Delhi District Court
Sh. Narender Kumar Valecha vs Sh. Virender Kumar Valecha on 1 November, 2011
IN THE COURT OF SH. SAURABH KULSHRESHTHA:
CCJ:ARC(EAST):KARKARDOOMA COURTS: DELHI
Civil Suit no: 257/09
ID No:02402C0157532009
Sh. Narender Kumar Valecha,
S/o Late Sh. Karam Chand Valecha,
R/o 161-162, Street No. 7, New Lahore Colony,
Shastri Nagar, Delhi-110031.
Plaintiff
Versus
1.Sh. Virender Kumar Valecha, S/o Late Sh. Karam Chand Valecha, R/o 12/18, Geeta Colony, Delhi-110031
2. Smt. Sangeeta, W/o Sh. Narender Kumar Valecha, R/o 161-162, Street No. 7, New Lahore Colony, Shastri Nagar, Delhi-110031.
.... Defendants SUIT FOR DECLARATION AND MANDATORY & PERMANENT INJUNCTION.
Date of institution of the Suit : 26.05.2009
Date on which judgment was reserved : 30.09.2011
Date of decision : 01.11.2011
Decision :Both the preliminary
issues are decided in
favour of the plaintiff.
Order on Preliminary Issues :
This is a suit for Declaration and Mandatory and Permanent Injunction. The plaintiff claims himself to be the absolute Civil Suit no: 257/09 Page No. 1 of 12 owner of the suit property bearing no. H. No. 161-162, Street No. 7, New Lahore Colony, Shastri Nagar, Delhi-110031. The version of the plaintiff is that the father of the plaintiff Late Sh. Karam Chand, mother Late Smt. Vishan Devi and the defendant no. 2 purchased the suit property from Smt. Poonam Arora w/o Sh. Bharat Bhushan vide a set of transfer documents i.e. General Power of Attorney, Agreement to sell, Possession Letter, receipt etc. dated 25.03.1997 and all of them alongwith the plaintiff acquired the possession of the suit property on 12.02.1998. The defendant no. 1 is the brother of the plaintiff and the defendant no. 2 is the wife of the plaintiff (pro forma defendant).
2. That on 12.02.1998 the mother of the plaintiff sold her 1/3rd undivided share in the suit property for a sum of Rs. 30,000/- to the defendant no. 2 vide a set of transfer documents i.e. General Power of Attorney, Deed of Agreement, Receipt of the consideration, will etc. and therefore, the defendant no. 2 became the owner of the 2/3rd share in the suit property.
3. It is further the case of the plaintiff that on 22.09.2003 Late Sh. Karam Chand, the father of the defendant no. 1 alongwith the defendant no. 2 sold the suit property to the plaintiff for a sum of Rs. Civil Suit no: 257/09 Page No. 2 of 12 90,000/- vide a set of transfer documents i.e. General Power of Attorney, Deed of Agreement, Receipt of the consideration, will etc. dated 22.09.2003 and therefore, the plaintiff became the sole and absolute owner of the suit property and thereafter, the plaintiff invested huge amount and made constructions in the suit property as per his requirements and needs.
4. It is further the case of the plaintiff that after the death of Sh. Karam Chand the defendant no. 1 on 02.08.2008 filed a suit no. 1495/2008 titled as Sh. Virender Kumar Valecha vs. Sh. Narender Kumar Valecha for Mandatory and Permanent Injunction against the plaintiff and the defendant no. 2 alleging that the Late Sh. Karam Chand (father of the plaintiff) had executed a General Power of attorney dated 23.10.2006 and a notarised affidavit of Gift dated 23.10.2006 in respect of his undivided 1/3rd share in the suit property in favour of the defendant no. 1 after executing deeds of cancellation dated 11.10.2006 of General Power of attorney and will which were earlier executed by him in favour of the plaintiff.
5. The plaintiff has alleged that the said GPA, Will and affidavit of Gift dated 23.10.2006 executed by Sh. Karam Chand in Civil Suit no: 257/09 Page No. 3 of 12 favour of the defendant no. 1 are null and void and the cancellation deed dated 11.10.2006 cancelling the said documents executed by Sh. Karam Chand in favour of the plaintiff is null and void.
6. The plaintiff has also claimed a permanent injunction restraining the defendant no. 1 from selling, transferring, alienating or creating any third party interest in respect of the suit property and a decree of mandatory injunction directing the defendant no. 1 to deliver the aforesaid documents to the plaintiff.
7. The defendant no. 1 appeared pursuant to service of summons and filed his written statement. The defendant no. 1 raised a preliminary objection that the suit has not been properly valued for the purpose of court fees and jurisdiction. The defendant no. 1 further averred that he had earlier filed a suit for permanent and mandatory injunction against the plaintiff and the defendant no. 2 titled as Virender Kumar Valecha Vs. Narender Kumar Valecha (Suit no. 1495/2008) and the parties in both the suits are the same and since the present suit has been instituted at a later point of time hence the present suit is liable to stayed in terms of the provisions of the section 10 CPC. Civil Suit no: 257/09 Page No. 4 of 12
8. The defendant no. 1 disputed the claim of the plaintiff on merits. The defendant no. 1 pleaded that Sh. Karam Chand had executed a deed of cancellation of GPA and Will which were earlier executed by him in favour of the plaintiff and thereafter, Sh. Karam Chand executed a valid GPA, Will and affidavit of gift dated 23.10.2006 in favour of the defendant no. 1. The defendant no. 1 claimed himself to be a co sharer in the suit property. The defendant no. 1 denied the claim of the plaintiff that the plaintiff was the sole owner of the suit property. The defendant no. 1 further prayed for dismissal of the suit.
9. On the basis of the pleadings of the parties, issues were framed by my Ld. Predecessor vide order dated 09.11.2010 and issues no. 1 & 2 were ordered to be treated as preliminary issues which are as under:
(i) Whether the suit has not been properly valued for the purpose of court fees and jurisdiction ? OPD
(ii) Whether suit is liable to be stayed under Section 10 CPC ? OPP
10. I have heard the Ld. Counsel for the parties and have gone through the record. My issuewise findings are as under: Civil Suit no: 257/09 Page No. 5 of 12
Issue No. 1 :
11. The question to be answered is as to whether the suit has been properly valued for the purpose of court fees and jurisdiction.
12. The underlying basis of the claim of the plaintiff is that his father Late Sh. Karam Chand had sold his 1/3rd share in the suit property to the plaintiff vide registered GPA, Will, affidavit etc all dated 22.09.2003 and therefore, he was left with no right, title or interest in the suit property. Sh. Karam Chand, father of the plaintiff thereafter, cancelled the said Will, GPA vide cancellation deed dated 11.10.2006 and had executed a set of documents i.e. GPA, affidavit of gift and Will in favour of the defendant no. 1. The plaintiff claims that Sh. Karam Chand was incompetent to do so. The plaintiff has prayed for a declaration that the cancellation deeds executed by Late Sh. Karam Chand are null and void and the documents executed by Sh. Karam Chand in favour of the defendant no. 1 are also null and void.
13. The defendant no. 1 has stated the the suit ought to have been valued for the relief of declaration on the valuation of the suit property.
Civil Suit no: 257/09 Page No. 6 of 12
14. However, it is clear that the documents in respect of which the plaintiff claims a declaration were executed by Sh. Karam Chand in favour of the defendant no. 1. The said cancellation deeds were also unilaterally executed by the defendant no. 1. Therefore, the documents which are sought to be declared as null and void were neither executed by the plaintiff nor was the plaintiff a party to the said documents.
15. In the judgment titled as Suhrid singh @ Sardool Singh Vs. Randhir Singh reported as in AIR 2010 Supreme Court 2807 the Hon'ble Supreme Court held:
.... " Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or nonest, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to 'A' and 'B' - two brothers. 'A' executes a sale deed in favour of 'C'. Sub- sequently 'A' wants to avoid the sale. 'A' has to sue for cancellation of the deed. On the other hand, if 'B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by 'A' is invalid/void and nonest/illegal and he is Civil Suit no: 257/09 Page No. 7 of 12 not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court-fee is also different. If 'A', the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court-fee on the consideration stated in the sale deed. If 'B', who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court-fee of Rs. 19.50 under Article 17 (iii) of Second Schedule of the Act" .
16. Hence the suit is a suit for bare declaration and not a suit for declaration with consequential relief of cancellation. Therefore, the relief of declaration is chargeable with fixed court fees in terms of the schedule to the Court Fee Act and the plaintiff is at liberty to value the suit for the purpose of jurisdiction. The plaintiff has valued the same for an amount of Rs. 200/- for each declaration. The suit has been valued at Rs. 130 each for the relief of Injunction. Law also affords the plaintiff the liberty to value the relief of permanent injunction and mandatory injunction as per his wish. I find no fault in the valuation put forth by the plaintiff. The same cannot be said to be arbitrary or unreasonable.
17. I therefore, hold that the suit has been properly valued for Civil Suit no: 257/09 Page No. 8 of 12 the purpose of court fees and jurisdiction.
18. This issue is therefore, decided in favour of the plaintiff and against the defendant.
Issue No. 2 :
19. The question is to be answered as to whether the suit is liable to be stayed under Section 10 CPC or not.
20. The defendant no. 1 has claimed that he had earlier filed a suit for mandatory injunction and permanent injunction against the plaintiff and the defendant no. 2. The said suit was filed prior to the present suit. The defendant no. 1 has therefore prayed for stay of the present suit which has been filed subsequently.
21. The sine-qua-non for the applicability of Section 10 CPC is that the matter in issue in the present suit should be directly and substantially in issue in the previous suit and the suits should be between the same parties.
22. In the judgment titled "National Institute of M. H. and N. Civil Suit no: 257/09 Page No. 9 of 12 S. v. C. Parameshwara" reported as AIR 2005 SUPREME COURT 242 the Hon'ble Supreme Court held:
" .....Section 10 applies only in cases where the whole of the subject matter in both the suits is identical. The key words in section 10 are "the matter in issue is directly and substantially in issue" in the previous instituted suit. The words "directly and substantially in issue" are used in contra-distinction to the words "incidentally or collaterally in issue".
Therefore, section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of subject matter in both the proceedings is identical....."
23. It is seen that the certified copies of the pleadings of the said previous suit have not been filed on the record of this case. However, it is revealed that the said suit was filed by the present defendant no. 1 claiming that he is the owner of the ground floor portion of the suit property and he had inducted the plaintiff and the defendant no. 2 as licensees. Thereafter, the licence of the plaintiff and the defendant no. 2 was terminated and the plaintiff and defendant no. 2 were called upon to vacate the premises. However, they refused to vacate the same and therefore, a decree for recovery of possession in the form of mandatory injunction has been claimed in the previous suit Civil Suit no: 257/09 Page No. 10 of 12 along with a permanent injunction restraining the defendants therein from creating any third party interest in the suit property.
24. The matter in issue in the two suits therefore cannot be said to be similar. One is essentially a suit for declaration in respect of documents while the other is essentially a suit for recovery of possession. The cause of action for filing the previous suit no. 1495/08 is different. The relief claimed by the present defendant no. 1 in the said suit is different. The issues which are to be decided in the said suit are not exactly the same. Though, there is some overlapping in respect of the evidence which would be adduced in both the suits, however, it cannot be said that the entire subject matter in controversy in the two suits are entirely the same.
25. Section 10 CPC is therefore not applicable and the present suit is therefore not liable to be stayed in terms of section 10 CPC.
26. This issue is therefore decided in favour of the plaintiff and against the defendants.
27. Thus the preliminary issues are decided in favour of the Civil Suit no: 257/09 Page No. 11 of 12 plaintiff and against the defendants. The trial of the suit would therefore proceed on merits.
Announced in the open (SAURABH KULSHRESHTHA)
Court on 01.11.2011 CCJ/ARC(East)
(Judgment contains 12 pages.) KARKARDOOMA COURTS,
DELHI
Civil Suit no: 257/09 Page No. 12 of 12