* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA Nos. 45/2018 & 48/2018
% 1st February, 2018
1. RFA No.45/2018 & CM No. 1799/2018 (stay) and CM No.
1800/2018 (Exemption)
VIJAY KUMAR ..... Appellant
Through: Mr. Prag Chawla, Advocate.
versus
VARUN KHULLAR & ANR. ..... Respondents
2. RFA No.48/2018 & CM No. 1926/2018 (stay), CM No. 1927/2018 (Exemption) and CM No. 1928/2018 (for delay of 27 days in re-filing) VIJAY KUMAR ..... Appellant Through: Mr. Prag Chawla, Advocate.
versus VARUN KHULLAR & ANR. ..... Respondents CORAM: HON'BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not? VALMIKI J. MEHTA, J (ORAL)
1. These two appeals under Section 96 of the Code of Civil Procedure, 1908 (CPC) are filed against the self-same impugned judgment of the Trial Court dated 23.9.2017. By the impugned RFA Nos.45/2018 & 48/2018 Page 1 of 17 judgment the suit for partition filed by the plaintiff/respondent no.1/Sh. Varun Khullar has been decreed and the counter-claim filed by the appellant/defendant no.2/Sh. Vijay Kumar seeking specific performance for respondent no.1/plaintiff to transfer his share in the suit property to the appellant/defendant no.2, has been dismissed.
2. The subject suit for partition was filed by Sh. Varun Khullar pleading that the suit property was purchased by Sh. Varun Khullar jointly with Sh. Ram Parkash Ajmani and who was the defendant no.1 in the suit. Defendant no.1 Sh. Ram Parkash Ajmani sold his share to the defendant no.2 Sh. Vijay Kumar, the appellant and who was also the counter-claimant. In the suit filed by Sh. Varun Khullar for partition the defence of the appellant Sh. Vijay Kumar was that the respondent no.1/plaintiff Sh. Varun Khullar had agreed to sell his share to the appellant Sh. Vijay Kumar. Accordingly the suit for partition was prayed to be dismissed and the counter-claim for specific performance of the agreement to sell by the respondent no.1/plaintiff Sh. Varun Khullar of his share in the suit property to the appellant Sh. Vijay Kumar was prayed to be allowed. Suit property in question is the ground floor, first floor and half built 2 nd floor of the property RFA Nos.45/2018 & 48/2018 Page 2 of 17 bearing no.FA-278 (New) and 33/37 (Old), situated in the area of Village Basai Daraput, Delhi State, Delhi colony known as Mansarovar Garden, New Delhi on a plot of 50 sq. yards.
3. At the outset, it is required to be noted that whereas the respondent no.1/plaintiff Sh. Varun Khullar led evidence and proved his case the appellant/Sh. Vijay Kumar defendant no.2 in the suit and the counter-claimant have led no evidence because on account of not appearing for cross-examination the right of the appellant/defendant no.2/counter-claimant was closed. Suit for partition was therefore decreed as the appellant/Sh. Vijay Kumar/defendant no.2/counter- claimant failed to prove his case as no evidence existed on behalf of the appellant/defendant no.2/counter-claimant.
4. When these appeals came up for hearing for the first time on 17.1.2018, counsel for the appellant/defendant no.2 argued that the appellant/defendant no.2 was never given an opportunity to lead evidence on the counter-claim because the suit was never fixed for evidence of the counter-claimant. In view of this position, by the order dated 17.1.2018, the trial court record was summoned. This order dated 17.1.2018 reads as under:-
RFA Nos.45/2018 & 48/2018 Page 3 of 17
" 1. Since it is contended by the counsel for the appellant that there is no order for evidence being recorded in the suit and the counter-claim to be common evidence in both the matters, accordingly, to examine this aspect let the trial court record be requisitioned by the special messenger.
2. List on 1st February, 2018."
5. Trial court record has been received. Trial court record is in two parts. The suit file is a separate record and the counter-claim file is a separate record. However, it is seen that the same set of issues are framed in both the suit and the counter-claim i.e only one set of issues were framed inasmuch as the issues in the counter-claim were also framed as issues in the suit because this was an issue for dismissing of the suit for partition and for allowing the specific performance as prayed for by the appellant Sh. Vijay Kumar/defendant no.2. The common issues which have been framed both in the suit and the counter-claim on 7.5.2008 read as under:-
"(i) Whether there is any cause of action to file the present suit? OPP
(ii) Whether the suit is not properly valued for the purposes of Court fees and jurisdiction? OPD-2
(iii) Whether the defendant No.2 has purchased one half undivided share of the suit property belonging to the plaintiff and paid part consideration to the plaintiff? OPD-2
(iv) Whether the plaintiff is entitled to a decree of partition as prayed for? OPP
(v) Whether the plaintiff is entitled to a decree of possession as prayed in prayer clause (ii) of the plaint? OPP
(vi) Whether the plaintiff is entitled to a decree of permanent injunction as prayed? OPP
(vii) Whether the defendant No.2 is entitled to a decree of specific performance as prayed in the Counter Claim? OPD-2
(viii) Relief."RFA Nos.45/2018 & 48/2018 Page 4 of 17
6. At the cost of repetition, it may be stated that separate issues have not been framed in the counter-claim limited to the counter-claim and separate issues have not been framed in the suit with respect to the reliefs in the suit, and that there are common issues in both the suit and the counter-claim. Trial court record with respect to suit shows that counter-claimant had filed his affidavit by way of evidence. This affidavit by way of evidence is not only with respect to defence to the suit but the appellant/defendant no.2/counter-claimant has led evidence for succeeding in his claim for specific performance. The relevant averments in the affidavit by way of evidence dated 7.11.2002 filed by the appellant/defendant no.2/counter-claimant are paras 3 to 5 and these paras read as under:-
"3. That the plaintiff and defendant no.2 were original joint owners of suit property no. FA-278 (New) and 33/37 (old) situated measuring 50 sq. yds in the area of Basai Darapur Colony known as Mansarover Garden to the extent of ½ share each and consisting of ground first and second floor. It was conveyed by the plaintiff and defendant no.1 to the deponent that portion of second floor had already been sold out to some body and there was no dispute of ownership of the plaintiff and defendant no.1 in respect of the suit property. It is submitted that the half undivided share belonging to the defendant no.1 in respect of suit property was purchased by the deponent through sale documents so executed by the defendant no. 1 in favour of the defendant no. 2 for lawful sale consideration. All the original documents were handed over to the defendant no. 2 coupled with delivery of peaceful, vacant, undivided share of the defendant no. 1 to defendant no. 2 and since then the defendant no. 2 is in possession of said half share of the defendant no. 1 being the sole, absolute and exclusive owner thereof. Copies of ownership documents have been filed on record and the same may be exhibited as DW2-1/1 (colly).RFA Nos.45/2018 & 48/2018 Page 5 of 17
4. That I say that the plaintiff also agreed to sell his half undivided share in the suit property to the deponent and defendant no. 2 agreed to purchase the same. The defendant no. 2 also paid an amount of Rs. 5,50,000/- as earnest money to the plaintiff on 22.6.2007 the receipt of which was duly acknowledged by the plaintiff on 22.6.2007. A possession letter, affidavit and receipt were also duly signed by the plaintiff in favour of the defendant no. 2 and the entire possession belonging to the plaintiff was also handed over to the defendant no. 2 and since then the possession of said portion sold by the plaintiff is with the defendant no. 2 who is sole, absolute and exclusive owner of entire suit property and there is no interference of any kind in any manner whatsoever on the part of the plaintiff and defendant no. 1. It is further stated that the total sale consideration amount for the purchase of the portion of plaintiff was agreed at Rs.7,25,000/- and accordingly the defendant no. 2 paid an amount of Rs 5,50,000/- as earnest money to the plaintiff which was duly received by the plaintiff and the balance sale consideration of Rs 1,75,000/- was agreed to be paid by the defendant no. 2 to plaintiff on or before 22.8.2007 at the time of execution of sale deed by the plaintiff in favour of defendant no. 2 before the competent sub registrar. After receipt earnest money and execution of affidavit, receipt and possession letter, the plaintiff had also handed over the possession of his share in the suit property to the defendant no. 2. It was also agreed that till the date of execution of sale deed by the plaintiff in favour of defendant no. 2, the defendant no. 2 was at liberty to furnish the entire suit property purchased by him from the plaintiff and defendant no. 1 on this count, the defendant no. 2 spent an amount of Rs. 1,50,000/-. The entire deal of suit property was got done in the presence of one Mr. Lalit Grover who is brother in law of plaintiff. The entire original set of documents of the property are in possession of the defendant no.2 being owner thereof. It is submitted that after furnishing the property the defendant no. 2 rented out the same to different tenants i.e. ground floor on 6.7.2007 and the first floor on 16.6.2007. In his written statement filed on record, the defendant no.1 has admitted about the sale of the suit property by defendant no.2 from the plaintiff. The documents executed by the plaintiff in favour of the deponent are exh. As DW2-1/2 (colly).
5. That after purchase of the suit property the defendant no. 2 he has been requesting the plaintiff to execute the necessary sale documents in his favour on receipt of remaining amount of Rs 1,75,000/- however, the plaintiff with ulterior motives did not accept the said amount from the defendant no. 2 and also refused to execute the sale documents in favour of the defendant no. 2 as the value of the suit property has gone very high and the plaintiff want to grab more and more amount from the defendant no.2. In fact the plaintiff is liable to execute necessary sale documents in respect of his portion of the suit property in favour of the defendant no.2 RFA Nos.45/2018 & 48/2018 Page 6 of 17 for a total sale consideration of Rs.7,25,000/- out of which the defendant no. 2 has already paid a sum of Rs.5,50,000/- to the defendant no. 2."
7. This affidavit by way of evidence was filed by the appellant/defendant no.2/counter-claimant and which is recorded in the order of the trial court dated 17.1.2013. The record of the counter- claim thereafter shows that the matter was listed for evidence of the appellant/defendant no.2/counter-claimant and which is after the completion of evidence of respondent no.1/plaintiff Sh. Varun Khullar, with the cross-examination of witnesses of the respondent no.1/plaintiff Sh. Varun Khullar being completed as on 19.7.2012. Only thereafter the affidavit by way of evidence was filed by the appellant/defendant no.2 dated 7.11.2012 and which was taken on record as per order dated 17.1.2013. Therefore contention of the appellant/defendant no.2/counter-claimant that he did not lead evidence because there was no order for common evidence is clearly false as there were only one set of issues framed and evidence was to be led on these issues together. That dates were fixed for evidence in the counter-claim becomes clear from the order sheets in the counter- claim dated 6.5.2013, 31.7.2013, 5.9.2013. 27.11.2013, 28.2.2014, 4.6.2014, 22.9.2014, 13.11.2014, 18.12.2014, 28.2.2015 etc and which RFA Nos.45/2018 & 48/2018 Page 7 of 17 show that these orders are specifically with respect to the evidence of the counter-claimant i.e cross-examination of the counter-claimant because as already noted above the appellant/defendant no.2/counter- claimant had filed his affidavit by way of evidence with respect to his counter-claim for specific performance and which was subject matter of issue no. (vii) as framed on 7.5.2008. In my opinion there is no doubt whatsoever that the appellant/defendant no.2/counter-claimant misled this Court in seeking the orders on 17.1.2018 for summoning the trial court record on the ground that no order was passed for recording of evidence in the counter-claim and hence there was no opportunity for the appellant/ defendant no.2/counter-claimant to lead evidence. The aspect that appellant, who was defendant no.2 in the trial court as also the counter-claimant was ever allowed or that no date was fixed for evidence of the counter-claimant is already false including because, as already noted above the appellant/defendant no.2/counter-claimant has filed a detailed affidavit by way of evidence with respect to the counter-claim for specific performance and there were various dates which were specifically fixed for evidence on the RFA Nos.45/2018 & 48/2018 Page 8 of 17 counter-claim and which will be in fact for the cross-examination of the appellant/defendant no.2/counter-claimant.
8. Learned counsel for the appellant/defendant no.2/counter- claimant has sought to draw the attention of this Court to an order dated 14.9.2015 passed by the successor court of Ms. Sujata Kohli, ADJ, which order is subsequent to various orders passed earlier by Sh. Rajesh Kumar Singh, ADJ and Sh. Raghubir Singh, ADJ, and it is argued that this order dated 14.9.2015 shows that the appellant/defendant no.2/counter-claimant had not to lead evidence inasmuch as in the order dated 14.9.2015 there is a clarification that separate evidence is not led in the counter-claim and it is only after conclusion of the defendant's evidence in the main suit that counsel for the appellant/defendant no.2/counter-claimant would be able to ascertain whether he wants to lead certain additional evidence in the counter-claim. This order dated 14.9.2015 reads as under:-
"Present: Plaintiff in person.
Defendant no.1 in person with ld. counsel Shri Sanjay Aggarwal. Though this is a counter claim. At the outset, it comes to notice that counter claim is not appropriate w.r.t. its file. The appropriate title be framed showing Vijay Kumar S/o Shri Som Dutt Vs Varun Khullar Amended memo of parties in the counter claim be filed. Further, it has been clarified for the time being, separate evidence is not being lead in this counter claim and it is only after the conclusion of the DE in the main suit that ld. counsel for defendant would be able to ascertain whether he wants RFA Nos.45/2018 & 48/2018 Page 9 of 17 to lead any separate additional evidence in this counter claim or he would adopt the same as already concluded in the main suit. Be listed on 19-11-2015 with the connected main suit.
(Sujata Kohli) ADJ (Central)/THC/14-09-2015"
9. In order to put the order dated 14.9.2015 passed by Ms. Sujata Kohli, ADJ in proper perspective let us also at this stage reproduce the orders passed in the counter-claim from 6.5.2013 till 23.7.2015 and these orders read as under:-
"Order dated 6.5.2013 Present: Sh. Sanjay Aggarwal, Ld. Counsel for plaintiff.
Sh. R.K. Tiwari, Ld. Counsel for the counter claimant. Ld. Counsel for counter claimant submits that he will file the affidavit on the next date. Copy be supplied in advance to Ld. counsel for plaintiff. Adjourned to 31.7.2013 for evidence of counter claimant.
(Rajesh Kumar Singh) ADJ-5 (Central) THC/Delhi/06.05.2013.
Order dated 31.7.2013 Present: Sh. Vivek Chabra, brother of counter claimant.
Defendant in person.
Put up at 11.30 a.m. (Rajesh Kumar Singh) ADJ-5 (Central) THC/Delhi/31.07.2013 At 11.30 a.m. Present: Sh. Gagan Preet Singh, ld counsel for the plaintiff/counter claimant with counter claimant in person.
Sh. Sanjay Aggarwal, Ld counsel for the defendant with defendant in person.
Vakalatnama filed by ld counsel for counter claimant. Ld counsel for counter claimant requests for adjournment as he has been recently engaged in this matter. Heard. Request allowed. Adjourned to 05.09.2013 for evidence of counter claimant.
(Rajesh Kumar Singh) ADJ-5 (Central) THC/Delhi/31.07.2013 RFA Nos.45/2018 & 48/2018 Page 10 of 17 Order dated 5.9.2013 Present: Sh. R.K. Tiwari, Ld. Counsel for counter claimant.
Sh. Sanjay Aggarwal, Ld. counsel for the plaintiff. The counter claimant has already filed his affidavit. Ld. counsel for plaintiff submits that he will cross-examine the counter claimant after cross-examination of the witness of defendant no.1 in the main suit (122/11).
Adjourned to 27.11.13 for further proceedings.
(Rajesh Kumar Singh) ADJ-5 (Central) THC/Delhi/05.09.2013 Order dated 27.11.2013 Present: Sh. Satender Kumar, Ld. Proxy Counsel for Sh. Sanjay Aggarwal, Ld. Counsel for plaintiff.
None for defendant no.1.
Sh. R.K. Tiwari, Ld. Counsel for counter claimant/defendant no.2. Ld. Counsel for the plaintiff submitted to be not available due to death of relative.
Adjourned to 28.02.2014 for evidence of counter claimant.
(Rajesh Kumar Singh) ADJ-5 (Central) THC/Delhi/27.11.2013 Order dated 28.2.2014 Case file received by way of transfer from the Court of Sh. Rajesh Kumar Singh, Ld. ADJ-05 (Central). It be checked and registered. Present: Sh. Rajeev Tiwari, counsel for counter claimant alongwith counter claimant.
Sh. Satender Kumar, Proxy counsel for respondent. At joint request, Put up for counter claimant's evidence on 04.06.2014.
(Raghubir Singh) ADJ-15 (Central)/28.02.2014 Order dated 4.6.2014 Present: Sh. Rajeev Tiwari, counsel for counter claimant Sh. Sanjay Kumar, counsel for respondent. Put up for counter claimant's evidence with connected matter on 22.09.2014.
(Raghubir Singh) ADJ-15 (Central)/04.06.2014 Order dated 22.9.2014 Present: Sh. Rajeev Tiwari, counsel for counter claimant.RFA Nos.45/2018 & 48/2018 Page 11 of 17
Sh. Sanjay Kumar, counsel for respondent. Be listed on 13.11.2014 for counter claimant's evidence/compromise with connected matter.
(Raghubir Singh) ADJ-15 (Central)/22.09.2014 Order dated 13.11.2014 Present: Sh. Sanjeev Aggarwal, counsel for plaintiff along with plaintiff in person.
Sh. Rajeev Tiwari, counsel for defendant along with D-2. At joint request, matter is adjourned.
Put up on 18.12.2014 for purpose fixed.
(Raghubir Singh) ADJ-15 (Central)/13.11.2014 Order dated 18.12.2014 Present: Sh. Sanjay Aggarwal, counsel for plaintiff.
Sh. Rajiv Tiwari, counsel for defendant no.2. At request by the counsel for plaintiff, matter is adjourned. Be listed on 28.02.2015 for defence evidence.
(Raghubir Singh) ADJ-15 (Central)/18.12.2014 Order dated 28.2.2015 at 12:00 pm Present: Sh. Sanjay Aggarwal, counsel for plaintiff along with plaintiff.
Sh. Manoj Kumar, proxy cl for Sh. Ashwani Kumar cl for D-1. Sh. Datta Ram, proxy counsel for Sh. Rajiv Tiwari, counsel for D-2 along with D-2 Sh. Vijay Kumar.
Matter is listed for DE.
At joint request, matter is adjourned.
Put up on 18.04.2015 for purpose fixed.
(Raghubir Singh) ADJ-15 (Central)/28.02.2015 Order dated 18.04.2015 At 11:25 Present: As above in main file.
Put up with connected matter on 27.05.2015.
(Raghubir Singh) ADJ-15 (Central)/18.04.2015 Order dated 27.05.2015 Present: Sh. Rajeev Kumar Tiwari, counsel for counter claimant.
Sh. Sanjay Aggarwal, counsel for respondent/plaintiff. Put up on 22.7.2015, 23.7.2015 and 24.7.2015 with connected case.
(Raghubir Singh) ADJ(Central)/27.5.2015.
RFA Nos.45/2018 & 48/2018 Page 12 of 17
Order dated 22.7.2015
Present: Plaintiff in person.
Defendant in person.
Lawyers are stated to be on strike.
Put up with connected matter on date already fixed i.e. for 23.07.2015. (Sujata Kohli)
ADJ(Central)/THC/22.07.2015
Order dated 23.7.2015
Present: Plaintiff in person.
Defendant no.2 in person.
Shri Hemant Kumar stated to be S/o Shri Ram Prakash in person. Lawyers are stated to be on strike.
Put up with connected matter on 14.9.2015. Earlier date 24/7/15 stands cancelled.
(Sujata Kohli) ADJ(Central)/THC/23.07.2015"
10. In my opinion the contention urged on behalf of the appellant/defendant no.2/counter-claimant by placing reliance upon the order dated 14.9.2015 is misconceived because it is seen from the aforesaid orders reproduced above that as many as about/approximately 12 order sheets existed prior to this order dated 14.9.2015 specifically listing the counter-claim for counter-claimant's evidence, and who was also the defendant, and therefore same dates were fixed in the suit and the counter-claim, though there were separate records for the suit and the counter-claim.
11. The following aspects therefore emerge as a result of the aforesaid discussion:-
RFA Nos.45/2018 & 48/2018 Page 13 of 17
(i) Issues which were framed in the suit and the counter-claim were common i.e the same issues existed in the suit and the counter-claim, and which were framed on 7.5.2008 and evidence was thus to be led together on these issues by the respective parties.
(ii) In the suit itself issue no.(vii) framed was with respect to the entitlement of the appellant/defendant no.2/counter-claimant to the counter-claim of specific performance, and as stated above the issues framed are actually only common issues to both the suit and the counter-claim showing that evidence was to be led together.
(iii) The appellant/defendant no.2/counter-claimant filed his affidavit by way of evidence with respect to his counter-claim for specific performance and the relevant paras of which have already been reproduced above. Therefore, it is not as if that the counter- claimant did not lead evidence on the counter-claim.
(iv) In fact the dates of hearings after 6.5.2013 as per the suit record and the counter-claim record are specifically for the evidence of the counter-claimant and which dates of recording of evidence are the same dates in the suit, with the effective orders being generally passed RFA Nos.45/2018 & 48/2018 Page 14 of 17 only in the suit inasmuch as common issues were recorded in the suit and the counter-claim.
(v) Contention of the appellant/defendant no.2/counter-claimant that the matter was not fixed for evidence of the counter-claimant flies in the face of the judicial record because as many as 12 order sheets exist in the separate file of the counter-claim, and therefore the order passed by the ADJ on 14.9.2015 cannot wash away as many as dozen order sheets of the earlier dates which record the filing of the evidence of the counter-claimant by the appellant/defendant no.2 as also the dates being fixed for the evidence of the counter-claimant and which would be dates for cross-examination of the counter-claimant on his affidavit by way of evidence filed.
(vi) No evidence has been led by the counter-claimant as he failed to appear for cross-examination on the date fixed on 17.8.2017 and consequently evidence of the counter-claimant was closed and the matter was listed for final arguments.
12. In my opinion therefore the facts of the present case show that the respondent no.1/plaintiff Sh. Varun Khullar proved his case and therefore he succeeded in the suit for partition and a preliminary RFA Nos.45/2018 & 48/2018 Page 15 of 17 decree for partition has been rightly passed in terms of the impugned judgment declaring the respondent no.1/plaintiff Sh. Varun Khullar as owner of 50% share in the suit property and that the counter-claim has rightly been dismissed for no evidence existing on record of the appellant/defendant no.2/counter-claimant because in spite of being granted various opportunities to appear for cross-examination the the appellant/defendant no.2/counter-claimant failed to appear resulting in his evidence being closed ultimately vide order dated 17.8.2017.
13. In view of the above, and more so because in the opinion of this Court, this Court was misled in calling for trial court record on the ground that no dates were fixed for evidence of the counter- claimant and counter-claimant had not led evidence, accordingly, these appeals are dismissed with costs of Rs.2,50,000/-. Costs will be deposited by the appellant/defendant no.2/counter-claimant with the website www.bharatkeveer.gov.in. Costs are imposed for wasting judicial time as also for abuse of process of law by misleading the Court by noting that the costs which are imposed under Section 35 CPC are costs which are given in favour of a party to a litigation and imposing of costs for abuse of judicial process and misleading the RFA Nos.45/2018 & 48/2018 Page 16 of 17 Court will be governed by the provision of Section 151 CPC and therefore exercising such powers costs have been imposed upon the appellant/defendant no.2/counter-claimant. Costs shall be deposited within six weeks from today and affidavit be filed of compliance within two weeks thereafter failing which Registry will list the matter in the Court for taking appropriate action against the appellant/defendant no.2/counter-claimant.
14. In view of the aforesaid discussion these present appeals are hereby dismissed. All pending applications also stand disposed of.
FEBRUARY 01, 2018 VALMIKI J. MEHTA, J
Ne
RFA Nos.45/2018 & 48/2018 Page 17 of 17