Delhi District Court
Smt. Naima(Wife) vs Smt. Najima on 7 February, 2012
In the Court of Sh. Kuldeep Narayan: Commercial Civil Judge of North East
District at Karkardooma Courts, Delhi.
CIVIL SUIT NO. 664/09
UNIQUE I.D. NO. 02402C0313512006
IN THE MATTER OF :
SHRI MUNNA KHAN(SINCE DECEASED)
S/O SHRI KHAIRATI KHAN
R/O BB97, GALI NO. 3,
NABI KARIM, PAHARGANJ,
NEW DELHI.
THROUGH LRS NAME
1.SMT. NAIMA(WIFE)
2. SHRI FURKAN(SON)
3. SHRI RIZWAN(SON)
4. SHRI IMRAN(SON)
5. SHRI GUFRAN(SON ALL R/O BB97, GALI NO. 3, NABI KARIM, PAHARGANJ, NEW DELHI.
.........................PLAINTIFF Versus SMT. NAJIMA W/O MOHD. RAFIQ R/O RAJEEV NAGAR, MANDOLI, SHAHDARA, DELHI. .......................DEFENDANT Date of Institution of the Suit : 01.06.2006 Arguments Heard : 07.02.2012 Date of Judgment : 07.02.2012 Suit No. 664/09 Page No. 1/8 Order : Suit Dismissed.
SUIT FOR RECOVERY OF RS. 1,24,000/.
Judgment:
Plaintiff filed the suit for recovery of Rs. 1,24,000/ alongwith interest @ of Rs. 24% per annum against the defendant.
The plaint of the suit is founded on the following facts; that the defendant is owner/landlady of premises no. BB448, measuring 50 sq. yards, situated in Ashoka Basti, Nabi Karim, Paharganj, New Delhi 110055 which was in possession/occupation of one Shri Kishori Lal S/o Sh. Amrit Lal; that an agreement dated 17.11.1999 was executed between the plaintiff and the defendant for getting the said Sh. Kishori Lal evicted from the aforesaid premises; that as per the agreement dated 17.11.1999 it was agreed between plaintiff and the defendant that the plaintiff will spend and bear all the litigation expenses and after getting the premises vacated, the plaintiff shall be entitled to half share in the aforesaid property. Further, it was agreed that after getting the possession of the aforesaid property, the defendant shall dispose off the same and will pay the half share of the sale consideration to the plaintiff in lieu of litigation expenses spent by him and if the defendant does not wish to sell the property, the property will be evaluated and either party will pay half of such amount to the other party; that the plaintiff engaged an advocate for filing a suit for possession against said Sh. Kishori Lal and was appointed attorney by the defendant for filing the suit titled as "Smt. Nazama through Munna Khan Vs. Kishori Lal", vide suit no. S61/2000. Suit No. 664/09 Page No. 2/8 The plaintiff spent a sum of Rs. 3,692/ towards the court fees etc. ; that the plaintiff was contesting the said suit and borne all expenses of the proceedings; that in order to deprive the plaintiff of his rights, the defendant compromised with said Sh. Kishori Lal without information or consent of the plaintiff and withdrew the suit on 05.09.2005. The plaintiff met with the defendant after coming to know about the case and asked her to pay the damages and expenses borne by him, but the defendant refused to pay any such amount; that the plaintiff spent about Rs. 1 lac on litigation and also suffered mental agony, pain and damages and as such is entitled to get interest upon the aforesaid amount which comes to Rs. 24,000/ up to 05.09.2005 @ 24% per annum; that the plaintiff sent a legal notice to the defendant but in spite of service of notice, the plaintiff failed to pay the aforesaid amount, hence the present suit.
Defendant contested the suit by filing Written Statement of defence, taking preliminary objections that the plaintiff has no right, title or interest or locus standi to file the present suit; that the plaintiff has not approached this court with clean hands and the suit is not maintainable in the present form. In reply on merits, it is stated that the defendant entered into an agreement with Sh. Kishori Lal for the sale of the aforesaid property and ultimately all the title and interest in the property were handedover to Sh. Kishori Lal on 05.09.2005. The execution of any agreement dated 17.11.1999 has been specifically denied. All other averments of the plaint have been denied.
Plaintiff filed replication to the written statement of defence reiterating the averments of the plaint and controverting the defence taken by the defendants. Suit No. 664/09 Page No. 3/8
As per the pleadings of the parties, following issues were framed vide order dated 21.03.2007.
ISSUES :
1. Whether the suit of the plaintiff is not maintainable being without cause of action? OPD
2. Whether the plaintiff is entitled to recover the suit amount as prayed for ?OPP
3. Whether the plaintiff is entitled to recover interest, if so at what rate and for which period?OPP
4. Relief.
In support of his contentions, plaintiff got examined himself as PW 1, Sh. Khalid Khan as PW 2 and also relied on documentary evidence. On the other hand, defendant got examined Sh. Hira Vallabh Pujari as DW 1 and herself as DW 2.
I heard arguments on both sides and perused the material available on record.
My issue wise findings are as under:
ISSUE NO. 1
The onus to prove issue no. 1 was placed on the defendant. To discharge the same the defendant got examined herself as DW 2 and Sh. Hira Vallabh Pujari as DW 1. In her testimony DW 2 deposed about execution of one General Power of Attorney in favour of the plaintiff for filing the suit no. 61/2000 against one Sh. Kishori Lal but categorically denied about execution of any agreement dated 17.11.1999. She further deposed about making payment by herself for advocate Suit No. 664/09 Page No. 4/8 fee, court fees and other expenses and even for the visits of the plaintiff to the court in respect of above mentioned suit she also deposed about her sound financial condition. DW 2 was not cross examined by the plaintiff and her testimony remained unrebutted.
Plaintiff filed the present suit on the basis of an agreement dated 17.11.1999(Ex. PW 1). During the course of the arguments, it was argued by the counsel for defendant that the agreement Ex. PW 1 is a wagering agreement and it cannot be enforced. A bare perusal of agreement Ex. PW 1 goes to show that there is a merit in the contention of counsel for defendant. The law is settled that to constitute a wager, the parties must contemplate the determination of the uncertain event as the sole condition of their contract. " A wager, as per the definition given by Sir William Anson, " is a promise to give money or money's worth upon the determination or ascerainment of an uncertain event"(Anson , Law of contract, 22nd edition, Page no. 301, 302).
As per agreement Ex. PW 1, it was agreed between the first party(defendant herein) and second party (plaintiff herein) that the second party shall institute, file and sign the suit on behalf of the first party, to get the aforesaid premises vacated from Sh. Kishori Lal and for that purpose all the litigation and related expenses shall be borne by the second party. Further, as per the terms of agreement, after getting the possession of the said premises, the parties to the agreement would be its joint owner and the first party shall dispose of the same and will pay half of the sale consideration to the second party.
It is obvious that as per agreement Ex. PW 1 both the parties contemplated Suit No. 664/09 Page No. 5/8 the determination of an uncertain event i.e decree of the suit no. 61/2000, resulting in eviction of Sh. Kishori Lal, as the sole condition of their contract. Needless to say, it cannot be ascertained beforehand in any litigation as to what would be the outcome of that litigation. Undoubtedly, the contents of agreement Ex. PW 1 are squarely covered within the definition of an agreement by way of wager as contemplated U/s 30 of the Indian Contract Act 1872 which renders the same to be void.
It is also noteworthy here that the agreement Ex. PW 1 also resembles a champertous agreement which, in its essense, is a bargain whereby the one party is to assist the other in recovering property and is to share in the proceeds of the action. The law is also settled in this regard that agreements of such kinds are equally illegal and void whether the assistance to be furnished consists of money or of professional assistance or both. Time and again, it has been impressed by the superior courts that the agreements of this kind ought to be carefully watched and when found to be extortionate and unconscionable so as to be inequitable against the party, or to be made, not with the bonafide object of assisting a claim believed to be just and of obtaining a reasonable recompense, therefore, but for improper objects, effect ought not to be given to them. Even the agreements between legal practitioners, subject to the Legal Practitioner Act, 1879(Corresponding now to the Advocates Act, 1961) and their clients, making the remuneration of the legal practitioner dependent to any extent whatever on the result of the case in which he is retained are illegal as being opposed to public policy.
As per the plaintiffs version, by way of agreement Ex. PW 1, it was agreed Suit No. 664/09 Page No. 6/8 that, in the eventuality of getting the aforesaid premises vactated from Sh. Kishori Lal, both plaintiff and the defendant would be the joint owner of that premises. This covenant in itself is extortionate and unconscionable so as to be inequitable against the defendant herein and is certainly against a public policy which renders the consideration in lieu of agreement Ex. PW 1 unlawful in terms of Section 23 of Indian Contract Act, 1872. Therefore it is clear that the agreement Ex. PW1 was formed with an unlawful consideration and is void ab initio and therefore the same cannot be said, to have been discovered to be void or to have become void so as to provide any relief to the plaintiff in terms of Section 65 of the Indian Contract Act 1872.
Further , in support of his contentions, PW 1 deposed by way of affidavit Ex. PW 1/A1. During his cross examination, PW 1 failed to distinguish between the execution of General Power of Attorney and an agreement. He also failed to state whether the plaintiff is an illiterate/ pardanashin lady or not. Further, PW 1 showed his ignorance about the financial status of the defendant as she was not residing in his neighbourhood though he took stand that he was appointed as attorney for the defendant because she used to go out of station from time to time. The aforesaid testimony of PW 1 is contrary to his own pleadings.
The plaintiff also failed to bring on record the alleged power of attorney executed by the defendant for instituting suit no. 61/2000 against Sh. Kishori Lal. There is no evidence to show as to how the plaintiff calculated a sum of Rs. 1 lac towards litigation charges and other related purposes. Even the advocate who, allegedly might have been engaged by the plaintiff to file the suit was not Suit No. 664/09 Page No. 7/8 examined by him. PW 2, examined by the plaintiff in support of his case, is merely a witness to execution of agreement Ex. PW1 which does not establish anything. Plaintiff also claimed an interest @ 24 % per annum on Rs. 1 lac without any basis as there is no evidence in this regard as well.
In view of afore discussed facts and circumstances, it is held that the suit of the plaintiff is without any cause of action and is not maintainable. This issue is decided in favour of the defendant and against the plaintiff . ISSUE No. 2 & 3
In view of my findings on issue no. 1, the plaintiff is not entitled to recover the suit amount with interest and both the issues are decided against the plaintiff. RELIEF In view of my findings on issue no. 1, the plaintiff is not entitled for any relief from this court. Suit of the plaintiff is dismissed with costs.
Decree sheet be prepared.
Announced in the open court on 07.02.2012 (Kuldeep Narayan) Commercial Civil Judge(NE) Court no. 64, Karkardooma Courts 07.02.2012 Suit No. 664/09 Page No. 8/8 Suit No. 664/09 Page No. 9/8