Delhi District Court
Smt. Dhanpati vs Sh. Surender Singh on 9 April, 2015
In the Court of Ms. Shivali Sharma : Additional Senior Civil Judge
of Central District at Tis Hazari Courts, Delhi
MCA No. 02/14
Unique I.D. No. 02401C004852014
In the matter of:
1. Smt. Dhanpati
W/o Late Sh. Ram Dev Yadav,
R/o H. No. RZ236, Gali No.16,
Tughlakabad Ext., New Delhi19.
2. Sh. Pramod Kumar Yadav
S/o Sh. Ram Dev Yadav
R/o H. No. RZ236, Gali No.16,
Tughlakabad Ext., New Delhi19.
3. Sh. Ajay Kumar Yadav
S/o Sh. Ram Dev Yadav
R/o H. No. RZ236, Gali No.16,
Tughlakabad Ext., New Delhi19.
4. Uma Shankar
S/o Sh. Hira Lal
R/o Kh. No. 10/6, BlockA,
Gali No. 14/6, Kamal Vihar,
Kamal Pur, Burari, Delhi84. ......Appellant
V E R S U S
Sh. Surender Singh
Gali No. A11/14,
Out of Khasra No. A11/12/1,
Kamal Vihar, Kamalpur Majra, Burari, Delhi. ......Respondent
MCA No. 02/2014 Dhanpati & Ors. v. Surender Singh Page No. 1 / 6
Date of Institution : 24.01.2014
Reserved for Judgment : 24.03.2015
Date of Decision : 09.04.2015
J U D G M E N T
1. This is an appeal filed by defendant against the order dt. 20.12.2013 of Ld. Trial Court whereby an application u/o 39 Rule 1 & 2 CPC filed by the plaintiff was allowed and an application filed by defendant no.4 u/o 7 Rule 10 & 11 of CPC was dismissed. For the sake of convenience, the parties shall be referred to by the nomenclature in the main suit.
2. The appellants/defendants have preferred not to argue the appeal on merits. Rather it is stated that the suit for permanent injunction in which interim relief was granted in favour of the plaintiff vide the impugned order has itself become infructous on account of certain subsequent developments and thus, the interim order is not sustainable in the eyes of law and needs to be set aside u/o 39 Rule 4 CPC.
3. Submissions in this regard have been heard and record has been carefully perused.
4. The plaintiff has filed a suit for permanent injunction alleging lending of Rs.13,00,000/ to defendants no.1, 2 & 3 (defendants no.2 & 3 are sons of defendant no.1). As a security for the said friendly loan the title deeds of suit property admeasuring 25 sq. yards out of MCA No. 02/2014 Dhanpati & Ors. v. Surender Singh Page No. 2 / 6 khasra No. 12/1, Gali no. A11/4, Kamal Vihar, Kamalpur Majra, South side gali 16 ft only, Burari Delhi being GPA etc were handed over to the plaintiff. An agreement dt. 21.11.2012 was executed to this effect and defendants undertook to repay the loan in a period of 14 months. Plaintiff came to know that defendants no.1, 2 & 3 were intending to sell the suit property to defendant no.4 and thus a suit for permanent injunction was filed to restrain them from creating any 3rd party interest in the suit property.
5. In the said suit for permanent injunction the impugned order was passed granting an interim injunction in favour of the plaintiff.
6. During the pendency of the present appeal, the plaintiff filed a suit for fore closure of the mortgage u/o XXXIV of CPC on 25.02.2014. The said suit was withdrawn by plaintiff on 28.10.2014 with liberty to file appropriate fresh suit.
7. Thereafter, the plaintiff filed a recovery suit against defendants no.1 , 2 & 3 herein for recovery of Rs.13,00,000/ with interest @18% p.a. on 02.12.2014. In the said suit for recovery the plaintiff has not sought to enforce the security of the suit property.
8. The copies of plaint in both the subsequent suits and statement of withdrawal of Order XXXIV suit have been placed on record by the defendants which are not disputed by the plaintiff.
MCA No. 02/2014 Dhanpati & Ors. v. Surender Singh Page No. 3 / 69. It is argued by Ld. counsel for defendants that by filing a simple suit for recovery, the plaintiff has relinquished/omitted his right to enforce the alleged security of the suit property. Since an obligation and a collateral security for its performance are deemed to constitute one cause of action in view of the explanation to Order 2 Rule 2 of CPC, the plaintiff's claim on the suit property as a security for alleged loan has now become barred u/o 2 Rule 2 CPC. Accordingly, his right to enforce the security of the suit property being barred u/o 2 Rule 2 CPC cannot now be claimed. Thus, now he has no alleged interest/right over the suit property and his suit for permanent injunction qua the suit property has become infructous.
10. Per contra, it is argued by Ld. counsel for plaintiff that the loan taken by the defendants is secured by mortgage of suit property created by deposit of title deeds. The said mortgage still survives as the property documents are still in possession of the plaintiff. The right of the plaintiff in mortgaged property is not extinguished by merely filing of a recovery suit. Accordingly, the suit for permanent injunction qua the suit property is still a valid suit and has not become infructous as being contended by the plaintiff.
11. After giving my thoughtful consideration to the submissions made by both the parties, I find weight in the submissions of Ld. counsel for plaintiff. As per the case of the plaintiff, he had to right to sue for recovery of Rs.13,00,000/ and right to enforce the security MCA No. 02/2014 Dhanpati & Ors. v. Surender Singh Page No. 4 / 6 for the loan in the form of mortgage of suit property. Both these rights are emanating from the same cause of action i.e. the taking of loan by defendants, deposit of title documents with plaintiff and execution of agreement dt. 21.11.2012. Order II Rule 2 CPC clearly provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. Sub Rule 2 provides that where the plaintiff omits to sue in respect of or intentionally relinquishes, any portion of his claim, he shall not afterwards sue for any such relief.
12. Thus, by filing a simple suit for recovery the plaintiff has relinquished his claim to sue for enforcement of security of the suit property. Now, by virtue of Order II Rule 2 CPC, plaintiff is barred to bring a fresh suit for enforcing the security of suit property. Accordingly his right, if any, over the suit property has extinguished and the suit for permanent injunction as filed has become infructous. In these circumstances, the impugned order is no longer sustainable in the eyes of law and has to be set aside in view of changed circumstances. Thus, at this stage, without commenting on the legality or illegality of the impugned order, the same is vacated/set aside on account of changed circumstances. The appeal is accordingly disposed off. Ld. Trial Court may look into the issue of maintainability of the suit itself in view of changed circumstances without in any way being influenced by the observations/findings made by the Court in this order.
MCA No. 02/2014 Dhanpati & Ors. v. Surender Singh Page No. 5 / 613. The appeal file after due compliance be consigned to the Record Room. Trial Court Record be sent back along with a copy of the judgment. The parties are directed to appear before the learned Trial Court on date already fixed by Ld. Trial Court.
Announced in the Open Court on 09.04.2015 (Shivali Sharma) Additional Senior Civil Judge Central District: Tis Hazari Courts: Delhi MCA No. 02/2014 Dhanpati & Ors. v. Surender Singh Page No. 6 / 6 MCA No. 02/14 09.04.2015 Present: Ld. counsel for the parties.
Vide my separate judgment announced and dictated in the open Court, the impugned order is vacated/set aside on account of changed circumstances. The appeal is accordingly disposed off. Ld. Trial Court may look into the issue of maintainability of the suit itself in view of changed circumstances without in any way being influenced by the observations/findings made by the Court in this order.
The appeal file after due compliance be consigned to the Record Room. Trial Court Record be sent back along with a copy of the judgment. The parties are directed to appear before the learned Trial Court on date already fixed by Ld. Trial Court (Shivali Sharma) Additional Senior Civil Judge Central District: Tis Hazari Courts: Delhi MCA No. 02/2014 Dhanpati & Ors. v. Surender Singh Page No. 7 / 6