Delhi District Court
Digitally vs M/S Hindustan General Industries ... on 1 December, 2021
IN THE COURT OF SENIOR CIVIL JUDGE CUM RENT
CONTROLLER (WEST), TIS HAZARI COURTS, DELHI
Presided by : Ms. Susheel Bala Dagar
RCA SCJ 353/16
CNR Number: DLWT030010512015
1. Shri Jagdish
2. Shri Mohd. Ibrahim (Deceased) Thru LRs
a. Shahzada Salim
b. Saddam Hussain
3. Shri Bhim
4. Shri Phool Chand
5. Shri Satdar Sahai
6. Shri Dharam Nath
7. Shri Matru Lal
8. Shri Harsh Nath
9. Shri Ram Parvesh Bhagat
10. Shri Narinder Singh
11. Shri Sukat Parshad
12. Shri Shiv Saran Lal
13. Shri Raghu Parsad
14. Shri Susbhash Parsad
15. Shri Dharam Nath
16. Shri Dev Chand Sahai
17. Shri Shamshuddin
18. Shri Chandrika Parshad
19. Shri Ram Nirhu
20. Shri Ganesh Thakur
21. Shri Imlal
22. Vijay Bahadur
23. Kishan Dev
24. Shri Alisher
25. Shri Moinu din
26. Shri Nem Ansari
27.Raj Narain Parshad
RCA SCJ 353/16 Jagdish v. Hindustan General Industries Page No. 1 of 28
Digitally
signed by
SUSHEEL
SUSHEEL BALA
BALA DAGAR
DAGAR Date:
2021.12.01
17:57:15
+0530
28. Bhirgooratan Bhagat
29. Shri Hare Ram
30. Shri Narinder Parshad
31. Budhu Yadav
32. Ganpat Parshat (Deceased) Thru LRs
a. Suresh Kumar
b.Vinod Kumar
c. Manoj Kumar
33. Shri Ram Kumar Singh
34. Shri Thakur Parshad
35. Shri Suraj Bali
36. Shri Raja Ram
37. Shri Randhir
38. Shri Parbhu Ram Yadav
39. Phool Chand
40. Shri Bri Moan Tiwari
41. Shri Ganga Parshad
42. Ram Parvesh
43. Shri Rajak Mohammad
44. Shri Shamsuddin
45. Shri Babu Ram
46. Shri Chhotey Lal
47. Shri Ram Saran Tayagi
48. Ram Began
49. Rameshwar Tiwari
50. Phooleshwar Ram
51. Shri Moti Chand
52. Shri Parshu Ram
53. Shri Ganga Sagar
54. Shri Ismail Khan
55. Shri Aughiya Parshad
56. Shri Shyam Behari
57. Shri Nanak chand
58. Shri Siri Ram
59. Shri Jawahar Lal
RCA SCJ 353/16 Jagdish v. Hindustan General Industries Page No. 2 of 28
Digitally
signed by
SUSHEEL SUSHEEL
BALA DAGAR
BALA Date:
DAGAR 2021.12.01
17:57:20
+0530
60. Shri Hira Lal Singh
61. Shri Bahadur
62. Shri Babu Lal
63. Shri Jhandi Lal
64. Shri Ramaino
65. Shri Kali Charan
66. Lal Bahadur
67. Shri Harkishan
68. Shri Rajvanshi
69. Shri Chander Bhan
70. Ram Lotan
71. Shri Ram Jatan
72. Shri Ram Chander
73. Shri Baleshwar Parshad
74. Shri Rama Nand
75. Shri Suresh Chand
76. Shri Bal Kishan
77. Shri Bhiugu Chaudhary
78. Shri Jagdish Chaudhary
79. Shri Ram Avadh
80. Shri Ram Asre (since deceased)
a. Shri Prabhu Nath, Son
b. Shri Krishna, Son
81. Shri Ram Bilas
82. Shri Ramayan Yadav
83. Shri Ram Naresh Yadav
84. Shri Harkeshwar rai
85. Shri Mitter Sain
86. Shri Adalat
87. Shri Dharam Nath Yadav
88. Shri Nand Jai
89. Shri Uda Shai
90. Shri Ram Narain
91. Shri Ramayan
92. Shri Bineshwari
RCA SCJ 353/16 Jagdish v. Hindustan General Industries Page No. 3 of 28
Digitally
signed by
SUSHEEL SUSHEEL
BALA DAGAR
BALA Date:
DAGAR 2021.12.01
17:57:24
+0530
93. Shri Mohan Chaudhary
94. Shri Mohan Chaudhary
95. Shri Mohd. Ishaq
96. Shri Abdul Ghani
97. Shri Shiv Nath
98. Shri Kayamuddin
99. Shri Gopal Singh
100. Shri Chabbi Lal
101. Shri Nanhu Yadav
102. Shri Baij Nath Gupta\
103. Shri Shamsoo
104. Shri Ram Pigan Singh
105. Kamal Dev Singh
106. Dharam Raj
107. Bhagwan Das
108. Shri Mitter Sain
109. Shri Rajinder Singh
110. Shri Kamleshwar
111. Sh. Ram Shanker
112. Shri Ram Parshad (Since Deceased) Thru LRs
a. Manoj Kumar Son
b. Ramu Son
113. Radhey Shyam
114. Shri Suraj Bilas
115. Shri Ram Dhan Singh
116. Shri Ram Kishan Singh
117. Kalaster Singh
118. Sham Dev Singh
119. Gurcharan Singh
120. Shri Bhola Singh
121. Shri Ram Bilash
122. Shri Ram Dulare
123. Shri Rajinder Parshad
124. Shri Jagdish Singh
125. Shri Rameshwar
RCA SCJ 353/16 Jagdish v. Hindustan General Industries Page No. 4 of 28
Digitally
signed by
SUSHEEL
SUSHEEL BALA
BALA DAGAR
DAGAR Date:
2021.12.01
17:57:30
+0530
126. Shri Vindhachal
127. Shri Raj Raj
128. Shri Ram Karan
129. Shri Dhari Sahai
130. Shri Suraj Narayan
131. Shri Daya chand
132. Shri Mahabir
133. Shri Baleshwar
134. Shri Sone Lal
135. Shri Zille Singh
136. Shri Babu Ram Singh
137. Shri Om Parkash
138. Dhan Singh
139. Shri Mohan Singh
140. Shri Bir Singh
141. Shri Ramesh
142. Shri Ramesh Chander Sharma
143. Shri Rajinder Pal
144. Shri Jai Pal Singh
145. Shri Jogeshwar Parshad
146. Shri Ram Kant
147. Raj Dhari
148. Shri Suresh Chand Sharma
149. Shri Balkishan Sharma
150. Shri Inder Dev
151. Shri Vijay Kumar
152. Shri Jokhu Ram
153. Shri Naresh Kumar
154. Shri Vinod Kumar
155. Shri Pool Dayal
156. Phattan
157. Shri Satpa
158. Shri Surat Mal
159. Shri Ram Ajor
160. Shri Ram Ansari
RCA SCJ 353/16 Jagdish v. Hindustan General Industries Page No. 5 of 28
Digitally
signed by
SUSHEEL SUSHEEL
BALA DAGAR
BALA Date:
DAGAR 2021.12.01
17:57:34
+0530
161. Shri Ram Pyare
162. Shri Bal Chand
163. Shri Sachinda Nand
164. Shri Krishan Kumar
165. Shri Laxman
166. Shri Ram Bilas
167. Ram Dhani
168. Shri Nand Kishore
169. Shri Ram Murari
170. Shri Mishri Lal
171. Shri Kailash Chand
172. Shri Goverdhan
173. Shri Inderassen
174. Shri Jawala Yadav
175. Shri Anand Sing
176. Shri Kamla Parshad
177. Shri Rattan Singh
178. Shri Ram Dev Chaudhary
179. Shri Babu Lal
180. Shri Gopal Podar
181. Shri Ram Awadh
182. Shri Ram Chander
183. Shri Bansi Kumar
184. Shri Satish Kumar
185. Shri Jagdish Parshad
186. Shri Naresh Kumar
187. Shri Jagan Nath
188. Shri Ram Kishan
189. Shri Madan ................Appellants
Versus
M/s Hindustan General Industries Limited,
Nangloi, Delhi 110041. ...................Respondent
RCA SCJ 353/16 Jagdish v. Hindustan General Industries Page No. 6 of 28 Digitally signed by SUSHEEL SUSHEEL BALA BALA DAGAR DAGAR Date:
2021.12.01 17:57:39 +0530 Date of Institution : 28.11.2015 Date of judgment was reserved : 16.11.2021 Date of pronouncing judgment : 01.12.2021 Civil appeal by and on behalf of the appellants against the judgment and decree dated 24.8.2015 passed by the Court of Ld. Civil Judge Tis Hazari Courts, Delhi in Suit No. 161/013, titled as M/s. Hindustan General Industries v. Jagdish Chandra and Others, whereby the suit was decreed for possession and directing the appellants to remove the huts etc. Judgment Brief facts of the case
1. The brief facts of the suit are that the plaintiff /respondent filed a suit for possession against the appellants/defendants prayed for a decree for possession of the suit premises falling within Khasra No. 5/24/2 measuring 5 bighas 9 biswas and Khasra No. 13/4, measuring 4 bighas 1 biswas total measuring 9 bighas and 10 biswas as shown in the jamabandi of the year 197879 of village Nangloi Jat Tehsil, Mehrauli, Delhi, inter alia on the allegations that the plaintiff/respondent is a public limited company, and Shri R.R.Bhalla is the Managing Director of the company who is authorized by the Memorandum and Articles of Association of the company as well as by /vide Resolution No. 4 of dated 27.6.79 of the company to file the present suit; and the company has an area of 128 bighas and 17 biswas of land attached with the factory premises. Same was under
RCA SCJ 353/16 Jagdish v. Hindustan General Industries Page No. 7 of 28 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
DAGAR 2021.12.01
17:57:44
+0530
crop and has been in continuous possession and control and management of the plaintiff/ respondent company and the appellants/defendants are members of General Mazdoor Lal Jhanda Union. There was some labour problem/unrest of the factory premises of the plaintiff/ respondent at the instance of union members and there was a general strike in the year 1974 and then again in 1979. The appellants/ defendants entered into a criminal conspiracy to take forcible and illegal possession of a part of the land belonging to the company i.e. the land in suit by setting up unauthorized and illegal temporary huts/jhuggies to be ultimately constructed in to pucca huts. On 12.12.1978, a police report was allegedly lodged by the plaintiff/ respondent company through its Managing Director; and consequently the appellants/defendants filed a civil suit No. 66/79 for injunction in the Civil Court at Delhi.
2. The appellants/ defendants filed their written statement, taking several preliminary objection such as the suit as framed and laid down is not maintainable; the plaintiff/ respondent has not disclosed any cause of action as such suit is liable to be rejected under Order 7 Rule 11 C.P.C. The Court has no jurisdiction to entertain and try the present suit as it is not properly valued for purposes of Court fee and jurisdiction and not properly stamped, because the land/property in dispute is of more that Rs. Ten Lacs. The jurisdiction of civil Court is barred under Section 18 of Indian Trade Union Act. The suit is time barred under Section 6 of Specific Relief Act, as the jhuggies/land in dispute were occupied by the appellants/ defendants since more than last three years. The property in suit has been given to appellants/ defendants in lieu of their service and became part and parcel of RCA SCJ 353/16 Jagdish v. Hindustan General Industries Page No. 8 of 28 Digitally signed by SUSHEEL SUSHEEL BALA BALA DAGAR DAGAR Date:
2021.12.01 17:57:48 +0530 the service conditions of the employees of the said company. The land in dispute has been occupied by the appellants/ defendants on different occasions with the consent of the said R.R. Bhalla then Managing Director of the company. The suit is not maintainable within the meaning of Transfer of Property Act. The jhuggies/pucca huts have been constructed by the appellants/ defendants on the land in question on different occasions severally and independently. The appellants/ defendants spent a lot of fund in construction of their own jhuggies separately, on a particular piece of land. The cause of action against the appellants/defendants also not accrued to the plaintiff/ respondent jointly, hence, the suit is liable to be dismissed on this ground.
3. It was also contended that the individual appellant/ defendant has got the right, title and interest on his individual jhuggi/hut and has no interest, title, right on the huts of other appellants/ defendants. The appellants/ defendants denied that Shri R.R. Bhalla is authorized by the memorandum and articles of Association of the company as well as by/vide Resolution No. 4 dated 27.6.1979 of the company to file the present suit, and he has no right to or authority to sign, verify the suit. It was submitted that the land in occupation of the appellants/ defendants and other vacant land was not under crops and being never used for agricultural purpose. The land in dispute is a commercial one and was being used by the company as commercial. The land in dispute has been allotted to the appellants/ defendants on different occasions. It is the management who has illegally and intentionally lock out the company in the year 1979 with the intention to pressurize the appellants/ defendants to vacate and remove their RCA SCJ 353/16 Jagdish v. Hindustan General Industries Page No. 9 of 28 Digitally signed by SUSHEEL SUSHEEL BALA BALA DAGAR DAGAR Date:
2021.12.01 17:57:55 +0530 huts/houses constructed in the factory premises with the due consent of then Managing Director. The employees/ appellants/ defendants have received salary for the period of illegal lock out which the management illegally lock out. It seems that the company wants to get undue advantage by filing affidavit on behalf of R.R. Bhalla denying his own commitments which is not only false but misconceived. Said R.R. Bhalla has not filed any affidavit in trial Court. The plaintiff/ respondent cannot take the relief of possession against all the appellants/ defendants in a single suit. The suit must have been filed individually against the appellants/ defendants.
4. On completion of the pleadings, the learned predecessor of the Court below, framed the following issues:
i) Whether the defendants are in unauthorized possession of the land in suit? OPP.
ii) Whether the suit land correctly valued for the purpose of Court fee and jurisdiction? OPD
iii) Whether the suit is time barred u/s 6 of Specific Relief Act.? OPD
iv) Whether the suit is not maintainable on the ground as mentioned in para 4 of pre. Objections of the WS? OPD
v) Whether the suit is bad for misjoinder of parties and causes of action as alleged in para 9 of the pre. Objection of the WS? OPD.
vi) Relief.
5. In order to substantiate the claim, the plaintiff/ respondent examined Shri R.C. Bhalla PW1 Executive Director of the plaintiff/ respondent Company.
RCA SCJ 353/16 Jagdish v. Hindustan General Industries Page No. 10 of 28
Digitally
signed by
SUSHEEL
SUSHEEL BALA
BALA DAGAR
DAGAR Date:
2021.12.01
17:58:00
+0530
6. The Learned Predecessor of the Court below (Shri H.S. Sharma) Ld. Sub Judge 1st Class, Delhi vide judgment dated 20.1.1990 dismissed the suit. The plaintiff/respondent went in appeal against the said judgment dated 20.1.1990 which was heard by Shri Ajay Goel, Ld. SCJ Cum RC (Central) Delhi. The case was remanded back for the fresh adjudication on additional issues framed to the following effect: (1) Whether the suit was instituted by competent person? OPP (2) Whether the land is correctly identifiable? OPP
7. It was ordered that the finding on issues already framed shall remain as such and are not disturbed. The plaintiff/ respondent was also given liberty to amend the plaint if required within one month and thereafter to lead evidence on these two issues. The appellants/ defendants were also permitted to lead evidence on the fresh two issues. It was ordered that the Ld. Trial Court would give the finding on these two issues and then decide the relief. The judgment dated 20.01.1990 of Ld. Trial Court was set aside. However, it was made clear that under Order 1 Rule 10 CPC applications of some of the applications were dismissed by Appellate Court. Thus no such applications would be entertained by the Ld. Trial Court. Thus the suit stood remanded for decision by leading evidence on the said two issues framed by the Ld. Appellate Court.
8. After the remand of the suit, the plaintiff/ respondent led evidence and Shri R.C. Bhalla appeared as PW1; Shri S.K. Rajgarihia appeared as PW2 and he filed and proved a Board Resolution allegedly passed on 01 st day of March, 2011 whereby Mr. S.K. Rajgarhiya was authorized to sign all Court papers for and on behalf of the company and to represent the RCA SCJ 353/16 Jagdish v. Hindustan General Industries Page No. 11 of 28 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
DAGAR 2021.12.01
17:58:04
+0530
company in all manners. He also filed copy of alleged resolution No. 4 passed at the meeting of Board of Directors held on 27.4.1979, whereby it was allegedly resolved that R.R. Bhalla is authorized to file a suit for possession of land under Section 6 of Specific Relief Act or any other legal action deemed fit by him against trespassers/ employees of the company, who have illegally encroached upon the agricultural land of the company and have constructed jhuggies also. Further resolved that Shri R.R. Bhalla is also authorized to verify, sign and file the plaint/application on behalf of the company to engage lawyer/counsel etc., for this matter and to incur necessary expenditure in this behalf.
9. During pendency of the suit some of the appellants/ defendants in suit died and an application under Order 22 Rule 10 A CPC was filed by the appellants/ defendants on 10.5.2013 stating that the suit against the dead defendants stands abated as the plaintiff/ respondent has not filed appropriate application for bringing on record the LRs of deceased defendants. Then the plaintiff/ respondent filed an application under Order 22 Rule 4 CPC praying that the legal representatives of the deceased defendants be substituted as defendants. The plaintiff/respondent also moved application under Order 5 Rule 20 CPC, praying that the LRs of the deceased defendants be served through substituted service. On 03.10.2013 the Learned Trial Court observed that some of the LRs have been served as per report filed on record, out of them, 15 LRs as per list filed on record are present in person. Further ordered "Notices be issued to the LRs of the deceased defendant who has not been served so far on filing of PF for 03.12.2013 and on 3.12.2013, it was observed " Since no one present on RCA SCJ 353/16 Jagdish v. Hindustan General Industries Page No. 12 of 28 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
DAGAR 2021.12.01
17:58:08
+0530
behalf of 64 LRs of the deceased defendants are present, the case is proceeded exparte against them. It is further observed that in view of the provisions of Order 22 Rule 6 CPC there is no need of bringing the LRs of the deceased defendants on record. The appellants/ defendants filed their written submissions on the said two issues i.e. whether the suit was instituted by competent person? OPP and whether the land is correctly identified ?OPP.
10. It is averred that the Learned Trial Court without appreciating the pleadings, the documents, evidence, and written submissions, decreed the suit, vide impugned judgment and decree dated 24.8.2015. Hence, the appeal has been filed on following grounds : Grounds of appeal.
11. The impugned judgment and decree is against the facts and law of the case and is not sustainable. The entire proceedings of the case before the learned trial Court are vitiated, illegal and are liable to be set aside inasmuch as about 107 defendants died long before but even in the appeal filed by respondent in which the matter was remanded, and also during period in the trial Court when the case was remanded back, the respondent did not bring on record the legal representatives/heirs of deceased 107 defendants, although some of them died more than 20 years back, and some of them died more than 15 years back. The respondent did not move the requisite application for bringing on the record the legal representatives of the deceased defendants. The respondent was always in knowledge of the death of the particular deceased defendant because it has its office at the same place and was/is functioning throughout. The entire staff of the RCA SCJ 353/16 Jagdish v. Hindustan General Industries Page No. 13 of 28 Digitally signed by SUSHEEL SUSHEEL BALA BALA DAGAR DAGAR Date:
2021.12.01 17:58:14 +0530 respondent including Chowkidar, Guards etc. are always present besides all the records concerning the defendants always remained in the custody and care of the respondent. The respondent always was in knowledge of the legal representatives of the particular deceased defendant. The record of each employee contains the names and particulars of the family members of the defendant. So the suit against such defendants abates, and no decree can be passed against dead person, or against the defendant against whom the suit stands abated. The appellants moved on application under Order 22 Rule 10A read with Section 151 CPC for and on behalf of the defendants vide application dated 10.5.2013, giving the particulars and dates of death of respective 107 defendants disclosing their names, their father and husband's name and also date of death and also given the names of legal representative of some of the defendants. Thereafter the respondent moved an application for bringing on record the legal representatives, but the application was moved without condoning the delay and without moving the application for setting aside the abatement.
12. The learned trial Court erred in law by passing the order on 30.10.2013 and also on 3.12.2013. The learned trial Court did not record the names of the LRs of the deceased who have been served for 30.10.2013. The learned trial Court below only mentioned 15 LRs as per list filed on record are present in person. It is not clear as to of which deceased defendant the alleged LRs were present. The learned trial Court ought to have allowed the application for bringing on record the legal representatives of deceased defendant who were served on that day and ought to have direct the plaintiff/ respondent to amend the plaint and to RCA SCJ 353/16 Jagdish v. Hindustan General Industries Page No. 14 of 28 Digitally signed by SUSHEEL SUSHEEL BALA BALA DAGAR DAGAR Date:
2021.12.01 17:58:24 +0530 bring on record the legal representatives of the deceased defendants, but the learned trial Court proceeded exparte against them. Even the alleged 65 legal heirs who were proceeded exparte, were not brought on record, so they could not have been proceeded exparte. The learned trial Court again acted contrary to law by ordering that there is no need of bringing the LRs of deceased defendant on record under Order 22 Rule 6 CPC.
13. It is submitted that the provision of Order 22 Rule 6 CPC is applicable only when the final arguments were concluded or heard by the trial Court and the case was adjourned for pronouncement of the judgment / order. If in between any defendant dies, in that case the LRs of deceased defendant are not needed to be brought on record, and the suit shall not be abated against such deceased defendant, else suit abates against the deceased defendant. In the present case the proceedings are going on and the case was fixed for final arguments. The learned trial Court below did not hear the final arguments and the case was not postponed for pronouncing the judgment. Thus the suit stands abated against the deceased defendants whose legal heirs were not brought on record by the plaintiff. It is admitted that as such the judgment and decree so passed against all the deceased defendants and surviving defendants are illegal, unsustainable and is liable to be set aside on this ground alone. The finding of the learned trial Court is perverse, not based on evidence on record.
14. The learned trial Court wrongly held that the appellants/ defendants admitted that R.R. Bhalla was the Managing Director of the company, although the appellants/ defendants denied the same and further in reply to para No. 1 of the plaint, the appellants/ defendants in the written statement RCA SCJ 353/16 Jagdish v. Hindustan General Industries Page No. 15 of 28 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2021.12.01 DAGAR 17:58:28 +0530 only admitted that the plaintiff/ respondent company is a limited company and rest of the para is denied. The learned trial Court wrongly interpreted the judgment cited by the Counsel for the appellants/ defendants AIR 1991 Delhi 25 and AIR Calcutta 169. The said judgments are having direct bearing on the issue No. 1. It is submitted that the plaintiff/ respondent manipulated to put the alleged resolution No. 4 on the Court record whereas the same was not filed along with the plaint that is why the said resolution was not proved by the plaintiff/ respondent company and the suit was dismissed on that very basis by the previous Court of Shri H.S. Sharma, the then Ld. Sub Judge, Delhi. The plaintiff/ respondent has not proved the Authority of Shri R.R. Bhalla to sign, verify and institute the suit and further the plaintiff/ respondent failed to prove individual possession of each of the appellants/ defendants.
15. The plaintiff/ respondent further did not file any site plan to show a particular piece of land with individual appellant/ defendant under their individual hut/house with other necessary particulars. The learned trial Court further failed to appreciate that the position of individual possession of the appellants/ defendants is the same as it was at the time when Shri H.S. Sharma, the then Ld. Sub Judge passed his judgment between the same parties with regard to the same property. The plaintiff/ respondent examined PW2 S.K. Rajgarhia. It is submitted that the case was remanded back and opportunity was given to the plaintiff/ respondent to prove the possession of individual appellant/ defendant with regard to individual land and construction, but the plaintiff/ respondent failed to prove the same despite the opportunity. The learned trial Court was biased against the RCA SCJ 353/16 Jagdish v. Hindustan General Industries Page No. 16 of 28 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2021.12.01 DAGAR 17:58:33 +0530 appellants/ defendants and was bent upon to act at the whims of the plaintiff/ respondent. The plaintiff/ respondent company failed to prove the alleged resolution No. 4 according to law. The alleged resolution dated 27.6.1979 was neither filed with the plaint nor was proved on record as per law. PW2 is not able to identify the signatures of executant on PW2/5 which makes is clear that the plaintiff/ respondent failed to prove the alleged resolution exhibit PW2/5. Merely exhibiting the documents is not enough to prove the document, but it must be proved as per the provisions of Evidence Act. The plaintiff/ respondent company failed to prove as the PW2 categorically stated that he cannot identify the signature of executant on Exhibit PW2/5 so there is no resolution in the eyes of law authorizing the signatory of the plaint to sign, verify and institute the suit. The learned trial Court erred in law by relying upon the judgments which are not applicable to the circumstances of the present case, stating that no objection was taken at the time of exhibiting the document. Even a perusal of resolution dated 27.6.1979 makes it clear that the said Shri R.R. Bhalla was not authorized by the said resolution to institute the suit. The judgment referred by the appellants/ defendants are of our own High Court and also of Calcutta High Court are very much clear on this particular point, but the learned trial Court ignored the same.
16. The learned trial Court appreciated the arguments of the plaintiff/ respondent company inasmuch as that the suit property is an agricultural land whereas the entire land of the plaintiffcompany is commercial complex/land and is being used for commercial purposes i.e. for the purpose of running factory and for other commercial activities.
RCA SCJ 353/16 Jagdish v. Hindustan General Industries Page No. 17 of 28 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
DAGAR 2021.12.01
17:58:38
+0530
17. The learned trial Court failed to appreciate that the plaintiff/ respondent failed to show as to who has made his house/hut at which particular piece of land and how much area he has occupied and it is not clear as to from whom the possession is being sought and for which particular part of the land. The learned trial Court failed to appreciate that by merely proving Khasra number and the site plan of entire land does not meet the requirement of Order 7 Rule 3 CPC. i.e. Ex. PW2/8 to Ex. PW 2/11 did not prove the particular land under possession of a particular person, as such the decree of possession will not be practically enforceable against an individual appellant/ defendant. The learned trial Court wrongly relied upon Ex. PW2/12 i.e. the site plan which allegedly show disputed land has been marked in red color. There is no question of alleging and showing the entire Khasra number in red color. The plaintiff has failed to file the correct site plan as per site and has failed to prove the same. The learned trial Court failed to appreciate that the portion in which the houses/jhuggies were/are constructed by the appellants/ defendants are not the lands of the plaintiff/ respondent company, but the same belongs to Delhi Development Authority as per decision of Hon'ble Supreme Court and the execution proceedings are pending before learned District & Sessions Judge, Tis Hazari Courts, Delhi.
18. No reply has been filed by the respondent despite opportunity being given to file reply.
19. I have heard Shri J.G. Goswami, Ld. Counsel for the appellants and Shri Sanjeev Sahai, Ld. Counsel for the respondent and have gone through RCA SCJ 353/16 Jagdish v. Hindustan General Industries Page No. 18 of 28 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
DAGAR 2021.12.01
17:58:42
+0530
the record. Ld. Counsels for both the parties have filed written synopsis of their arguments.
20. Ld. Counsel for the appellants has filed following case laws in support of his arguments : Gurnam Singh (D) Thr. Lrs. and others v. Gurbachan Kaur (D) by Lrs. And others AIR SC 2419, Uma Andarjanam and other, Appellants v. Neelakandan Namboodiri and other, Respondents AIR Kerala 314, Saljing A. Sangma v. Smt. Bilmoni A. Sangma AIR 2014 Meghalaya 15, M/s. Nibro Limited v. National Insurance Co. Ltd. AIR 1991 Delhi 25, AlAmin Seatrans Ltd. v. Owners and Party interested in Vessel M.V. 'Loyal Bird' AIR 1995 Calcutta 169, Abdul Hakim v. Habib Khan AIR 1998 Rajasthan 157, Marguerite Chawla v. Miss Kiran Abnashi Chawla 2015 X AD (Delhi)653, Gaiv Dineshaw Irani v. Tehmtan Irani (2014) 8 SCC 294.
Ld. Counsel for the respondent has filed following case laws in support of his arguments : Jagdish Chander Bhalla v. Laksham Swarup Bhatnagar RSA 317D of 1966 decided on 26.03.1971, Goda Coopuramier v. Msundarammal 1909 Law Suit (Mad) 102 decided on 21.09.1909 of the Hon'ble High Court of Madras (D.B). Court observations and findings.
21. In the present appeal, the main thrust and focus of the appellant is on three grounds :
1. That about 107 defendants expired but their LRs were not brought on record.
RCA SCJ 353/16 Jagdish v. Hindustan General Industries Page No. 19 of 28 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
DAGAR 2021.12.01
17:58:47
+0530
2. The finding that Shri R.R. Bhalla was the managing director of the company.
3. The plaintiff did not file individual site plans for individual defendants/ appellants.
22. The Ld. Trial Court has decided all the above three in favour of the plaintiff/ respondents while relying on the following case laws : Wasava Tyres A partnership Firm v. The Printers (Mysore) Ltd. (2007) 139 Compcas446 (Kar.), Asha Sharma v. Sanimiya Vanijiya MANU/DE/2029/2012, Jai Narain Parasrampura (dead) and Ors. v. Pushpa Devi Saraf MANU/SC/8451, The Roman Catholic Mission v. The State of Madras reported in AIR 1966 SC 1457, Smt. Sheila Devi v. Smt. Santosh Devi 2014 IIAD (Delhi 560, 2014 (14) DRJ 278, R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple 2003 (8) SCC 752, United Bank of India v. Naresh Kumar Air 1997 SC 3, Mahanagar Telephone Nigam Ltd. v. Smt. Suman Sharma 2011 IAD (Delhi) 331, Peerless General Finance and Investment Co. Ltd. v. Punjab & Sind Bank ILR (2008) I Delhi 2003, Ambanna v. Ghanteappa AIR 1999 Karnataka 421 and Saljing A. Sangma v. Smt. Bilmoni A. Sangama AIR 2014 Meghalaya 15.
23. It is the contention of the appellant that the deceased defendants expired in the suit premises on different dates and the respondent company was fully aware having knowledge about the death of those defendants at the company is running their office in the same premises.
RCA SCJ 353/16 Jagdish v. Hindustan General Industries Page No. 20 of 28
Digitally
signed by
SUSHEEL
SUSHEEL BALA
BALA DAGAR
DAGAR Date:
2021.12.01
17:58:51
+0530
24. Perusal of the record shows that the suit was instituted by the respondent against 337 defendants on 30.07.1979. It is contended in the appeal that whether decree can be passed when some of the defendants have passed away and their legal heirs have not been impleaded. On 13.05.2013 it was apprised by the Ld. Counsel for defendant/ appellants that 107 defendants expired before pronouncement of judgment / decree. The deceased defendants were also being represented by the same Counsel during their lifetime. From 107 defendants, LRs of 64 defendants were proceeded exparte vide order dated 03.12.2013 and rights of LRs of other defendants were hit by Order XXII Rule 6 CPC. During the trial as well as the appeal all the defendants/ appellants were represented by the same Counsel. Thus, the contention of Ld. Counsel for the respondent that the impleadment of legal heir of one defendant and non impleadment of LRs of other defendant would not have any impact on the merits of the case is found tenable for the following reasons. Firstly, none of the non impleadment LRs have approached the Court by way of present appeal. Secondly, impugned decree/ judgment has attained finality for all the defendants who have not approached the Court i.e. for 148 defendants.
25. As per the law laid down in Goda Coopooramier v. Soondarammall, ILR 33 Madras 167 (D.B) judgment/ decree passed on merits does not become invalid or nullity merely on the death of a defendant if it has been heard fully.
26. Further, the appellants cannot take the defence for deceased defendants. The decree can only be challenged by the legal heirs of the deceased defendants. The impugned decree / judgment is not a conjoint or RCA SCJ 353/16 Jagdish v. Hindustan General Industries Page No. 21 of 28 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2021.12.01 DAGAR 17:58:55 +0530 single decree, it is group of several distinct decrees. Thus, the appellants and the LRs of the deceased defendants being separate and distinct have their own separate and distinct rights. 147 dependents cannot be benefited by the outcome of the present appeal as they have not challenged the same. Similarly, the appellants cannot take the ground that some of the defendants have expired so the decree be set aside against them also.
27. In Sardar Amarjit Singh Kalra (dead) by LRs and others v. Pramod Gupta (dead) by LRs decided on 17.12.2002 in SLP (C) 1191411915 of 1991 is as under :
"34. In the light of the above discussion, we hold : (1) wherever the plaintiffs or appellants or petitioners are found to have distinct, separate and independent rights of their own and for the purpose of convenience or otherwise, joined together in a single litigation to vindicate their rights the decree passed by the Court thereon is to be viewed in substance as the combination of several decrees in favour of one or the other parties and not as a joint and inseverable decree. The same would be the position in the case of defendants or respondents having similar rights contesting the claims against them..."
"(2) Whenever different and distinct claims of more than one are sought to be vindicated in one single proceedings, as the one now before us, under the Land Acquisition Act or in similar nature of proceedings and / or claims in assertion of individual rights of parties are clubbed, consolidated and dealt with together by the Courts concerned and a single judgment or decree has been passed, it should be treated as a mere RCA SCJ 353/16 Jagdish v. Hindustan General Industries Page No. 22 of 28 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
DAGAR 2021.12.01
17:59:00
+0530
combination of several decrees in favour of or against one or more of the parties and not as joint and inseparable decrees..."
28. Appellants have craved to challenge the appeal on the ground that the impugned judgment was passed in contravention of Order XXII Rule 6 CPC. It is pleaded by the appellants that the judgment is bad as LRs of remaining deceased defendants i.e. 41 defendants were ought to be impleaded. However, out of the 189 appellants who have filed present appeal, none of them is a party who are aggrieved by the Order dated 03.12.2013, whereby the remaining LRs were not impleaded and their rights were decided without hearing them. None of the appellants or the LRs who were not impleaded under Order XXII Rule 6 CPC have challenged the order dated 03.12.2013 and thus the order attained finality.
29. As per Jagdish Chander Bhalla v. Lakshman Swarup Bhatnagar 1971 SCC Online Del 92, the order can be appealed only by a person aggrieved by it. The relevant portion is quoted as follows:
"...A decree against the dead person was held to be void by a learned Single Judge who distinguished Goda Coopooramier's case cited above (holding a decree in favour of a dead man as valid) by the following observation : "It is not clear that the decision would have been the same, if a decree against a defendant had been in question". But the words "void" or "nullity" only mean that such a judgment is liable to be set aside at the instance of the person affected..."
30. No such person/ LRs have come forward to challenge the decree or the order dated 03.12.2013. Hence, this ground raised by the appellants is not found tenable.
RCA SCJ 353/16 Jagdish v. Hindustan General Industries Page No. 23 of 28 Digitally signed by SUSHEEL SUSHEEL BALA BALA DAGAR DAGAR Date:
2021.12.01 17:59:05 +0530
31. The second contention of the defendant is that the appellant did not admit that Shri R.R. Bhalla was the managing director of the company. It is argued that in para no. 1 of the plaint the appellants have denied that Shri R.R. Bhalla is authorized by the memorandum articles of association of the company as well as by resolution no. 4 dated 27.06.1976. It is argued that the plaintiff/ respondent could not prove by evidence about the same.
32. It is contended by the appellant that no where the plaintiff/ respondent company stated that the Board of Directors authorized Shri R.R. Bhalla to institute the suit and in the absence of such authorization, the suit is not properly filed and is liable to be dismissed. Further, PW1 and PW2 have no where deposed that said R.R. Bhalla was authorized by the Board of Directors of the company to institute the suit. No where in their evidence PW1 and PW2 stated a single word that the suit was instituted by R.R. Bhalla. The witnesses failed to prove and identify the signatures of R.R. Bhalla on the plaint as well as on the vakalatnama.
33. It is further contended that the Learned trial Court failed to appreciate AIR 1995 Calcutta 169 and in para No. 23, the Hon'ble Court observed as under :
"23. It is well settled that under Section 291 of the Companies Act... ...However, the question of authority to institute the suit on behalf of the company is not a technical matter. It has far reaching effects. It often effects policy and finances of the company. Thus, unless the powers to institute a suit is specifically conferred on a particular director, he has no authority to institute a suit on behalf of the company. Needless to say that RCA SCJ 353/16 Jagdish v. Hindustan General Industries Page No. 24 of 28 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
DAGAR 2021.12.01
17:59:10
+0530
such power can be conferred by the Board of Directors only by passing a resolution in that regard.
34. The appellants have also relied upon AIR 1991 Delhi HC 25 on para 6(4) wherein it is observed as under:
"Has this suit been instituted on behalf of the plaintiff company by an authorized person and the plaint is signed and verified by a competent person...
...Para 25 It is proved that ordinarily the Court will not unsuit a person on account of technicalities. However, the question of authority to institute the suit on behalf of the company is not a technical matter. It has far reaching effects. It often effects the policy and finances of the company. Thus, unless powers to institute a suit is specifically conferred on a particular director, he has no authority to institute the suit on behalf of the company. Needless to say that such a power can be conferred by the Board of Directors only by passing a resolution in that regard.
26... Chapter IV of the High Court (Original side) Rules deals with the question of presentation of the suits. Under this rule, suits can be presented by a duly authorized agent or by an Advocate duly appointed by him for the purpose. This authorization, in my view, in case of the company can be given only after a decision to institute a suit is taken by the Board of Directors of the company. The Board of Directors may in turn authorize a particular Director, Principal Officer, or Secretary to institute the suit.
35. Perusal of the record shows that the Ld. Trial Court has duly discussed the case laws M/s Nibro Ltd. AIR 1991 Delhi 25 and AIR CAL 169 (supra) cited by the appellants and has duly given the findings that the RCA SCJ 353/16 Jagdish v. Hindustan General Industries Page No. 25 of 28 Digitally signed by SUSHEEL SUSHEEL BALA BALA DAGAR DAGAR Date:
2021.12.01 17:59:14 +0530 said case laws is not helpful to support the argument of the appellants that the suit is not instituted by a competent person. The document Ex. PW2/5 has been found to be duly proved on record whereby Shri R.R. Bhalla was authorized to institute the present suit. PW2 Shri S.K. Raghgaria brought the original minutes books of the relevant year in the Court to show that Shri R.R. Bhalla was the managing director and was authorized by board resolution no. 4 dated 27.06.1979. When the original minutes book by which the board resolution Ex. PW2/5 was passed has been produced and the said original minute book was not challenged by the defendants/ appellants then in a such situation only because PW2 could not identify the signatures of Shri R.R. Bhalla or the signatures of the executants of Ex. PW2/5 does not disprove the original minute books wherein the said board resolution is duly incorporated. The case laws being relied upon by the appellants have been duly discussed by the Ld. Trial Court and I do not find any reason to differ with the reasoning and discussions of the Ld. Trial Court while holding that the suit was instituted by a competent person.
36. Another contention of the appellant is that the respondent has failed to show at which particular piece of land and in how much area a particular appellant has made his house/ hut. It is argued that it is not clear as to from whom possession is being sought and for which particular part of the land.
It is submitted that no demarcation of four sides of khasra no. 5/24/2 occupied by the appellants has been given and similarly, the plaintiff/ respondent has not given boundary of khasra no. 13/4.
37. Perusal of the record shows that in the present suit the issue is whether the land which is illegally and unauthorizedly occupied and on RCA SCJ 353/16 Jagdish v. Hindustan General Industries Page No. 26 of 28 Digitally signed by SUSHEEL SUSHEEL BALA BALA DAGAR DAGAR Date:
2021.12.01 17:59:18 +0530 which jhuggies were constructed by the appellants/ defendants later, is identifiable or not. The issue is not whether the individual appellants are identifiable. It is settled principle of law that as per Order 7 Rule 3 CPC, where the subject matter of the suit is immovable property, the plaint shall contain description of the suit property which is sufficient enough to identify it. In case such property can be identified by boundaries in a record of settlement or survey, the plaint shall specify such boundaries or numbers. Perusal of the record shows that during cross examination DW1 to DW5 have admitted that in the suit number 66/79 they filed the site plan of the suit property and the suit property has been identified by the khasra number. The said suit no. 66/79 was earlier filed by the defendants / appellants wherein they filed the site plan as annexure A Ex. PW2/6. The said site plan has been relied by the plaintiff / respondent in the present suit. PW2 has categorically stated that the land in question falls in khasra no. 13/4, 5/24/2 and thus the said land can be identified by khasra numbers. The appellants while filing their written statement as defendants have not disputed the site plan Ex. PW2/6 filed by them in the suit no. 66/79. Thus, they are estopped from challenging the same site plan when it is relied by the plaintiff/ respondents in this suit. The land in question is duly Marked X in the site plan Ex. PW2/6 falling with the red line marked A to J and accordingly the same is correctly identifiable. As regards the contention of the appellant that the houses of the defendant had fallen on the land of DDA, the same is not found tenable. The plaintiff / appellant produced the copy of the judgment dated 29.05.2012 and the site plan annexed therein before the Ld. Trial Court, on the basis of which the description of the land RCA SCJ 353/16 Jagdish v. Hindustan General Industries Page No. 27 of 28 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2021.12.01 DAGAR 17:59:23 +0530 to be retained by the plaintiff/ respondent became clear alongwith the land to be surrendered to the DDA and the land allegedly under the occupation of the defendants/ appellants. There is no reason not to take judicial notice of the judgment dated 29.05.2012 by the Ld. Trial Court. None of the grounds raised by the appellants in this appeal are found tenable on merits.
38. In view of the abovesaid findings, the appeal of the appellants/ defendants is dismissed. No order as to costs. Decree sheet be prepared accordingly. Copy of this order be sent to the Ld. Trial Court for information.
File be consigned to record room.
Digitally
signed by
SUSHEEL
SUSHEEL BALA
BALA DAGAR
DAGAR Date:
2021.12.01
17:59:28
+0530
Announced in open Court (Susheel Bala Dagar)
on 01st Day of December 2021 SCJ cum RC(West)
Tis Hazari Courts, Delhi.
(This judgment contains 28 pages.)
RCA SCJ 353/16 Jagdish v. Hindustan General Industries Page No. 28 of 28