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*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS)No.183/2017
% Date of decision : 31st May, 2017
VIKRAM SANDHU ..... Appellant
Through: Mr. Sandeep Sharma with
Mr. Bhrigu Dhami, Advs.
versus
SARDAR BHAG SINGH & ORS (SINCE DECEASED) THR
LEGAL REPRESENTATIVES ..... Respondent
Through: Nemo.
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE C. HARI SHANKAR
JUDGMENT (ORAL)
GITA MITTAL, ACTING CHIEF JUSTICE
1. The instant appeal has been filed assailing the order dated 29.03.2017 whereby the learned Single Judge has dismissed I.A. No.2217/2017 (filed under Order IX Rule 9 read with Section 151 CPC), I.A. No.2218/2017 (filed under Section 5 of Limitation Act, 1963 read with Section 151 CPC) and IA No.2219/2017 (under Section 151 CPC) for condonation of 16 days delay in re-filing.
2. The facts of the case are in narrow compass. The parties to the present appeal entered into an Agreement to Sale dated 09.09.1994 for sale of the property bearing 2nd Floor Terrace, J-110, South Extension, W.P.(C) No.183/2017 Page 1 of 6 Part-I, New Delhi, which the appellant had agreed to purchase. The appellant had addressed a letter dated 28.09.1994 to the respondents to abide by the said agreement. On failure on the part of the respondents to perform their part of the contract, the appellant had sent them a legal notice dated 29.08.1995, which was followed by filing of CS(OS) No.1874/1997 seeking specific performance, damages as well as injunction against the respondents.
3. The record as placed by the appellant before us shows that the appellant was most nonchalant and non-serious prosecuting the suit. On 19.02.2003, upon failure of the appellant to file the documents despite being given a last opportunity, the appellant was precluded from filing documents. As a result, no documents were made available to the defendant for admission/denial of the documents. As the appellant failed to conduct admission/denial of the documents of the respondents herein, they were deemed to be admitted under Order XII Rule 2A of the CPC. Consequently, by order dated 17.02.2004, the right of the appellant to file replication in the suit was closed. It was also observed in the said order that since the appellant failed to file originals of the documents, the right of the appellant to file originals of the documents in the said suit was also closed.
4. Finally on 23.03.2005, the learned Single Judge dismissed the said suit on account of non-appearance of the appellant.
5. No steps at all were taken for a long period of almost 12 years. Thereafter, it was only in January/February 2017, the appellant filed W.P.(C) No.183/2017 Page 2 of 6 the aforesaid application before the learned Single Judge. When the application was listed on 20.02.2017, the learned Single Judge observed as follows:
"2. Not only are the averments in the application for restoration vague but are totally unsupported by any documents. Though the applicant/plaintiff at the time of institution of the suit claimed to be in possession of the premises agreed to be sold for a sale consideration of Rs.27,00,000/- out of which the plaintiff claimed to have paid Rs.1,00,000/- only and on perusal of the file it transpires that the suit for possession filed against the applicant/plaintiff was also pending at that stage and the counsel for the applicant/plaintiff today states that applicant/plaintiff today is not in possession but neither any particulars in that regard have been given nor any documents with respect to the proceedings in the suit for possession been filed.
3. It has been vaguely stated that an appeal was filed against the decree for possession and which was allowed.
4. It is inexplicable as to why the applicant/plaintiff, when filed the appeal against the decree for possession, did not activate the present suit or as to why the applicant/plaintiff did not become aware of the dismissal of the suit in default when possession of the premises was taken from the applicant/plaintiff.
5. It cannot be lost sight of that the applicant/plaintiff in a suit for specific performance of an Agreement of Sale is required to be ready and willing throughout the pendency of the suit also and the conduct of the applicant/plaintiff shows that the applicant/plaintiff indeed was not ready and willing and no purpose for this reason also will be served in restoring the suit if ultimately it has to suffer the same fate.W.P.(C) No.183/2017 Page 3 of 6
6. However the counsel for the applicant/plaintiff being young, it is deemed appropriate to grant an opportunity."
(Emphasis Supplied)
6. Even with regard to these applications, the appellant was most negligent. On 16.03.2017, though it was stated that certain supporting documents had been filed, the same were not forthcoming on the record. As a result, these documents were not perused by the learned Single Judge at the time of passing of the order dated 29.03.2017.
7. We find that in the impugned order, the learned Single Judge has noted that apart from the appellant's suit for specific performance, the respondents had filed CS(OS) No.1143/1996 for recovery of possession, damages and mesne profits. In this case, the decree for possession came to be passed on 15.02.2011 against the appellant herein, which was executed on 10.02.2012 and possession of 2 nd Floor Terrace was handed over to the respondents.
8. It appears that while decreeing the suit by order dated 15.02.2011 in CS(OS) No.1143/1996, the learned Single Judge had directed an inquiry of mesne profits. On 10.01.2014, the learned Single Judge passed decree in CS(OS) No.1143/1996 for recovery of mesne profits against the present appeal. The record shows that the appellant assailed the decree dated 10.01.2014 by filing RFA (OS) No.119/2015 which came to be allowed by the Division Bench of this Court by judgment dated 11.12.2015 holding that with regard to open W.P.(C) No.183/2017 Page 4 of 6 terrace, there can be no mesne profits.
9. In these facts and circumstances, the learned Single Judge perused the applications (I.A. No.2217/2017, I.A. No.2218/2017 and I.A. No.2219/2017) for condonation of delay and which prayed for restoration of the suit. Learned Single Judge has observed that there was no cogent explanation as to why no steps for restoration of the suit were taken. In our view, the learned Single Judge rightly noted that when the appellant had filed RFA (OS) No.119/2015, there was no point as to why the application for restoration of the Suit could not have been filed. We also note that the appellant had consciously taken steps for the execution of the decree dated 15.12.2011 and handed over the possession of 2nd Floor Terrace in question to the respondents. Even at that time, the appellant would have been aware of the fact that his suit stood dismissed and yet took no step for restoration of the suit.
10. The learned Single Judge also noted the position that in the long period of almost 12 years since the dismissal of CS (OS) No.1874/1997, the respondents may have dealt with the property.
11. In these circumstances, it has, in our view, been rightly held by the learned Single Judge that the title in immovable property should be allowed to attain certainty and ought not to be permitted to be disturbed at the mere asking of the plaintiff. Interestingly, the plaintiff did not even prefer an appeal against the decree of possession passed on 15.02.2011. At the same time, he has consciously W.P.(C) No.183/2017 Page 5 of 6 permitted the Agreement to Sale of which he has sought specific performance before the learned Single Judge to lapse by way of CS(OS) No.1874/1997. The learned Single Judge noted that the appellant had failed to show cause for condonation of delay of 4325 days in filing and 16 days delay in re-filing as well as restoration of suit under Order IX Rule 9 of CPC.
12. The order dated 29.03.2017 passed by the learned Single Judge cannot be assailed on any legally tenable grounds. No factual basis has been made to set aside the same.
13. In this background, this appeal is dismissed with costs quantified @ Rs.50,000/-, which shall be deposited to the Delhi High Court Legal Service Authority within a period of four weeks from today. In case the appellant fails to produce the proof of deposit, the appeal shall be listed before this Court.
ACTING CHIEF JUSTICE C. HARI SHANKAR, J MAY 31, 2017 pmc W.P.(C) No.183/2017 Page 6 of 6