Delhi District Court
In Re vs Dr. Rajan Bajaj on 12 May, 2014
Suit No. 502A/14/13
IN THE COURT OF MS. SMITA GARG, ADDITIONAL DISTRICT
JUDGE03, WEST, TIS HAZARI COURTS, DELHI
Suit No. 502A/14/13
In re:
Smt. Sarika Vig
W/o Sh. Sanjeev Vig
R/o A2A/70, Janakpuri,
New Delhi110085 .......................Plaintiff
Versus
Dr. Rajan Bajaj
S/o Sh. S.P. Bajaj
R/o 35/11, Ashok Nagar,
New Delhi110018 .............. Defendant
Date of institution of suit : 08.05.2013
Date of reserving order : 05.05.2014
Date of order : 12.05.2014
ORDER:
1. By this order, I shall decide two applications namely, an application under Order 7 Rule 11 CPC and another application under Section 11 CPC filed by the defendant. In both the applications, the defendant has sought dismissal of the plaint.
2. This is a suit for specific performance. The facts of the case as set out in the plaint are that the plaintiff was employed as receptionist in the Sarika Vig Vs. Rajan Bajaj Page No. 1 of 9 Suit No. 502A/14/13 clinic of the defendant at a salary of Rs. 8000/ per month. After about four months of her joining the job, the defendant started making physical advances towards her. Due to her financial constraints, the plaintiff tolerated the same. In the month of April, 2010, the defendant forcibly had sexual intercourse with the plaintiff at his clinic and threatened to defame her if she told about it to anybody. The defendant also started giving psychotropic drugs to the plaintiff to satisfy his lust. In order to further allure the plaintiff, the defendant promised to gift his flat no. A2A/70, Janakpuri, Delhi (hereinafter referred to as 'Suit Property') to her and in part performance thereof, the plaintiff alongwith her family was made to shift to the ground floor of the suit property by the defendant. After shifting to the ground floor of the suit property, the plaintiff spent sumptous amount on its renovation. Since the plaintiff was unable to bear the sexual abuse further, she disclosed everything to her husband on 09.01.2011.This made the defendant furious and he asked the plaintiff to vacate the suit property despite knowing that he had already gifted the property to her and that she had become the owner thereof by virtue of part performance. The plaintiff lodged complaints against the defendant with the local police and also filed a suit for declaration, possession and mandatory injunction against him and his wife. The said suit was dismissed by the court on a preliminary issue. The plaintiff preferred an appeal, which was allowed and the case was remanded to the trial court. As a counter blast, the defendant also filed a suit for possession, mesne Sarika Vig Vs. Rajan Bajaj Page No. 2 of 9 Suit No. 502A/14/13 profits and damages against the plaintiff, which shows that the defendant is trying to wriggle out of his promise and is not intending to execute the title documents in respect of the suit property in favour of the plaintiff. According to the plaintiff, since the suit property had been gifted to her by the defendant and she was also put in possession of the ground floor in part performance thereof, she is entitled to the relief of specific performance and the defendant be directed to execute the title documents of the suit property in her favour.
3. On 07.08.2013, the defendant filed both the applications on hand. In the application under Section 11 CPC, it has been averred that prior to the institution of the present suit for specific performance, the plaintiff had instituted a suit for declaration, mandatory injunction and possession against the defendant in respect of the suit property on the basis of similar set of facts and causes of action. The said previous suit was heard and finally decided against the plaintiff vide order dated 01.11.2011 by the court of competent jurisdiction. The plaintiff had preferred an appeal challenging the said order but withdrew it on 07.03.2012. At the time of withdrawal of the appeal, the plaintiff took liberty to move application for the amendment of plaint before the trial court or to file a fresh suit. Pursuant thereto, the plaintiff filed an application under Order 6 Rule 17 CPC before the trial court on 18.03.2012 seeking permission to amend the title of the plaint as 'Suit for Declaration, Specific Performance, Possession and Mandatory Sarika Vig Vs. Rajan Bajaj Page No. 3 of 9 Suit No. 502A/14/13 Injunction' and to incorporate totally new facts. The said application was dismissed on 17.05.2012 and thereafter, the plaintiff has instituted the present suit. It has been averred that since the issues in the present suit were directly and substantially in issue in the previous suit between the parties, which had been finally heard and decided against the plaintiff, the present suit is barred by Section 11 of CPC.
In addition to the above plea, the defendant has sought rejection of plaint in his application under Order 7 Rule 11 CPC on the ground that the suit for specific performance of gift is not maintainable in view of Section 122 and Section 123 of the Transfer of Property Act. It has been averred that the plaintiff was permitted to live in the suit property in June, 2010 on license basis in view of her employment at the defendant's clinic and since she left the job, the license was terminated vide legal notice dated 05.03.2011 whereupon she became illegal and unauthorized occupant of the suit property and thus, there was no cause of action in her favour to institute the present suit. It has further been averred that the suit is also not maintainable in view of Section 23 of Indian Contract Act, Section 17 of Indian Registration Act and the provisions of Hindu Marriage Act.
4. Both the applications have been vehemently opposed on behalf of the plaintiff. The counsel for the plaintiff has contended that the present suit is based on distinct facts seeking a completely different relief and therefore, bar of Section 11 of CPC is not attracted. He has urged that Sarika Vig Vs. Rajan Bajaj Page No. 4 of 9 Suit No. 502A/14/13 since the application under Order 6 Rule 17 CPC preferred by the plaintiff in the previous suit had been dismissed, the entitlement of the plaintiff to the relief of specific performance was neither in issue nor was adjudicated in the previous suit. He has further argued that in the present suit, the plaintiff is seeking specific performance of the promise made by the defendant to gift the suit property in her favour and since the defendant is avoiding the execution of title documents, the plaint clearly discloses the cause of action in her favour and it can not be rejected under Order 7 Rule 11 CPC. He has placed reliance upon Texem Engineering vs Texcomash Export, 2011 (124) DRJ 501 (DB) to contend that the court cannot reject plaint on the basis of defence to the suit.
5. I have heard the counsel for both the parties and perused the record.
6. Section 11 of CPC, which embodies the doctrine of res judicata, bars a court to try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties and has been heard and finally decided by the court in the former suit. The doctrine is predominantly a principle of equity, good conscience and justice based on the public policy that the parties can not be permitted to get an issue reopened and re agitated twice. It's object is to attach finality to judicial decisions.
Sarika Vig Vs. Rajan Bajaj Page No. 5 of 9Suit No. 502A/14/13 In the case on hand, admittedly, prior to the institution of the present suit for specific performance, the plaintiff had filed a suit for declaration, possession and mandatory injunction in respect of the suit property against the defendant and his wife before the civil judge. Certified copy of the plaint of the said suit has been placed on record by the defendant alongwith his applications. A bare reading thereof shows that the facts pleaded in the previous suit are same and identical to the case set up by the plaintiff in the present plaint. The only difference is that while in the previous suit, the plaintiff had sought execution of transfer documents/sale deed in respect of the suit property, in the present suit, she has prayed that the defendant be directed to execute the transfer documents in respect thereof by averring that he had promised to gift the same in her favour.
It is a matter of record that the previous suit was rejected by the Ld. Civil Judge vide order dated 01.11.2011 by holding that since the consideration for the execution of sale deed was immoral, the suit was barred by Section 23 of the Indian Contract Act. Admittedly, the plaintiff had filed an appeal bearing RCA No. 05/11 against the said order but had withdrawn the same on 07.03.2012. At the time of withdrawal of appeal, the plaintiff was granted liberty to move application for amendment of plaint before the trial court. The plaintiff had infact moved an application under Order 6 Rule 17 CPC Sarika Vig Vs. Rajan Bajaj Page No. 6 of 9 Suit No. 502A/14/13 before the trial court seeking to substitute the relief of 'mandatory injunction' with the relief of 'specific performance' and to incorporate the averments that the defendant had promised to 'gift' the suit property in consideration of profuse love and affection towards the plaintiff and that in furtherance of his promise to execute the transfer documents, he had shifted the plaintiff to the suit property. It is also a matter of record that the said application was dismissed with costs on 17.05.2012 by the Ld. Civil Judge by holding that it was not permissible for the plaintiff to add, alter or substitute a new cause of action by way of amendment. Since the said order was not challenged by the plaintiff, it has attained finality. Once the issue of entitlement of the plaintiff to get the suit property transferred in her name as well as the enforceability of the alleged promise of the defendant to execute the title documents in favour of the plaintiff stood determined in the previous suit, the same would operate as res judicata and the subsequent suit for specific performance involving the same issues is not maintainable. It needs no emphasis that institution of the present suit by the plaintiff seeking the relief of specific performance incorporating the same facts clearly amounts to abuse of process of law.
There is another aspect of the matter. Even if it is assumed for the sake of arguments that the defendant had promised to gift the suit property and execute the transfer documents in favour of the plaintiff, the Sarika Vig Vs. Rajan Bajaj Page No. 7 of 9 Suit No. 502A/14/13 present suit for specific performance of the alleged promise to gift the suit property is not sustainable in law. Section 122 of Transfer of Property Act, which defines 'Gift' clearly postulates that it must have two essential characteristics:
a) that it must be made voluntarily; and
b) that it should be without consideration.
A gift is essentially a gratuitous transfer. Unlike an agreement for sale, a promise to gift, being voluntary in nature and unsupported by a valuable consideration, is unenforceable in law.
The counsel for the plaintiff has urged that since the defendant had promised to gift the suit property to the plaintiff in view of their past cohabitation and had also put her in possession of the ground floor, the gift cannot be said to be void. He has argued that it is only when the object of gift is future cohabitation that the gift would be void as being immoral or opposed to public policy. In support of his arguments, he has relied upon Nayara Thamba vs Kunuku Ramayya, AIR 1968 SC 253, Mt. Mehtab unNissa vs. Rifaquat Ullah and Ors. AIR 1925 Allahabad 474 and Pyara Mohan vs. Smt. Narayani AIR 1982 Rajasthan 43. The above judgments render no assistance to the plaintiff. In all the above judgments, the issue before the courts was the validity of the gift deeds/transfer deeds executed by the donor in favour of the donee. However, in the case on hand, admittedly, no gift deed in respect of the suit property was executed by the defendant in Sarika Vig Vs. Rajan Bajaj Page No. 8 of 9 Suit No. 502A/14/13 favour of the plaintiff. No oral gift could have been made of the suit property in view of Section 123 of the Transfer of Property Act which mandates that for the purpose of making a gift of immovable property worth more than Rs. 100/, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested atleast by two witnesses. Since the emphasis is on the execution of an instrument properly executed and not so much on the actual delivery of the property, the alleged delivery of possession is of no consequence.
7. In the light of above discussion, the applications under Section 11 CPC and under Order 7 Rule 11 CPC filed by the defendant are allowed and the suit of the plaintiff is hereby dismissed with costs of Rs. 10,000/. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the open court (Smita Garg)
on 12.05.2014 Addl. District Judge03 (West)
Tis Hazari Courts, Delhi
Sarika Vig Vs. Rajan Bajaj Page No. 9 of 9