Delhi District Court
Shri Kuldeep Singh Coshal (Deceased) vs Shri Vir Singh Tyagi on 16 December, 2017
IN THE COURT OF MS. MANJUSHA WADHWA
ADJ 04 (WEST), TIS HAZARI COURTS, DELHI
Civ Dj No. 612238/16
Shri Kuldeep Singh Coshal (Deceased)
Through Ms. Ravinder Kaur,
W/o Sh. Charanjeet Singh
R/o CB9A, Hari Nagar Clock Tower,
Near Rainbow School, New Delhi. .....Plaintiff
versus
1.Shri Vir Singh Tyagi the then Station House Officer Police Station Patel Nagar during 1998 New Delhi.
2. Shri Satbir Singh Tyagi the then Assistant Sub Inspector Police Station Patel Nagar during 1998 New Delhi.
Both through Hon'ble Commissioner Delhi Police, Police Head Quarter, M.S.O. Building, I.P. Estate, I.T.O. New Delhi.
3. The Commissioner of Police Police Head Quarters, I.P. Estate, M.S.O. Building, I.T.O., New Delhi.
4. Union of India through its Secretary Ministry of Homes, North Block, New Delhi.(Deleted vide order dated 04.03.2011) Civ Dj No.612238/16 Shri Kuldeep Singh Coshal vs. Shri Veer Singh Tyagi & ors. Page 1 of 25
5. NCT of Delhi through its Secretary Delhi Secretariat, ITO, New Delhi.
6. Smt. Raj Rani Widow of Gurdas Ram Resident of T398A Baljit Nagar, New Delhi. .........Defendants Date of Filing Suit : 27.04.2006 Date of Transfer to this Court : 29.01.2016 Date of Reserving Judgment : 07.12.2017 Date of Judgment : 16.12.2017 J U D G M E N T
1. This is the suit for recovery of Rs. 40,00,000/ filed by the plaintiff against the defendants.
2. Brief facts of the case as per the plaintiff are that plaintiff is the American Citizen and inherited premises bearing no. 3073B, Street No. 5, Ranjeet Nagar, New Delhi from his father.
3. According to the plaintiff, the defendant no. 6 tried to dispossess the plaintiff from one shop situated in the aforesaid property (hereinafter referred to as the "suit shop") by illegal means in collusion with the defendants no.1 & 2 and both the defendants nos.1 & 2 forced the Civ Dj No.612238/16 Shri Kuldeep Singh Coshal vs. Shri Veer Singh Tyagi & ors. Page 2 of 25 plaintiff to put signature on a piece of paper for an alleged settlement on 05.08.1998. The said document was a forced document where illegal and under pressure was applied to the plaintiff to put his signature and pursuant to which, the defendants' no. 1 & 2 had given possession illegally to the defendant no. 6. Plaintiff pleaded that the defendants' no. 1 & 2 have acted in a manner which is totally uncalled for the posts for which they were engaged by defendants' no. 3 to 5.
4. The plaintiff further pleaded that he had filed a Criminal Writ Petition No. 686/1998 in the Hon'ble High Court of Delhi in the month of August 1998 with a prayer to register FIR against both the defendants' no. 1 & 2, who did not file any counter to that writ personally but the defendant no. 3 through its office had filed one counter affidavit to the petition which was signed by Sh. Mohan Kudasia, the then DCP, Head Quarter, Delhi vide his affidavit dated 04.11.1998. On the directions of Hon'ble High Court of Delhi to file an additional affidavit, one affidavit dated 25.04.2000 was filed by the then Addl. DCP(West) District, Delhi and thereafter, again on the directions of the Hon'ble High Court of Delhi to file the status report, Sh. Udai Sahai, the then DCP (West) District, Delhi filed an affidavit before the Hon'ble High Court of Delhi. The plaintiff further pleaded that there are contradictions in the aforesaid affidavits, whereby, they have tried to cover up the illegal acts of the defendants' no. 1 & 2.
Civ Dj No.612238/16 Shri Kuldeep Singh Coshal vs. Shri Veer Singh Tyagi & ors. Page 3 of 255. Vide order dated 15.09.2000 passed in the aforesaid criminal writ petition No. 686/1998, the Hon'ble High Court of Delhi specifically observed that proper remedy was to approach civil court as cognizable offence was not made out on the basis of complaint of Ms. Raj Rani but the police took cognizance and gave threat to the petitioner as is apparent from the affidavit of DCP referred to above.
6. It is the case of the plaintiff that by the aforesaid illegal acts, the plaintiff was kept without possession of his property for years and was constrained to approach civil court for taking keys of his shop which was lying with the police department for years. The plaintiff then preferred to file the civil suit and the said suit was decreed in favour of the plaintiff and then police department, defendant no. 3 herein, handed over the keys of the aforesaid shop to the plaintiff through court. The plaintiff thus pleaded that it had to incur expenses and run from pillar to post to contest the litigation in this regard.
7. According to the plaintiff, he was earning approximately US$ 1300 per month i.e. equivalent to Rs. 60,000/ per month, however, his stay in India was extended due to forced litigation, as such, he was to remain in India for a period of 45 years. He pleaded that he did not have any source of Income in India and was deprived of his only source of income from USA due to illegal act of the defendants. The Civ Dj No.612238/16 Shri Kuldeep Singh Coshal vs. Shri Veer Singh Tyagi & ors. Page 4 of 25 plaintiff further pleaded that he faced lot of problems in getting his visa extended from time to time.
8. The plaintiff claimed to have issued legal notice dated 08.02.2006 to the defendants but to no avail. The plaintiff also sent reminder of notice on 04.04.2006 but the same was also not responded, which led to filing of the present suit, whereby, claiming an amount of Rs. 40,00,000/ alongwith pendente lite and future interest @ 12% per annum from the defendants in the following manner :
(a) Loss of earnings and livelihood Rs. 25,00,000/
(b) Cost incurred for uncalled stay in India Rs. 5,00,000/
(c) Shock, mental agony, pain, sufferings and defamation Rs. 10,00,000/ ______________ Total Rs. 40,00,000/ _______________
9. Joint Written statement of defendants' no. 1 to 3 & 5 as well as separate written statement on behalf of the defendant no. 1 was filed, whereby the case of the defendants is that defendants were exercising their duties as per law during the course of performance of sovereign function, as such, no action for tort/civil wrong can lie against the performance of sovereign function. It is also pleaded that the present suit is barred by limitation as cause of action had arisen against the defendants by virtue of order dated 15.09.2000 passed in Civ Dj No.612238/16 Shri Kuldeep Singh Coshal vs. Shri Veer Singh Tyagi & ors. Page 5 of 25 Criminal Writ petition no. 686/98 and thus, present suit filed is beyond the period of limitation. It is also pleaded that the answering defendants were not the parties to the suit No. 371/2001 as preferred by the plaintiff subsequent to the order dated 15.09.2000 passed in Crl. W.P no. 686/98 and as such nothing lies against the defendants pursuant to the judgment dated 30.04.2003 as passed in the suit no. 371/2001. It is also the case of the defendants that even calculating from the date of judgment dated 30.04.2003 as passed in suit No. 371/2001, present suit is also barred by law of limitation against all the defendants. Defendants denied that they exercised any force upon the plaintiff to put his signature on a piece of paper. They further denied that they had given illegal possession to the defendant no. 6 as alleged. It is pleaded that the answering defendants have been acting under the performance of sovereign function after receiving complaints from the plaintiff as well as the defendant no. 6 whereby, the plaintiff and the defendant no. 6 when called at the police station on 05.08.1998 agreed to execute a settlement in writing to the effect that the plaintiff agreed and delivered voluntarily possession of the shop in question to the defendant no. 6.
10.It is the case of the defendants that the plaintiff, Sh. Kuldeep Singh S/o Late Sh. Saran Singh, r/o 3073B, Street No. 5, Ranjeet Nagar, New Delhi is the owner of the property bearing House no. 3073/5, Ranjeet Nagar, New Delhi which is his ancestral property. There is a shop in the said house which was let out by his father to one Pran Civ Dj No.612238/16 Shri Kuldeep Singh Coshal vs. Shri Veer Singh Tyagi & ors. Page 6 of 25 Nath, husband of Smt. Raj Rani about 20 years ago. After the death of said Pran Nath, his wife Raj Rani used to run tea shop but due to her illness, she locked that shop for a period of 3 years, whereas, she paid the rent of the shop regularly. After some time, when she went to the said shop, she found that the landlord occupied the shop and had changed its shutters and lock. When she made a complaint against the landlord to the SHO/Patel Nagar to restore her possession, the enquiry was entrusted to ASI Satbir Singh who examined both the parties. Then, Mr. Kuldeep Singh made a complaint to ACP, Patel Nagar, New Delhi alleging that the defendant no. 6 had been trying to take the possession of his shop by putting pressure through the local police. The said complaint was handed over to SHO, Patel Nagar, New Delhi. On 05.08.1998, ASI Satbir Singh called both the parties to the police station where both the parties compromised the matter mutually in writing and the possession of the said shop was handed over to Smt. Raj Rani, defendant no. 6. It is thus prayed that the present suit is liable to be dismissed.
11.Replication was filed by the plaintiff. Plaintiff reiterated the contents of the plaint and denied the contrary averments made in the written statement as false and incorrect.
12.On the basis of pleadings of the parties, following issues were framed vide order dated 03.08.2007 as: Civ Dj No.612238/16 Shri Kuldeep Singh Coshal vs. Shri Veer Singh Tyagi & ors. Page 7 of 25 (1) Whether the plaintiff is entitled to the recovery of damages against the defendants ? If so, to what extent and against which defendant ? OPP (2) Whether the present suit is barred under Order 2 Rule 2 of the CPC on account of the plaintiff having filed CS(OS) No. 371/2001 ? OPD (3) Whether the plaintiff is entitled to the interest on the amount which may be decreed in his favour ? OPP (4) Relief.
13. It is pertinent to note herein that the present suit was contested by the defendant no.1 only. The defendant nos.2, 3, 5 & 6 were proceeded exparte and the summons were not issued to the defendant no.4 and was deleted in terms of order dated 04.03.2011. It is also noteworthy that the plaintiff also died during the pendency of the present suit and Ms. Ravinder Kaur, sister of the plaintiff was substituted on record.
14.In order to prove his case, the plaintiff has examined himself as PW1 and relied upon the following documents as : S.No. Particulars of documents Exhibition of documents 1 Certified copy of pleadings Ex.PW1/1 and order passed in Criminal Writ Petition No. 686/1998 2 Certified copy of judgment Ex.PW1/2 Civ Dj No.612238/16 Shri Kuldeep Singh Coshal vs. Shri Veer Singh Tyagi & ors. Page 8 of 25 and decree passed in suit no.
371/20013 Copy of notice dated Ex.PW1/3 08.02.2006 4 Copy of notice dated Ex.PW1/4 04.04.2006 5 Copy of salary certificate Ex.PW1/6 dated 27.09.1995.
15. On the other hand, the defendant no.1 has examined himself as DW1.
16. The issue wise finding is given in the succeeding paragraphs.
Issue No. (2): Whether the present suit is barred under Order 2 Rule 2 of the CPC on account of the plaintiff having filed CS(OS) No. 371/2001 ? OPD
17. The onus to prove this issue was on the defendants. In order to prove that the suit is barred under order 2 rule 2 CPC, three requirements are to be fulfilled as:
a) that the second suit has been filed in respect of the same cause of action on which the previous suit was based;
b) the plaintiff was entitled to more than one relief in respect of the same cause of action; and
c) being entitled to more than one relief; plaintiff without leave of the court omitted to sue for the relief for which the second suit has been filed.
Civ Dj No.612238/16 Shri Kuldeep Singh Coshal vs. Shri Veer Singh Tyagi & ors. Page 9 of 2518. Ld. counsel for the defendant No. 1 contended that the plaintiff had earlier filed civil suit being suit No. 371/2001 i.e. suit for declaration and mandatory injunction impleading the defendant no.6 herein as defendant no 1 and the SHO, Police Station, Patel Nagar, New Delhi as defendant no.2. It is his contention that the plaintiff should have claimed relief of damages against the defendants in the said suit itself and having omitted to sue for relief of damages, the present suit is barred under Order 2 Rule 2 CPC. Per contra, it is the contention of ld. counsel for the plaintiff that cause of action to file the present suit has arisen after the decision of the aforesaid suit bearing suit No.371/2001 wherein, the court has held that the plaintiff was in possession of the suit property before August, 1998 and at the time of handing over the keys to the police and still in possession of the suit shop. He submitted that once the court had returned a finding in the said suit that the plaintiff was in possession at the time of handing over the keys to the police, the same establishes that the keys of the suit shop was wrongly taken by the police and was not handed over by the plaintiff voluntarily. He thus submitted that the cause of action arose only on the decision of the said suit vide judgment and decree dated 30.04.2003 and the present suit is thus not barred by Order 2 Rule 2 CPC.
19. Heard ld. counsel for the parties and perused the record.
Civ Dj No.612238/16 Shri Kuldeep Singh Coshal vs. Shri Veer Singh Tyagi & ors. Page 10 of 2520. As already said, the defendants had to prove that the subsequent instant suit was in respect of the same cause of action on which the previous suit was based. There is merit in the contention of ld. counsel for the plaintiff that the occasion to file the present suit had arisen only after the aforesaid suit being decided in his favour vide judgment and decree dated 30.04.2003 that the plaintiff was in possession of the suit shop before August, 1998 and at the time of handing over the keys to the police. Meaning thereby, the cause of action arose in favour of the plaintiff only on 30.04.2003 whereby, the civil court held in favour of the plaintiff. The present suit is thus not barred under Order 2 Rule 2 CPC.
21. It is also relevant to note herein that the defendants even otherwise have failed to discharge the burden as the defendants have not proved the plaint of the previous suit being suit no. 371/2001. The Hon'ble Apex Court in the judgment title as Jayantilal Chaman Lal vs. Vadilal Purshottamdass Patel in Civil Appeal Nos. 3065 of 2017 arising out of S.L.P (C) Nos.2807528076 of 2014 has observed as under : "... if the High Court from the original records finds that the plaint had been brought on record and proved as per law, it would be bound to advert to the plea of order 2 Rule 2 within the parameters of the said principles. Be it noted, if the plaint had not been brought on record and proved, prayer for amendment shall not be entertained to bring the plaint on record by way of additional evidence Civ Dj No.612238/16 Shri Kuldeep Singh Coshal vs. Shri Veer Singh Tyagi & ors. Page 11 of 25 by taking recourse to order XLI Rule 27 of the code of the Civil Procedure... "
22. Adverting to the facts of the instant case, the defendants have not placed on record the certified copy of plaint of the civil suit being suit no.371/2001 in order to show that the present suit is barred by Order 2 Rule 2 CPC. Having failed to place on record the plaint of the suit bearing suit no.371/2001, the defendants have failed to discharge the burden that the present suit is barred under Order 2 Rule 2 CPC. Issue is accordingly decided against the defendants.
Issue No.1 Whether the plaintiff is entitled to the recovery of damages against the defendants ? If so, to what extent and against which defendant ? OPP
23. The onus to prove this issue was on the plaintiff. The plaintiff has pleaded that the defendant no.6 tried to dispossess the plaintiff from one shop situated in his property through illegal means in collusion with the defendant no.1 & 2. He further submitted that the defendant no.1 & 2 forced him to put signature on a settlement on a piece of paper on 05.08.1998. It is his contention that the said document is a forced document where illegal and undue pressure was applied by the defendant nos. 1 & 2 on the plaintiff to put his signature and pursuant thereto, defendant nos. 1 & 2 had given the possession of the said shop to the defendant no.6. He contended that the plaintiff thereafter in the month of August, 1998 approached the Hon'ble Civ Dj No.612238/16 Shri Kuldeep Singh Coshal vs. Shri Veer Singh Tyagi & ors. Page 12 of 25 High Court of Delhi by filing Criminal Writ Petition No. 686/1998 with a prayer inter alia to register FIR against both the defendant nos. 1 & 2. He contended that the defendant nos. 1 & 2 did not file any counter affidavit to the writ petition but the defendant no. 3 through its office had filed three affidavits. The Division Bench of Hon'ble High Court of Delhi after considering the same passed order dated 15.09.2000 observing as : " ... As a matter of fact on the basis of the complaint of Raj Rani, a cognizable offence as such was not made out. Proper remedy was to approach the civil court, instead of doing that the police took cognizance and gave threat to the petitioner as is apparent from the affidavit of DCP referred to above...."
24. It is contention of the ld. counsel for the plaintiff that the plaintiff had thereafter approached the Civil court for taking keys of his shop which was lying with the police department by filing aforesaid civil suit i.e. suit no. 371/01 which was decreed in favour of the plaintiff and during the pendency of which, key of the suit shop was handed over to the plaintiff through the court. It is his contention that to get back the possession of the suit shop, the plaintiff had to run from pillar to post and suffered losses, harassment and thus entitled to compensation for the same.
25. On the other side, ld. Counsel for the defendant no.1 contended that the defendant nos. 1 and 2 were performing sovereign function and no cause of action for alleged civil wrong lies against the Civ Dj No.612238/16 Shri Kuldeep Singh Coshal vs. Shri Veer Singh Tyagi & ors. Page 13 of 25 performance of sovereign function. He further submitted that the defendants did not put any kind of pressure upon the plaintiff to sign on piece of paper on the alleged settlement dated 05.08.1998 and the same is patent lie. He submitted that there is a contradiction in the contents stated in the plaint and the testimony of the PW1, which shows that the present suit has been filed on the basis of false averments.
26. Heard ld. counsels for the parties and perused the record.
27. In order to appreciate contentions raised by the ld. counsels for the parties, it is necessary to peruse the order dated 15.09.2000 passed by the Hon'ble High Court of Delhi in Criminal Writ Petition No. 686/98, relevant portion of which is reproduced as : " We called for the status report as well as the vigilance enquiry report. Mr. Uday Sahai, DCP (West District) has filed his affidavit. We have perused the reply affidavit of Shri S.K. Gautam, Additional DCP (West District), as well as the affidavit filed by Mr. Uday Sahai, DCP (West District). We also heard counsel for the parties. Perusal of Mr. Uday Sahay's affidavit clearly indicates that on the complaint of Raj Rani, ASI called the petitioner and after making initial enquiry told him that he had committed a crime and that ASI would take action on the complaint of Raj Rani. This prima facie appears to be a threat by the ASI to the petitioner. Therefore, it cannot be overruled that the alleged compromise was voluntary and not under force or pressure of the police. As a matter of fact on the basis of the complaint of Raj Rani, a cognizable offence as Civ Dj No.612238/16 Shri Kuldeep Singh Coshal vs. Shri Veer Singh Tyagi & ors. Page 14 of 25 such was not made out. Proper remedy was to approach the civil court, instead of doing that the police took cognizance and gave threat to the petitioner as its apparent from the affidavit of DCP referred to above.
At this stage, counsel for the States says that since serious dispute exists as to who was in possession of the shop in question at the relevant time, it would be better that parties should approach the Civil Court and the police will deposit the keys of the shop in the said Court. The Civil Court will handover the keys to the party entitled for the same. This suggestion of Ms. Mukta Gupta is acceptable to counsel for the petitioner as well as Mr. Rahul Gupta, counsel for Raj Rani. This appears to be a fair suggestion. Since the parties are aggreeable to the same. We order accordingly.
With these observations, petition stands disposed. Dasti Sd/ "
28. Perusal of the aforesaid order passed by the Hon'ble High Court of Delhi would show that it was not correct on the part of the ASI to call the petitioner and tell him that he had committed a crime and that ASI would take action on the complaint of Ms. Raj Rani. It was observed that the same prima facie appears to be threat by the ASI to the petitioner. It is also noted that the Hon'ble High Court of Delhi directed the parties to approach the civil court and the police was directed to deposit the keys of the shop in the civil court. Thereafter, the plaintiff had filed "suit no. 371/01 titled as Kuldeep Singh vs. Raj Rani & ors" seeking declaration that the plaintiff was in possession of the suit shop prior to August, 1998 as well as at the time of handing over the keys to the police and till date and decree Civ Dj No.612238/16 Shri Kuldeep Singh Coshal vs. Shri Veer Singh Tyagi & ors. Page 15 of 25 of mandatory injunction directing the defendant no.2 to hand over the keys of the suit shop to the plaintiff. It is apparent from the perusal of the judgment dated 30.04.2003, Ex.PW1/2 that the defendant no.2 therein/SHO Police did not file any written statement. The defendant no.1 therein/Ms RajRani filed the written statement but did not cross examine the plaintiff and therefore, opportunity to crossexamine the plaintiff was closed vide order dated 15.01.2003 and the matter was adjourned for examination of witnesses of the defendants and thereafter, none appeared on behalf of the defendants, which led to closing of the defendant's evidence vide order dated 03.03.2003. Ld. civil judge on the basis of the evidence led by the plaintiff passed judgment and decree dated 30.04.2003 and observed as :
"... The testimony of the plff. has remained unrebutted, uncontroverted and unchallenged as none has appeared on behalf of the deft. to crossexamine the plff. despite ample opportunities. The counsel for the deft. has not cross examined any of the witnesses except PW6 Gurdev Singh. In his crossexamination this witness has categorically stated before the court that on 8.8.98 several persons of the locality filed a complaint with ACP Patel Nagar, Delhi regarding the dispossession of the plff. from the suit property. The perusal of the complaint Ex.PW6/1 shows that the suit property was let out to Sh. Pran Nath about 25 years prior to the year 1988 by Sh. Shiv Saran Sing the father of the plff. and after some years Sh. Pran Nath expired, on which his wife, Smt. Raj Rani the deft no.1, started running a tea shop in the said suit property and about 15 years prior to 1998 she stopped running the tea shop and vacated the shop and handed over the vacant possession of the suit property to the owner of the shop and Civ Dj No.612238/16 Shri Kuldeep Singh Coshal vs. Shri Veer Singh Tyagi & ors. Page 16 of 25 on 5.8.98 ASI Satbir Singh along with deft no.1. forcibly took the possession of the suit property from the plff. The complaint has been signed by deft. no.6 along with a large no. of neighbours. This witness has been cross examined at length by the counsel for the deft. but this fact remains established that the suit property was in possession of the plff. On the date when deft no.1, in collusion with ASI Satbir Singh, illegally and forcibly dispossessed the plff. from the suit property. The deft. has failed to produce any document on record to rebutt and discard the testimony of all the witnesses examined on behalf of the plff. Therefore, I am of the considered opinion that the plff. has has succeeded in establishing his case and therefore these two issues are decided in favour of the plff. and against the defts.
24. Relief In view of my findings on the aforesaid issues, I am of the considered opinion that the plff. is entitled to take possession of the suit property i.e. shop at property no.5/3073 Ranjit Nagar, New Delhi, more specifically shown in red colour in the site plan Ex.PW7/1. Accordingly, the suit of the plff. is hereby decreed, whereby it is declared that the plff. was in possession of the aforesaid suit property before August 1998 and at the time of handing over the keys to the police and still in continuous possession of the suit shop. It is pertinent to mention here that the keys of the property have already been handed over to the plff. vide order dated 12.9.02 by this court. Accordingly, a decree for mandatory injunction is also passed, whereby the order dated 12.9.02 is confirmed. The cost of the suit are also granted to the plff. Decree sheet be prepared accordingly. File be consigned to R/R. "
29. The perusal of the aforesaid judgment dated 30.04.2003, Ex.PW1/2 would show that the plaintiff was in possession of the suit shop at Civ Dj No.612238/16 Shri Kuldeep Singh Coshal vs. Shri Veer Singh Tyagi & ors. Page 17 of 25 the time when he had handed over the keys of the suit shop to the police, which further indicate that the plaintiff had no need to hand over the keys to Ms. Raj Rani, defendant no.6 herein once he was in possession of the suit shop. Even otherwise, it was not correct on the part of the ASI to even say to the plaintiff that he would take action on the complaint of Ms. Raj Rani, more so, when such complaint was in the realm of civil dispute.
30. It has been urged by the ld. counsel for the defendant no. 1 that the deposition of the plaintiff is not trustworthy as there was contradiction in his testimony and the pleadings. He pointed out that as per para 2 of the plaint, both the defendant nos. 1 & 2 forced the plaintiff to put signature on the piece of paper on alleged settlement dated 05.08.1998, whereas, PW1 deposed during his cross examination dated 14.09.2011 that he went to the police station, Patel Nagar on 05.08.1998 at about 4:30 PM and 6:00 PM, where he was illegally detained in the room of ASI Satbir Singh from 6:00pm to 8:00 pm and during these hours, no other police official came in that room. He further deposed that Ex.PW1/X1 was got written forcibly from him by ASI Satbir Singh as he dictated the same at about 9:30 pm on 05.08.1998. He submitted that the contradiction is apparent on account of the fact that on one hand, he pleaded that he had only put signature on Ex.PW1/X1, however, during his deposition, he deposed that it was got written forcibly by him through ASI Satbir Singh. He also contended that PW1 during his Civ Dj No.612238/16 Shri Kuldeep Singh Coshal vs. Shri Veer Singh Tyagi & ors. Page 18 of 25 deposition dated 14.09.2011 deposed that he was detained in the room of ASI from 6:00 PM to 8:00 PM, however, during his cross examination recorded on the same date i.e. on 14.09.2011, after lunch, he deposed that Ex.PW1/X1 was got written at about 9:30 PM. It was his contention that when PW1 was detained in the room of ASI, Satbir Singh from 6:00 PM to 8:00 PM, then, how the same could be dictated at about 9:30 PM on the said date. It is his further contention that PW1 also deposed on 14.09.2011 that the circumstances described in the said complaint dated 08.08.1998 written by the neighbours to the ACP which form part of Ex.PW1/1 were disclosed by the plaintiff to the neighbours. It is his argument that on the basis of complaint given by the neighbours, it was wrongly held by the ld. civil court that the plaintiff was in possession of the suit shop on 05.08.1998. It is his further contention that had there been any pressure by the police to enter into the alleged settlement, Ex.PW1/X1, the plaintiff would have made immediate complaint to the higher police authorities.
31. Once the findings has been returned by the Ld. civil court vide judgment and decree dated 30.04.2003, Ex.PW1/2 that the plaintiff was in possession of the suit shop on 05.08.1998, the defendants ought to have assailed the same. Further, the discrepancies pointed out in the testimony of PW1 by counsel for the defendant no.1 are not of such nature which would discredit the trustworthiness of the deposition of PW1, more so, when there is long gap in occurrence Civ Dj No.612238/16 Shri Kuldeep Singh Coshal vs. Shri Veer Singh Tyagi & ors. Page 19 of 25 of incident i.e. 05.08.1998 and deposition of PW1. The said discrepancies are not of such nature which would demolish the case of the plaintiff herein.
32. Further, it is relevant to note that Sh Udai Sahai, DCP in his affidavit filed before the Hon'ble High Court of Delhi in the aforesaid Criminal Writ Petition observed as under : "... On 05081998 ASI Satbir Singh had visited the site alongwith the complainant Smt. Raj Rani to make the enquiry. He conducted enquiry at the spot and examined some of the local residents as well as Mr. Kuldeep Singh prior to this Mr. Kuldeep Singh did not meet ASI Satbir Singh.
Then ASI Satbir Singh found that Mr. Kuldeep Singh had taken the possession of the said shop without consultation with Smt. Raj Rani who was a bonafide tenant. Some alteration has also been made by him. The ASI after making the initial enqiry, told Mr. Kuldeep Singh that he had committed a crime and he will take necessary action on the complaint of Smt. Raj Rani. On finding some legal action to be taken against him in this regard Mr. Kuldeep Singh asked some time to settle the matter amicably. Therefore, the ASI agreed and gave them some time. Both the party agreed and settled the issue Mr. Kuldeep Singh prepared a mutual settlement in his own handwriting stating therein that he was giving the possession of the said shop at his on free will. It is wrong to say that the lock of the said shop were got opened by the ASI and possession was given to Smt. Raj Rani under pressure.
It is totally false and fabricated allegation that any settlement was got written by the ASI under any threat. It was Mr. Kuldeep Singh who admitted his guilt and offered to restore the possession to Smt. Raj Rani, just to avoid the legal action which was to be taken otherwise.
Civ Dj No.612238/16 Shri Kuldeep Singh Coshal vs. Shri Veer Singh Tyagi & ors. Page 20 of 25The allegation is totally found false and fabricated. Neither he was detained nor he was threatened to be implicated in any false case. It is also a false and fabricated allegations just to create some ground in his favour. Neither the SHO Patel Nagar nor ASI Satbir Singh were found to have visited house of the complainant. It is also not understandable why the copy of the said settlement was supplied to him if the same was got prepared under threat. This sentence is sufficient to prove him false. All these allegations are found false and fabricated with intend to get undue advantage...."
33. The meaningful reading of contents of aforesaid affidavit makes it evident that the police had abused its position. It was none of the business of the police to tell the plaintiff that he had committed crime and necessary action would be taken on the complaint of Ms. Raj Rani. The defendant no. 2 being police official had abused his power and State does not confer a licence upon its officials to act contrary to law. So long as the officials act fairly and with reasonable care, no action can lie. Only where they abuse their powers, act with gross negligence, resulting in deprivation of life and liberty of the citizens, the State become liable for compensation. It is clear from the observation of Hon'ble High Court of Delhi made vide order dated 15.09.2000 in Criminal Writ Petition No. 686/1998 and the facts which have come on record that the threatened action of the police resulting into depriving the plaintiff of suit shop can never be said to be done in exercise of discharge of their official duties.
Civ Dj No.612238/16 Shri Kuldeep Singh Coshal vs. Shri Veer Singh Tyagi & ors. Page 21 of 2534. In view of the above, it is apparent that the police had taken undue advantage of their position which resulted into the handing over of the possession of the suit shop of the plaintiff to Ms. Raj Rani. Resultantly, the plaintiff was deprived of the possession of the suit shop due to the alleged mutual settlement arrived at before the police station on 05.08.1998 till the key of the suit shop was handed over to the plaintiff vide order dated 12.09.2002 passed in suit no. 371/01 (as recorded in judgment and decree dated 30.04.2003, Ex.PW1/2).
35. The Hon'ble High Court of Delhi while disposing of the criminal writ petition had observed that the parties will approach the civil court and police will deposit the said keys in the said court and the civil court would hand over the keys to the party entitled to the same, however, the plaintiff had got the key of the suit property only on 12.09.2002. Had the possession was not delivered by the plaintiff to Ms. Raj Rani, defendant no.6 on 05.08.1998, he would have remained in the possession of the suit shop and not deprived of the benefits of the suit shop during the alleged period i.e. 05.08.1998 to 12.09.2002.
36. The issue which now arises for consideration is the extent of loss suffered by the plaintiff on account of the deprivation of the possession of the suit shop and expenses incurred by him in the three rounds of litigation. In this regard, it is necessary to peruse the testimony of the PW1.
Civ Dj No.612238/16 Shri Kuldeep Singh Coshal vs. Shri Veer Singh Tyagi & ors. Page 22 of 2537. PW1 has deposed during his crossexamination dated 28.08.2008 as : " I came back to India in the year 1995 of my own will. I had thought to stay in India for some time and I was not called by any body at that time. I started my own business of air conditioning , refrigeration in the shop in question. The same business was started under the name and style of M/s Kaushal Engineering Works. I had told my counsel to bring this fact on record at the time of drafting the plaint that I had started the work of air conditioning and refrigeration in the shop in question in January February 1996. I had not obtained any licence in respect of the shop while starting my business nor I got the said business registered with any government department including the sale tax department. ....
..........I was not doing the work regularly from the shop. I had not kept any account of the said business. I had not maintained any recording regarding salepurchase, cash memo etc. I had no regular income from this work. I was earning around Rs. two or two and a half thousand per month from this business. I got installed a new telephone connection in this shop for purpose of my business. ..."
38. The perusal of the aforesaid testimony of PW1 makes it evident that the PW1 came back to India in the year 1995 itself of his own free will and thus it was not correct on the part of the plaintiff to state that he had to live in India for the purpose of present case. It is also apparent from his testimony that he started business in the year 1995 itself of air conditioning and refrigeration and used to earn Rs.2,000 Rs. 2500/ per month from the aforesaid business. There is nothing on record to suggest that plaintiff was earning more than the Civ Dj No.612238/16 Shri Kuldeep Singh Coshal vs. Shri Veer Singh Tyagi & ors. Page 23 of 25 aforesaid amount of Rs.2,000/ to Rs.2500/ per month. The plaintiff though stated in the plaint that he had loss of earning of an amount of Rs.25 lac, however, he did not lead any credible evidence to substantiate the same. Further, the plaintiff claimed an amount of Rs.5 lac towards stay in the India which has also not been proved on record. The said claim is also incredible on account of the fact that the plaintiff himself deposed that he had come to India in the year 1995 and was doing the aforesaid business from the suit shop. The plaintiff has also claimed an amount of Rs.10 lacs towards mental agony, sufferings and defamation. No doubt, the plaintiff has suffered harassment due to unwanted litigation in which he had to spent money as well as time, however, the plaintiff has not led any evidence about the money spent by him towards contesting the aforesaid cases.
39. In the considered opinion of this court, the plaintiff is entitled to an amount of Rs.2500/ per month towards the loss of earning for the period from August 1998 to September 2002, which is calculated as Rs.1,22,500/ (49 months X Rs.2,500/) and an amount of Rs.30,000/ towards mental agony and harassment. The plaintiff is thus entitled to recover an amount of Rs.1,52,500/ from the defendants jointly and severally along with pendentelite and future interest @ 6% per annum from the date of filing the present suit till its realization.
Civ Dj No.612238/16 Shri Kuldeep Singh Coshal vs. Shri Veer Singh Tyagi & ors. Page 24 of 25Relief
40. In view of above, the suit is decreed in favour of the plaintiff and against the defendants jointly and severally for an amount of Rs.1,52,500/ along with pendentelite and future interest @ 6% per annum from the date of filing the present suit till its realization. Cost of the suit is also awarded in favour of the plaintiff. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the open court (Manjusha Wadhwa) on 16th December, 2017. Addl. District Judge04 (West) Tis Hazari Courts,Delhi Civ Dj No.612238/16 Shri Kuldeep Singh Coshal vs. Shri Veer Singh Tyagi & ors. Page 25 of 25