Delhi District Court
Chander Prakash Sharma vs Subodhini Verma & Anr on 5 July, 2012
Chander Prakash Sharma vs Subodhini Verma & Anr
IN THE COURT OF SHRI INDER JEET SINGH, ADDL. DISTRICT JUDGE03,
ROOM NO. 309, SOUTH DISTRICT, SAKET COURTS, NEW DELHI
In the matter of
RCA No. 21/2012
Chander Prakash Sharma, (Advocate),
B - 11, First Floor, Maharani Bagh,
New Delhi.
...Appellant
(plaintiff in original suit)
Versus
1. Subodhini Verma D/o Late Sh. D.P. Verma,
R/o 37, Sidharth Enclave, New Delhi.
2. "Uma Sahai Memorial Trust"
Alleged to be at 37, Sidharth Enclave,
New Delhi
And/Or also alleged to be at
B 11, Ground Floor, Maharani Bagh,
New Delhi.
...Respondents
(defendants in original suit)
Appeal Presented on : 02.07.2012
Date of Institution : 03.07.2012
Decision Reserved on : 04.05.2012
Date of Decision : 05.07.2012
RCA No. 21/12 Page 1 of 18
Chander Prakash Sharma vs Subodhini Verma & Anr
JUDGMENT
(on Regular Civil Appeal under order XLI CPC) It is necessary to give brief introduction/background of the case on the basis of record available.
1.1 (Introduction/background): An eviction petition No. E 28 of 1989 (new No. 22 of 2001) was filed under section 22 of Delhi Rent Control Act under the name "Trustees of Uma Sahai Memorial Trust vs M/s Jain Malleables through its Managing Proprietor Sh. Kulwant Rai Jain" in respect of property No. C 1A (old No. B 11/A), Maharani Bagh, New Delhi. An eviction order was passed on 21.04.2003 by the Court of Additional Rent Controller, Delhi. The said M/s Jain Malleables through its proprietor filed an appeal No. RCA 552/2003 before Additional Rent Control Tribunal, it result into compromise dated 14.03.2007, whereby the said M/s Jain Malleables was given time to retain the possession of first floor (hereinafter referred as the appeal property) of the tenanted premises till 31.03.2012. 1.2 The premises/first floor was not vacated, the Decree Holder filed an execution petition No. 07/12 before the Rent Controller, Delhi (which is still pending in the court of Sh. Sandeep Yadav, Rent Controller, South). RCA No. 21/12 Page 2 of 18 Chander Prakash Sharma vs Subodhini Verma & Anr 1.3 In the proceedings/record dated 11.05.2012 in execution petition No. 07/12, it appears that learned Additional Rent Control Tribunal, Delhi by order dated 27.08.2011 directed the judgment debtor to deposit damages @ Rs. 2,00,000/ per month from 21.04.2003 to 31.08.2011 within two months th and further to deposit such damages month by month by 10 of each succeeding month.
2.1 In execution (No. 07/12) proceedings, Sh. Chander Prakash Sharma (Advocate) filed objections under section 25 of the Delhi Rent Control Act read with order XXI rule 58 CPC before the court of Rent Controller, South, Delhi, however, the objections were dismissed by detailed reasoned order dated 11.05.2012 in respect of the appeal property.
The said Sh. Chander Prakash Sharma (Advocate)/appellant filed suit No. 70/2012 "Chander Prakash Sharma (Advocate) vs (1) Subodhini Verma and (2) Uma Sahai Memorial Trust" for the relief and under the title "Suit for the reliefs of declaration of defendant No. 2 Trust as non existent, declaration of defendant No. 1 as nontrustee and declaration of judgment and decree dated 21.04.2003 passed in eviction petition No. 22/2001 (original No. E 28/1989) passed by Sh. Sunil Kumar Aggarwal, RCA No. 21/12 Page 3 of 18 Chander Prakash Sharma vs Subodhini Verma & Anr Additional Rent Controller, Delhi, as null and void, ab initio/non est in law, and also declaration of compromise decree dated 14.03.2007 passed in RCA No. 552/2003 by Additional Rent Tribunal as null and void, ab initio/non est in law, and for reliefs of permanent and prohibitive injunctions, seeking injunction against being dispossessed from first floor of B 11, Maharani Bagh, New Delhi without due process of law and /or injunction from being dispossessed in execution proceedings emanating from Ex. P. No. 07/12 or from decree dated 21.04.2003 or compromise decree dated 14.03.2007"
before the court of learned Senior Civil Judge, Saket, New Delhi.
2.2 The trial court of Sh. Sandeep Yadav, learned Senior Civil Judge cum Rent Controller, South, Saket, without notice to the defendants therein, formulated "whether the plaint discloses cause of action and whether the plaintiff has locus standi to file the suit" and then came to the conclusion that the plaintiff/appellant Sh. Chander Prakash Sharma has no locus standi to challenge the existence of Uma Sahai Memorial Trust or the authority of defendant No. 1 to pursue the execution proceedings vis a vis the plaint does not disclose any cause of action and then dismissed the suit on 25.02.2012.RCA No. 21/12 Page 4 of 18
Chander Prakash Sharma vs Subodhini Verma & Anr Paragraph 10 of impugned order is the conclusion of order and the preceding paragraphs thereof are the plea and submissions of plaintiff/appellant, discussion and conclusions. The appellant is aggrieved by impugned order dated 25.05.2012 in the present appeal.
3.1 The case of appellant (which is also the case narrated in suit No. 70/12 as well as in the objections filed before learned Rent Controller, South Delhi), in nutshell, is that the appellant has been knowing Sh. Kulwant Rai Jain because the appellant/plaintiff was conducting his cases in the trial court. The said Kulwant Rai Jain, in the month of MayApril 2010, offered to sell appeal property in B11, Jain House, Maharani Bagh, New Delhi at a reasonable price stating that he along with his two brothers own the property and Kulwant Rai Jain was having first floor. It was belonging to his father Sh. P.D. Jain who died interstate. The appellant/plaintiff was shown photocopies of original paper, when appellant asked copies thereof, he was told that the same will be provided in due course. The appellant/plaintiff and the said Kulwant Rai Jain settled consideration amount of Rs. 60,00,000/ out of which Rs. 40,00,000/ was paid (i.e., Rs. 32,00,000/ in June 2010 by cash and remaining 8 lakhs by two cheques dated 14.12.2010) to the said RCA No. 21/12 Page 5 of 18 Chander Prakash Sharma vs Subodhini Verma & Anr Kulwant Rai Jain and the appellant/plaintiff was put into part possession of the first floor. The appellant/plaintiff was asking the said Kulwant Rai Jain to provide copies of paper but on the one reason or the other no record was provided to him. He was not heard for one year despite repeated visits.
It was in the month of December, 2011, the Bailiff came from the court for execution in respect of possession of the ground floor and second floor in the said property, the appellant tried to contact Kulwant Rai Jain but no result. Then in the month of MarchApril 2012, the appellant/plaintiff realized that he had been duped by the said Kulwant Rai Jain to part with the money. The appellant/plaintiff applied and obtained relevant record/documents of the petition and all other papers, when it was discovered that the property B 11, Maharani Bagh, measuring 800 sq. yard, New Delhi was belonging to Bharat Sahai, his wife Uma Sahai who died of cancer, and after her death Sh. Bharat Sahai created a trust in her name to carry out the aims and objectives, interalia, work to assist cancer patients. The DDA had permitted to donate and mutate half of the said property (i.e., 400 sq. yard) to the trust and DDA imposed conditions on 15.01.1998. In the year 200203, the trust property, nonhalf of the trust property (i.e., as RCA No. 21/12 Page 6 of 18 Chander Prakash Sharma vs Subodhini Verma & Anr explained during arguments, 400 sq. yard +75 sq. yard = 475 sq. yard) sold in violation of the conditions of DDA and trust property has been left with 325 sq. yard (i.e., as explained during arguments, 400 sq. yard - 75 sq. yard = 325 sq. yard) and the first floor/appeal property is of the 325 sq. yard, for which the plaintiff was induced to purchase, its possession was exclusively with Kulwant Rai Jain for which appellant/plaintiff paid 40 lakhs as a part consideration amount. In fact and in reality, the trust property extincted.
At the time of filing of the eviction petition there were three trustees (namely Sh. M.N. Kapoor, Sh. Bishambar Khanna and Sh. K.B. Kapoor) out of them two died and two more were inducted (namely Ms. Vineeta Choudhary and Mr. N. Krishnaswami) somewhere in the year 2008. The eviction petition (neither at the time of decree/order in 2003 nor at the time of compromise before appellate court/ARCT), was not prosecuted by any of its trustees but by respondent No. 1/defendant No. 1 Subodhini Verma, whereas she was never a trustee. The said orders were bad in law. The factual position and the triable issues raised were not appreciated by the trial court.
RCA No. 21/12 Page 7 of 18 Chander Prakash Sharma vs Subodhini Verma & Anr 3.2 The court of learned Senior Civil Judge, in its order dated 25.05.2012 came to the reasons and conclusions, firstly, neither Mr. Kulwant Rai Jain was owner of the property nor he could deliver or transfer the better title than he himself has; secondly, Sh. Kulwant Rai Jain was in possession of property as a tenant and eviction order dated 21.04.2003 was passed against the judgment debtor and then compromise decree dated 14.03.2007 was followed in appeal. Thirdly, the suit appears to have been filed under the connivance of said Kulwant Rai Jain and the appellant/plaintiff, fourthly, it is not believable that such a huge amount of Rs. 40 lakhs could be paid by the appellant/plaintiff without having record or photocopies of the title document, fifthly, there is no concluded contract or agreement between the said Kulwant Rai Jain and the plaintiff/appellant. The suit has been filed to frustrate the fruits of eviction orders/decrees.
3.3 Whereas, the appellant requests that the findings have been given mechanically by the trial court contrary to the facts and provisions of the law particularly provisions of section 47, 48, 71 and 77 of Trust Act, 1882, without addressing even a single issue raised by the appellant/plaintiff in the suit. The appellant/plaintiff has been in possession of first floor/appeal RCA No. 21/12 Page 8 of 18 Chander Prakash Sharma vs Subodhini Verma & Anr property, the attempt is being made through execution petition to dispossess him from the appeal property, whereas, a trespasser cannot be dispossessed without due process of law. Neither the trust is in existence and the trust property is extinct, therefore, the execution petition cannot be prosecuted, particularly, when appellant is a bonafide purchaser for consideration. He was given part possession in lieu of consideration amount. There are triable issues, which require evidence and trial but the suit was dismissed even without notice to the opposite party. The appellant applied for certified copy of decree of the impugned order but it was reported that no decree has been drawn. It is also supplemented that even no decree was drawn in respect of initial eviction order dated 21.04.2003 or in the compromise decree dated 14.03.2007, how the execution petition could be executed without such decree. The trial court formulated two proposition of locus standi and cause of action, whereas order VII rule CPC does not speak of any ground of locus standi and the impugned order is silent as to how court came to the conclusion that there is no disclosure of cause of action, whereas, the entire plaint carries bundle of facts which amounts to cause of action. The trial court also concluded in paragraph 10 that the suit is dismissed, whereas, the suit can be dismissed only after trial. RCA No. 21/12 Page 9 of 18 Chander Prakash Sharma vs Subodhini Verma & Anr These are the substance of appeal and oral submissions, compiled in paragraph 2.1, 3.1 and 3.3 above. The appellant/plaintiff fortifies his contentions while relying upon following cases:
1. Majaraja Dharmendra Prasad Singh & Anr versus State of Uttar Pradesh & Ors AIR 1973 Allahabad 174 (V 60 C 59) - held that a preliminary point means a point, the determination of which enables the trial court to pass a decree and relieves it from the necessity of determining the other points involved in the suit and even though the point decided by the trial court happens to be a point of fact, if the test is satisfied that the point was such that a decree could have been granted by the trial court on the basis of its decision on that point, then, it would be a preliminary point within the meaning of order XLI rule 23 CPC. The expression is not confined to a point of law or point of jurisdiction.
2. Adbul Gani and Anr versus Devi Lal & Anr AIR 1960 Rajasthan 77 (V 47 C 19) - held that the word preliminary point should not be narrowly construed so as to be confined to pleas a liberal meaning so as to include any point connected or not connected with the merits of the case, a decision of which in some particular manner results in the disposal of the suit without the necessity of deciding other points actually arising in the case which or at any rate some of which must necessarily be decided for the disposal of the case in the event of a different decision on preliminary point not resulting in the disposal of the suit.
3. Tun Mra Aung & Ors verus Ma Ah Mra AIR 1933 Rangoon 413 - held the term preliminary point in order XLI rule 23 CPC comprehends all points whether of law or of fact which prevent court from disopening of case on merits - issues framed and whole evidence recorded by trial court, but suit disposed on findings of one or two of the issues - appellate court can remand case under order XLI rule 23 CPC.RCA No. 21/12 Page 10 of 18
Chander Prakash Sharma vs Subodhini Verma & Anr
4. Mahadev Tukaram Vetale and Ors verus Smt. Sugandha and Anr AIR 1972 SC 1932 (V 59 C 363) - held when triable issues have been raised in the appeal, the appeal should not be dismissed summarily. 4.1 The contentions advanced are assessed in the light of material on record, inclusive of trial court record summoned, vis a vis the provisions of law and the case law presented.
4.2 Firstly, notice on appeal has not been issued to the respondents, since the respondents were not summoned by the trial court, therefore, it was not appropriate to issue notice on the appeal.
4.3 Secondly, it is a fact that there is no decree dated 21.04.2003 in eviction petition No. E 28/1989 (New No. 22/2001) and decree in appeal RCA No. 552/2003 by the Additional Rent Control Tribunal, Delhi. However, under the provisions of Delhi Rent Control Act, 1958, orders or eviction orders are passed and there is no necessity or legal requirement to draw the formal decree. Therefore, this fact will be assessed accordingly, while disposing of the contentions of appellant and appellant cannot derive any benefit that for want of decree, there is no eviction order. RCA No. 21/12 Page 11 of 18 Chander Prakash Sharma vs Subodhini Verma & Anr 4.4 Thirdly, it is a fact that no decree has been drawn in respect of impugned order dated 25.05.2012 by the court of Ld. Senior Civil Judge, Delhi in suit No. 70/12, however the suit was dismissed for want of locus standi of plaintiff/appellant as well as for want of disclosure of cause of action. In case, the plaint does not disclose cause of action, the plaint can be rejected and it cannot be dismissed, however, the trial court given the opinion on the lines of nondisclosure of cause of action and as appears word 'dismissed' has been used for word 'rejection of plaint' and in the eventuality of rejection of plaint, a decree is to be drawn in terms of section 2(2) of CPC. Whereas, the appellant filed the present appeal against decree under the provisions of order XLI CPC and in terms of order XX rule 6 B CPC, appeal may be filed on the basis of judgment/decree. The material will be considered accordingly, keeping in view the substantive provisions of law. 4.5 The appeal also raises a point of interpretation of word 'locus standi' and term 'cause of action'. It is a fact that order VII rule 11 CPC does not speak of terms locus standi but of nondisclosure of cause of action. The term cause of action is a flexible and exhaustive term, inherents in itself that a party has certain rights in respect of property and there are allegations that RCA No. 21/12 Page 12 of 18 Chander Prakash Sharma vs Subodhini Verma & Anr such rights have been interfered or violated by the other party having obligation or duty towards the first party. On the eve of breach of such rights, the former party has right to initiate action for such cause of action. Moreover, when the rights of the former party are interfered, that party has locus standi to file the suit for such cause of action to redress the grievances with the aid of law. With this general explanation and meaning of terms 'locus standi' and term 'cause of action' as well as the position of law, the record of present appeal will be assessed.
5.1 The appellant appeared with the counsel on 04.07.2012, and during the course of arguments some queries were raised, the same were replied by them. Like, whether the appellant/plaintiff was in possession of first floor when eviction petition No. E 28/1989 was filed and eviction order was passed on 21.04.2003; whether the plaintiff/ appellant was in possession of appeal property when appeal RCA No. 552/2003 was heard by learned Additional Rent Control Tribunal and compromise decree was passed on 14.03.2007; whether appellant/plaintiff had participated in any of the proceedings of eviction petition or of appeal or whether appellant came into contact or interacted with respondents No. 1 and 2 at any point of time; RCA No. 21/12 Page 13 of 18 Chander Prakash Sharma vs Subodhini Verma & Anr whether the appellant/ plaintiff has any agreement or receipt of Rs. 32 lakh or of Rs. 8 lakh issued by the said Kulwant Rai Jain for sale of appeal property; whether the appellant /plaintiff had seen any document of appeal property in favour of Kulwant Rai Jain? However, the appellant plaintiff has given answer of all such queries in "negative" with an explanation that he came to the contact of Mr. Kulwant Rai Jain in the year 2009 and payment was made in the year 2010. The said Kulwant Rai Jain is not the owner of property and he duped the appellant/plaintiff of huge amount of Rs. 40,00,000/, for which criminal complaint has been lodged. 5.2 In the light of observations given in paragraph 4 above, the queries responded by appellant/plaintiff incorporated in paragraph 5.1 above, the impugned order dated 25.05.2012 of the trial court is confirmed, also for the following reasons: i. The plaintiff/appellant is projecting his concern with the appeal property when amount was paid in the June 2010 and December 2010 to Mr. Kulwant Rai Jain, whereas, the appellant/plaintiff never came into contact at any point of time with the respondents.
ii. The appellant/ plaintiff has no cause of action against the respondents No. 1 and 2 and the appellant had no role at the time eviction petition was filed in RCA No. 21/12 Page 14 of 18 Chander Prakash Sharma vs Subodhini Verma & Anr the year 1989 or compromise decree took place between the decree holder and the judgment debtor in RCA No. 552/2003. There is no right of the appellant/plaintiff in property so far eviction order or compromise decree is concerned and for want of any right in this regard, the plaintiff has no locus standi to challenge those eviction order or compromise eviction order in the suit. It is also not a cause of action and plaint does not disclose any cause of action, against the respondents No. 1 and 2 in the plaint. Reliance can be placed on T. Arvindam vs T. V Satyapal 1977 (4) SCC 467 - wherein it was held that the trial court must remember that if on a meaningful informal reading of the plaint, it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise its power under order VII rule 11 CPC taking care to see that the ground mentioned therein is fulfilled and in CIMMCO Ltd. vs TEOPFER International Asia PTE. Ltd & Anr 87 (2000) DLT 753 - it was held that best indication to find out whether a party is a necessary or proper party is to pursue the paragraph dealing with the cause of action and in the absence of cause of action, plaint may be rejected qua such defendant.
iii. It has already been concluded that there is no need to draw formal decree in terms of Section 2(2) CPC in respect of eviction order, under the provision of Delhi Rent Control Act, however, the appellant /plaintiff raises the question of prosecution of execution proceedings, whereas, he has no locus standi or RCA No. 21/12 Page 15 of 18 Chander Prakash Sharma vs Subodhini Verma & Anr right with regard to such proceedings vis a vis his objections have already been dismissed.
iv. The plaintiff/appellant also challenges the constitution or functioning of Uma Sahai Memorial Trust or the trust property, whereas, neither it has ever since interacted with the respondents nor with the said trust nor he is trustee or beneficiary to be construed that his rights have been violated and in the plaint, he is projecting alike public interest litigation that the trust has not been following the mandates of DDA or the like, whereas, the appellant wants to enforce his right stating that he paid Rs. 40,00,000/ to Mr. Kulwant Jain, who was proprietor of M/s Jain Malleables in the appeal property. Whereas, eviction order was passed against it, followed by an appeal and time agreed has already been exhausted, and execution petition is pending. Further as appears from proceedings dated 11.05.2012, even judgment debtor M/s Jain Malleables/Kulwant Rai Jain had also appeared through counsel before the court of Ld. Rent Controller, South, Delhi. v. The appellant /plaintiff intends to remove and go beyond the veil of eviction order or the trust and to see its constitution or functioning, whereas the appellant/plaintiff has no right, nor he could be considered aggrieved of eviction order or of trust/trustees/trust property.
vi. The appellant/plaintiff claims himself bonafide purchaser of the appeal property but there is no receipt of amount nor an agreement with the RCA No. 21/12 Page 16 of 18 Chander Prakash Sharma vs Subodhini Verma & Anr Kulwant Rai Jain nor there exists any agreement between the owners/trustees of the property and the appellant/plaintiff, how he can allege that he is bonafide purchaser or has locus standi or cause of action against the respondents. The plaint does not disclose any cause of action, against respondents.
vii. The impugned order dated 25.05.2012 is treated as rejection of the plaint under order VII rule 11 CPC, however, the trial court used the word 'dismissed' in place of word 'rejection' but this technicality would not give any benefit to the appellant as plaint was rejected for want of disclosure of cause of action; and viii.As appears from the record, the appellant /plaintiff wants to raise questions which appears to be of Kulwant Rai Jain, which has been rightly observed by the learned trial court and it is like a proxy litigation by the appellant.
6. In view of the above, the appeal is dismissed. The appeal is also abuse of the process of the court, therefore, cost of Rs. 10,000/ is imposed to be deposited with the Delhi Legal Services Authority, Saket, within one month. Since the trial court has not drawn decree of rejection of plaint, it is directed that the trial court will draw a decree forthwith so that record may be completed. Decree of appeal be also drawn. RCA No. 21/12 Page 17 of 18 Chander Prakash Sharma vs Subodhini Verma & Anr
7. The copy of this judgment be certified to the trial court for compliance of directions, given in paragraph 6 and TCR be sent back.
Appeal file is consigned to record room.
Announced in open Court (INDER JEET SINGH)
on 14th Asadha, Saka 1934 Addl. District Judge03, South District,
Saket/05.07.2012
RCA No. 21/12 Page 18 of 18
Chander Prakash Sharma vs Subodhini Verma & Anr
RCA No. 21/12
05.07.2012
Appearance: Plaintiff in person.
Notice on appeal was not issued to the
respondents/defendants as the trial court had not issued notice to the defendants.
Vide separate judgment announced today, the appeal is dismissed. The appeal is also abuse of the process of the court, therefore, cost of Rs. 10,000/ is imposed to be deposited with the Delhi Legal Services Authority, Saket within one month. Since the trial court has not drawn decree of rejection of plaint, it is directed that the trial court will draw a decree forthwith so that record may be completed. Decree of appeal be also drawn.
The copy of this judgment be certified to the trial court for compliance of directions given in paragraph 6 and TCR be sent back.
Appeal file is consigned to record room. Copy of this
judgment is allowed to appellant on application.
(INDER JEET SINGH)
Addl. District Judge03, South District,
S Saket/05.07.2012
RCA No. 21/12 Page 19 of 18