Delhi District Court
Kishan Kumar vs Raj Kumari on 23 May, 2026
IN THE COURT OF MS. GOMATI MANOCHA,
DISTRICT JUDGE-02, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
RCA DJ No. 91/2016
CNR No. DLNE01-004203-2016
In the matter of:
Suresh Kumar
S/o Sh. Kalu Ram
R/o A-139, Kabir Nagar,
Shahdara, Delhi. .....Appellant
Versus
Kishan Kumar
S/o Sh. Satya Pal
R/o C-445, DDA LIG Flats,
East of Loni Road, Shahdara,
Delhi. .....Respondent
Date of Institution/registration : 03.11.2016 Date of Final Arguments : 22.05.2026 Date of Judgment : 23.05.2026 Final Decision : RCA No. 91/2016 : Appeal allowed AND RCA DJ 91/2016 Suresh Kumar v. Kishan Kumar RCA DJ 96/2016 Kishan Kumar v. Raj Kumari & Ors. Page no. 1 of 30 RCA DJ No. 96/2016 CNR No. DLNE01-004403-2016 In the matter of:
Kishan Kumar S/o Sh. Satya Pal R/o C-445, DDA LIG Flats, East of Loni Road, Shahdara, Delhi. .....Appellant Versus
1. Ashok Kumar (deceased through LRs)
(a) Raj Kumari W/o Late Ashok Kumar
(b) Rajeev Kumar S/o Late Ashok Kumar Both residents of B-9/6554, 1st Floor, Dev Nagar, Hardhyan Singh Road, Karol Bagh, New Delhi.
2. Ravi Kant Bansal S/o Sh. O.P. Bansal R/o C-225, LIG, DDA Flats, East of Loni Road, Shahdara, Delhi.
3. Suresh Kumar S/o Sh. Kalu Ram R/o A-39, M. Kabir Nagar, Shahdara, Delhi. .....Respondents RCA DJ 91/2016 Suresh Kumar v. Kishan Kumar RCA DJ 96/2016 Kishan Kumar v. Raj Kumari & Ors. Page no. 2 of 30 Date of Institution/registration : 21.11.2016 Date of Final Arguments : 22.05.2026 Date of Judgment : 23.05.2026 Final Decision : RCA No. 96/2016 : Appeal dismissed Judgment-in-Appeals
1. Vide this common judgment, I shall dispose of two appeals i.e. (i) Appeal bearing RCA DJ No. 91/2016 filed by the appellant Suresh Kumar against the judgment dated 14.09.2016 passed by the Court of Sh. S.P.S. Laler, the then Ld. SCJ, Delhi in Civil Suit no.
214/2009 titled as Suresh Kumar v. Kishan Kumar, vide which the suit of the plaintiff for seeking possession, permanent injunction and recovery of arrears of rent was dismissed.
AND
(ii) Appeal bearing RCA DJ No. 96/2016 filed by the appellant Kishan Kumar against the judgment dated 30.09.2016 passed by the Court of Sh. S.P.S. Laler, the then Ld. SCJ, Delhi in CIS/S. No. 5613/2015 titled as Kishan Kumar v. Ashok Kumar & Ors., vide which the suit of the plaintiff seeking the relief of specific performance, permanent injunction and declaration was dismissed.
2. Brief facts
(a) One Ashok Kumar was the sole and absolute owner/landlord of the property bearing MCD No. C-445, 3 rd Floor, RCA DJ 91/2016 Suresh Kumar v. Kishan Kumar RCA DJ 96/2016 Kishan Kumar v. Raj Kumari & Ors. Page no. 3 of 30 DDA, LIG Flats, East of Loni Road, Shahdara, Delhi-110093 consisting of two rooms, one kitchen, one bathroom, one latrine and balcony situated on the third floor as shown in the site plan filed in the suit. Sh. Ashok Kumar inducted one Kishan Kumar as tenant in the suit premises in March 1995 at the rate of rent of Rs. 1,500 per month excluding water and electricity. No written rent agreement was executed between Ashok Kumar and Kishan Kumar. The tenancy was from month to month and the rent was increased from time to time. At the time of filing of the suit 214/2009 titled as Suresh Kumar v. Kishan Kumar, the rent was Rs. 3,212/- per month. Sh. Kishan Kumar paid rent to Ashok Kumar upto 30.04.2003 and stopped paying rent w.e.f. 01.05.2003. Kishan Kumar filed a suit titled as Sh. Kishan Kumar v. Sh. Ashok Kumar vide suit no. 202/2003 on 03.05.2003, seeking the relief of permanent and mandatory injunction. In that suit, Kishan Kumar pleaded that he had entered into an agreement to sell dated 04.02.2003 with Ashok Kumar for a sale consideration of Rs. 1,40,000/- out of which Rs. 90,000/- was paid as earnest money to Ashok Kumar. The said suit was decreed ex-parte vide judgment dated 13.02.2004.
Sh. Ashok Kumar then moved an application under Order IX Rule 13 of the Code of Civil Procedure and the judgment/decree dated 13.02.2004 was set aside. Thereafter, Sh. Ashok Kumar filed the written statement. However, on 24.04.2007, Kishan Kumar withdrew the said suit with the liberty to file a fresh suit on the same cause of action.
It is stated that Sh. Ashok Kumar gave a notice dated RCA DJ 91/2016 Suresh Kumar v. Kishan Kumar RCA DJ 96/2016 Kishan Kumar v. Raj Kumari & Ors. Page no. 4 of 30 07.06.2007 under section 106 T.P.A. to Kishan Kumar. By virtue of the said notice, Ashok Kumar terminated the tenancy of Kishan Kumar and he filed a suit for possession, declaration, permanent injunction and recovery of damages vide suit no. 599/2007 (CS No. 214/2009, CIS No. 5278/2015). On 18.03.2009, the Ld. CJ, Delhi dismissed the suit on the sole ground that Ashok Kumar had sold the suit property to one Sh. Ravi Kant Bansal for Rs. 35,000/- on 01.04.2003 vide GPA, SPA, registered agreement to sell, registered Will and receipt, all dated 01.04.2003 and thereafter, Sh. Ravi Kant Bansal had also sold the said property to Suresh Kumar vide registered GPA/agreement to sell, Will and receipt, dated 27.05.2005.
Thereafter, Kishan Kumar also filed a Civil Suit for specific performance and permanent injunction bearing suit no. 259/2007 (CIS/S. No. 5613/2015) titled Sh. Kishan Kumar v. Sh. Ashok Kumar & Ors. The same was also dismissed vide judgment dated 30.09.2016 (which has been challenged vide present RCA No. 96/2016). Then, Suresh Kumar (the subsequent purchaser) filed a suit for possession, permanent injunction and recovery of arrears of rent. The same was dismissed vide judgment dated 14.09.2016 (which has been challenged vide RCA No. 91/2016).
3. Grounds of appeal in RCA No. 91/2016 titled as Suresh Kumar v. Kishan Kumar arising out of decision in CS No. 214/2009 (CIS No. 5278/2015):- The appellant has stated that the Ld. Trial Court gave erroneous finding as regards issue no. 1 i.e. RCA DJ 91/2016 Suresh Kumar v. Kishan Kumar RCA DJ 96/2016 Kishan Kumar v. Raj Kumari & Ors. Page no. 5 of 30 whether the plaintiff is owner of the suit property. It is stated that the plaintiff has registered GPA, agreement to sell, Will, all dated 27.05.2005 in his favour. It is stated that since he had paid the full consideration amount and the documents are duly registered by paying the full stamp duty therefore, the same are like a sale deed. It is stated that by virtue of these documents, the plaintiff has clearly proved his ownership. As regards the determination of other issues, it is stated that the property has been sold by the previous owner then entire rights of ownership/landlordship transfer in favour of the purchaser. It is stated that in the present case, the respondent himself admitted that he is the tenant of Ashok Kumar. However, Ashok Kumar sold the property to Sh. Ravi Kant Bansal and the Ravi Kant Bansal had sold the same to the appellant. The complete chain of registered documents are proved. Apart from it, the previous owner sent a notice of termination of tenancy. The appellant also sent notice under section 106 T.P.A. It is stated that the tenant cannot challenge the ownership or title of landlord. Also, once a tenant is always a tenant. It is stated that thus, other issues are also wrongly decided by the Ld. Trial Court. It is stated that there is no delay in filing the present appeal and the certified copy of judgment/decree was applied on 24.09.2016 and the same was released on 17.10.2016. It is therefore prayed that the impugned judgment dated 14.09.2016 passed by the Court of Sh. S.P.S. Laler, the then SCJ, Delhi in CS No. 214/2009 titled as Suresh Kumar v. Kishan Kumar, be set aside.
RCA DJ 91/2016 Suresh Kumar v. Kishan Kumar RCA DJ 96/2016 Kishan Kumar v. Raj Kumari & Ors. Page no. 6 of 30 4. Reply to appeal bearing RCA No. 91/2016
In reply to the appeal bearing RCA No. 91/2016, the respondent has denied that the appellant/plaintiff is the sole and absolute owner of the suit premises. He has stated that there are no legally tenable documents on which the right, title or interest in the suit property could be deemed to have been transferred in favour of the plaintiff from the previous owner Ashok Kumar. It is admitted that the respondent was inducted as a tenant in the suit property at the rate rent of Rs. 1,500/- per month in March 1995, excluding water and electricity charges. It is stated that no rent agreement was executed between Ashok Kumar and the respondent. It is admitted that the respondent lastly paid rent to Ashok Kumar uptil 30.04.2003 at the rate of Rs. 3,212/- per month. However, it is stated that after 30.04.2003, the respondent was not legally bound to pay rent to Sh. Ashok Kumar in view of the agreement dated 04.02.2003 executed between Sh. Ashok Kumar and the respondent. It is stated that in lieu of agreement to sell dated 04.02.2003, Sh. Ashok Kumar had been given Rs. 90,000/- by the respondent out of the total consideration amount of Rs. 1,40,000/- and the balance was to be given at the time of execution of sale documents by Sh. Ashok Kumar in favour of Kishan Kumar. It is denied that the agreement to sell dated 04.02.2003 is a forged document. It is further stated that simply because the documents are registered and stamp duty equivalent to the sale deed has been paid, the said documents cannot be deemed to have transferred right, title or interest in the suit premises and that the same cannot be treated as sale deed. Further, RCA DJ 91/2016 Suresh Kumar v. Kishan Kumar RCA DJ 96/2016 Kishan Kumar v. Raj Kumari & Ors. Page no. 7 of 30 GPA merely creates an agency as per section 202 of the Contract Act and that by itself does not confer any ownership to the GPA holder. The same holds true with regard to the documents alleged to have been executed by Sh. Ashok Kumar in favour of Sh. Ravi Kant Bansal. It is further submitted that in view of agreement to sell dated 04.02.2003 executed between the respondent Kishan Kumar and Sh. Ashok Kumar and Ashok Kumar having accepted Rs. 90,000/- as part consideration out of Rs. 1,40,000/- for sale of the suit property, the status of respondent Kishan Kumar has changed from a tenant to that of a purchaser. In these circumstances, it is stated by the respondent that the present appeal be dismissed.
5. Grounds of appeal in RCA No. 96/2016 titled as Kishan Kumar v. Raj Kumari & Ors.:- It is stated that the Ld. Trial Court while deciding issue no. 1 as to whether suit of the plaintiff is barred by limitation, came to a totally wrong conclusion that the plaintiff/appellant cannot be given the benefit of section 14 of the Limitation Act and that the suit of the plaintiff is barred by limitation. It is further stated that while deciding issue no. 3 whether the plaintiff is entitled to a decree of specific performance as prayed for, the Ld. Trial Court once again has come to a wrong conclusion that the appellant/plaintiff is not entitled to the relief of specific performance. As regards, non-compliance of section 53 A of T.P.A. Act, the Ld. Trial Court has given a wrong finding, in as much as, in the entire pleadings it has not been stated by the appellant that possession was transferred to him by virtue of agreement to sell RCA DJ 91/2016 Suresh Kumar v. Kishan Kumar RCA DJ 96/2016 Kishan Kumar v. Raj Kumari & Ors. Page no. 8 of 30 dated 04.02.2003 nor there is any clause in the agreement to sell dated 04.02.2003 that appellant after the execution of the agreement to sell dated 04.02.2003 would no longer remain a tenant and would henceforth occupy possession of the suit property as a purchaser. Further, it is stated that the Ld. Trial Court has failed to appreciate that the suit of the appellant is for specific performance of agreement to sell dated 04.02.2003 and therefore, intention of the parties has to be judged from the contents of the agreement to sell. Anything said during cross-examination beyond the pleading and not being as per the terms of the agreement to sell, could not have been made the basis of forming any opinion by the Ld. Trial Court. It is further alleged that the Ld. Trial Court failed to appreciate that Rs. 50,000/- was a small amount, which the plaintiff could have easily arranged and he was not required to have that much amount in his bank account. The issue no. 4 with regard to entitlement of the plaintiff to the relief of permanent injunction, it is submitted that even the said issue has not been correctly decided, in as much as, the evidence so brought forth by the plaintiff on record was sufficient to entitle him for the relief of permanent injunction. It is also stated that Ld. Trial Court has erroneously, held in para no. 9.4(a) of the impugned order that there is no cause of action against the defendant no. 2 and 3 as far as relief of injunction regarding creation of third party interest is concerned.
6. Reply to appeal bearing RCA DJ No. 96/2016 No reply to the appeal bearing RCA DJ No. 96/2016 has been RCA DJ 91/2016 Suresh Kumar v. Kishan Kumar RCA DJ 96/2016 Kishan Kumar v. Raj Kumari & Ors. Page no. 9 of 30 filed despite opportunities given. Ld. Counsel for the respondent has, however, submitted that the plea of section 14 of the Limitation Act has not been taken by the plaintiff in the present case. It is stated that in the para 12 of the second amended plaint a fresh cause of action has been pleaded which has no reference to the earlier suit. In para 12 (A), it is stated that the entire consideration amount of Rs. 1,40,000/- has been paid which is in contradiction to the averments made by the appellant that only the earnest money of Rs. 90,000/- was paid. It is stated that the earlier suit was disposed of by a Court of competent jurisdiction therefore, section 14 of the Limitation Act shall not apply. In the subsequent case in which the impugned judgment has been passed, the pleadings are completely silent as to the withdrawal of the earlier suit on account of a technical defect therefore, the benefit of section 14 of the Limitation Act was not available to the plaintiff. Further, as the plaint has not been returned under Order VII Rule 10 of the Code of Civil Procedure therefore, the benefit under section 14 of the Limitation Act can not be given. As per DW4 who had allegedly notarized the agreement to sell, he has categorically stated that he had not notarized the document. Perusal of the agreement Ex.PW1/A would reveal that there are blanks in the agreement which have been filled up later on. All material particulars have been written in those blanks later on. Also, the attesting witness of the agreement to sell is not a resident of Delhi. Further, the legal heirs of deceased Ashok Kumar have not been impleaded as party in the suit no. 259/2007 titled as Kishan Kumar v. Ashok Kumar therefore, the suit was also not maintainable RCA DJ 91/2016 Suresh Kumar v. Kishan Kumar RCA DJ 96/2016 Kishan Kumar v. Raj Kumari & Ors. Page no. 10 of 30 on account of non-joinder of necessary parties. It is stated that a notice dated 14.05.2009 (Ex.PW1/3) regarding demand of rent as well as attornment has already been issued to Kishan Kumar prior to filing of the suit by Ashok Kumar. In para 8 of the amended plaint, the plaintiff had alleged that he was earlier a tenant. Similarly, in the replication filed by the plaintiff to the written statement of defendant no. 3 (para 8), the plaintiff has submitted that defendant no. 1 had no right to terminate the tenancy as the defendant no. 1 had already sold the suit property to defendant no. 2. It is stated that Kishan Kumar even stopped paying rent to the original landlord Ashok Kumar. It is not the case of Kishan Kumar that he does not recognize the subsequent purchaser as landlord as he had stopped paying rent even to the original landlord.
7. Findings Before giving the findings in the aforesaid appeal, it would be pertinent to mention the chronology of events as emanated from the pleadings on record:-
March 1995- Ashok Kumar inducted Kishan Kumar as tenant in the suit premises.
04.02.2003- Agreement to sell allegedly executed between Kishan Kumar and Ashok Kumar.
01.04.2003- Registered GPA, agreement to sell, etc. executed by Ashok Kumar in favour of Ravi Kant Bansal.
30.04.2003- Rent paid by Kishan Kumar to Ashok Kumar uptil this date.
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03.05.2003- Kishan Kumar filed a suit for permanent and mandatory injunction against Ashok Kumar vide suit no. 202/2003. 13.02.2004- Ex-parte judgment passed.
27.05.2005- Ravi Kant Bansal sold the property to appellant Suresh Kumar vide registered GPA, Will, etc. 24.04.2007- The said suit bearing no. 202/2003 was withdrawn. 07.06.2007- Notice of termination of tenancy given by Ashok Kumar and suit bearing No. 599/2007 for possession, declaration and permanent injunction filed by Ashok Kumar. 18.03.2009- The suit filed by Ashok Kumar was dismissed. 14.09.2016- Civil Suit No. 214/2009 titled as Suresh Kumar v.
Kishan Kumar was dismissed. The said judgment has been challenged by way of present appeal bearing RCA No. 91/2016. 30.09.2016- Suit for specific performance filed by Kishan Kumar against Ashok Kumar & Ors. was dismissed. The said judgment has been challenged by way of appeal bearing RCA No. 96/2016.
8. RCA No. 96/2016The judgment in CS No. 5613/2015 titled as Kishan Kumar v. Raj Kumari & Ors. giving rise to RCA No. 96/2016, has been perused. The first issue before the Ld. Trial Court was whether the suit of the plaintiff is barred by limitation. As per the pleadings, the agreement to sell was executed between Ashok Kumar and the plaintiff/appellant on 04.02.2003 for a consideration amount of Rs. 1,40,000/-, out of which Rs. 90,000/- was paid by the plaintiff to Ashok Kumar at the time of execution of the said agreement and the RCA DJ 91/2016 Suresh Kumar v. Kishan Kumar RCA DJ 96/2016 Kishan Kumar v. Raj Kumari & Ors. Page no. 12 of 30 remaining amount of Rs. 50,000/- was to be paid on 09.04.2003 on which date, the sale deed was to be executed. It has been stated that the said sale deed could not be executed because of fault of Ashok Kumar.
As per Article 54 of the Limitation Act, a suit for specific performance of contract has to be filed within a period of three years from the date fixed for the performance of that contract. In this case, the date of performance of the contract was 09.04.2003 hence, the suit should have been filed within three years from that date.
Earlier a suit for permanent and mandatory injunction was filed by the plaintiff Kishan Kumar against defendant no. 1 Ashok Kumar seeking the relief that defendant no. 1 be directed to execute sale deed in favour of the plaintiff. The said suit was decreed ex- parte and later on, on an application under Order IX Rule 13 of the Code of Civil Procedure, the decree was set aside. Thereafter, the plaintiff withdrew the said suit with liberty to file afresh on the same cause of action. Thereafter, the plaintiff Kishan Kumar instituted the present suit on 05.07.2007. The plaintiff had submitted before the Ld. Trial Court that the period during which the plaintiff was pursuing the suit for permanent and mandatory injunction before the Ld. Civil Court i.e. from 03.05.2003 to 25.04.2007, be excluded as per section 14 of the Limitation Act.
Section 14 of the Limitation Act so far as material for the purpose of the present case is quoted hereunder:
"14. Exclusion of time of proceeding bona fide in court without jurisdiction (1) In computing the period of limitation for any RCA DJ 91/2016 Suresh Kumar v. Kishan Kumar RCA DJ 96/2016 Kishan Kumar v. Raj Kumari & Ors. Page no. 13 of 30 suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
The object of the section 14 of the Limitation Act is to protect a litigant who has been pursuing a remedy with due diligence and in good faith before a forum which turns out to be incapable of entertaining the matter because of a defect of jurisdiction or some other similar defect. The provision is not confined strictly to territorial or pecuniary jurisdiction. The expression "other cause of a like nature" must receive a liberal construction, though it should be ejusdem generis with jurisdictional defects. The essential conditions for invoking section 14 of the Limitation Act are (1) the earlier proceeding and the later proceeding must relate to the same matter in issue, (2) the earlier proceeding must have been prosecuted with due diligence, (3) the earlier proceeding must have been prosecuted in good faith, (4) the former Court must have been unable to entertain the suit due to the defect of jurisdiction or similar causes, and (5) the relief claimed in substance should be pertaining to the same cause of action.
To avail the benefit of this section, the earlier Court should have defect of jurisdiction and so could not entertain and decide the suit. This section shall not apply to a case where plaintiff chose an incorrect remedy on merits. Here, the plaintiff had in the earlier suit RCA DJ 91/2016 Suresh Kumar v. Kishan Kumar RCA DJ 96/2016 Kishan Kumar v. Raj Kumari & Ors. Page no. 14 of 30 claimed the remedy of permanent and mandatory injunction seeking the relief that defendant no. 1 be directed to execute the sale deed in favour of the plaintiff. The said suit was decreed ex-parte. However, after setting aside of the decree under Order IX Rule 13 of the Code of Civil Procedure, the plaintiff withdrew the said suit with the liberty to file a fresh suit on the same cause of action. Thus, there was no defect of jurisdiction or other cause of like nature which prevented the earlier Court from deciding the case. In fact, an ex- parte decree was passed by the Court. The Ld. Trial Court has observed that the earlier suit was withdrawn because the plaintiff knew that the relief sought in that suit could not be granted in his favour because of section 41 (h) of the Specific Relief Act. Though, the plaintiff has not specifically mentioned as to what was the technical defect in the said suit which warranted withdrawal of the same. However, it is clear that the plaintiff had only sought the relief of permanent and mandatory injunction and not filed a suit for specific performance of the contract which led him to filing of the same at a later stage. The provision of section 14 of the Limitation Act shall not be attracted, where the plaintiff merely sought an incorrect relief before a competent Court.
Order XXIII of the Code of Civil Procedure deals with withdrawal and adjustment of suits. In Rule 1 sub-rule (3) thereof lays down that where the court is satisfied (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject- matter or a part of the claim, it may, on such terms as it thinks fit, RCA DJ 91/2016 Suresh Kumar v. Kishan Kumar RCA DJ 96/2016 Kishan Kumar v. Raj Kumari & Ors. Page no. 15 of 30 grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the same subject-matter or part of the claim. In rule 2 of Order XXIII it is provided that in any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted.
(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub- section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like manner."
Thus, Order XXIII of the Code of Civil Procedure also contemplates a situation where the earlier suit suffered from a defect of jurisdiction or cause of a like nature.
Before section 14 Limitation Act, 1963 can be pressed into service the conditions to be satisfied are : (1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party ; (2) the prior proceeding had been prosecuted with due diligence and good faith; (3) the failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature ; (4) the earlier proceeding and the later proceeding must relate to the same matter in issue, and (5) both the proceedings are in a court. The main factor which would influence the Court in extending the RCA DJ 91/2016 Suresh Kumar v. Kishan Kumar RCA DJ 96/2016 Kishan Kumar v. Raj Kumari & Ors. Page no. 16 of 30 benefit of section 14 to a litigant is whether the prior proceeding had been prosecuted with due diligence and good faith. The party prosecuting the suit in good faith in the court having no jurisdiction is entitled to exclusion of that period. The expression 'good faith' as used in section 14 means "exercise of due care and attention'. In the context of section 14 expression 'good faith' qualifies prosecuting the proceeding in the Court which ultimately is found to have no jurisdiction. The finding as to good faith or the absence of it is a finding of fact. This Court in the case of Vijay Kumar Rampal and others v. Diwan Devi and others AIR 1985 SC 1669 observed:
"The expression good faith qualifies prosecuting the proceeding in the Court which ultimately is found to have no jurisdiction. Failure to pay the requisite court fee found deficient on a contention being raised or the error of judgment in valuing a suit filed before a Court which was ultimately found to have no jurisdiction has absolutely nothing to do with the question of good faith in prosecuting the suit as provided in section 14 of the Limitation Act." The other expressions relevant to be construed in this regard are 'defect of jurisdiction' and "or other cause of a like nature'. The expression "defect of jurisdiction' on a plain reading means the Court must lack jurisdiction to entertain the suit or proceeding. The circumstances in which or the grounds on which, lack of jurisdiction of the Court may be found are not enumerated in the Section. It is to be kept in mind that there is a distinction between granting permission to the plaintiff to withdraw the suit with leave to file a fresh suit for the same relief under Order XXIII Rule 1 and exclusion of the period of RCA DJ 91/2016 Suresh Kumar v. Kishan Kumar RCA DJ 96/2016 Kishan Kumar v. Raj Kumari & Ors. Page no. 17 of 30 pendency of that suit for the purpose of computation of limitation in the subsequent suit under section 14 of the Limitation Act. The words "or other cause of a like nature" are to be construed ejusdem generis with the words 'defect of jurisdiction', that is to say, the defect must be of such a character as to make it impossible for the court to entertain the suit or application and to decide it on merits. Obviously section 14 will have no application in a case where the suit is withdrawn after passing of an ex-parte decree and not because the Court was unable to entertain it." Reliance is placed upon Deena (Dead) Through LRs. v. Bharat Singh (Dead) Thr. Lrs. & Ors on 29 July, 2002 AIR 2002 SUPREME COURT 2768.
Coming to the case on hand, as noted earlier, the previous suit filed by the appellant was decreed by the trial court. In fact, in the earlier suit, the plaintiff had sought different relief from the one claimed in the subsequent suit. In such circumstances it could not be said that the plaintiffs were prosecuting the previous suit in good faith, taking due care and attention; consequently, the plaintiff/appellant will not be entitled to benefit of section 14 of the Act for excluding the time spent by him in that proceeding, in a fresh suit. In the facts and circumstances of the case the plaintiff was not entitled to the exclusion of the period under section 14 of the Limitation Act as claimed. Therefore, the judgment of the Ld. Trial Court on this account is clearly sustainable. The later suit filed by the plaintiff/appellant seeking the relief of specific performance was clearly time barred. Thus, this Court finds no infirmity with the finding of the Ld. Trial Court on this issue.
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As regards the agreement to sell dated 04.02.2003, the Ld. Trial Court after appreciating the evidence on record observed that the agreement to sell Ex.PW1/1 was duly executed by the defendant no. 1. But for granting the relief of specific performance, certain essential conditions must be satisfied. One of such conditions is contained in section 16 of the Specific Relief Act i.e. the plaintiff must plead and prove that he has always been ready and willing to perform his part of the contract. The plaintiff must prove financial capacity, willingness and conduct consistent with the contract. Such readiness and willingness must exist from the date of contract till the decree is passed. There has been an absence of pleading and proof that the plaintiff was ready and willing to perform his part of contract. In this case, the plaintiff has not filed any ITR or any bank statement or proof regarding any other source of income to prove that he had the financial capacity to pay the remaining amount of money at the time fixed for execution of the contract.
In the case, there has not been mere delay. It is a case of total inaction on the part of the plaintiff. Further, the delay is coupled with substantial rise in prices between the date of agreement and the date of filing of the suit for specific performance. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff Kishan Kumar.
It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the RCA DJ 91/2016 Suresh Kumar v. Kishan Kumar RCA DJ 96/2016 Kishan Kumar v. Raj Kumari & Ors. Page no. 19 of 30 Specific Relief Act 1963. Under Section 20, the court is not bound to grant the relief just because there was valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit alongwith other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract has to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract. Reliance is placed upon N.P. Thirugnanam (D) By Lrs v. Dr. R. Jagan Mohan Rao & Ors 1995 SCC (5) 115.
This Court has no hesitation in holding plaintiff has RCA DJ 91/2016 Suresh Kumar v. Kishan Kumar RCA DJ 96/2016 Kishan Kumar v. Raj Kumari & Ors. Page no. 20 of 30 hopelessly failed to show his readiness and willingness to perform his part of the contract. The plaintiff has failed to prove that he was at the time of performance of contract ready with either money or resources to fulfill his part of the contract.
Also, it has been stated that the plaintiff only paid rent till April 2003. Thereafter, he neither paid rent to the original owner nor did he pay the rent to the subsequent purchaser. Since, specific performance is an equitable remedy. "He who seeks equity must do equity." Therefore, the conduct of the plaintiff/appellant Kishan Kumar in not paying the rent after April 2003 also disentitles him for the discretionary equitable relief of specific performance in his favour.
On 03.05.2003, Kishan Kumar had filed a suit against Ashok Kumar seeking the relief of permanent and mandatory injunction. On 01.04.2003, vide registered GPA, agreement to sell, Will, etc., the suit property has already been 'sold' for a valuable consideration by Sh. Ashok Kumar to Sh. Ravi Kant Bansal. On 27.05.2005, the said property was then 'sold' to Suresh Kumar.
If third party rights have accrued in favour of a bonafide purchaser for value without notice, then section 19 (b) of the Specific Relief Act shall come into play and specific performance cannot be enforced against a transferee in good faith who has paid consideration and who has no notice of the prior contract. The agreement to sell was not registered. The suit for permanent and mandatory injunction was also filed on 03.05.2003 i.e. after the execution of registered agreement to sell, GPA, etc. in favour of RCA DJ 91/2016 Suresh Kumar v. Kishan Kumar RCA DJ 96/2016 Kishan Kumar v. Raj Kumari & Ors. Page no. 21 of 30 Ravi Kant Bansal on 01.04.2003. Therefore, in view of section 19(b) of the Specific Relief Act, the specific performance of contract cannot be enforced against the subsequent transferee. In view of the aforesaid discussion, the suit filed by Kishan Kumar against Ashok Kumar & Ors. seeking the relief of specific performance, permanent and mandatory injunction, must necessarily fail and hence, the appeal against dismissal of the said suit, is hereby dismissed.9. RCA No. 91/2016
As regards the issue whether the plaintiff namely Suresh Kumar is the owner of the suit property. The Ld. Trial Court rightly observed that as there is only agreement to sell, GPA, Will, etc. in favour of Ravi Kant Bansal and subsequently in favour of Suresh Kumar therefore, the plaintiff Suresh Kumar did not become the owner of the suit property as these documents do not confer title. However, as regards the relief of possession, the Ld. Trial Court opined that "as the plaintiff is not the absolute owner of the property therefore, he cannot claim to be landlord in view of section 109 of the Transfer of Property Act and as an agent of owner Ashok Kumar, he cannot claim rent in his personal capacity and cannot seek possession from the defendant in his personal capacity. If Suresh Kumar approached the Court as an agent of Ashok Kumar, then he should have filed the case in the name of Ashok Kumar, but he has not done so, rather, he has filed the case himself, in his individual name and that too as an owner and not as an agent of Ashok Kumar."
RCA DJ 91/2016 Suresh Kumar v. Kishan Kumar
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The Ld. Trial Court further observed that
"the defendant is not the tenant of the property and that both the plaintiff and the defendant are sailing in the same boat as far as agreement to sell the property is concerned, both of them have agreement to sell in their favour. The plaintiff cannot claim to be the landlord of the defendant merely on the basis of agreement to sell and in the absence of relationship of landlord and tenant, possession cannot be sought merely by issuing notice of termination of tenancy to the defendant. The plaintiff is therefore, not entitled to the relief of possession."
As regards the relief of permanent injunction, the Court denied the said relief on the ground that in the entire plaint, it has not been mentioned that the defendant is trying to alienate or create any third party interest in the suit property or that he is about to part with the possession of the suit property to some third party.
This Court is not in agreement with the findings of the Ld. Trial Court as regards the above.
In Suraj Lamp Industries Pvt. Ltd. v. State of Haryana, AIR 2012 SUPREME COURT 206, the Hon'ble Supreme Court had observed that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. "The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section RCA DJ 91/2016 Suresh Kumar v. Kishan Kumar RCA DJ 96/2016 Kishan Kumar v. Raj Kumari & Ors. Page no. 23 of 30 53A of the T.P. Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property."
However, before the decision in Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana, AIR 2012 SUPREME COURT 206 transactions through registered GPA, agreement to sell, Will, receipt, etc. were very common in Delhi. Courts have repeatedly held that although such documents do not convey full legal title as a registered sale deed would, however, they can create enforceable rights inter-se the parties and may amount to transfer of possessory rights.
GPA, agreement to sell, Will do not convey ownership or title. Such documents can at best show possession or limited rights, not ownership. In view of this, there was no transfer of ownership in favour of Ravi Kant Bansal and thereafter, Suresh Kumar. However, Suresh Kumar can still maintain a suit for possession against the tenant who has failed to pay rent. It is admitted that Ashok Kumar had inducted Kishan Kumar as tenant on oral tenancy. It is also admitted that the rent was paid by Kishan Kumar till April 2003 after which no rent was paid. As per section 116 of the Evidence Act, a tenant cannot dispute landlord's title.
Section 116 of the Indian Evidence Act, 1872 (now Section 122 of the Bharatiya Sakshya Adhiniyam, 2023) embodies the principle of Tenant Estoppel. A tenant, once inducted into possession, is precluded from denying the landlord's title during the RCA DJ 91/2016 Suresh Kumar v. Kishan Kumar RCA DJ 96/2016 Kishan Kumar v. Raj Kumari & Ors. Page no. 24 of 30 continuance of tenancy. This principle rests on both statutory authority and equitable considerations to ensure that tenants do not misuse tenancy to prolong occupation and frustrate lawful eviction. Therefore, Kishan Kumar could not have disputed the title of Ashok Kumar. Ashok Kumar executed registered GPA, Will, etc in favour of Ravi Kant Bansal, who further executed registered GPA, Will, etc in favour of Suresh Kumar. Though, there has not been a transfer of title, however, as they had derived the right of possession over the suit property therefore, Suresh Kumar was well within his right to claim possession of the suit property as he could claim himself to be a landlord, even if his title was imperfect. Now, the plea taken by the defendant is that an agreement to sell dated 04.02.2003 was executed between him and Ashok Kumar. It is further alleged that he had paid a sum of Rs. 90,000/- out of Rs. 1,40,000/- and had also filed a suit for specific performance. Protection under section 53A of the Transfer of Property Act could have been available to him, if it is proved that there was a duly executed agreement to sell, possession was delivered as part performance and there was a readiness and willingness on the part of Kishan Kumar to honour the agreement to sell. In such a case, the possession of Kishan Kumar would be protected, if it is found that the agreement to sell is genuine, prior in time and Suresh Kumar became subsequent transferee with notice. However, as per the agreement to sell, the possession of the suit property was to be delivered only on the payment of the remaining consideration amount on 09.04.2003. Thus, the possession of the suit property was not delivered pursuant RCA DJ 91/2016 Suresh Kumar v. Kishan Kumar RCA DJ 96/2016 Kishan Kumar v. Raj Kumari & Ors. Page no. 25 of 30 to the agreement to sell. Further, the conduct of Kishan Kumar in paying rent till 30.04.2003 even after execution of the agreement to sell shows that he continued to remain a tenant. That is another thing that he stopped paying rent after April 2003.
In Swadesh Ranjan Sinha v. Haradeb Banerjee, 1992 AIR 1590, the Hon'ble Supreme Court held that the 'landlord' is defined by Section 2 in wide terms so as to include any person who, for the time being, is entitled to receive or but for a special contract, would be entitled to receive the rent of any premises, whether or not on his own account:' This definition shows that even if the rent is received by a person not on his own account but on account of any other person, such as his principal or his ward, he is for the purpose of the Act a landlord. Any such person is, therefore, entitled to institute a suit for eviction. It has been submitted that Suresh Kumar is not the owner of the suit property for the purpose of seeking eviction. Ownership denotes the relation between a person and an object forming the subject-matter of his ownership. It consists in a complex of rights, all of which are rights in rem, being good against all the world and not merely against specific persons'. (Salmond on Jurisprudence, 12th ed., Ch. 8, p. 246 et. seq.). There are various rights or incidents of ownership all of which need not necessarily be present in every case. They may include a right to possess, use and enjoy the thing owned; and a right to consume, destroy or alienate it. Such a right may be indeterminate in duration and residuary in character. A person has a right to possess the thing which he owns, even when he is not in possession, but only retains a rever- sionary RCA DJ 91/2016 Suresh Kumar v. Kishan Kumar RCA DJ 96/2016 Kishan Kumar v. Raj Kumari & Ors. Page no. 26 of 30 interest, i.e., a right to repossess the thing on the termination of a certain period or on the happening of a certain event. "All that a plaintiff needs to prove is that he has a better title than the defendant. He has no burden to show that he has the best of all possible titles. His ownership is good against all the world except the true owner. The question, however, is whether he has a superior right or interest vis-a-vis the person challenging it.
'Tenant', according to clause (vii), means inter alia the person by whom or on whose account or behalf rent is, or, but for a contract express or implied would be, payable for any premises to his landlord including the person who is continuing in possession of the premises after the termination of his tenancy otherwise than by a decree for eviction passed under the provisions of this Act.
So, in this case, even if Suresh Kumar does not have a perfect title but he has a right of possession and to enforce that right he can seek eviction of the tenant.
It has been submitted that there has been no attornment as landlord by Ashok Kumar in favour Suresh Kumar. It has been therefore, argued that he cannot maintain a suit for possession of the suit property. In Mahendra Raghunathdas Gupta v. Vishvanath Bhikaji Mogul & Ors. AIR 1997 SUPREME COURT 2437, it was held that it is well settled that a transferee of the landlord rights steps into the shoe of the landlord with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy. This section does not require that the transfer of the right of the landlord takes effect only if the tenant attorns him. Attornment by tenant is RCA DJ 91/2016 Suresh Kumar v. Kishan Kumar RCA DJ 96/2016 Kishan Kumar v. Raj Kumari & Ors. Page no. 27 of 30 not necessary to confer validity of the transfer of the landlord's rights.
In this case, the registered GPA, agreement to sell, etc. was executed by Ashok Kumar in favour of Ravi Kant Bansal on 01.04.2003. On 27.05.2005, Ravi Kant Bansal executed registered GPA, Will, etc. in favour of Suresh Kumar. Notice of termination of tenancy was allegedly given by Ashok Kumar on 07.06.2007 and quit notice was allegedly given by Suresh Kumar on 14.05.2009. Thus, rights of the landlord were transferred in favour of Suresh Kumar before termination of tenancy by alleged notice on 07.06.2007.
It is trite, attornment by a tenant is not the source of title of the transferee. When a lessor transfers his interest in the property, the transferee acquires all rights of the lessor in respect of the tenancy and a subsequent transferee can sue for eviction even if no formal letter of attornment was issued and even if the tenant never expressly consented to the transfer. An attornment is primarily acknowledgment by the tenant regarding the new landlord and protection for the tenant regarding payment of rent. In Charanjit Singh Makkar v. Phalwinder Arora, RFA (COMM) 347/2025 decided on 26.08.2025, the Hon'ble Delhi High Court observed that "a letter of attornment is not required to complete the title of the transferee under the mandate of Section 109 of the Transfer of Property Act, 1882. The title of the transferee becomes effective upon the execution of the sale deed itself or by any other lawful mode of transfer and is not dependent on or postponed until RCA DJ 91/2016 Suresh Kumar v. Kishan Kumar RCA DJ 96/2016 Kishan Kumar v. Raj Kumari & Ors. Page no. 28 of 30 attornment by the tenant."
Attornment is merely a notice to the tenant so that he knows to whom the rent is payable. Absence of attornment shall not per se invalidate the status of Suresh Kumar as a transferee landlord. It is trite that in landlord- tenant litigation, absolute ownership is not required, a better title than the tenant is sufficient. In these circumstances, it is sufficiently clear that Suresh Kumar could have easily maintained a suit against Kishan Kumar seeking the relief of possession, permanent injunction and recovery of arrears of rent and the Ld. Trial Court committed an error in dismissing the said suit on this account.
In view of my aforesaid discussion, the appeal in RCA No. 91/2016 titled as Suresh Kumar v. Kishan Kumar is hereby allowed. It is ordered that the appellant/plaintiff Suresh Kumar is entitled to the vacant and peaceful possession of the property bearing no. C- 445, 3rd Floor, DDA LIG Flats, East of Loni Road, Shahdara, Delhi- 110093 consisting of two rooms, one kitchen, one bathroom, one latrine and one balcony (suit property). He is also entitled to the relief of permanent injunction restraining the defendant from creating any third party interest in the suit property. He is also entitled to the arrears of rent w.e.f. 01.05.2006 till 20.05.2009 @ Rs. 3,886/- per month increased @ 10 % per annum which amounts to Rs. 1,39,896/- alongwith interest @ 6% per annum and mesne profits of Rs. 5,000/- alongwith interest @ 6% per annum w.e.f. 20.06.2009 till the date of recovery of possession of the suit property, alongwith cost of the suit. It is ordered accordingly.
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10. TCR be sent back with the copy of this judgment.
11. Appeal file be consigned to the Record Room.
(Gomati Manocha) District Judge-02 (North East District) Karkardooma Courts, Delhi.
Dictated and announced in open Court today i.e. 23rd May, 2026 RCA DJ 91/2016 Suresh Kumar v. Kishan Kumar RCA DJ 96/2016 Kishan Kumar v. Raj Kumari & Ors. Page no. 30 of 30