Delhi District Court
Sh. Murari Lal vs . Sh. Dinesh Chand @ Duli Chand & Ors. ... on 17 July, 2015
Sh. Murari Lal Vs. Sh. Dinesh Chand @ Duli Chand & Ors. Judgment dt. 17.7.2015
IN THE COURT OF ADDITIONAL DISTRICT JUDGE13, CENTRAL,
TIS HAZARI COURTS, DELHI
C S No. 85/2014
Sh. Murari Lal
S/o Late Sh. Tara Chand Modi
R/o 6052, Block No.2,
Gali No.3/4 Dev Nagar,
Karol Bagh,
New Delhi110005. .....Plaintiff
Versus
1. Sh. Dinesh Chand @ Duli Chand
S/o Late Sh. Tara Chand Modi
R/o 6052, Block No.2, Gali No.3,
Dev Nagar, Karol Bagh,
New Delhi 1110005.
IInd Address:
Prop. Aggarwal Store,
5644/77, Raigerpura, Karol Bagh,
New Delhi110005.
2. Sh. Kailash Chand,
S/o Late Sh. Tara Chand Modi,
R/o 531, Sunehri Bagh Apartments,
Sector13, Plot No.15,
Rohini, Delhi110085.
3. Sh. Babu Lal
S/o Late Sh. Tara Chand Modi,
R/o WZ267, Lajwanti Garden,
New Delhi.
CS No. 85/2014 Page 1 of 21
Sh. Murari Lal Vs. Sh. Dinesh Chand @ Duli Chand & Ors. Judgment dt. 17.7.2015
4. Sh. Radhey Shyam,
S/o Late Sh. Tara Chand Modi,
R/o F2, Vishwas Park Extn.
Near Sahyog Vihar, Uttam Nagar,
New Delhi110059.
5. Sh. Ghanshyam Dass
S/o Late Sh. Tara Chand Modi
R/o N194, Vishnu Garden,
New Delhi18.
6. Sh. Mohan Lal,
S/o Late Sh. Tara Chand Modi,
R/o 21C, Citizen Enclave,
Rohini, Delhi85.
7. Smt. Bimla Devi,
W/o Sh. Charan Dass
D/o Late Sh. Tara Chand Modi,
R/O HL15, LBlock, Hari Nagar,
New Delhi110064. .....Defendants
Date of institution : 15.04.2014
Date of arguments : 07.07.2015
Date of decision : 17.07.2015
JUDGMENT:
1. By this judgment, I shall dispose of an application under Order 7 Rule 11 CPC filed by Defendant no.1 Dinesh Chand @ Duli Chand praying that the plaint should be rejected.
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2. Plaintiff had filed the reply to this application and arguments were heard.
3. It is settled law that for the purpose of deciding an application under Order 7 Rule 11 CPC, the court has to peruse the plaint only in order to determine as to whether the same is liable to be rejected or not. Therefore, it is necessary to read the plaint.
4. As per plaint, the plaintiff and defendant no.1 to 6 are the brothers and defendant no.7 is their sister. They are classI legal heirs of Late Sh. Tara Chand Modi, who had expired intestine.
5. It is alleged in the plaint that plaintiff is in lawful physical possession of half ground floor and entire first floor of property bearing no. 6052, Block No.2, Gali No. 3 / 4, Dev Karol Bagh, New Delhi110005 and the remaining half portion of the ground floor is in possession of defendant no.1.
6. It is alleged that Late Tara Chand Modi had agreed to purchase this property from its owner Sh. M. L. Sharma in the year 1978 but since Sh. M. L. Sharma avoided to complete the transaction, Late Tara Chand Modi instituted a suit for specific performance bearing no. 360/82 against the owners. However, Late Tara Chand Modi died during the pendency of the suit and plaintiff and defendants herein were substituted as LRs of the deceased CS No. 85/2014 Page 3 of 21 Sh. Murari Lal Vs. Sh. Dinesh Chand @ Duli Chand & Ors. Judgment dt. 17.7.2015 plaintiff.
7. It is alleged that the suit was decreed by Sh. Sanjeev Kumar Singh, Ld. Civil Judge, Delhi though judgment and decree dated 18.11.2004 vide which said Sh. M. L. Sharma was directed to execute a sale deed in favour of LRs of Tara Chand Modi.
8. It is stated that Sh. M. L. Sharma filed an appeal against the said judgment and decree but the said appeal (RCA No.1/2005) was dismissed by Sh. O. P. Gupta, Ld. ADJ, Delhi vide judgment dated 10.8.2005. It is stated that the plaintiff and defendants were respondents in the said appeal.
9. Accordingly, an execution petition no. 38/2005 was filed by plaintiff and defendants being the decree holders against the erstwhile owner Sh. M. L. Sharma & Ors.
10.The execution petition no. 38/2005 was filed by the plaintiff and defendants on 04.10.2005 as the judgment debtor did not execute the sale deed. It is alleged that defendant no.1 told plaintiff and other defendants that since it was not feasible for all of them to personally appear and pursue the matter, therefore, they execute a power of attorney in his name to pursue the matter on behalf of all of them. Therefore, plaintiff and other defendants appointed defendant no.1 as their General CS No. 85/2014 Page 4 of 21 Sh. Murari Lal Vs. Sh. Dinesh Chand @ Duli Chand & Ors. Judgment dt. 17.7.2015 Attorney for the purpose of pursuing the execution petition.
11.It is stated in the plaint that the defendant no.1 used to inform them that matter was being delayed because of non service of judgment debtors. When a considerable period passed and defendant no.1 did not give satisfactory answer, the plaintiff and other defendants became suspicious of the conduct of defendant no.1 and it was in the month of October, 2011, when after enquiry and searches, it come to the notice of the plaintiff and other defendants that defendant no.1 had played a fraud upon them and that he had fraudulently and dishonestly got registered a sale deed dated 19.01.2010 in his own name through the Court Commissioner Sh. Mohit Chawla, who was appointed by Ms. Monika Saroha, Ld. Civil Judge, Central District, Tis Hazari Court/Delhi in Execution Petition No. 38/2005.
12.It is alleged that plaintiff and other defendants also came to know that defendant no.1 had also fraudulently got executed a registered relinquishment deed dated 06.03.06 from plaintiff and other defendants in his favour under the garb of signing and executing a General Power of Attorney. As per this relinquishment deed the plaintiff and defendants have CS No. 85/2014 Page 5 of 21 Sh. Murari Lal Vs. Sh. Dinesh Chand @ Duli Chand & Ors. Judgment dt. 17.7.2015 relinquished and surrendered their rights and shares in the suit property in favour of defendant no.1.
13.It is stated that this relinquishment deed dated 06.03.06 was not filed by defendant no. 1 in the said execution no. 38/2005 and kept it a secret. It is stated that the executing court was kept in dark by the Court Nazir by not bringing the true facts as well as the judgment dated 10.08.2005 passed by Sh. O. P. Gupta, Ld. ADJ vide the sale deed was to be executed in favour of plaintiff and defendants no.1 to 7 jointly. It is stated that no such information was ever given to the plaintiff and defendants no. 2 to 7 by the defendant no.1 or the executing court. Thus the sale deed dated 19.01.2010 in favour of defendant no.1 only executed through court on the basis of illegal relinquishment deed is contrary to the judgment dated 10.08.2005 passed by Sh. O. P. Gupta, Ld. ADJ/Delhi.
14.It is further stated in the plaint that immediately after knowing this fraud, the plaintiff and other defendants made a joint application under Section 151 CPC on 20.10.2011 in the court of Ms. Monika Saroha, Ld. Civil Judge and prayed for recalling the order dated 26.03.2010 and setting aside the sale deed in favour of defendant no.1 and to pass directions to Local CS No. 85/2014 Page 6 of 21 Sh. Murari Lal Vs. Sh. Dinesh Chand @ Duli Chand & Ors. Judgment dt. 17.7.2015 Commissioner to execute a rectification deed thereby including the names of all the coowners as mentioned in the judgment dated 10.08.2005 of Ld. ADJ.
15.In para 16 of the plaint, plaintiff has averred that defendant no. 1 filed a false reply alleging that the plaintiff and other defendants were not interested to prosecute the case during the period of trial & appeal and they were not willing to contribute to the expenses for the litigation and were not willing to devote time for prosecution and defence of the case and that defendant no.1 was only prosecuting it. Therefore, the plaintiff and other defendants executed a relinquishment deed relinquishing their rights in the property irrespective of the result of the litigation unto defendant no.1. It is further stated in para 20 of the plaint that during the aforesaid proceedings a settlement was reached between plaintiff & defendant and defendant no.1 agreed to reconstruct the suit property with the understanding that after construction plaintiff shall take possession of half portion of ground floor towards Gali no.4 and remaining half portion towards Gali no.3 was to be taken by defendant no.1 and that the property shall be constructed consisting of basement, ground floor, first floor and second floor by the end of December, 2014.
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16.In para 21 of the plaint, plaintiff stated that in this way, defendant no.1 succeeded in persuading the plaintiff to withdraw the said application. It is stated that in order to avoid further confrontation in the close relationship, the plaintiff and other defendants withdrew the said application under Section 151 CPC. However, the plaintiff did not comply with the said settlement. Accordingly, it is prayed by the plaintiff in the suit as under:
(a) a decree may be passed declaring the relinquishment deed dated 06.03.2006 to be null & void.
(b) a decree may be passed declaring the sale deed dated 19.01.2010 in respect of the suit property in favour of defendant no.1 as null & void and further a rectification deed may be ordered to be executed in joint name of plaintiff as well as all the defendants.
(c) a decree of mandatory injunction may be passed directing the defendant no.1to surrender in the court the relinquishment deed dated 06.03.2006 and sale deed dated 19.01.2010 in respect of the suit premises.
(d) a decree for permanent injunction may be passed restraining defendant no.1 from transferring and creating third party interest in the suit property.
17.Defendant no.1 filed written statement stating that this suit is not maintainable in view of Section 47 CPC because all the questions relating to execution and its satisfaction are to be CS No. 85/2014 Page 8 of 21 Sh. Murari Lal Vs. Sh. Dinesh Chand @ Duli Chand & Ors. Judgment dt. 17.7.2015 decided by the executing court. It is further stated that the suit is barred by the principles of estapple and constructive resjudicata because these very issues were raised by the plaintiff and other defendants before the executing court by moving an application under Section 151 CPC on 20.10.2011. Thereafter, they withdrew the said application without seeking any liberty to raise these issues in a subsequent litigation. It is further stated that suit is barred by limitation as the relinquish deed was executed on 6.3.2006 and sale deed was executed on 19.1.2010.
18. It is further stated in written statement by defendant no.1 that suit is liable to be dismissed as the same is in contravention of the Order 6 Rule 4 CPC as the plaint lacks material pleadings. Further, plaintiff is not in possession of the suit property. Without seeking relief of possession, plaintiff cannot succeed in the suit as per Section 34 of Specific Relief Act.
19. In written statement, defendant no.1 has admitted all facts as alleged in the plaint except that he obtained relinquish deed by way of fraud and misrepresentation and that during the pendency of application under Section 151 CPC, defendant no.1 entered into any settlement with the plaintiff and defendants or persuaded them to withdraw the said application. It was stated CS No. 85/2014 Page 9 of 21 Sh. Murari Lal Vs. Sh. Dinesh Chand @ Duli Chand & Ors. Judgment dt. 17.7.2015 that plaintiff and other defendants did so as per his own wishes and without any pressure withdrew the same.
20.Defendant no.2 to 7 filed a common written statement supporting the case of the plaintiff and specially mentioning that they had signed the relinquish deed, which was stated by defendant no.1 to be a Power of Attorney and defendant no.1 did not even allow them to read and understand the contents of the said document. It was stated that the answering defendants had signed the same in most hurried manner under bonafide faith, trust and belief upon defendant no.1, believing that by this document they had authorized defendant no.1 to attend the proceedings in the execution petition. It was further stated that they along with the plaintiff had bonafidely withdrew the application under Section 151 CPC because of blood relation with defendant no.1 and on his assurance to act as per the settlement.
21.Plaintiff filed replication to the written statement of defendant no.1 and a separate replication to the written statement of defendant no.2 to 7 reiterating the same facts. Defendant no.1 also filed an application under Order 7 Rule 11 CPC. Plaintiff filed a reply to it and arguments were heard.
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22.Sh. Ajay Pal Singh, adv. for defendant no.1 has referred to following authorities in his favour :
(i) Maya Devi & Anr. Vs. Jai Singh Tomar & Anr. RSA No. 198 of 2011 and CM No. 20938/2011 decided on 13.3.2013 by Hon'ble Mr. Justice V. K. Shali.
(ii) Suresh Srivastava Vs. Subodh Srivastava & Ors in CS (OS) 1351/2002 and CS (OS) 1013/2004 decided on 31.8.2012 by Hon'ble Mr. Justice Valmiki Mehta.
23. Ld. Counsel for defendant no.1 has drawn my attention to Article 59 of Limitation Act 1963, as per which, if a person seeks cancellation of a document, he must file a suit within three years of his having the knowledge the document which is sought to be cancelled. It is argued by Ld. Counsel for defendant no.1 that not only the plaintiff and other defendants no. 2 to 7 have executed a relinquishment deed, the same was duly registered in the office of SubRegistrar. My attention has been drawn by Ld. Counsel for defendant no.1 to Order 6 Rule 4 CPC which states that the plaintiff must mention the particulars of misrepresentation fraud, breach of trust or undue influence etc. It is argued that in the entire plaint, the plaintiff has not CS No. 85/2014 Page 11 of 21 Sh. Murari Lal Vs. Sh. Dinesh Chand @ Duli Chand & Ors. Judgment dt. 17.7.2015 mentioned as to how they were misled by defendant no. 1 to sign the relinquishment deed. In such a situation, when there is no specific averments as to what manner the signatures of plaintiff and defendants no. 2 to 7 were taken on the relinquishment deed and same was got registered, the plaint lacks the necessary ingredients. Accordingly, it has to be believed that they had executed the same voluntarily.
24.My further attention has drawn by Ld. Counsel for the defendant no.1 to the application under Section 151 CPC. Copy of which is filed by the plaintiff alongwith the plaint. This application was filed by plaintiff and defendants no. 2 to 7 in the executing court praying that the sale deed executed through Local Commissioner in favour of defendant no.1 may be recalled and directions may be issued to Local Commissioner to execute rectification deed including names of all the coowners as mentioned in the order of Appellate Court dated 10.08.2005. It is stated by Ld. Counsel for defendant no.1 that in this application a reference has been given in para no.16 that defendant no.1 had by making false representation, during the pendency of the execution, on the pretext of getting GPA registered, obtained the signatures of plaintiff and defendants CS No. 85/2014 Page 12 of 21 Sh. Murari Lal Vs. Sh. Dinesh Chand @ Duli Chand & Ors. Judgment dt. 17.7.2015 No. 2 to 7 on relinquishment deed. However, this petition was withdrawn by the plaintiff as stated by himself in the plaint. It is argued that once the application/objections have been withdrawn before the trial court without seeking any permission to file a fresh suit for cancellation of relinquishment deed, the plaintiff is precluded from filing the present suit
25.On the other hand, Ld. Counsel for plaintiff has drawn to my attention following facts:
1.As per the judgment & decree dated 18.11.2004 passed by Sh. Sanjeev Kumar Singh, Ld. Civil Judge. The sale deed was directed to be executed in favour of plaintiffs i.e. the LRs of Tara Chand, the deceased plaintiff.
2. Sh. O. P. Gupta, Ld. ADJ disposed of the appeal vide judgment dated 10.08.2005 specifically order that sale deed shall be executed in favour of all the LRs of Late Sh. Tara Chand Modi.
3. The execution petition was filed on behalf of all the legal heirs but the relinquishment deed dated 06.03.2006 was never produced by defendant no.1 before the Executing Court.
26. Thus it is argued that a sale deed, which should have been registered in favour of plaintiff as well as all the defendants, in view of the judgment and decree by the trial court as well as the Appellate Court, was executed in favour of defendant no.1 only by misleading the Executing Court. It is submitted that had CS No. 85/2014 Page 13 of 21 Sh. Murari Lal Vs. Sh. Dinesh Chand @ Duli Chand & Ors. Judgment dt. 17.7.2015 defendant no.1 produced this relinquishment deed before the trial court, trial court would have given a notice of the same to all other decree holders.
27.Regarding withdrawal of the application under Section 151 CPC, Ld. Counsel for plaintiff argues that it was on the asking of defendant no.1 that the said application was withdrawn. It is argued by Ld. Counsel for plaintiff that the question as to whether the relinquishment deed was executed by misrepresentation and fraud and whether application under Section 151 CPC was also withdrawn due to the manipulations of defendant no.1 is a question of trial and cannot be decided at this stage. Ld. Counsel for plaintiff has drawn my attention to article 59 of Schedule 2 Limitation Act 1963 which says that limitation starts from the date when the facts which entitle the plaintiff to have the instrument cancelled become known to him. It is argued by Ld. Counsel for the plaintiff that the plaintiff came to know in the month of October, 2011 about the fact that instead of GPA, defendant no.1 has got the signatures of plaintiff and other defendants upon a relinquishment deed and therefore, they filed the application under Section 151 CPC before the Executing Court on 20.10.2011. It is submitted that CS No. 85/2014 Page 14 of 21 Sh. Murari Lal Vs. Sh. Dinesh Chand @ Duli Chand & Ors. Judgment dt. 17.7.2015 therefore, limitation period of three years should be counted from 20.10.2011. Ld. Counsel for plaintiff has drawn my attention that suit was filed on 15.04.2014 which is within limitation period.
28.I have considered the case law cited by Ld. Counsel for defendant no.1. After hearing the submissions of the parties and contents of the plaint and documents submitted with it, I hold as under:
1. As per para 10 of the plaint, plaintiff and defendants no. 2 to 7 bonafidely agreed to appoint to defendant no.1 as their General Attorney for pursing the litigation.
Defendant no.1 being their real brother, they had no doubt upon him. It is alleged that defendant no.1 obtained the signatures of plaintiff and defendants no. 2 to 7 on the document on the pretext that it was a general power of attorney that defendant no.1 manipulated all such things in such manner that they did not get any opportunity to even go through and read into the contents of the said document.
In para 13 of plaint, it is stated that defendant no.1 had fraudulently got executed a registered relinquishment CS No. 85/2014 Page 15 of 21 Sh. Murari Lal Vs. Sh. Dinesh Chand @ Duli Chand & Ors. Judgment dt. 17.7.2015 deed dated 06.03.2006. As per Order 6 Rule 4 CPC, the plaintiff is under an obligation to specifically plead as to what were the circumstances and what were the methods by which the defendant no.1 got the signatures of the plaintiff and defendants no. 2 to 7 fraudulently on the relinquishment deed. I have perused the relinquishment deed, copy of which the plaintiff has filed alongwith the plaint. The words 'RELINQUISHMENT DEED' are prominently written on the first page of this document. Except Smt. Bimla Devi and Sh. Kailash Chand, all other legal heirs(who are party to this suit) of late Sh. Tara Chand have put their signatures in English. The document shows that it was written on 06.03.2006 and thereafter it was registered on 07.03.2006. This means that the parties had executed the document having sufficient time to ponder over the consequences of entering into this deed. I may point out that endorsement of the SubRegistrar on the back side of page no.2 of this deed specifically mentions that "contents of document explained to parties who admit the conditions and admit them as correct". It is no where pleaded in the plaint that the parties to the suit CS No. 85/2014 Page 16 of 21 Sh. Murari Lal Vs. Sh. Dinesh Chand @ Duli Chand & Ors. Judgment dt. 17.7.2015 were illiterate. Except the allegation that the defendant no.1 got the signatures hurriedly, no other circumstances has been specifically pleaded to show that defendant no.1 had taken the signatures of other coowners fraudulently. As I have already stated, the allegations of getting signatures hurriedly are contrary to the facts which appear from the registered deed, in which SubRegistrar has noted that contents of document were explained to the parties.
Thus from perusal of the plaint itself as well as the copy of relinquishment deed filed by the plaintiff alongwith the plaint, I find that taint of fraud, misrepresentation, undue influence etc. has not been effectively pleaded which may persuade this court to accept the plea of the plaintiff that the circumstances in which the relinquishment deed was executed are clouded with the shadow of doubts. In such situation, the relinquishment deed in question stands unaffected. Therefore, no cause of action arises from perusal of the plaint and the documents filed with it to file the present suit.
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2. Since there is no taint upon the relinquishment deed dated 06.03.06 registered on 07.03.2006 and as per the endorsement of SubRegistrar, the contents of documents were explained to the parties, who admitted the same to be correct, it is clear that the contents of this document was very much within the knowledge of the plaintiff and the defendants, the limitation under article 59 of the schedule to the Limitation Act, 1963 would start from 07.03.2006 itself. I may point out that in the entire plaint, it has no where been averred that SubRegistrar has made a wrong endorsement/noting in this respect on the back side of the second page of the registered document. Therefore, the limitation of three years to file this suit ended on 07.03.2009 whereas the present suit was filed on 15.04.2014 i.e. much beyond the limitation period. Accordingly, I hold that the suit is barred by limitation.
3. Admittedly, the plaintiff and the defendants, other than defendant no.1, filed an application under Section 151 CPC dated 20.10.2011 in execution petition no. 38/2005 pending in the court of Ms. Monika Saroha, Ld. Civil Judge, Delhi. In this application, it was stated that during CS No. 85/2014 Page 18 of 21 Sh. Murari Lal Vs. Sh. Dinesh Chand @ Duli Chand & Ors. Judgment dt. 17.7.2015 the pendency of the execution petition, defendant no.1 by making false representation on the pretext of getting GPA registered, obtained by fraud and concealment of facts, the signatures of the LRs of Late Sh. Tara Chand Modi on the relinquishment deed. Plaintiff has filed the copy of the reply filed by defendant no.1 before the Executing Court. In plaint itself it is written that the said application was withdrawn by the plaintiff and the defendants other than defendant no.1 from the said court. Now question is as to what is the effect withdrawal of this application. I may point out that the said withdrawal was filed in the execution petition. As per order 21 Rule 58(5) of CPC if the court refuses to entertain the objections, the aggrieved party may instituted the suit to establish the right which he claims to the property in dispute. However, in the present case the plaintiff and the defendants other than defendant no.1 had withdrawn the said petition from the Executing Court and therefore, the present suit is barred by resjudicata. It is pertinent to note that it is not the case of the plaintiff that while withdrawing the said petition under Section 151 CPC, the plaintiff had sought any CS No. 85/2014 Page 19 of 21 Sh. Murari Lal Vs. Sh. Dinesh Chand @ Duli Chand & Ors. Judgment dt. 17.7.2015 liberty to file a fresh suit. Accordingly, the suit is barred under Order 23 Rule 1(4) of CPC.
4. I also do not find any substance in the plea of Ld. Counsel for plaintiff that the defendant no.1 had misled the Executing Court by concealing the relinquishment deed. The copy of the sale deed executed through the Local Commissioner in favour of defendant no.1 specifically gives reference to the relinquishment deed. I may point out that the sale deed is executed only when the draft of the sale deed is approved by the court, only then the Local Commissioner is allowed to execute the sale deed. Otherwise also, I find nothing on record/plaint that the sale deed was got executed through Local Commissioner by misleading the court.
5. I disagree with the submission of Ld. Counsel for plaintiff that the question of proving fraud/misrepresentation is a matter of trial. I disagree with him. I already referred to Order 6 Rule 4 CPC. The plaintiff must frame the plaint strictly as per rules of CPC. If he fails in this regard, his suit also fails.
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29.In view of my above discussion, I hold that suit is barred by limitation. Plaint does not show any cause of action. The suit is also barred by principles of resjudicata. Accordingly, I allow the application and reject the plaint under Order 7 Rule 11 CPC. The suit stands dismissed. Parties are left to bear their own costs. Decree sheet be prepared.
File be consigned to the record room.
Announced in the open court on 17.7.2015.
(Vinod Kumar) Additional District Judge13, (Central), Tis Hazari Courts, Delhi CS No. 85/2014 Page 21 of 21