Delhi High Court
Smt. Indu Gulani @ Indu Pahuja & Anr. vs Sh. Sant Pal Singh on 24 September, 2014
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+
C.R.P No.145/2014 & C.M.Nos.16106/2014 (Exemption), 16107/2014
(Stay)
% 24th September, 2014
SMT. INDU GULANI @ INDU PAHUJA & ANR. ......Petitioners
Through: Mr.S.C.Singhal, Advocate.
VERSUS
SH. SANT PAL SINGH ...... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
1. Challenge by means of this petition under Section 115 of the Code of Civil Procedure, 1908 (CPC) is to the impugned order of the trial court dated 21.8.2014 by which the trial court rejected an application filed by the petitioners/defendant nos. 2 & 3 for rejecting the plaint under Order VII Rule 11 CPC on the ground that the suit is barred by time. Before this Court, it is additionally argued that along with the suit, an application under Section 5 of the Limitation Act, 1963 was filed, and since there can be no CRP NO.145/2014 Page 1 of 7 condonation of delay for filing of a suit, the suit/plaint had to be rejected as being barred by law of limitation.
2. The facts of the present case are that both the petitioners are Advocates. The petitioners were representing the father of the respondent/ plaintiff, late Sh.Giri Lal @ Girwar Singh in a suit against a tenant in the property bearing no.WZ-1646 (previous address WZ-233), Gali Tara Chand/Gher, Nangal Raya, New Delhi, being part of khasra no.632/462/176 admeasuring 775 sq. yds. The case of the respondent/plaintiff was that on one date of hearing in the suit filed against the tenant, the petitioners/advocates suddenly came up with the plea that the father of the respondent/plaintiff, who had filed the earlier suit against the tenant, had sold the portion of the suit property to the petitioners/advocates through a general power of attorney and a Sale Deed dated 28.10.1998. The general power of attorney holder is the defendant no.3 in the present suit, and the petitioner no.2 herein. The application under Order XXII Rule 10 CPC which was filed by the petitioners/advocates in the earlier suit seeking their substitution in place of the father of the plaintiff/respondent was dismissed by the court. The father of the respondent/plaintiff took up a specific stand that the alleged sale deed was bogus, forged and fabricated. The father of CRP NO.145/2014 Page 2 of 7 the respondent/plaintiff however subsequently expired on 14.10.2004, and therefore no further action was taken as regards the forged and fabricated sale deed.
3. The subject suit was thereafter filed by the respondent/plaintiff, the son of Sh. Giri Lal, for cancellation, declaration, permanent injunction and mandatory injunction seeking reliefs with respect to cancellation of the registered sale deed dated 28.10.1998 executed in favour of petitioner no.1/defendant no.2 pleading that no general power of attorney was executed by the father of the plaintiff/respondent in favour of petitioner no.2/defendant no.3 and on the basis of which petitioner no.2 executed the sale deed in favour of the petitioner no.1. The petitioner no.1 is the daughter of petitioner no.2, and as stated above both are Advocates. In the suit further reliefs have been sought that the petitioners have no rights with respect to 130 sq. yds. of land, which is the subject matter of the sale deed dated 28.10.1998.
4. In my opinion, the impugned order of the trial court has to be sustained not only because of the reasons which have been given in the impugned order, but also for the reasons which I am stating in the present CRP NO.145/2014 Page 3 of 7 judgment and which reasons I can give in exercise of powers under Order XLI Rule 24 CPC. Firstly I would like to note that the Supreme Court recently in the judgment in the case of Suhrid Singh @ Sardool Singh Vs. Randhir Singh & Ors. (2010) 12 SCC 112 has held that if a person is not a party to a document i.e document is not admitted to be signed by him, then in such a case there is no need of seeking relief of cancellation of the document and it is enough if declaration is sought for. The difference between seeking relief of cancellation of the document and for declaration as regards the invalidity of the document has the affect as held by the Supreme Court on the court fees to be payable in the suit because if the suit is for cancellation of the sale deed, court fees will have to be paid as per the value of the sale deed, but in a suit for declaration that the sale deed is void, court fees has to be paid only on the amount at which relief sought is valued in the plaint. Besides the aspect of difference in court fees, there is also an aspect of difference in the period of limitation in a suit for declaration qua invalidity of the sale deed and in a suit filed for cancellation of the sale deed. In my opinion, there can be separate periods of limitation which may arise on different occasions with respect to seeking declaration with respect to the pleaded invalidity of a sale deed, and cause of action arises qua the plaintiff CRP NO.145/2014 Page 4 of 7 when the disputed sale deed/document is sought to be got declared null and void in the eyes of law.
5. A reading of the plaint shows that there are repeated averments that the sale deed is a forged and fabricated document i.e the respondent/plaintiff pleads that the signatures appearing on the sale deed are not the signatures of his father or on the general power of attorney allegedly executed by the father in favour of the petitioner no.2/defendant no.3. Once the signatures on the sale deed/document and the general power of attorney are not admitted to be of the father of the respondent/plaintiff by pleading that the deeds/documents are bogus, forged and fabricated, the father is therefore not admitted to be a party to the document and no suit is required to be filed for cancellation of the sale deed and the subject suit can therefore be taken as a suit for declaration claiming invalidity of the sale deed. Consequently, with respect to the subject suit, and which includes a relief of declaration, as also the reliefs of injunctions, cause of action will arise as stated in the plaint when the petitioners/defendant nos. 2 & 3/Advocates sought to assert their rights qua the respondent/plaintiff in the suit with respect to the suit property admeasuring 130 sq. yds. Therefore, really the application which was filed under Section 5 of the Limitation Act, in my opinion was not at all necessary CRP NO.145/2014 Page 5 of 7 and was superfluous. No doubt, there can be no condonation of delay for filing of the suit, but in the facts of the present case, it is clear that the suit filed appears to be very much within limitation, and in any case, limitation in the facts of the present case is a mixed question of fact and law i.e as to when the cause of action arises with respect to the rights which are sought in the suit and the reliefs claimed in the suit, and as so held by the trial court in the impugned judgment.
6. There is an important aspect which I would like to note that in this petition the petitioners have very conveniently not filed a copy of the general power of attorney allegedly executed by the father of the respondent/plaintiff in favour of the petitioner no.2/defendant no.3. Also, the sale deed dated 28.10.1998 which is sought to be relied upon by the petitioners has not been filed. In my opinion, this deliberate concealment is because obviously in the general power of attorney, no consideration would have been shown to have been received by means of a cheque by the father of the respondent/plaintiff, also on the basis of an unregistered power of attorney a sale deed cannot be legal vide Sections 32 & 33 of the Registration Act, 1908 and if the General Power of Attorney in favour of the petitioner no.2, allegedly executed by Sh. Giri Lal is unregistered then the sale deed registered in favour of the CRP NO.145/2014 Page 6 of 7 petitioner no.1 is illegal and void. Clearly therefore, the entire set of documents, prima facie, appear to have been created to defraud the father of the respondent/plaintiff by the persons who were holding a position of trust qua the father of the respondent/plaintiff because the petitioners were Advocates and representing the father of the respondent/plaintiff in a suit filed by the father of the respondent/plaintiff against a tenant in part of the suit property. All these aspects require trial and the plaint hence cannot be rejected under Order VII Rule 11 CPC.
7. In view of the above, there is no merit in this petition, and the same is therefore dismissed, leaving the parties to bear their own costs.
8. Copy of this judgment be sent to the trial court by special messenger.
VALMIKI J. MEHTA, J SEPTEMBER 24, 2014 KA CRP NO.145/2014 Page 7 of 7