Delhi District Court
Ms. Mhrum Nisha @ Hina vs Mr. Om Prakash on 5 September, 2022
-:: 1 ::- Date:05.09.2022
IN THE COURT OF MS. SHIVALI BANSAL
ADDITIONAL DISTRICT JUDGE-03
NORTH DISTRICT, ROHINI COURTS DELHI
CNR No. DLNT010022462021
RCA No.21/2021
In the matter of
1. Ms. Mhrum Nisha @ Hina
D/o Late. Abdul Rahman @ Natiya
2. Saira Bano
D/o Late Abdul Rahman @ Natiya
3. Shaina (Minor)
Aged about 16 years
4. Riyaz (Minor)
Aged about 15 years
Appellant no. 3 & 4. are minor
being represented through
their mother / natural guardian
Smt. Haseena Begum
5. Haseena Begum
W/o Late Abdul Rahman @ Natiya
All R/o A-83, Shahbad Diary
Delhi-110042. ......... Plaintiff
Versus
Mr. Om Prakash
S/o. Sh. Bhirgu Nath
R/o C-19/8, Shahbad Dairy
Delhi-110042 ........ Defendant
RCA No. 21/21 Mhrum Nisha @ Hina Vs. Om Prakash Page No. 1 of 24
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Date of Institution 19.03.2021
Date of Final Argument 18.08.2022
Date of pronouncement 05.09.2022
of the judgment
APPEAL UNDER SECTION 96 R/W ORDER XLI R/W
SECTION 151 OF C.P.C. AGAINST THE ORDER/
JUDGMENT/ DCREE DATED 07.08.2018
JUDGMENT
BRIEF FACTS ALONG WITH GROUNDS FOR APPEAL AVERRED BY THE APPELLANT:-
1. The present appeal has been preferred against the impugned judgment/ decree dated 07.08.2018 passed by the Ld. Civil Judge, North Delhi in the CS(OS)- 534766 of 2016 whereby the Ld. Trial Court granted the reliefs of possession, declaration, permanent and mandatory injunction and mesne profits to the plaintiff/ respondent herein in respect of the property admeasuring 12 ½ square meters bearing Plot No. A-83, Shahbad Daulatpur, Phase-I, Delhi (herein after referred to as "The Property").
2. The appellants stated that the plaintiff/ respondent herein had filed the said suit under Section 6 of the Specific Relief Act for possession, declaration, permanent and mandatory injunction and mesne profits, alleging therein that the plaintiff/ respondent herein is the owner of the property in question, which the plaintiff/ respondent herein had purchased from the original allottee of the said property namely Sh. Mahesh Chander through GPA, Agreement to Sell, Affidavit, Deed, Will and receipt etc. dated 26.03.2008. The RCA No. 21/21 Mhrum Nisha @ Hina Vs. Om Prakash Page No. 2 of 24
-:: 3 ::- Date:05.09.2022 Appellants herein stated that, the plaintiff/ respondent herein, in the suit had alleged that the plaintiff/ respondent had constructed a temporary structure above the said property. The plaintiff/respondent further alleged that on 22.09.2009 the plaintiff/respondent was shocked to see the father of the Appellant No.1 in the property and on question, the Appellant no.1 replied that the defendant no.2 and 3 have sold him the property. It is stated that the plaintiff/ respondent herein had made a complaint on 22.09.2009 vide DD No. 32-A and another complaint on 07.10.2009 in the P.S. Shahbad Dairy, Delhi.
Further, the plaintiff/ respondent herein showed apprehension to the court regarding creating the third party interest by them.
3. The Appellant stated that although the allegations in the suit were totally false, baseless and incorrect which were only incorporated to attract the emotional sympathy of the court and to mislead the court on basis of the false story, whereas the truth was that there was no prima facie case in favour of the plaintiff/ respondent herein.
4. The defendant no.1 (deceased father/ husband of the Appellants) filed the written statement and stated that Sh. Mahesh Chander was the original allottee of the suit property and had delivered the actual physical possession to him (deceased defendant no.1) as he purchased the suit property from him on 18.09.2009 after executing requisite documents i.e. GPA, Agreement to Sell, Will, Possession letter, receipt and Affidavit. The original allottee has also handed over all the original documents of the property to defendant no.1 and he also claimed in the written statement that since the purchase, defendant no.1 with his family remained in possession of the suit property and even till date, the appellants who are the legal heirs of RCA No. 21/21 Mhrum Nisha @ Hina Vs. Om Prakash Page No. 3 of 24
-:: 4 ::- Date:05.09.2022 the deceased defendant no.1 of the suit, are still in possession of the suit property.
5. The appellants stated that the Ld. Trial court has completely committed gross error of law in deciding issues in this case. The ownership of the plaintiff/ respondent herein was declared by the Ld. Trial court only based upon the one sided documents produced by the plaintiff/ respondent herein, without considering the fact that the defendant no.1 could not lead the evidence due to his ill-health.
6. The appellants categorically stated that there are all documentary proof that there was no intentional or deliberate reason for not leading the evidence on behalf of the defendant no.1, rather it was the medical reasons of kidney failure and he was on constant dialysis and there are documentary evidence to support this fact. He even remained admitted in various hospitals i.e. Dr. BSA Hospital, Rohini, Delhi, AIIMS, New Delhi and Bhagwati Hospital, Delhi on various occasions.
7. The Appellant specifically stated that the Ld. Trial court passed the judgment/ decree in absence of the defendant no.1, as he had already died on 17.07.2018 due to his continuous ailment, before leading the final arguments and before pronouncement of the judgment. The plaintiff/ respondent herein who is also living in the same vicinity was very much aware of this fact. And it was the legal duty of the plaintiff/ respondent herein to apprise the court and move necessary application U/O 22 Rule 4(1) C.P.C in this regard to implead the legal heirs of the deceased defendant no.1 in the present case for the fair and just decision of the case. It is also alleged that the Ld. Trial RCA No. 21/21 Mhrum Nisha @ Hina Vs. Om Prakash Page No. 4 of 24
-:: 5 ::- Date:05.09.2022 court has also failed to consider the provision under Order 22 Rule 4(3) that "where within the time limited by law, no application is made under sub rule (1) the suit shall abate as against the defendant", hence there is also error of law by committed by the Ld. Trial court itself and hence the decree dated 07.08.2018 is liable to be set-aside.
8. The appellants stated that an application under Order 21 Rule 58 was filed by the wife of the defendant no.1, while giving reply of the same, the plaintiff/ respondent herein took the defence that the counsel for the defendant no.1 was having the knowledge and he appeared in the matter and attended court proceedings on 18.07.2018. The appellant further stated that the counsel for the defendant no.1 was not aware of the death of the deceased defendant no.1 on 18.07.2018 and moreover he was never an advocate for the legal heirs of the defendant no.1. The legal heirs of defendant no.1 were not in contact with the said advocate at any point of time, so the question of apprising the facts to the trial court about the death of the defendant no.1 are also denied. It is also contended that had the appellants been impleaded as legal heirs/ necessary party in the suit by the plaintiff/ respondent herein, after the death of the defendant no.1, then the evidences could have been lead on part of the defendant no.1 and also the other additional material facts could have been placed before the trial court, but the plaintiff/ respondent herein took disadvantage of this situation and intentionally did not mention such facts before the trial court.
9. The Appellants stated that the defendant no.1 in his written statement had already produced the relevant documents before the trial court regarding the purchase of the suit property on 18.09.2009 from Sh.
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Mahesh Chander, who was the original allottee. On the other hand, the claim of the plaintiff/ respondent herein was that he purchased the suit property on 26.03.2008 from Sh. Mahesh Chander/ original allottee. In this way, both the persons are claiming themselves to have been purchased the suit property from one person i.e. Sh. Mahesh Chander. So, in the suit, it was necessary to implead Sh. Mahesh Chander in the suit as necessary/proper party, who is the best/ competent person to disclose that to whom he sold out the property actually. But in the suit the plaintiff/ respondent herein did not implead him as party nor the Ld. Trial court considered this fact.
10. The Appellants further stated that the trial court overlooked the facts that the plaintiff/ respondent herein has concealed the material facts from the trial court in the civil matter, with the sole intention to play fraud with the court and get the decree by misguidance. In the entire suit proceedings till date, the plaintiff/ respondent herein has concealed the fact that he has already settled the matter with Mr. Mahesh Chander (who is the original allotte of the property) for Rs. 95,000/- against the disputed amount of Rs. 50,000/- and the said amount was received as full and final settlement from Sh. Mahesh Chander. This is already matter of record that there is an FIR No. 251/14 U/s 420/34 IPC was lodged with the P.S. S.B. Dairy Delhi by the plaintiff/ respondent herein against Mr. Mahesh Chander and later on in the hearing of the bail application of the Mahesh Chander, the plaintiff/ respondent herein cooperated with him as per the said settlement. The internet copy of the order dated 10.09.2015 before Ld. MM Sh. Sachin Gupta, Rohini Courts, Delhi is enclosed herewith the appeal, in which entire facts of the settlement of matter RCA No. 21/21 Mhrum Nisha @ Hina Vs. Om Prakash Page No. 6 of 24
-:: 7 ::- Date:05.09.2022 and bail application are mentioned.
11. The Appellants categorically stated that by way of hiding the above settlement with Sh. Mahesh Chander, the plaintiff/ respondent herein has misguided to the trial court that he is playing in the both hands because on one hand, the plaintiff/ respondent herein has amicably settled the matter in criminal case with Mahesh Chander with respect to the same property while on the other hand, the plaintiff/ respondent herein is claiming the relief of possession on the same property. This fact has been deliberately concealed from the trial court.
12. The Appellants stated that because of the above facts, it has become clear that the entire suit of the plaintiff/ respondent is/ was on the false, frivolous and misguiding facts. The Appellants further stated that it is settled law/ principle of law that if a party does not come with the clean hands or conceal the facts from the court, then the suit is liable to be dismissed at any stage.
13. The Appellants categorically stated that appellant no.5 is poor, illiterate, widow and 'Parda Nasheen' lady and she had no knowledge about this case or about the proceedings and she received the notice/ summons only in the Execution Petition 413/18. Upon receiving the same, the wife of the defendant no.1 filed the application under Order 21 Rule 58 C.P.C. Further, the other appellants no.1 to 4 were never having any knowledge about the pendency of the sad case/ matter and came to know about the said fact only on 19.02.2021 when the appellant no.5 was crying alone and when her children i.e. appellant no.1 to 4 asked from her why RCA No. 21/21 Mhrum Nisha @ Hina Vs. Om Prakash Page No. 7 of 24
-:: 8 ::- Date:05.09.2022 she was crying, then on asking by other appellants, she disclosed about the order dated 07.08.2018. Hence the appellants contacted their counsel and then discussed to file the appeal and the appeal has been prepared. Further, the appellant no.4 is school going and appellant no.3 and 4 are minor. The appellants have no source of income and they are going through very miserable conditions.
REPLY OF RESPONDENT
14. The Respondent in its reply stated that the present appeal has been filed on 18.03.2021 by the appellants against the decree/ judgment dated 07.08.2018 with delay of 2 years 7 months and 12 days and the delay cannot be condoned. The respondent stated that had filed its reply in the execution petition on 01.05.2019 and their objections were dismissed vide order dated 24.09.2020. The respondent further stated that the appellant had not filed an application under Section 5 of the Limitation Act, therefore, the appeal is liable to dismissed.
15. The respondent mentioned that suit was filed on 04.02.2010, plaintiff's evidence was closed on 29.03.2016 and defendant's evidence was closed on 08.05.2018. And the judgment was delivered on 07.08.2018.
16. The respondent further stated that the appellants have filed the present appeal on 18.03.2021 and they have been declared in use and occupation as unauthorized occupant in the suit property since 22.09.2009. The respondent further stated that the appellant no.5 has not filed any application under order 32 rule 2 of C.P.C. for minor appellants no. 2 to 4.
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17. The respondent out rightly denied the averments of the appellants in the appeal. The plaintiff/ respondent herein further denied that Ld. Trial court has committed gross error in of law. He further adduced the objection under Order 21 Rule 58 r/w 151 C.P.C filed on behalf of the objector/ JD no.2 and 3 which was disposed of vide order dated 24.09.2020 by the Ld. Civil judge (North), Delhi.
18. The respondent categorically stated that the criminal case/ FIR No. 251/2014 is between the plaintiff and Sh. Mahesh Chander and further, charge-sheet has been filed. The respondent further stated that it is settled law that civil and criminal cases can be filed and run simultaneously.
19. The appellants reiterated the averments in its replication.
COURT'S FINDINGS
20. After considering the submissions of Ld. counsels for the Appellants and Respondent and material evidence as well as documents available on record, my findings are as under :-
21. The present appeal raises two important questions that needs to ne answered:
(i) Whether the present appeal in maintainable in view of the fact that the plaintiff/respondent filed a suit under Section 6 of The Specific Relief Act, 1963 and there is a bar under Section 6(4) of the Specific Relief Act, 1963 from filing an appeal?
(ii) Whether suit filed by the plaintiff/respondent was bad in RCA No. 21/21 Mhrum Nisha @ Hina Vs. Om Prakash Page No. 9 of 24
-:: 10 ::- Date:05.09.2022 law as the plaintiff/respondent has sought multiple reliefs in a suit filed under Section 6 Specific Relief Act, 1963 ?
Observations of court as regards question (I)
22. The present appeal is maintainable as the plaintiff/respondent has himself expanded the scope of suit under section 6 Specific Relief Act and have prayed for possession, declaration, permanent and mandatory injunction and mesne profits. It is a settled position that against a decree under Section 6, the remedy of appeal is barred and only the remedy of Revision Petition is available. Against a decree of permanent injunction and declaration, it is the remedy of appeal which is available and not the remedy of Revision Petition. If along with the relief under Section 6, other reliefs are permitted to be combined, separate remedies, of Revision against the decree, in so far as under Section 6 and of appeal, in so far as with respect to other reliefs, will have to be availed. In the present suit, the remedy of Revision would not lie as the possession was given the plaintiff/respondent on the basis of ownership in the suit property and not merely for the factum of possession/dispossession within 6 months before the institution of the suit. The scope of revision is narrower and can be invoked for limited purpose only. The Hon'ble Supreme Court in "Sanjay Kumar Pandey vs. Gulbahar Sheikh"
(2004) 4 SCC 664 to have held that ordinarily the High Court would not interfere even in a Revision with a decree or order under Section 6 and may do so only in exceptional cases. Further in the case "ITC Limited Vs. Adarsh Cooperative Housing Society Limited" (2013) 10 SCC 169, it was held that the High Court should interfere only if there is grave injustice or error of law and not to re- appreciate RCA No. 21/21 Mhrum Nisha @ Hina Vs. Om Prakash Page No. 10 of 24
-:: 11 ::- Date:05.09.2022 evidence. Therefore, appeal being exhaustive gives an appropriate remedy to the appellant.
23. Moreover, This court is of the considered opinion that an appeal is a continuation of the original proceedings, the appellate court's jurisdiction involves a rehearing of appeal on question of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the trial court are open for re- consideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the court's finding, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and presses by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non- observance of these requirement lead to infirmity in the judgment. Further, being of the opinion that against such impugned decree, the remedy of Regular First Appeal which has a much wider scope would lie and not of the Revision Petition under Section 115 of the CPC which has limited scope.
24. To argue on the maintainability of the present appeal, the Appellant has relied upon the Hon'ble Rajasthan High Court judgment of "Bhanwaru Khan alias Rasul Khan vs. Mumtaj" AIR 2014 Raj 26 wherein it was held that:
"6. In view of the matter, relief under Section 6 of the Act of 1963 cannot be granted for the purpose of declaration of an individual as owner of the disputed property.
8. The learned trial court, in the instant case, has granted a decree for declaration dehors the law. Thus, in RCA No. 21/21 Mhrum Nisha @ Hina Vs. Om Prakash Page No. 11 of 24
-:: 12 ::- Date:05.09.2022 my considered opinion, the learned appellate court has not committed any error in rejecting the application of the petitioner under Section 6 of the Act of 1963 because the appellate court is well within its right to examine the relief of declaration granted by the learned trail court in exercise of powers conferred on a first appellate court under Section 96, CPC."
25. In view of the above this court is of the considered view that the present appeal is maintainable and a Revision would not lie as the suit was decreed for prayers other than a relief under Section 6 of the Specific Relief Act, 1963.
Observations of court as regards question (ii)
26. To address this question, it is noteworthy to reproduce Section 6 of the Specific Relief Act which reads as below:
"6. Suit by person dispossessed of immovable property.--
(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
(2) No suit under this section shall be brought--
(a) after the expiry of six months from the date of dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover RCA No. 21/21 Mhrum Nisha @ Hina Vs. Om Prakash Page No. 12 of 24
-:: 13 ::- Date:05.09.2022 possession thereof."
27. Bare perusal of the provision of Section 6 Specific Relief Act, it clear that the said provision can be invoked for recovery of possession. In this regards, reliance is placed upon the Hon'ble Supreme Court judgment in case "East India Hotels Ltd. Vs. Syndicate Bank"
(1992) Supp SCC 29 wherein it was categorically held that the purpose behind Section 6 is to restrain a person from using force to dispossess a person without his consent, otherwise than in due course of law.
28. Notice in this regard may also be taken of Articles 64 & 65 in Part-V titled "Suits Relating to Immovable Property" of the Schedule to the Limitation Act, 1963. Article 64 for a suit for recovery of possession of immovable property based on previous possession and not on title, when the plaintiff, while in possession of the property, has been dispossessed. Article 65 for a suit for recovery of possession of immovable property or any interest therein based on title. For both classes of suits, limitation of 12 years is provided commencing, for Article 64 , from the date of dispossession and for Article 65, from the date when possession of the defendant becomes adverse to the plaintiff. The same also indicates that a suit for recovery of possession of immovable property can be filed either merely on the basis of prior possession de hors title or on the basis of title. Though Article 64 for limitation of 12 years but Section 6, for a suit thereunder, provides for a limitation of six months only. A suit for recovery of immovable property, based on previous possession can thus be filed either under Section 6, within six months from date of dispossession or under Article 64 supra, within twelve years from RCA No. 21/21 Mhrum Nisha @ Hina Vs. Om Prakash Page No. 13 of 24
-:: 14 ::- Date:05.09.2022 date of dispossession. While against a decree in a suit for recovery of possession of immovable property based on previous possession filed otherwise, an appeal under Section 96 of the CPC would lie but against a decree in a suit for recovery of possession of immovable property based on previous possession, filed under Section 6, the remedy of appeal is barred and only a Revision Petition lies. The reason thereof, is that the scope of enquiry in a suit under Section 6 limited to, whether the plaintiff was formerly in possession and whether he was dispossessed without his consent, otherwise than in due course of law within six months immediately preceding the date of institution of the suit. The Court in such a suit does not try the question of title. Reference in this regard can be made to "Lallu Yeshwant Singh vs. Rao Jagdish Singh" AIR 1968 SC 620 and "Somnath Burman vs. S.P. Raju" AIR 1970 SC 846. The procedure under Section 6, in "S.R. Ejaz vs. T.N. Handloom Weaver's Cooperative Society Ltd." (2002) 3 SCC 137, was held to be summary, as aforesaid, to discourage people from adopting any foul means to dispossess a person. In "State of U.P. vs. Maharaja Dharmender Prasad Singh" (1989) 2 SCC 505, "Krishna Ram Mahale vs. Shobha Venkat Rao" (1989) 4 SCC 131 and "Muddanna vs. Panthanagere Group Panchayat, Kengeri Hobli"
(2003) 10 SCC 349, it has been held that where a person is in settled possession of property, even on the assumption that he had no right to remain in the property, he cannot be dispossessed by the owner of the property except by due process of law.
29. Notice at this stage may also be taken of Section 5 of the Specific Relief Act as under:-
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-:: 15 ::- Date:05.09.2022 "5. Recovery of specific immovable property.--A person entitled to the possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure, 1908 (5 of 1908)."
30. As far back as in "Ganesh vs. Dasso" AIR 1927 Allahabad 669 and again in "Gokam Chinna Nagaiah vs. Nagaram Baliga" AIR 1956 Hyderabad 170 and "Mt. Atra Devi vs. Ramswaroop Prasad Singh"
AIR 1972 Patna 186, dealing with pari materia provisions of the Specific Relief Act, 1877, it was held that there is a distinction between a suit based upon a possessory title under Section 5 and a suit under Section 6; in the former case, the plaintiff would be entitled to a decree only where the plaintiff's possession is sufficient proof of his title, while under Section 6, the Court has merely to see whether the plaintiff was in possession six months prior to the date of institution of the suit. In "Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander" AIR 1968 SC 1165, dealing with pari materia provisions of the Specific Relief Act, 1877, it was explained that if Section 6 is invoked, the plaintiff need not prove title and the title of the defendant does not avail the defendant; when however the period of six months has passed, questions of title can be raised by the defendant and if he does so, the plaintiff must establish better title or fail; it is for this reason only that a suit under Section 6 does not bar a suit of prior possession within 12 years and title need not be proved unless the defendant can prove one.
31. It is clear that such being the summary nature of a suit under Section 6, whether the plaintiff/ respondent herein, in a suit under Section 6 of the Specific Relief Act, could not have claimed other reliefs of declaration, permanent and mandatory injunction and mesne RCA No. 21/21 Mhrum Nisha @ Hina Vs. Om Prakash Page No. 15 of 24
-:: 16 ::- Date:05.09.2022 damages and which, vide the impugned judgment/ decree, have also been declared to be void and ordered to be cancelled.
32. Further the Hon'ble Delhi High Court in "Vaneeta Khanna vs. Rajeev Gupta" (2008) 148 DLT 356 refers to an earlier suit filed by the plaintiff therein, for recovery of possession under Sections 5&6 of the Specific Relief Act, for specific performance of Agreement to Sell, for recovery of mesne profits / damages and for permanent injunction restraining the defendants from dealing with the property and in which suit it was held by the Hon'ble Supreme Court to be for multifarious reliefs and not maintainable under Section 6 of the Specific Relief Act. This judgment of Vaneeta Khanna (supra)) also is a judgment on reliefs other than under Section 6 of the Specific Relief Act being not entitled to be clubbed along with a suit thereunder.
33. The Hon'ble High Court of Andhra Pradesh in the case "Adapa Tatarao vs. Chamantula Mahalakshmi" AIR 2007 AP 44 had held that:
"(i) that the proceedings in a suit under Section 6 are summary in nature; (ii) that the Trial Court in that case had not addressed this basic requirement of Section 6 and had framed issues totally unrelated to adjudication to be undertaken in a Section 6 suit; (iii) that the suit also suffered from the infirmity of the plaintiff having incorporated the relief of perpetual injunction in respect of another item, in a suit filed under Section 6 of the Act and which is totally impermissible; (iv) that the parameters for adjudication of claim under Section 6 on the one hand and for perpetual injunction under Section 38 of the Specific Relief Act on the other hand, are totally different; (v) while for adjudication of a Section 6 suit, RCA No. 21/21 Mhrum Nisha @ Hina Vs. Om Prakash Page No. 16 of 24
-:: 17 ::- Date:05.09.2022 the trial is summary in nature and the decree is not appealable, in contrast, a detailed trial has to be conducted in a suit for perpetual injunction and a first appeal and second appeal is provided against a decree therein; (vi) it is impossible and impermissible to mix up such divergent types of adjudication; and, (vii) that the judgment and decree of the Trial Court was liable to be set aside on that ground alone and the matter needed to be adjudicated afresh on proper lines."
34. Reliance further placed on the Hon'ble High Court of Himachal Pradesh is case "Bihari Lal vs. Dina Nath 2016" SCC OnLine HP 1815 also was concerned with a Revision Petition against a decree in a suit for recovery of possession under Section 6 of the Specific Relief Act and for permanent injunction under Section 38 thereof. It was held (i) that the suit could not be treated to be one under Section 6, for the reason that a decree for permanent injunction had also been sought; (ii) that the Trial Court also had not treated the suit as one under Section 6 and not tried the same summarily as contemplated under Section 6; and, (iii) on the contrary, issues had been framed and full trial held; thus the decree could not have been agitated by invoking revisional jurisdiction and on dismissal of the suit, the appropriate remedy should have been resorted to.
35. The appellant to buttress said averment placed on record Hon'ble Supreme Court judgment in case "H.P. Vedavyasachar vs. Shivashankara & Ors." (2009) 8 SCC 231 wherein it was held that:
"6. So far as the contention of the learned counsel for the appellant that the suit was instituted in terms of Section 6 of the Specific Relief Act, 1963 is concerned, in our opinion, the same cannot be accepted. The appellant has not only prayed for grant of a decree for permanent injunction but has also asked for passing a decree for RCA No. 21/21 Mhrum Nisha @ Hina Vs. Om Prakash Page No. 17 of 24
-:: 18 ::- Date:05.09.2022 mandatory injunction directing the respondents to hand over possession to it. Such prayers, in our opinion, would not come within the purview of Section 6 of the Specific relief Act."
36. In view of the above discussion, yhe suit filed under Section 6 of the Specific Relief Act for possession is clubbed with the other prayers of declaration, permanent and mandatory injunction and mesne profits by the plaintiff/ respondent herein which is not maintainable and bad in law.
37. Therefore, in view of the above, the impugned judgment/ decree dated 07.08.2018 is erroneous and bad in law.
Observation on the merits of the Appeal:
38. From the submission of the appellants and respondent, it is apparent that FIR No. 251/2014 under Section 420/120B of IPC pursuant to criminal case was registered against Sh. Mahesh Chander original allotte of the property. In this regards, an order dated 10.09.2015 was passed by the Ld. MM, Rohini Courts, Delhi in the bail application, wherein the statement of the respondent was also recorded. In the said order dated 10.09.2015, it was categorically stated as below:
"It is stated by the counsel for the accused that matter is amicably settled between the parties against payment of compensation amount of Rs. 95,000/- by the accused to the complainant as full and final settlement amount and the said amount has been duly paid to the complainant Om Prakash (respondent herein) by Sh. Ramesh Chand, brother of the accused on behalf of accused. .............................
Complainant/ victim Om Prakash (respondent herein) also submits that matter amicably settled with the accused and today, Sh. Ramesh Chand, brother of RCA No. 21/21 Mhrum Nisha @ Hina Vs. Om Prakash Page No. 18 of 24
-:: 19 ::- Date:05.09.2022 accused has paid him entire compensation of Rs. 95,000/- as full and final settlement amount in the present case and he has no objection, if the accused is granted bail. ...................
Statement of complainant to this effect recorded separately........................."
39. On careful perusal of the Trial court record it came to notice of this court that as per the alleged ownership documents produced before the trial court by the plaintiff/ respondent herein, the suit property was purportedly purchased by the plaintiff/ respondent herein for a total sale consideration of Rs. 50,000/-. However, the amount received by the plaintiff/ respondent herein from Sh. Mahesh Chander was Rs. 95,000/-. This fact goes to the root of the matter in hand, if the plaintiff/ respondent herein had already received back consideration of Rs. 95,000/- against the subject property, whether the plaintiff/ respondent herein pursuant to such receipt have any interest/ claim in the property or not. This material facts/ documents has not been placed before the trial court by the plaintiff/ respondent herein and no effective steps had been taken to bring on record such relevant fact/ document which could have material effect on the suit. The respondent submitted that it is settled law that civil and criminal cases can be filed and run simultaneously. In this regards, the court relied Hon'ble Supreme Court judgment in case "State of Maharashtra through CBI vs. Vikram Anantrai Doshi" (2014) 15 SCC 29 wherein the case of "CBI v Narendra Lal Jain" (2014) 5 SCC 364 was also referred. The law laid down in the case was that even if No Dues Certificate has been issued and the amount was already repaid to the bank, it will not absolve the parties of their criminal liabilities.
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40. An application under Order 6 Rule 17 read with Section 151 CPC was filed by the defendant no.1 in this respect of receipt of Rs. 95,000/- by the plaintiff/ respondent herein from Sh. Mahesh Chander, however, the Ld. Trial court had erred in disallowing the said application which had material bearing on the claim of the plaintiff/ respondent herein. Reference was made to the case "Andhra Bank vs. ABN Amro Bank N.V." AIR 2007 SC 2511 wherein it was observed that:
"5. ............. So far as the second ground is concerned, we are also of the view that while allowing an application for amendment of the pleadings, the Court cannot go into the question of merit of such amendment. The only question at the time of considering the amendment of the pleadings would be whether such amendment would be necessary for decision of the real controversy between the parties in the suit. ................"
41. In addition, this relied upon the Hon'ble Supreme Court judgment "Shipping Corporation of India Ltd. vs. Machado Brothers & Ors." (2004) 11 SCC 168 wherein it was held that:
"25. Thus it is clear that by the subsequent event if the original proceeding has become infructuous, ex debito justitiae, it will be the duty of the court to take such action as is necessary in the interest of justice which includes disposing of infructuous litigation. For the said purpose it will be open to the parties concerned to make an application under Section 151 of CPC to bring to the notice of the court the facts and circumstances which have made the pending litigation infructuous. Of course, when such an application is made, the court will enquire into the alleged facts and circumstances to find out whether the pending litigation has in fact become infructuous or not.
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-:: 21 ::- Date:05.09.2022 that continuation of a suit which has become infructuous by disappearance of the cause of action would amount to an abuse of the process of the court and interest of justice requires such suit should be disposed of as having become infructuous. The application under Section 151 of CPC in this regard is maintainable."
42. Further, the court relied upon the Hon'ble Supreme Court judgment in the cases "S.P. Chengalvaraya Naidu vs. Jagannath" (1994) 1 SCC 1 and "Badami (Deceased) by her LR vs. Bhali" (2012)11 SCC 574 wherein it was held that:
"A person whose case is based on falsehood has no right to approach the court. A litigant who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If a vital document is withheld in order to gain advantage on the other side he would be guilty of playing fraud on court as well as on the opposite party."
43. On careful perusal of the medical treatment documents placed on record, it is observed that the deceased defendant no.1 (father of the appellant) was suffering from kidney ailment and on kidney dialysis. The appellants had placed medical documents from 10.03.2016 till 02.07.2018 of Dr. B.R. Ambedkar Hospital (GNCTD), Rohini, Delhi, All India Institute of Medical Sciences (AIIMS), New Delhi, Dr. Ram Manohar Lohia Hospital, New Delhi, Lok Nayak Hospital, New Delhi and Bhagwati Hospital, Rohini, New Delhi. From the medical documents is observed that the deceased defendant no.1 (father of the appellant) remained admitted to the mentioned hospital. And the deceased defendant no.1 (father of the appellant) expired on 17.07.2018.
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44. On the perusal of the documents it also observed, precisely from Aadhaar Cards, that the Appellant no.1 and 2 were born on 01.01.2000 and 12.01.2001 respectively, however, the said appellants were minor at the time institution and proceedings of the suit and merely attain majority on the date of impugned judgment/ decree dated 07.08.2018. The appellant no.3 is minor at present. The appellant no.4 is purported to be illiterate and Parda Nasheen lady.
45. From the careful perusal of the trial court record, the intimation regarding demise of deceased defendant no.1 (father of the appellant) is not available on record, although, there was no error from the part of the Ld. Trial court judge in this respect. The non substitution of LRs of deceased defendant no.1 in the present case became fatal.
Observation on the aspect of Limitation Period:
46. There is sufficient cause to condone the delay in filing of the present appeal despite there being no application on record seeking condonation of delay, this court relies upon the Hon'ble Supreme Court judgment in the case title "B. Madhuri Goud vs. B. Damodar Reddy" (2012) 12 SCC 693 wherein it was categorically held that:
"6. The expression "sufficient cause" used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which serves the ends of justice. No hard-and-fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years courts have repeatedly observed that a liberal approach needs to be adopted in such matters so that substantive rights of the parties are not defeated only on the ground of delay."
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47. The averment of the respondent that that the appellant had not filed an application under Section 5 of the Limitation Act, therefore, the appeal is liable to dismissed, is not sustainable. The Section 5 of the Limitation Act. 1963 reads as follows:
"5 Extension of prescribed period in certain cases. -- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period."
The bare reading of the provision is clear that any appeal or application may be admitted after the prescribed period. The Hon'ble Supreme Court has also taken the similar view in the judgment "Sesh Nath Singh & Anr. vs. Baidyabati Sheoraphuli Co-Operative Bank Ltd. & Anr." (2021) 7 SCC 313 has held that:
"61. Section 5 of the Limitation Act, 1963 does not speak of any application. The section enables the court to admit an application or appeal if the applicant or the appellant, as the case may be, satisfies the court that he had sufficient cause for not making the application and/or preferring the appeal, within the time prescribed. Although, it is the general practice to make a formal application under Section 5 of the Limitation Act, 1963, in order to enable the court or tribunal to weigh the sufficiency of the cause for the inability of the appellant applicant to approach the court/tribunal within the time prescribed by limitation, there is no bar to exercise by the court/tribunal of its discretion to condone delay, in the absence of a formal application."
48. In view of the above, the impugned/ judgement dated 07.08.2018 is erroneous and bad in law, hence set-aside.
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49. The present Appeal is allowed, accordingly, with the liberty to the parties may file a fresh suit for adjudication as per law.
File be consigned to record room.
Decree sheet be prepared accordingly.
Announced in the open Shivali Bansal
Court on 05.09.2022 Additional District Judge-03
North District, Rohini Courts
Delhi
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