Suneet Kalra vs Bal Raj Ahuja
1994 Latest Caselaw 766 Del

JUDGMENT

P C. Lahoti, J.

(1) This order shall dispose of the four applications. The first three applications are under Order 39 Rules q & 2 Civil Procedure Code filed by the plaintiff at different stages of the suit, all seeking interim injunctions against the defendant. The last one is an application under Order 11 Rules 4 and 12 of the Civil Procedure Code read with Section 73 of the Evidence Act.

(2) First the facts in brief in so far as they are relevant for the purpose of disposing of these applications. The suit property consists of a residential plot bearing municipal No.537 in Block S, Greater Kailash, Part-11, New Delhi. The suit has been filed on 4th October, 1993 seeking specific performance of an agreement to sell dated 18.3.75 and ancillary relief of declaration and permanent injunction.

(3) The plaintiff Suneet Kalra is the grand-son of late Bhagwan Dass Kalra. He claims to have inherited the estate left by late Bhagwan Das Kalra pursuant to a Will dated 15.12.87. The plaintiff alleges the defendant to have entered into an agreement dated 18.3.75 to sell the suit property in favor of late Bhagwan Dass Kalra. Late Bhagwan Dass expired on 27.10.89. The possession was delivered by the defendant to late Bhagwan Dass. Though the delivery of possession is not recited in the agreement to sell, but it is recited and acknowledged in a possession letter (undated) accompanying agreement to sell, In 1975 late Bhagwan Dass met with a serious accident resulting in prolonged ailment adversely affecting his general health. On his death all the documents of the suit property came into possession of his widow Smt. Viran Devi, the grand-mother of the plaintiff. She also died of Cancer a little later. In 1993 disputes started. The plaintiff filed a police complaint lodging instruments the suit property by strangers as also by the defendant. The defendant too filed a complaint alleging intrusion by the plaintiff. The plaintiff had constructed a boundary wall on the plot and had put his iron gate also in August, 1993. The disputes having commenced the plaintiff has filed the present suit for specific performance. He has also filed these three applications for interim injunctions protecting his alleged possession over the suit plot, as also restraining the defendant from alienating or transferring the suit property in any manner whatsoever.

(4) The defendant is contesting the suit tooth and nail. According to him all the documents filed by the plaintiff are forged ones. The defendant had never agreed to sell the property to late Bhagwan Das nor had he parted with possession of the property in favor of late Bhagwan Dass or anyone else at any time. 710

(5) Learned counsel for the plaintiff has submitted that the documents filed by the plaintiff can not be termed forged ones prima facie. He has further submitted that the defendant has not denied the boundary wall having been constructed by the plaintiff. In as much as the plaintiff has a prima facie case supported by documents and the possession is with the plaintiff, the plaintiff deserve to be granted the injunctions prayed for, submitted the learned counsel for the plaintiff. Learned counsel for the defendant vehemently opposing the prayer made by the learned counsel for the plaintiff has submitted that the documents have been alleged to be forgeries and this the defendant has stated on affidavits. It is also submitted that the suit filed by the plaintiff in the year 1993 based on the alleged agreement to sell of the year 1975 is not only barred by limitation, but is also belated hopelessly. The plaintiff being guilty of delay and laches, is not entitled to any indulgence of the Court. It is further submitted that the suit plot was originally owned by colonisers, namely, Dlf United Ltd. In the year 1975 itself, the defendant had secured the allotment of plot from the colonisers. If only the defendant would have entered into an agreement to sell the suit plot, then he would have transferred his rights to the purchaser and got the documents executed directly in his favor. In the written statement the defendant has set out in detail the procedure which was usually adopted by the colonisers Dlf United Ltd. All the documents of title relating to the suit plot are still with the defendant. Late Bhagwan Dass expired at least 14 years after the date of the alleged agreement to sell in his favor and if only the story would have been true, late Bhagwan Dass would certainly have taken some action in his life time for securing the transfer of pot in his favor, which having not been done, the plaintiff- an alleged successor of late Bhagwan Dass is not entitled to any relief.

(6) Having heard the learned counsel for the parties, this Court i satisfied that the plaintiff is not entitled to the injunctions prayed for. Except the affidavit of the plaintiff and the documents seriously under challenge (alleged to be forgeries) there is no other material available on recorded to hold prima-facie the defendant having agreed to sell the said plot and late Bhagwan Das or the plaintiff having entered into possession of the suit land. Nothing much turns out on the construction of the boundary wall. It is said to be an incident of August, 1993, a little before filing of the suit. A substantial amount of Rs.2,20,000.00 , said to have been paid by late Bhagwan Dass to the defendant, could not have been paid out of cash retained at home. Some corroborative evidence in support of the said payment was expected to be filed by the plaintiff which here is none.

(7) It appears that the defendant is raising construction over the suit plot. 711 At the time of hearing, learned counsel for the defendant has stated at the Bar that the defendant is willing to file an undertaking before the Court that in the event of the plaintiff ultimately succeeding in the suit, the defendant would deliver possession over the suit plot to the plaintiff either with the construction raised by him on the suit plot or after demolishing the same at his own costs, consistently with the order of this Court. In the opinion of this Court that undertaking would be enough to protect the interest of the plaintiff.

(8) As the Court is not satisfied of the availability of a prima facie case and balance of convenience in favor of the plaintiff, an injunction protecting the alleged possession of the plaintiff under the disputed agreement to sell cannot be granted. That prayer is refused. To protect the interest of the plaintiff, it is directed that within two weeks from today, the defendant shall file an undertaking on affidavit in the Court, as proposed through his counsel, to the effect that in the event of the suit ' being decreed, the defendant shall honour the decree passed by the Court and deliver possession over the suit plot to the plaintiff, either with the construction raised by the defendant without claiming any compensation thereof or after demolishing the same at his own costs and expenses consistently with the order or decree passed by the Court. During the pendency of the suit, the defendant shall not alienate or transfer the title or possession of the property in favor of anyone else and shall also not create any third party interest therein except with the permission of the Court.

(9) I As 9410/94,9161/93 and 8817/93 stand disposed of accordingly. Ia 7262/94

(10) Ia 7262/94 is a composite application seeking three reliefs, all different in nature. Better if the plaintiff would have filed three separate applications. However, the application is not proposed to be dismissed on this technicality. The plaintiff is, however, directed to affix additional court fee stamps on the applications leviable on three prayers. One of the prayers made in the application is to seek leave to deliver interrogatories covered by sub-para (a) and first para of sub-para (b) of para 3 of the application. These interrogatories are relevant for the decision of the suit. Leave is allowed to deliver the interrogatories. The defendant is directed " to answer the interrogatories in four weeks.

(11) The second part of sub-para (b) and sub-para (c) seek production of certain documents. Looking to the nature of the controversy arising in the suit, the documents sought to be produced appear to be relevant and 712 necessary. The defendant is directed to produce the sought for documents in four weeks.

(12) The 3rd prayer made by the plaintiff is for directing the defendant to give his specimen signatures in order to facilitate comparison thereof with the disputed signatures on the alleged agreement to sell and possession letter under Section 73 of the Evidence Act. The defendant is directed to appear before the D.R. concerned on 18.1.1995 and give his specimen signatures to facilitate comparison thereof with the disputed signatures.

(13) The defendant is also directed to make discovery of documents in his possession or power relating to the suit property. The discovery shall be made in the prescribed proforma of affidavit within four weeks from the date of the order.

(14) Ia 7262/94 stands disposed of accordingly.