Delhi District Court
Badar Makhmoor vs Sh. Hakim Zillur Rehman on 29 September, 2014
IN THE COURT OF SH. MUNISH MARKAN, SENIOR CIVIL JUDGE
CUM RENT CONTROLLER ( SOUTH EAST), DISTRICT COURTS,
SAKET, NEW DELHI
CS No.186/13
Badar Makhmoor v/s Sh. Hakim zillur rehman
Order:
29.09.2014
1.Vide this order I shall dispose of application under Order 7 Rule 11 CPC moved by the plaintiff for rejection of counter-claim of the defendant.
2. Before coming to the counter claim, it is worthwhile to have a look at the case of plaintiff in the main suit. The case of the plaintiff is that he is the owner of property no. B-29, Khasra no. 189, Johri Firm, Noor Nagar Extension, Jamia Nagar, New Delhi having area of 200 sq. yards comprising ground floor having 4 rooms, 2 bathrooms, 1 kitchen and one store and first floor having one hall (herein after called 'suit property') which was purchased by plaintiff on 20.05.89 and the same was let out to the defendant on 06.02.02 at monthly rent of Rs.6000/- excluding water and electricity charges and rent agreement dated 09.03.2002 was executed for a period of 11 months. The tenancy was extended till 31.01.04 vide endorsement made on the rent agreement itself and eventually defendant gave undertaking to vacate suit premises on notice of 60 days vide endorsement dated 02.02.2005 made on the rent agreement. Plaintiff terminated the tenancy by legal notice 14.02.2011 and therefore, filed the CS No.186/2013 Page 1/6 present suit for recovery of possession, mesne profits/damages and for permanent injunction.
3. Along with the amended written statement, the defendant filed the counter claim. In the counter claim, stand of the defendant is that at the time of lease of the suit property, it comprised only ground floor. The first floor comprising of two rooms, kitchen, toilet and bathroom were constructed by the defendant out of his exclusive funds and resources within the knowledge of the defendant after parties enter into oral agreement to sell on 24.05.2009 regarding the leased part of the property i.e. ground floor for a total consideration of Rs.28 lacs and under which, the security amount of Rs.72,000/- lying with the plaintiff was adjusted by the plaintiff towards earnest money under the said oral agreement to sell and the remaining amount was agreed to be paid by defendant at the time of execution of sale deed. It was also agreed that defendant shall continue to remain in possession of the suit property as a buyer of the property under the said oral agreement to sell and this had put the relationship of lessor and lessee to the end. It was also agreed that defendant would pay a sum of Rs.7,000/- per month to the plaintiff till the time sale deed is executed and balance consideration is paid. It is further stated that after the said oral agreement to sell, the plaintiff avoided the execution on one pretext or the other. The defendant is always ready/willing to perform his part of the contract and to bear the all the expenses. Therefore the plaintiff has filed the counter claim which is valued for Rs.10,000/- for the relief of declaration and permanent injunction with respect to first floor and counter claim is valued at Rs.2,80,000/- for the relief CS No.186/2013 Page 2/6 of specific performance. Defendant has prayed for a decree of declaration declaring himself to be owner of the first floor of the suit property and prayed for a decree of perpetual injunction against the plaintiff from interfering in the possession of the suit property.
4. Defendant/counter claimant further prayed for decree for specific performance to direct plaintiff to execute the sale deed in respect of the ground floor of the suit property and on failure of the plaintiff to execute the same, to execute the sale deed in favour of the defendant through any officer.
5. I have heard the Ld. Counsels for both the parties and gone through the file carefully.
6. For the purpose of deciding the application under order 7 Rule 11 CPC, the court is required to look into the plaint/ counter claim only. Law is well settled in this regard and reliance can be placed upon Texem Engineering Vs. Texcomash Export 2011 (124) DRJ 501 (DB) Delhi.
7. Ld. Counsel for counter claimant has argued that the counter claim per se discloses cause of action and cannot be rejected as such. On the other hand, Ld. Counsel for plaintiff has vehemently argued that counter claim is nothing but sheer abuse of the process of the court and the counter claim has been drafted in a clever manner so as to give semblance of a legal cause of action where infact none exists. It has been argued that Hon'ble Supreme Court in Sopan Sukhdev Vs Assistant charity Commissioner (2004) 3 SCC 137 has emphasized that a meaningful and not formal reading of plaint has to be done so as to nip in the bud any clever drafting of CS No.186/2013 Page 3/6 the plaint to create an illusion of a cause of action. In this regard reliance can also be placed upon T. Arivandandam v/s T. V. Satyapal (1977) 4 SCC
467.
8. First of all, the legal sustainability of the claim of the counter claimant for a decree of specific performance for execution of registered sale deed is taken up. As per defendant/counter claimant, he entered the suit premises as a lessee which as per him was only ground floor at that time. He claims to have entered into an oral agreement to sell on 24.05.2005 in respect of the ground floor of the suit property for a total consideration of Rs. 28 lacs out of which Rs. 72,000/- which was already lying with the plaintiff as security was adjusted (treated) as the earnest money under the mutual consent and balance consideration of Rs. 27,28,000/- was to be paid at the time of execution of sale deed which the plaintiff had to execute. Reading of the counter claim clearly indicates that no money exchanged hands at the time of alleged oral agreement. There was no specific time within which the alleged sale deed was to be executed. Further, counter claim also shows that there was no agreement at the time of the alleged oral agreement regarding the other terms and conditions of the sale.
9. Further, the Stamp Act and the Registration Act as applicable to Delhi were amended with effect from 24.09.2001. After the said amendments, an agreement to sell immovable property where under the possession of the premises is delivered in part performance, can only be by a registered document bearing the prescribed stamp duty i.e. on 90 % of the total agreed sale consideration. Section 49 of the Registration Act was also CS No.186/2013 Page 4/6 amended and a plea of part performance in the absence of a registered document can thus not be taken. Reliance in this regard can be placed upon Sunil Kapoor Vs Himmat Singh & others 167 (2010) DLT 806 (Delhi).
10. Further, in T. Murlidhar Vs. PVR Murthy CS (OS) 1397/2009, it was held by Hon'ble High Court of Delhi that the suit for specific performance of an oral agreement to sell does not disclose cause any clear cause of action and a clever drafting methodology has been adopted to create a semblance of cause of action.
11. As far as the relief of specific performance of the alleged oral agreement is concerned, the same is prima facie devoid of any cause of action and therefore, qua that relief the counter claim is liable to be rejected.
12. As far as the averments regarding construction of first floor by the defendant to the knowledge of the plaintiff is concerned, the same is also in contravention of Section 108 (p) of the Transfer of Property Act which specifically states that in the absence of a contract or local usage to the contrary, the lessee must not, without the consent of the lessor, erect, on the property, any permanent structure except for agriculture purposes. In the present case, the status of defendant/counter claim is that of the tenant and construction of the first floor by a tenant within the knowledge of the landlord as prayed in the counter claim does not entitle him to a decree of declaration to the effect that he becomes the owner of the constructed portion.
13. Therefore, reading the counter claim in its entirety it is nothing but a clever drafting done by the defendant to defeat/delay the trial of the CS No.186/2013 Page 5/6 case. Therefore, the counter claim is rejected with a cost of Rs.10,000/- disclosing no triable cause of action.
14. It is also worthwhile to note that while this application was pending for orders, the defendant/ counter claimant moved another application under Order 6 Rule 17 CPC to amend the counter claim whereby the counter claimant wanted to incorporate the para which is an under:-
"(I). That the counter claim is triable by this Hon'ble Court as the suit property is situated within the jurisdiction of this Hon'ble Court and the value of the suit is also within the jurisdiction of this Hon'ble Court."
In my considered opinion, the incorporation or otherwise of this para in the counter claim would not have any effect on the outcome of the application under Order 7 Rule 11 CPC. In fact, it also shows the resolve of the defendant to put up frivolous applications to delay the trial. Therefore, this application is also dismissed with cost of Rs.5,000/-.
Put up for arguments on application under Order 39 Rule 10 CPC on 07.10.2014.
Announced in the open court
on 29.09.2014 (Munish Markan)
Senior Civil Judge-Rent Controller
(South East) District Courts
Saket New Delhi
CS No.186/2013 Page 6/6