Yotsana Arti vs Prem Singh & Others
2000 Latest Caselaw 1131 Del

ORDER

S.K. Agarwal, J.

1. By this application under Order 39 Rule 4 of the Code of Civil Procedure, 1908 (for short 'CPC'), 2nd and 3rd defendants are seeking vacation of the interim order dated 12.6.1998, whereby the defendants were restrained from alienating, encumbering or parting with possession in any manner with the premises No. D-125, Anand Niketan, Moti Bagh-II, New Delhi (for short 'the suit property').

2. Facts in brief are: that on 22.9.1997, plaintiff filed a suit for specific performance alleging that 2nd defendant-Ms. Rachna Sethi, was allotted the plot of land measuring 262.83 sq. yds. by DDA, through registered sub-lease in her name. On 5.3.1974, she executed an irrevocable General Power of Attorney in favour of 1st defendant-Prem Singh, registered in the office of sub-Registrar, as document No. 1449 in Additional Book No.4 volume 285 on pages 9-10 vesting him with powers in respect of the suit property, including the power to take possession, to manage, supervise and control it; to make any construction, additions or alterations on it; to apply for sanctioning of building plan for construction of the building/additional construction; to apply for conversion from lease hold to free hold; to sell/mortgage it and to receive earnest money, part payment, full and final sale consideration and to issue receipt; to obtain sale permission/N.O.C.; to submit necessary documents for its transfer etc., to hand over vacant and peaceful possession of the suit property to the purchaser and get the same mutated in the name of the purchaser (for short the disputed GPA).

3. On 29.6.1996, the 1st defendant-Prem Singh, on the basis of the said disputed GPA, executed an agreement to sell in favour of the plaintiff, agreeing to sell the suit property for Rs. 21 lacs allegedly paid in cash in three instalments of Rs. 2.50, Rs. 2.50 and Rs. 16 lacs each, on 29.6.1996, 10.12.1996 and on 29.12.1996 respectively; and that 1st defendant on 7.10.97, executed general power of attorney in favour of the mother of the plaintiff, who applied to the DDA for conversion of the suit property from lease hold to free hold and for transfer of the same in favour of the plaintiff. It is further pleaded that on 6.1.97 notice was published on behalf of 2nd defendant-Ms. Rachna Sethi in "THE HINDUSTAN TIMES", stating therein that the 2nd defendant-Ms. Rachna Sethi, had entered into a development agreement with M/s. Vobco Engineers and Consultants Pvt. Ltd., in respect of the suit property, and that anybody else dealing with the same, would be doing so at his own risk and responsibility. On 8.1.97 the plaintiff sent reply to the public notice; and on 9.1.1997 the plaintiff found her locks over the property broken and the same was occupied by some unknown persons. It is claimed that a report in this regard was lodged to the Deputy Commissioner of Police, South West Zone, New Delhi; It is alleged that on 2.9.1997, the plaintiff along with her mother visited the suit property and found that the 3rd defendant-M/s. Vobco Engineers and Consultants Pvt. Ltd, had started raising construction on the suit property after demolishing the existing structure; the plaintiff along with her mother was booked by the police, for the offences punishable under Sections 452/342/506/427/34 IPC vide FIR No. 732/97. They were granted bail on 6.9.97. Lastly, it is alleged that the plaintiff had always been ready and willing to fulfill her part of the obligations as contemplated in the sale agreement dated 29.6.1996 with the 1st defendant-Prem Singh, to whom the entire sale consideration of Rs. 21 lacs was paid. On these averments the plaintiff has prayed for a decree of specific performance against 1st and 2nd defendants in respect to the suit property. On 8.7.99, the 1st defend-

ant-Prem Singh filed written statement supporting the case of the plaintiff.

4. The plaintiff filed an application for grant of ex-parte ad-interim injunction along with the suit in which notice was issued. An appeal against this order was also filed which did not succeed. The plaintiff moved another application (IA.5184/98), under Order 40 Rule 1 of the CPC, 1908 (for short CPC), for appointment of the receiver, stating therein that defendants were attempting transfer and alienate the suit property, a newspaper advertisement was also filed in support of the application; and on 12.6.98 defendants were restrained from alienating, encumbering or parting with possession of the suit property.

5. On 9.7.98 the contesting defendants (2nd and 3rd defendants), filed their written statements and pleaded that the 2nd defendant is the owner in possession of the suit land ever since it was allotted to her by the DDA in 1970; after the allotment she had made some construction thereon; and the possession of the suit plot/property was never given by the 2nd defendant to the 1st defendant-Prem Singh; she had not executed any document including the disputed GPA dated 5.3.74, in favour of 1st defendant-Prem Singh, and the same was forged and fabricated, in pursuance of some conspiracy between the plaintiff, 1st defendant and their associates, with a view to usurp and grab the suit property; that an inquiry from the office of the sub-Registrar, Delhi revealed that no such power of attorney was registered in their office; and some other transaction between Mr. Hukam Chand Baweja and Mr. Jugal Das, relating to some other property was registered on the date at the numbers whereon disputed GPA is claimed to be registered. It is also pleaded that the police during investigations also found that the plaintiff and 1st defendant-Prem Singh have forged and fabricated the documents. Paras 9, 10 and 11 of the preliminary objections of their written statement read as under:

"9. That the defendant No.2 has never appointed the defendant No.1 or any one else as her attorney to deal with the said property. The alleged power of attorney dated 5.3.74 is a forged and fabricated document. No reliance can be placed on the same. The entire case of the plaintiff is based on forged documents. The same is liable to be dismissed by this Hon'ble Court. The fact that the said document is a forged document has been found in investigation by the police authorities and has been accepted by the criminal court in which the case regarding the illegal attempt of the plaintiff and her mother to grab the property in question, is pending. The police authorities have already registered criminal cases against the plaintiff and her associates in respect of their illegal attempts to grab the suit property.

10. That it is pertinent to mention that the value of the property is over Rs. 2.5 crores. The same is alleged to have been purchased by the plaintiff for a sum of Rs.21 lakhs. The same is ample proof of the fraudulent nature of the said alleged transaction. The suit filed by the plaintiff is a false and frivolous suit which has been fabricated on false statements and forged documents. The same amounts to contempt of this Hon'ble Court and the plaintiff is liable to be punished for the same. The suit filed by the plaintiff is liable to be dismissed by this Hon'ble Court.

11. That the alleged agreement to sell the specific performance of which is being sought for by the plaintiff being for a value of more than Rs. 10,00,000/- lakhs, the same required the permission of the competent authority under Chapter XX-C of the Income Tax Act. No such permission has been alleged to have been obtained by the plaintiff or the defendant No.1. The alleged agreement to sell besides being a forged and fabricated document, even on its face value is contrary to law and cannot be enforced by this."

6. On 12.5.98, plaintiff was granted four weeks time to file the replication to the written statement of the 2nd and 3rd defendants, thereafter, matter was adjourned on several dates but replication was not filed, despite last opportunity on 9.8.2000.

7. The 2nd and 3rd defendants in support of their case have filed several documents, including a certified copy of charge -sheet filed by the Police against the plaintiff and her associates; after completion of investigations in the case under Sections 420/467/468/471/120B IPC, registered vide FIR No. 785/97, at Police station R.K. Puram, on the complaint dated 2.4.97 lodged by R.K. Sethi (3rd defendant). This charge-sheet contains summary of allegations, list of documents and witnesses examined during investigation. List of accused persons includes plaintiff and 1st defendant as well as other relations of the plaintiff. Copy of the order dated 19.8.2000 passed by court of Metropolitan Magistrate, New Delhi whereby the 1st defendant-Prem Singh was declared proclaimed offender, has also been placed on record.

8. I have heard the counsel for parties and taken through the record.

9. Learned counsel for plaintiff argued that the 2nd defendant had executed disputed GPA in favour of 1st defendant-Prem Singh, in respect of the suit property, on the basis of which 1st defendant had sold the suit property to the plaintiff; received full sale consideration in cash, executed agreement to sell, general power of attorney and had delivered possession to the plaintiff on 29.6.96. It was argued that his case is also being supported by the 1st defendant in the written statement. The question whether disputed GPA on the basis of which the plaintiff has purchased the suit property is a forged or genuine document is yet to be decided by the Civil Court and that mere registration of the case by the Police and filing of the challan in the court is of no consequence. Therefore, the interim order dated 12.6.98 is liable to be confirmed till further orders.

10. Learned counsel for the contesting defendant on the other hand argued that disputed GPA dated 5.3.74 propounded by the plaintiff was forged and fabricated by the plaintiff in connivance with the 1st defendant and her other associates with intend to grab the suit property; that a case for conspiracy and cheating was registered by the Police on 24.7.97, on the basis of complaint dated 2.4.97 lodged by the 3rd defendant brother of the 2nd defendant, vide FIR No. 785/97 under Sections 420/467/468/471/201/120B IPC. The plaintiff and her associates were arrested. After completion of investigations challan has been filed. Cognizance has already been taken by the Court Prem Singh (1st defendant) could not be arrested during investigations. He did not appear even after challan was filed and was declared proclaimed offender by the Court on 19.8.2000. Thus, it is argued that there is neither any prima facie case nor the balance of convenience, in favour of the plaintiff.

11. Law with regard to the grant of interlocutory injunctions during the pendency of proceedings is well-settled, by several authoritative pronouncements of the Apex Court as well as of this court. In Gujarat Bottling Co. Ltd. & Ors Vs. Coca Cola Co. & Ors it was held:-

"The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the court. While exercising the discretion the court applies the following tests - (i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff gainst injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated."

12. In the light of the above principles, I have considered the rival contentions. From the perusal of pleadings and documents it prima facie appears that the case set up by the plaintiff is inherently improbable and unworthy of credence for more than one reason.

13. There is no dispute that the plot of land was allotted by the DDA to 2nd defendant-Ms. Rachna Sethi, by a perpetual sub-lease deed dated 3.4.71, registered as document No.6432 in Additional Book No.I, Volume No.2732 on pages 97 to 103, on 24.9.71 with the sub-Registrar, Sub District -III, Delhi and that she had constructed a single storey building over the same. The real issue is whether the disputed GPA dated 5.3.74 allegedly executed by the 2nd defendant in favour of 1st defendant is genuine or forged document. The plaintiff claims to have purchased the suit property from the 1st defendant on the basis of the disputed GPA dated 5.3.74. The contesting defendants in their written statements have specifically pleaded (i) that this power of attorney is a forged and fabricated document and the same was not executed by the 2nd defendant in favour of 1st defendant; that inquiries from the office of sub-Registrar, Delhi, revealed that no such power of attorney was ever registered and at numbers and pages mentioned on the disputed GPA, some other document of Mr. Hukam Chand Baweja and Mr. Jugal Das was registered. (ii) that Police had registered the case against the plaintiff and her associates on the complaint of contesting defendants for attempting to grab the suit property on the basis of disputed GPA. After investigation they have also found that the said power of attorney was fabricated with an intention to grab the suit property, which is worth of Rs. 25 crores.

14. It may be recalled here that on 10th November, 1997 defendants were directed to file their respective written statement and replies to the application within four weeks and the plaintiff was granted four weeks time to file replication/rejoinder thereafter. On 9.7.1999 written statement was filed by the contesting defendants but replication was not filed by the plaintiff. On 9th August, 2000, by way of last opportunity, the plaintiff was granted two weeks time to file the replication to the written statement of the contesting defendants. Replication was not filed. However, plaintiff filed rejoinder to application (IA No.5184/98). Therefore, the averments made by the contesting defendants in their written statement that the disputed GPA is a fabricated piece of document and that the police has registered a case against the plaintiff, defendant no.1 and their associates; that the plaintiffs and their associates were arrested and released on bail and that disputed GPA during investigation has been found to be false and fabricated even by the police, have remained unchallenged.

15. The contesting defendants, in support of their averments in the written statement, as noticed above have placed on record certified copy of the challan filed by the police in the court, which contains summary of allegations, list of witnesses examined by the police during investigation and the list of documents relied upon in support of the challan. During investigation, on the basis of the documents seized by the police, it was revealed that the first defendant Prem Singh who allegedly bought the suit property from the 2nd defendant on the basis of disputed GPA dated 5.3.74 was hardly aged about 12 years on that date so the question of his purchasing the suit property from the second defendant did not arise. While arriving at this conclusion police took into consideration present age of the first defendant Prem Singh in the voters' list as well as his age as given in the handicap certificate issued by a Government Hospital. These documents were seized by the police during investigations.

16. Though the first defendant has filed the written statement supporting the case of the plaintiff but he has chosen not to participate in the investigations. After the challan was filed, the proceedings for proclamation and attachment of properties of Prem Singh under Sections 82 and 83 of Code of Criminal Procedure, 1974 were initiated against him. He could not be arrested despite warrants. After recording evidence, trial court passed on order on 19.8.2000, declaring Prem Singh, Defendant no.1, as proclaimed offender. Certified copy of this order has been placed on record. After he was declared proclaimed offender, none appeared on behalf of 1st defendant-Prem Singh, on 6.9.2000, 13.9.2000 and 15.9.2000 when the matter was heard, therefore, he was proceeded against ex-parte.

17. Further, the contesting defendants in the their written statement have specifically pleaded that the enquiries from the office of the sub-Registrar revealed that the disputed GPA dated 5.3.74 was never registered in their office on that date. This statement has not been challenged in the replication. Even the police after investigation also found that no such GPA was registered in the office of the sub-Registrar, as claimed by the plaintiff so where is the prima facie case.

18. If the contesting defendant had sold the suit property to the first defendant or to the plaintiff, then either of them ought to have the origi-

nal title deeds of the said property. None of the original documents have been filed by the plaintiff or by the first defendant.

19. Even the contents of the disputed GPA dated 5.3.74 reveal that it is not the genuine document. In the disputed GPA first defendant was empowered to get the suit property converted from the leasehold to the freehold; investigation revealed that in 1974 no such scheme for conversion of the leasehold to freehold was in existence at that time; the scheme came into effect for the first time in April, 1992, further the disputed GPA does not show whether any amount was paid by the first defendant to the contesting defendants when the GPA was allegedly executed in his favour. These show that this document came into existence after 1992.

20. It appears from the record that on 2nd April, 1997 defendant No. 3 lodged a report with the police, inter alia, stating that "This gang of criminals/land grabbers comprise of one Mr. Prem Singh, Mrs. Kamlesh Sharma, Mrs. Yotsna Arti and their other accomplices, who together have hatched a nefarious plot to fraudulently grab my sister's above said property by various unlawful and criminal acts". Along with this complaint, copies of three earlier complaints dated 13.1.97, 15.1.97 and 20.1.97, and other documents were sent by him. Police, on the basis of the complaint dated 2.4.97 registered formal FIR No. 785/97 at P.S. R K Puram on 24.7.97. The suit was filed on 22.9.97 but strangely in the plaint there is no mention of the registration of the case against the plaintiff, her associates and 1st defendant, Prem Singh. When this was pleaded in the written statement, the plaintiff did not file the replication despite several opportunities; all this reveals that the plaintiff did not approach the court with clean hands. First defendant-Prem Singh continued to appear through his advocate in the suit supporting the plaintiff. After he was declared proclaimed offender on 19.8.2000 for obvious reasons there was no appearance on his behalf on 6.9.2000, 13.9.2000 and 15.9.2000, when he was proceeded ex parte.

21. All the circumstances noted above, prima facie cast a grave shadow of doubt on the case set up by the plaintiff. Thus the plaintiff has failed to make out any prima facie case or the balance of convenience in her favour and therefore, the order dated 12th June, 1998 whereby the defendants were restrained from alienating or encumbering or parting with the possession in any manner of the property bearing no D-125, Anand Niketan, Moti Bagh-II, New Delhi, is liable to be revoked.

22. For the foregoing reasons application No. 6059/98 under Order 39 Rule 4, CPC is allowed. Order dated 12th June, 1998 is recalled and the interim order is hereby vacated. The plaintiff's IA 5184/98, whereupon the said interim orders were obtained is dismissed with costs of Rs.10,000/-. However, it is made clear that any observations made in this order shall not in any way affect the merits of this case and other proceedings between the parties.