nightmare faced by a Trier of Facts; required to stitch a garment, when confronted with a fabric where the weft, shuttling back and forth across the warp in weaving, is nothing but lies. As the threads of the weft fall, the yarn of the warp also collapses; and there is no fabric left."
20. In Ramrameshwari Devi v. Nirmala Devi , (2011) 8 SCC 249 , the Supreme Court has held that the Courts have to take into consideration pragmatic realities and have to be realistic in imposing the costs. The relevant paragraphs of the said judgment are reproduced hereunder:
"We are clearly of the view that unless we ensure that wrongdoers are denied profit or undue benefit from the frivolous litigations, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for frivolous litigations, the courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court's otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases.................The main question which arises for our consideration is whether that prevailing delay in civil litigation can be curbed? In our considered opinion the existing system can be drastically changed or improved if the following steps are taken by the trial courts while dealing with the civil trials. C. Imposition of actual, realistic or proper costs and or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings...".
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21. Vexatious litigation drain the resources of the court, which are already scarce and barely sufficient to afford justice to those who have genuine needs and grievances. Having regard to the entire conspectus and facts noticed above, in my view, punitive and exemplary costs deserve to be imposed on the plaintiff. The plaintiff has deliberately wasted precious time of three courts with impunity and without remorse. Therefore, whether rejection of the plaint in view of the above discussion or withdrawal (in terms of his statement) the plaintiff cannot be permitted to get away without compensation to the judicial system.
22. Therefore, in view of my above discussion the plaint stands rejected in terms of Order 7 Rule 11 CPC R/w Section 41 of The Specific Relief Act and while rejecting the plaint I hereby impose punitive and exemplary cost of Rs.1,00,000/ upon the plaintiff to be deposited with the Delhi Legal Services Authority within one month from today. Delhi Legal Services Authority be intimated accordingly so as to taken steps in case there is failure on the part of the plaintiff to deposit the cost. Decree sheet be prepared accordingly. CS No.197/2016 Nizamuddin Ahmed Vs. Mohd. Nasiruddin and others 14/15 File be consigned to Record Room.
(Gaurav Rao)
Announced in the open court on SCJCumRC(SouthEast)
On 31.05.2016. Distt.Courts, Saket,New Delhi.
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