Rajiv Goyal vs Prakash Wati Kohli
1996 Latest Caselaw 537 Del

JUDGMENT

Manmohan Sarin, J.

(1) By this order, I would be disposing of IA.9924/94 moved by the defendant for rejection of the plaint under Order Vii Rule Ii of the Code of Civil Procedure.

(2) Before dealing with the grounds on which the rejection of the plaint is sought, it would be pertinent to notice the averments in the plaint.

(3) Plaintiff Shri Rajiv Goyal son of Late Shri B.B. Goyal, has filed the present suit for mandatory and perpetual injunction. The plaintiffs father, late Shri B.B, Goyal, was in occupation and possession of l/4th of the shop premises bearing No.M-20, Greater Kailash Main Market, Part-1, New Delhi under the defendant at a monthly rent of Rs.230.00 . It is averred in the plaint that under an arrangement with the defendant part of the shop that had been rented out to the plaintiffs father Shri B.B. Goyal, was rented to another tenant resulting in reduction of rent to Rs.50.00 per month. The plaintiff claims to have succeeded to the tenancy rights in respect of the shop and claims to be in continuous use and enjoyment of the tenanted premises.

(4) The case of the plaintiff is that his father, late Shri B.B. Goyal, had entered into an agreement dated 20.03.1980, with the defendant for raising the construction on the first floor of the said premises bearing No.M-20, Greater Kailash Main Market, Part-1, New Delhi, on the considerations and terms and conditions set out in the said agreement. Under the agreement the father of the plaintiff Shri B.B. Goyal was permitted to raise constructions comprising two small rooms, one drawing-cum-dining, latrine, kitchen and bath according to the revised plan with his own resources on the first floor of this property. The amounts to be expended were not refundable and the plaintiffs father was to pay the agreed rent for the portion to be constructed. The revised plans were required to be sanctioned for raising the construction. It is claimed that the father of the plaintiff, at the instance of the defendants, deposited the charges with the Municipal Corporation of Delhi. It transpired that certain changes were required in the sanctioned plan which the defendant agreed to follow up with the Corporation. It is averred that the defendant through out represented that she had been pursuing the sanction of the revised plans and expressed her willingness and readiness to take all necessary steps for obtaining the revised sanction plans. Finally it is claimed that it was only on 7.1.1994, that the father of the plaintiff impressed upon the defendant to take steps for obtaining sanction of revised plans and the defendant flatly refused to take any steps saying that she was not interested to abide by the said terms and conditions and the defendant threatened to enter into a fresh agreement with another person for raising construction on the first floor and/or for transferring/alienating the properly to frustrate the agreement dated 20.02.1980. The plaintiff claims that his father having suffered a great set back collapsed and died on 19.02.1994 and the plaintiff instituted the present suit after the defendant refused to accede to his request on 20.05.1994, to obtain sanction of revised plans.

(5) On the above allegations, the plaintiff has sought a decree of mandatory injunction directing the defendant to obtain sanction of revised building plans from Municipal Corporation of Delhi and in the event, the defendant fails to take the necessary steps, the court be pleased to appoint a person to take steps on behalf of defendant. Further a decree of perpetual injunction restraining the defendant and/or its agents from transferring, alienating or encumbering the terrace of the ground floor of the premises in question has been sought.

(6) Having noticed the averments made in the plaint, Let us look at the grounds set forth by the defendant seeking rejection of the plaint.

(7) The defendant claims that there is no cause of action whatsoever for the plaintiff to file the present suit. It is contended that the alleged agreement dated 20.03.1980, was cancelled as far back as 28.03.1980. The defendant has produced on record the telegram purported to have been sent cancelling the agreement followed by a letter, together with the copies of the postal receipt and registered acknowledgements due. Not only this, it is claimed that the cancellation of the agreement was reiterated in the supplementary lease deed 28.03.1981, whereunder the plaintiffs father had surrendered part of the tenanted premises and the rent was reduced to Rs.50.00 . In the supplementary lease, the tenant i.e plaintiffs father undertook that he had no right either to use the first or its terrace or to make any construction/demolition/alteration inside or outside the shop. It is urged that it is evident that the agreement dated 20.03.1980, was never acted upon by the parties and after the cancellation by the defendant the same was treated as abandoned.

(8) It is also contended by learned counsel for the defendant that the agreement dated 20.03.1980 on which the suit is based was not heritable. It is argued that while the expression 'First Parly' in the said agreement was stipulated so as to include its legal heirs, assignees, etc., but in the case of 'Second Party' it was confined to the plaintiffs father and, as such, no rights were conferred on the heirs of late Shri B.B. Goyal.

(9) It is further argued by learned counsel for the defendant, Mr. Hansaria, that as regards the relief of perpetual injunction, the same was infructuous in as much as the property had been sold by the defendant vide a registered Sale Deed for Rs.9 lakhs pursuant to an advertisement taken out in the press on 22.03.1987. Mr. Hansaria also argued that the present suit wherein the plaintiff was seeking specific performance in the garb of mandatory injunction was not permissible and that the agreement itself contemplated and provided for damages for loss, if any, suffered as is apparent from Clause No. 16 of the Agreement. Learned counsel for the defendant relied upon the judgment in the case of Jasmer Singh Vs. Kanwaljit Singh & Another wherein the court held that where a suit for specific performance in case of contract for sale was admissible, the suit for injunction would not be maintainable. Learned counsel for defendant also relied upon the decision in the case of Rajender Kumar Vs. Mahender Kumar Miltal to the same effect.

(10) Learned counsel for the plaintiff in the reply filed to the application has assailed the Sale Deed dated 14.09.1993 executed by the defendant as null and void, claiming that the defendant had no right to sell the properly. Further, cancellation or abandonment of the agreement is denied. The execution of the supplementary lease deed is admitted. However, clause relating to non-construction in the supplementary deed is called an act of forgery and perjury. It is also denied that the agreement is not heritable. Clause 13 of the Agreement is described as being an indemnity only.

(11) A meaningful reading of the plaint as well as the agreement dated 20.03.1980 shows that the agreement in March 1980 had been entered into by the defendant since she did not possess the funds at that lime to raise construction. The Agreement itself contemplated construction by the plaintiffs deceased father on the basis of the plan already sanctioned or revised plan, if required. The defendant was required to submit Revised Plan in consultation with plaintiffs father to M.C.D. Although no lime limit was prescribed within which the revised plans were to be submitted, the construction was sought to be completed within eight months from the date of the sanction of the revised plan, if required. The agreement also provided other terms relating to occupation of the portion to be built and the rent of Rs.450.00 to be paid by the defendant. It also provided for the plaintiffs father having the option to choose a tenant for the shop which was in a his tenancy and the said person being accepted by the defendant as tenant. The plaintiffs father also standing guarantee for the payment of rent by the said person.

(12) The plaintiff has woefully failed to produce on record any correspondence or document which would show that from 1980, the parties ever attempted to act upon the agreement or the plaintiff or his father called upon the defendant to submit the revised plan or fulfilll the contract. The plaint is completely silent on this. Except for a bald averment in para 6, that in January 1994 the father of the plaintiff had impressed upon the defendant to lake steps for obtaining municipal sanction, there is no other averment. Accordingly, even from the showing of the plaintiff, from the year 1980 till January 1994, there was nothing that had been done towards implementing the agreement. There is nothing on record to show that any attempt was made towards even the implementation of other terms and condition apart from construction of first floor. This lends credibility to the defendant's version that the agreement was cancelled and infact a supplementary Deed was executed whereunder part of the tenanted premises was surrendered and rent was reduced. It is significant that the factum and execution of supplementary Lease Deed is admitted by plaintiff, who only disputes the clause whereby construction was prohibited.

(13) In a suit for mandatory injunction for directions to seek submission of revised construction plan based on terms of an agreement in the absence of any time period being prescribed, the limitation would be three years from the date of the agreement. The agreement was entered into in 1980 and the suit for mandatory injunction instituted in May, 1994, therefore, would be clearly barred by the law of limitation. As regards the relief of perpetual injunction, as noticed earlier, the property in question has already been sold by the defendant on 14.9.1993 and the relief in that regard as regards the defendant would be infructuous.

(14) I may notice that the factum of sale of the properly by the defendant on 14.09.1993 by a Registered Sale Deed in favour of Shri S.S. Walia itself belies the plaintiffs averment that it was in January 1994, that the defendant refused his deceased father Shri B.B. Goyal from abiding by the terms and conditions of the agreement, held out to the alleged threat of entering into a fresh agreement. The defendant having already sold the properly, there would have been no occasion for the defendant to have either discussed the implementation of the agreement dated 20.03.1980 or threat to sell the properly as alleged. These averments arc intended only to create an illusion of a cause of action. The present case would also as well fall within the category of vexatious and false suits which deserve to be nipped in the bud, as held by this Court in T. Arivandandam Vs. T. V. Satyapal & Another . It is, however, not necessary to proceed on the said ground as I have otherwise found the plaint to be barred by limitation and deserving rejection.

(15) I, accordingly reject the plaint under Order Vii rule 11 of the Code of Civil Procedure being barred by limitation and not disclosing any cause of action or right to sue.