Shri Jagan Nath Chauhan vs Shri S.C. Nanda And Anr.
2004 Latest Caselaw 1320 Del

JUDGMENT

Mukundakam Sharma, J.

1. The facts of these three appeals are interconnected and interrelated. Issues that also arise for consideration are similar. Therefore, all the three appeals are being taken up together and disposed of by this common judgment.

2. Mr. S.C. Nanda (hereinafter referred to as 'SCN' for brevity) is the plaintiff in suit No. 1762/1998 and defendant in other two suits, namely, suit No. 2831/1999 and 547/1999 (re-numbered as Suit Nos. 160/2003, 158/003 and 159/2003 respectively). SCN is lawyer and was enrolled as a member in the Nav Niti Cooperative Group Housing Society Limited on 8.2.1986.

3. Mr. Jagannath Chauhan (hereinafter referred to as 'JNC' for brevity), who is the defendant in suit No. 1762/1998 and plaintiff in the other two suits is also a lawyer. JNC was working with SCN. He was carrying on investigation of titles of properties and documentation for the office of SCN. It is claimed by SCN that he was paying monthly retainership to JNC apart from giving all reimbursement of the incidental expenses incurred by him for carrying out such investigations.

4. On 17.10.1993, SCN was allotted a residential flat bearing flat No. 118, Nav Niti Cooperative Group Housing Society Limited, constructed on Plot No. 51, Patparganj, Delhi. SCN wrote a letter on 28.2.1996 to the Secretary, Nav Niti Cooperative Group Housing Society Limited giving permission to allow his junior JNC to stay in the said flat. This letter sets out the terms of the permission to occupy and reads as under:-

''To 28th February, 1996

The Secretary

Nav Niti Co-operative

Group Housing Society Ltd.

Plot No. 51,

Patpar Ganj,

Delhi.

Dear Sir,

Sub: Flat No. 118 in Nav Niti Apartment, Delhi.

This is to inform you that Shri Jagannath Chauhan, Advocate is working with me as my junior advocate and at present he has no accommodation to stay. I allow him to stay in my aforesaid flat along with his family members with immediate effect.

I do hereby also confirm that I have not sold, transferred, leased out or part with the possession of the aforesaid flat to any body including Mr. Chauhan.

Yours faithfully,

sd/-

(S.C. NANDA)''

The letter was exhibited as Exhibit 1/58 on record.

5. In the month of January 1998, SCN orally informed JNC that the permission granted to him to stay in the said flat had been withdrawn and requested JNC to leave the suit property immediately and forthwith. JNC, however, did not vacate the suit premise. Therefore, a legal notice was issued to JNC, which is dated, 1.6.1998, intimating him that the permission granted to JNC to stay in the suit property had been withdrawn and called upon JNC to leave and vacate the suit property within 30 days of the receipt of the notice. The notice also raised a demand for mesne profits @ Rs. 5000/- per month. JNC did not vacate the suit promises.

6. Accordingly, a suit was instituted in the Original Side of this court, which was registered as suit No. 1762/1998 (later numbered as Suit No. 160/2003) by SCN seeking a decree for possession and mesne profits.

7. Thereafter JNC, as plaintiff, instituted two suits, namely, Suit Nos. 2831/1999 (later numbered as Suit No. 158/2003) and Suit No. 547/1999 (later numbered as Suit No. 159/2003).

8. In suit No. 159/2003, JNC, the plaintiff sought for a decree of specific performance of the oral agreement between the plaintiff and the defendant No. 1-SCN seeking for a decree of delivery of peaceful vacant possession of the property to the plaintiff with a further direction to SCN - the defendant No. 1 to execute and register all necessary documents of transfer of flat No. 118, Nav Niti Cooperative Group Housing Society Limited, constructed on Plot No. 51, Patparganj, Delhi in favor of the plaintiff (JC).

Another suit namely, suit No. 158/2003 was also filed by JNC praying for a decree of recovery of an amount of Rs. 9,26,900/- along with interest both pendente lite and future.

9. In the aforesaid two suits, it is the contention of the plaintiff (JNC) that as the plaintiff worked with the defendant No. 1-SCN till November 1996, it was agreed between them that SCN would give a lump sum amount of the retainer ship charges on account of JNC's aid and advice to SCN - the defendant No. 1 in land and property matters, which were started at Rs. 500/- per month and with the passage of time, the same was increased to Rs. 2,500/- per month besides payment of fees being made for investigations of title and documentation with a further stipulation that professional fee was to be shared in equal shares between the plaintiff and the defendant.

10. In the aforesaid two suits it was further alleged by JNC that he worked together with SCN till November 1996 during which period JNC became entitled to receive a total amount of Rs. 15,26,900/- as professional fees which is said to be 50% share of JNC and after adjustment of Rs. 6,00,000/- against the suit premises, namely, flat No. 118, Nav Niti Cooperative Group Housing Society Limited, constructed on Plot No. 51, Patparganj, Delhi, a sum of Rs. 9,26,900/- was outstanding. Hence the suit for recovery of money.

11. In the plaint, JNC reiterated the aforesaid facts and further stated that during the period of their association, SCN purchased various properties either in his name or in the name of his family members from the proceeds of money which was due and payable by SCN to JNC.

12. It is also contended that JNC was orally informed and assured that the said properties would be sold after some time and out of the sale proceeds received, money would be given to JNC. As such, out of the dues of Rs. 15,26,900/-, a sum of Rs. 6,00,000/ was adjusted against the sale of the suit premises, which has been given by SCN to JNC on ownership basis as per the oral agreement between the parties.

13. It was also stated by JNC that the flat in dispute was absolutely unfurnished and had no facilities being a raw flat as the flat in dispute was planned by SCN to be sold to JNC in lieu of his dues. Suit No. 159/2003 had been instituted by JNC seeking a decree of specific performance of the oral agreement entered into between the parties. JNC has stated in the plaint of the suit for specific performance that he has performed his part of the oral agreement, which took place in the month of March 1996 by allowing SCN to take entire sale consideration of Rs. 6,00,000/- of the flat No. 118, Nav Niti Cooperative Group Housing Society Limited, constructed on Plot No. 51, Patparganj, Delhi out of Rs. 15,26,900/- invested with SCN and that he was further ready an willing to bear all the expenses of the execution and registration of the sale documents of the said flat. According to JNC since SCN had instituted the suit No. 160/2003 for possession and mesne profits, he was constrained to seek the specific performance of the oral agreement in his favor. On the aforesaid allegations the two suits were filed.

14. SCN and JNC filed their respective written statements and replications in the aforesaid three suits. On the basis of the pleadings of the parties the learned trial court framed issues in all the three suits.

15. In the suit filed by SCN seeking for a decree of recovery of possession and payment of mesne profits being suit No. 160/2003 (old suit No. 1762/1998), nine issues were framed by the learned trial court on the basis of the pleadings of the parties.

16. It would be proper to mention at this stage that suit No. 1762/1998, which was a suit for passing a decree for recovery of possession of the flat was decreed by a learned Single Judge of this court by a judgment and decree passed under Order 12 Rule 6 PC on 24.3.2000.

However, on an appeal filed by JNC, which was registered as RFA (OS) 24/2000, the aforesaid decree was set aside by the judgment dated 27.9.2000 passed by the Division Bench of this Court whereby the aforesaid suit was remanded for trial. In the order of remand it was also mentioned that the three suits, two filed by JNC and the one filed by SCN, would be consolidated and, tried together. SCN took an appeal as against the aforesaid order to the Supreme Court, which was, however, dismissed by order dated 12.4.2002. While dismissing the said appeal on 12.4.2002, however, it was observed by the Supreme Court that all the three suits should be disposed of by the trial court expeditiously preferably within six months of receipt of the copy of the order. Thereafter the three suits were consolidated and evidence in all the three suits was directed to be recorded accordingly.

17. Issues were framed on 29.5.2002. Vide order dated 19.7.2002 JNC was ordered to pay charges. Thereafter, in order to comply with the directives of the apex court and to expedite disposal, on 18.9.2002, it was ordered that Mr. Vivek Tandon, Advocate, ould act as a Local Commissioner in all the three Suits and would record the evidence to be adduced by the parties and recording of evidence was started on 8.10.2002.

18. It appears from the record that SCN as plaintiff was cross-examined for 21 days and still his cross-examination was not over. While recording the evidence in the aforesaid suits, there were allegations of unnecessary delay and dilatory tactics being adopted by JNC. Grievance to this effect was made by SCN before the learned trial court in suit No. 1762/1998 on the basis of which the learned Single Judge passed the order dated 19.12.2002 to the following effect:-

''19.12.2002

Present: Mr. A.K. Katar for the Plaintiff.

Mr.Y.P. Sharma for the Defendant.

S. No. 1762/1998

The grievance of the applicant/plaintiff is that the defendant is adopting dilatory tactics by extending cross-examination of the plaintiff for more than 21 dates and, if it continues, the trial of the suit would not be concluded as per the directions of Hon'ble Supreme Court.

Hon'ble Supreme Court vide its order dated: 21.04.2001 had directed to dispose of the case within Six months, the period of which was already expired. The suit thus itself calls for expeditious trial. The matter from the Local Commissioner is withdrawn Proceedings are to be taken up by Joint Registrar on day today basis for recording of evidence as Local Commissioner.

The matter is listed before Joint Registrar on 14.01.2003.

December 19, 2002 (J.D. Kapoor), J''

Consequent to the said order, the matter was withdrawn from Mr. Vivek Tandon, Advocate and was placed before the Joint Registrar of this court for recording evidence.

19. As there was still no progress in recording evidence even before the Joint Registrar, SCN approached the learned Single Judge. By an order dated 4.3.2003 it was held that as the suit could be disposed of on the basis of the pleadings, the same may be disposed of accordingly on the basis of the arguments and without involvement of prolonged and procrastinating process of evidence in support of their claims. The order dated 4.3.2003 reads as under:

''4.3.2003

Present : Mr. Prag Tripathi, Sr. Advocate with

Mr.Vikas Dhawan for the plaintiff.

Mr.Y.R. Sharma, Advocate for the Deft. No. 1.

Suit No. 1768/98

Perusal of the pleadings of the case and issues framed thereon as well assuage of the case and the inordinate delay that has occasioned in cross-examination of the witnesses of the plaintiff, coupled with the directions of the Supreme Court dated 12.4.2002 to decide the case within six months. I find that there is nothing much in the case for making it go through the mill of evidence as the failure or successes of Suit hinges on issue No. 1, alone. This is a suit filed by a Lawyer whom Defendant No. 1 as joined as Junior to get some initial training to shine in this noble profession. According to the plaintiff, he allowed the defendant to stay in the suit premises purely on the basis of professional relationship and was at the pleasure of the plaintiff. The said permission was granted vide letter dated 28.2.1996. However, the permission was withdrawn orally sometime in January 1998 and by way of letter dated 1.6.1998. On the other hand case of the Defendant No. 1 is that DDA is the owner of the premises in dispute and he is keeping the premises as a lessee as the plaintiff was only allottee of DDA and the plaintiff subsequently, sold the premises in lieu of his professional charges recoverable from the plaintiff.

Assuring the case, set up by the both parties as it is the suit can be disposed of on the basis of pleadings. Of the parties along without involvement of prolonged and procastining process of evidence in support of their claim.

List this matter on 24th March 2003 for final disposal as the parties will argue their case on the basis of pleadings which is in my opinion alone are sufficient to decide the matter finally.

March 4, 2003 J.D. KAPOOR

JUDGE''

20. Suit Nos. 2831/1999 and 547/1999 (which were later on re-numbered as suit Nos. 158/2003 and 159/2003 respectively) were also listed before the learned Single Judge on 24.3.2003 when the learned Single Judge passed the following order:

''24.3.2003

Present: Mr. Y.R. Sharma for the plaintiff.

Mr.Prag Tripathi, Sr. Advocate

with Mr. Vij for the defendant.

S. No. 2831/99 and S.547/99

These are the suits filed by the plaintiff who is defendant in S.1762/98. As many as four opportunities have been given to the plaintiff to file the affidavit in examination-in-chief. Till date he has neither filed the list of witnesses nor has filed the affidavits. The matter cannot be allowed to be prolonged unnecessarily. Inspite of several orders passed by the Joint Registrar calling upon the plaintiff to file the list of witnesses as well as the affidavit the plaintiff has not filed the same till date and as such there is no justification in granting further opportunity to the plaintiff for producing the evidence. The evidence of the plaintiff is closed.

List on 21st April, 2003.

March 24,2004 J.D. KAPOOR

JUDGE''

21. Being aggrieved by the order dated 4.3.2003 passed by the learned Single Judge in Suit No. 1762/1998, an appeal was filed by JNC, which was registered as FAO (OS) No. 146/2003.

In the said appeal, after noticing the pleadings of the parties in suit No. 1762/1998, the learned Division Bench found that the aforesaid order is unsustainable inasmuch as the Division Bench found that there was nothing in the impugned order in the suit to show that the court had granted time to JNC to lead evidence or that he had defaulted. It was observed that even if JNC was guilty of prolonging the proceedings and delaying the decision of the suit but the same was required to be reflected and deal with in the order to suggest that his evidence required to be closed and the suit is required to be decided without evidence.

22. By its order dated 30.4.2003, the learned Division Bench of this Court in FAO (OS) No. 146/2003, therefore, set aside the order dated 4.3.2003 passed by the learned Single Judge in Suit No. 1762/1998 with the following directions:

''The impugned order is bereft of all this and, therefore, does not satisfy the requirements of Order 17 Rule 3. It can't also be sustained in reference to any other provision. It, therefore, becomes unsustainable and is set aside. However, to curb appellant's alleged design to prolong the adjudication and to ensure speed disposal of the suit, he is granted one week's time to conclude cross-examination, if any of PWs and two weeks time thereafter to file his evidence by way of affidavits. R-1 shall the have one week to cross examine any DW's. In case of default, appellants evidence shall be deemed closed. Mr. Valmiki Mehta, Senior Advocate is appointed as local commissioner for recording evidence. He shall be paid a fee of Rs. 10,000/- by appellant.''

The consequence of default by the appellant was, therefore, provided in the order itself.

23. JNC also filed two separate appeals challenging the legality and validity of the order dated 24.3.2003 passed by the learned Single Judge closing his evidence in his two suits being suit No. 2831/1999 (Suit No. 158/2003 new) and 547/1999 (suit No. 159/2003 new).

24. After considering the pleadings of the parties in the aforesaid two suits, the Division Bench set down the question for consideration as to whether JNC had been denied reasonable opportunity of leading evidence which had prejudiced the cause in the process. After formulating the aforesaid question for decision, the learned Division Bench proceeded to examine the records and the orders passed by the learned Single Judge and also the Joint Registrar. It was recorded by the Division Bench that the conduct of JNC was not too happy; that the record showed that common orders were passed in the suits and that by the order dated 22.7.2002 eight weeks' time had been granted for filing the evidence by the Joint Registrar.

25. In this background the following order came to be passed by the Division Bench on 30.4.2003 in the two appeals preferred by JNC against the common order dated 24.3.2003 :

''....... While R-1 (plaintiff in connected Suit No. 1762/98) filed affidavits of his witnesses on 23.9.2002. Appellant defaulted. Further opportunity was granted on 18.9.2002 to file requisite affidavits before next date (8.10.2002) and Local Commissioner was asked to record evidence on day to day basis. But appellant again failed and did not choose to file any evidence. On 23.10.2002, two weeks time was granted to file examination-in-chief which expired on 6.11.2002 but nothing was filed by him. On 0.2.2003, further two weeks time was granted for this but in vain.

If appellant could not avail of all these opportunities to file his evidence, it does not lie in his mouth to complain about closure of evidence. He can't have the cake and eat it too. It was for him to support his suits by whatever evidence and that too with promptitude and dispatch. If he has dilly dallied to unduly protract the proceedings with a view to retain his hold on the suit flat, he can't turn round and complain that reasonable opportunity to lead evidence was denied to him. Nor was the court bound to wait for him to prove his case indefinitely. Ld. Trial Judge, in our view, was justified to put an end to his tactics which appears dilatory on the face of it. We accordingly find no infirmity or illegality in the impugned order which is a firmed and these Appeals dismissed.''

26. It would also be necessary to mention at this stage that the orders passed by the Division Bench in all the three appeals on 30.4.2003 were challenged by JNC before the Supreme Court by filing three Special Leave Petitions. The Special Leave Petition were filed on 25.5.2003 and registered as SLP (Civil) No. 11289, 11290 and 11291 of 2003. However, the aforesaid Special Leave Petitions filed by JNC were dismissed by order dated 21.7.2003.

27. Therefore, the said orders dated 30.4.2003 passed in all the three appeals arising out of the three suits have become final and binding on the parties.

28. It is noteworthy that on the 21.7.2003, the time granted for completion of the schedule fixed by the learned Division Bench on 30.4.2003 was long far.

29. So far as Suit No. 1762/1998 is concerned, in compliance of the order dated 30.4.2003 passed by the Division Bench of this Court in FAO (OS) 146/03, in the meantime, the matter was placed before Mr. Valmiki Mehta, Sr. Advocate who had been appointed as he Local Commissioner to record the evidence as per the schedule fixed by the Division Bench.

30. The Local Commissioner issued a notice on 22.5.2003 to the counsel for the parties for recording the evidence on 24.5.2003. The Local Commissioner had fixed the date for recording evidence. JNC, however, chose not to appear and sent a letter through is counsel alleging father's sickness and wanted the matter to be kept after the summer vacation. JNC neither opted to cross examine SCN nor tendered his evidence on record of offered to submit himself for cross examination. JNC is a lawyer by profession. There is no explanation given for his non-appearance before the Local Commissioner on 24.5.2003 and failure to cross examine the plaintiff either before the Local Commissioner or in any application or petition filed by JNC till date. Admittedly he was in Delhi and filed his Special Leave Petitions on 25.5.2003. The Local Commissioner submitted a report in terms of the order dated 30.4.2003. Paragraphs 3, 4 and 5 of the said report are relevant and, therefore, extracted below :-

''3. In the evening of 23.5.03, I received a letter from Sh. Y. R. Sharma, Advocate, counsel for Jaganath Chauhan that he had not been able to contact his client and therefore requested for adjournment of the proceedings. I gave an endorsement on the said letter requesting Mr. Sharma to come and make his request when the proceedings were fixed on 24.5.03.

4. On 24.5.03 the proceedings were conducted and since Sh. Y R Sharma, Advocate for Sh. Jaganath Chauhan expressed his inability to conduct the evidence on account of various reasons such as not having the files, not having been able to contact his client, intention of his client to file an appeal in the Supreme Court against the order of the Hon'ble Division Bench etc., I adjourned the proceedings with the consent of the parties to 29.5.03 at 4 p.m. at the same venue. A copy of the order dt. 24.5.03 was also sent by speed post AD to Sh Jaganath Chauhan and the AD card with respect to which was received back by me after service.

5. That on 29.5.03 when the proceedings were held, neither the defendant nor his counsel appeared. On one day earlier i.e. on 28.5.03, I received a telegram purportedly having been sent by Sh. Jaganath Chauhan that his father was serious and therefore he was not able to attend the hearing on 29.5.03. This was subsequently after the hearing on 29.5.03 confirmed to me by Sh Y R Sharma, Advocate by his letter dt. 29.5.03.''

31. In view of the aforesaid position and development in the suits, the Local Commissioner, who is a Senior Advocate, stated in paragraph 6 that since, a specific time schedule was fixed by the Division Bench with regard to recording of the evidence and a no evidence could be recorded on the two dates viz. 24.5.03 and 29.5.03 on account of JNC, he closed the proceedings on 29.5.03 in terms of the prayer of SCN and filed the report before the learned trial court. Along with the said report the notices issued to the parties were also enclosed along with other records.

32. Immediately thereafter the records of all the three cases were transferred to the District Court in view of enhancement of the pecuniary jurisdiction of the High Court. Consequently, the records of all the three suits were placed before the Additional District Judge, Delhi for further trial.

33. The learned Additional District Judge before whom the records were placed considered the order passed by the Division Bench of this Court dated 30.4.2003 and the report of the Local Commissioner dated 8.7.2003. JNC made a prayer before the learned AD seeking one week's extension to enable him to inspect the records and also for fixing the suit for recording further evidence which according to him could not be completed before the Local Commissioner. The aforesaid prayer was considered by the learned Additional District Judge in the light of the orders passed by the Division Bench and the report of the Local Commissioner. The learned trial Judge passed an order on 21.10.2003 holding that in view of the time frame fixed by the Division Bench of the High Court on 30.4.2003, he cannot adjourn the case again for evidence of the parties and consequently the parties stood relegated to the stage as existed on 4.3.2003. It was held by him that he could not further keep the matter for evidence and the defendant was at liberty to seek further guidelines, if any, from the High Court. The suit was accordingly fixed for final arguments on 10.11.2003.

34. Being aggrieved by the aforesaid order, JNC filed a petition in the High Court of Delhi under Article 227 of the Constitution of India, which was considered by the learned Single Judge and notice was issued. However, when the matter was next listed before the learned Single Judge of this Court, the same was withdrawn.

35. Thereafter JNC filed an application in FAO(OS) 146/2003, which was registered as CM No. 1008/2003 seeking for extension of time for cross-examination of plaintiff's witnesses in suit No. 1762/1998. The aforesaid application was considered by the learned Division Bench of this Court and thereafter the Division Bench held that no ground was made for any further extension in time for recording evidence in the facts and circumstances of the said case and also in view of the pre-emptive nature of the order passed by the Division Bench on 30.4.2003. The application was accordingly dismissed.

36. In this background the arguments were heard in all the three suits which were pending before the learned Additional District Judge. By the judgments and decrees dated 28.2.2004, the learned Additional District Judge dismissed the suits filed by JNC being suit No. 2831/1999 (re-numbered as suit No. 158/2003) and suit No. 547/99 (re-numbered as suit No. 159/2003) respectively whereas a decree for recovery of possession and payment of mesne profits was passed in suit No. 1762/1998 (re-numbered as 160/2003).

37. Being aggrieved by the aforesaid judgments and decrees, three appeals have been filed in this Court on which we heard the counsel for the parties, who have taken us painstakingly through the records of the cases. Written submissions in support of the moral arguments have also been placed before us.

38. Since common issues of fact and law arise in these appeals, in the light of the aforesaid submissions of the counsel appearing for the parties and the records placed before us, we propose to dispose of all the three appeals by this common judgment.

RFA NO. 355/2004: [arising out of suit No. 2831/1999 (re-numbered as suit No. 158/2004)].

39. This appeal is directed against the judgment and decree dated 1.3.2004 passed by the learned Additional District Judge, Delhi in the aforesaid suit wherein a decree was sought for by JNC as the plaintiff for recovery of Rs. 9,26,900/-. In the aforesaid suit four issues were framed to the following effect:

''1. Whether the plaintiff is entitled to recover a sum of Rs. 9,26,900/- as part of his share in professional fee from the defendant as claimed in the plaint? (OPP)

2. Whether the plaintiff is entitled to recover interest on the amount aforementioned @ 24% p.a. or at any other rate? If so, to what amount and for what period? (OPP)

3. Whether the suit is within the period of limitation? (OPP)

4. Relief.''

40. The learned trial court, after hearing arguments in the aforesaid suit, dismissed the suit by his judgment and decree dated 1.3.2004 after recording that there is no evidence in the suit on behalf of the plaintiff-JNC during (i) pre-consolidation period, (ii) post-consolidation period and (iii) implied de-consolidation period of the pendency of the suit.

41. In view of the aforesaid position, the learned Additional District Judge answered issue No. 1 in the negative for lack of any evidence in the suit. So far issue No. 2 is concerned, the learned Additional District Judge held that in view of the findings recorded by him on issue No. 1 the said issue was also answered in the negative. So far issue No. 3 is concerned, it was held by the learned Additional District Judge that the aforesaid issue was a mixed question of law and fact and since no evidence had been led by the plaintiff on facts no finding could be returned. The same was answered accordingly. The suit was accordingly dismissed.

R.F.A. No. 356/2004: [arising out of suit No. 547/99 (re-numbered as suit No. 159/2003)]

42. In the aforesaid suit filed by JNC against SCN for specific performance of an oral agreement of sale of the flat No. 118, plot No. 51, Nav Niti Apartments, I.P. Extension, Patparganj, Delhi - 92, on the pleadings of the parties, the learned trial court framed as many as four issues, which are as follows:

''1. Whether there was an oral agreement of sale of flat No. 118, plot No. 51, Nav Niti Apartments, I.P. Extention, Patparganj, Delhi - 92 executed between defendant No. 1 and the plaintiff for a consideration of Rs. 6.00 lacs and the plaintiff was put in possession of the said flat in part performance of that agreement of sale and whether the plaintiff was ready and willing to perform his part of the agreement and defendant No. 1 has failed to perform his part of the agreement of sale? If so to what effect? (OPP)

2. Whether the plaintiff was put in permissive possession of the aforesaid flat in suit by the defendant as pleaded in the written statement? (OPD)

3. Whether the suit is barred by time? (OPD)

4. Relief.''

43. After hearing the arguments, the Additional District Judge, to whom the aforesaid suit was transferred, by his judgment and decree passed on 28.2.2004 held that there was no evidence in the aforesaid suit during (i) pre-consolidation period, (ii) pos-consolidation period and (iii) implied de-consolidation period of the pendency of the suit.

44. After the aforesaid observations, the learned Additional District Judge proceeded to record his findings on the issues. So far issue No. 1 was concerned, the learned Additional District Judge answered the same in the negative on the ground of lack of evidence. It was also held that so far issue No. 2 was concerned, the same was not required to be answered in the suit and as against issue No. 3 it was held that the same being a mixed question of law and fact and since no evidence could be led by the plaintiff on facts no finding could be returned. The same was answered accordingly. The suit was accordingly dismissed.

RFA No. 324/2004: [arising out of suit No. 1762/98 (re-numbered as suit No. 160/2003)]

45. In the aforesaid suit, which was filed by SCN seeking for a decree of recovery of possession and mesne profits of the suit property, namely, flat No. 118, plot No. 51, Nav Niti Apartments, I.P. Extension, Patparganj, Delhi - 92, on the pleadings of the parties as many as nine issues were framed:

(i) Whether defendant No. 1 has become the owner of the premises No. 118, Nav Niti Cooperative Group Housing Society Limited, Plot No. 51, Patparganj, Delhi as pleaded in the written statement? OPD

(ii) Whether the suit is bad for non-joinder of DDA? OPD

(iii) Whether the plaintiff has no cause of action to file the suit? OPD

(iv) Whether the suit is not properly verified and the plaint is liable to be rejected? OPD

(v) Whether the suit has not been valued properly for the purpose of court fee, if so, its effect? OPD

(vi) Whether the plaintiff is entitled to the decree of possession of the suit property? OPP

(vii) Whether the plaintiff is entitled to recover mesne profits @ Rs. 500/- p.m. or at any other rate from defendant No. 1 as claimed in the plaint and for what period? OPP

(viii) Whether the plaintiff is entitled to receive interest @ 24% p.a. or at any other rate on the amount of mesne profits, if so, at what rate and for what period? OPP

(ix) Relief.''

46. The learned Additional District Judge heard arguments of the counsel for the parties and thereafter by his judgment and decree dated 28.2.2004 decreed the suit in favor of the plaintiff SCN.

47. By the said judgment and decree, a decree of possession of the suit property was passed with a further decree that the defendant No. 1 would also pay mesne profits/user charges @ Rs. 5,000/- per month from the date of institution of the suit till delivery of possession of the suit property to the plaintiff. So far as issue No. 1 is concerned, it was held by the learned trial court that there was no complete transfer of an immovable property, as per the legal requirement of Section 54 of the Transfer of Property Act, 1882, in relation to the suit property. He further held that the suit of the defendant seeking specific performance in relation thereto having been dismissed, the issue No. 1 had to be answered in the negative. So far as issue No. 2 was concerned, the learned trial court held that the DDA was not a necessary party for the determination of the real matter in dispute in this suit. The said issue was also answered in the negative and against the plaintiff. It was also held be the learned trial court as against the issue No. 3 that the plaintiff had a cause of action for institution of the suit. In relation to issue No. 4, the trial court held that the court found no infirmity in the verification of the plaint. So far as issue No. 5 was concerned, it was held by the learned trial court that in absence of any evidence to the contrary, the valuation of the plaintiff has to be accepted as correct for the purpose of court fee.

48. As against issue No. 6, it was observed that for the decision in the suit the court is left only with the statement of the plaintiff including the cross -examination and that the version of the defendant in the written statement is also not proved.

49. In that context it was observed by the learned trial court that what is left for the court to see is as to whether the statement of the plaintiff both by way of his affidavit in evidence and in particular his cross examination would lend credibility t what is represented by him to be the circumstances in which the defendant came to occupy the suit property. After making certain observations with regard to the financial position of the defendant and the plaintiff, the learned trial court observed that what is left is the plea and deposition of the plaintiff that the defendant has no right, title or interest to remain in occupation of the suit property which belongs to him. It was also observed that the suit of the defendant seeking specific performance of the oral agreement to sell the suit property has since been dismissed and, therefore, it was held that the defendant has not been able to establish any right, title or interest in the suit property to lawfully resist his dispossession from the suit property, which is admittedly owned by the plaintiff. In paragraph 36 of the said judgment and decree, the court has recorded the finding that the defendant has no right, title or interest and no such right was accrued in favor of the defendant No. 1 at any stage and that the alleged claim of the defendant No. 1 to remain in occupation of the suit property must give way to the entitlement of the plaintiff to his very own property. The said issue was accordingly answered in affirmative in favor of the plaintiff.

50. So far the issue with regard to payment of mesne profits is concerned, it was held by the learned trial court that there is no evidence contrary to what the plaintiff has deposed that the rental of the suit property should be Rs. 5,000/- per month. This deposition was accepted by the learned trial court and the issue was so answered holding that the plaintiff is found to be entitled to recover mesne profits from the defendant at Rs. 5,000/- per month from the date of institution of the suit till the delivery of vacant possession of the suit property by the defendant No. 1 to the plaintiff.

51. In answer to issue No. 8 it was held that the plaintiff is not found to be entitled to any interest and the said issue was accordingly decided.

52. In the context of the aforesaid position and facts, we now proceed to decide the three appeals separately in the light of the submissions of the counsel for the parties and the records of the case.

RFA Nos. 355-356/2004 [arising out of suit Nos. 2831/99 and 547/99 (renumbered as suit Nos. 158-159/2003)]

53. So far appeals No. 355 and 356/2004 are concerned, they have been filed as against the judgments passed in suit Nos. 158 and 159/2003, which were suits for recovery of Rs. 9,26,900/- and for specific performance of the oral agreement to sell respectively No evidence was led by the plaintiff-JNC in the aforesaid two suits. The order passed by the trial court closing the evidence of JNC-the plaintiff's witnesses was challenged before the Division Bench of this Court as also before the Supreme Court. The order passed by the trial court closing the evidence of the plaintiff was not interfered with and was upheld by both the Division Bench of this Court and also by the Supreme Court. Therefore, the said order closing the evidence of the plaintiff has become final and binding on the parties and the same is not open to challenge. There is no evidence adduced by the plaintiff in the aforesaid two suits filed by him in support of his case in the plaints.

54. Averments made in the plaint are required to be proved by leading evidence. As no evidence was led in support of his pleadings in both the suits, the said averments go unproved. Therefore, the natural consequence would be to dismiss the suits, which was rightly done by the learned trial court. In the facts and circumstances of the case and for want of any evidence in the aforesaid suits no decree as sought for by the plaintiff could be passed and the suits were rightly dismissed by the learned trial court.

55. In our considered opinion no interference is called for in the aforesaid judgments and decrees of the learned Additional District Judge and we affirm the aforesaid judgments passed by the learned trial court.

56. Both the appeals filed by the appellant (JNC) are found to be without merit and are dismissed with costs.

RFA No. 324/2004 [arising out of suit No. 1762/98 (re-numbered as suit No. 160/2003)]

57. In this appeal filed against the judgment and decree dated 28.2.2004, it was contended by the counsel for the appellant that in view of clear statement of the Local Commissioner that he could not record any evidence due to the circumstances which have been set out in that report, therefore, it was not justified for the trial court not to allow the defendant No. 1 to adduce his evidence and also to deny the opportunity to further cross-examine the plaintiff, who was examined as PW-2. It was also submitted by him that Rs. 15,26,900/- was due and payable by the plaintiff (SCN) to the defendant No. 1 (JNC) out of which Rs. 6,00,000/- was adjusted by him through an oral agreement towards the sale consideration of the suit flat being flat No. 118, Nav Niti Cooperative Group Housing Society Limited, constructed on Plot No. 51, Patparganj, Delhi, and, therefore, no such decree could have been passed by the trial court.

58. We have carefully considered the aforesaid submission of the counsel for the appellant in the context of the records. In the present suit, the Division Bench by order dated 30.4.2003 passed in FAO (OS) 146/2003 set down a time schedule for recording of the evidence by the parties. The parties were required to adhere to the aforesaid time schedule. The appellant was granted one week's time to complete the cross-examination, if any, of PWs and two weeks thereafter to file his evidence by way of affidavit. It was also laid down therein that the respondent No. 1 shall have one week to cross examine any DW and that in case of default the appellant's evidence would be deemed to be closed. The report of the Local Commissioner has been extensively quoted and referred to herein before. A perusal of the same would indicate that opportunity was granted to the appellant herein to cross-examine the PWs. The appellant, however, sought adjournment on both the dates. The adjournment sought by him from the Local Commissioner took the matter totally beyond the schedule set down by the Bench. It is noteworthy that the appellant had no intention whatsoever of continuing with the evidence or complying with the order dated 30.4.2003. Admittedly, the appellant had filed the Special Leave Petitions on 25.5.2003. We are left with no manner of doubt that the appellant was merely trying to buy time, protract the litigation and was adopting every device available in law for the same. In that context the learned Local Commissioner submitted his report contending, inter alia, that since a specific schedule was fixed by the Division Bench with regard to the recording of evidence, he was bound by the same and since no evidence could be recorded on the dates fixed by him i.e. on 24.5.2003 and 29.5.2003, the proceedings were closed on 29.5.2003.

59. Even thereafter the appellant herein sought for extension of time for recording evidence, which could not be completed before the Local Commissioner from the learned trial judge. The aforesaid prayer of the appellant was considered by the learned Additional District Judge and by his order dated 21.10.2003, it was held by him that in the context of the order passed by the High Court on 30.4.2003 and the report of the Local Commissioner dated 8.7.2003 and also keeping in view the time frame fixed by the aforesaid order dated 30.4.2003, the trial court cannot adjourn the case for evidence of the parties and that the parties have been relegated to the stage of 4.3.2003. It was held by him that he cannot further keep the matter for evidence. By the said order, the learned Additional District Judge fixed the suit for final arguments. The said order was challenged in a petition under Article 227 of the Constitution of India, which was, however, withdrawn by the appellant herein. Subsequently again an application was filed before the learned Division Bench, which was also dismissed holding that no ground is made out for further extension of time for recording evidence in the facts and circumstances of the said case and also in view of the pre-emptive nature of the order passed by the Division Bench on 30.4.2003. The said orders passed by the Division Bench have become final and binding. The appellant herein failed to avail of the opportunity given to him for cross-examining the PWs and also to lead his own evidence.

60. The order passed on 30.4.2003 was pre-emptive in nature and stipulated that in case of default on the part of the appellant, his evidence would be deemed to be closed. The orders dated 30.4.2003 and 9.12.2003 are final and binding on the parties. It is not open to the appellant-JNC to again agitate denial of opportunity to either complete the cross examination of SCN or to lead evidence in support of his defense. The order dated 30.4.2003 clearly records that in case of the appellants default, the evidence was to be deemed to be closed. The Division Bench dismissed the appellant's application for extension of time on the same ground as are being urged before us. We are bound by the order dated 9.12.2003 which conclusively decide the issue of the opportunity to cross examine SCN and also to lead evidence by JNC. There is thus no evidence in the present suit except for the affidavit of evidence filed by the respondent/ plaintiff by way of evidence and the cross-examination done by the appellant herein of SCN.

61. We have gone through the aforesaid evidence adduced by the respondent No. 1-SCN as plaintiff. On scrutiny of the same, we are of the considered opinion that the SCN being a member of the Nav Niti Cooperative Group Housing Society Limited was allotted with the aforesaid suit flat after he paid all the Installments required to be paid towards the sale consideration of the same. It is also brought on record that the appellant herein was put in permissive occupation of the suit property by SCN - the respondent No. 1 herein. The allotment letter of the flat in favor of SCN, the plaintiff is proved in the suit as Exhibit PW1/3. The said letter is dated 18.10.1993 and proves that the particular flat was allotted to the plaintiff by the society. It is also stated by SCN in his affidavit that he received possession of the flat from the society in January 1996. That he is the owner of the flat and that it stands in his name is also proved by various documents placed on record as the income acknowledgment and assessment orders of the income-tax department, audited accounts for various years proved as Ext. PW1/4 to PW1/26 and also house tax bills and receipts up to 2000-2001 proved as Ext. PW1/30 and PW1/31. He is also paying the maintenance charges of the flat, which fact is proved by Ext. PW1/32 to PW1/57. SCN had also taken a loan for the flat from the Delhi Cooperative Housing Society. He has also stated categorically that he had allowed and given permission to JNC to occupy the flat only for sometime and that JNC had also assured and represented to him that he would vacate and leave the suit premises immediately on the plaintiff asking for redelivery of possession. It is, therefore, proved and establish from the aforesaid evidence that the permission granted by SCN to JNC to occupy and stay in the suit premises was purely on license basis and permissive in nature. The aforesaid permission and the license was revoked and cancelled by issuing a notice on 1.6.1998 which was sent to JNC and received by him which is proved as Exhibits PW1/64 and PW1/65 (postal receipt) and also PW1/66, which is the certificate issued by the postal authority regarding delivery of the notice. He has also stated that there was no agreement to sell the said flat to JNC either in the form of written agreement or oral agreement. This fact is also proved by the very fact that SCN has been making payment of maintenance charges of the flat even as late as 2002.

62. The case pleaded by the appellant - JNC is that there was an oral agreement to sell between him and SCN, which was allegedly given effect to by adjusting an amount of Rs. 6,00,000/- towards sale consideration of the same out of an amount of Rs. 15,26,90/-, which is alleged to be due and payable by SCN to JNC. The suits filed by the appellant as plaintiff seeking for decree of specific performance of the aforesaid oral agreement to sell and also for recovery of balance amount of Rs. 9,26,900/- have been dismissed on the ground that the appellant (JNC) failed to adduce any evidence in support of the aforesaid pleas in the said suits.

63. In the present suit also no evidence of the aforesaid nature was led by the appellant-JNC in support of his case as pleaded in the written statement.

64. Before parting with this case, we are constrained to point out that the observations of the learned trial Judge in the impugned judgment relating to appointment of Local Commissioner for recording of the evidence are not warranted. Expeditious disposal of matters is engaging the attention of courts as well as the legislature and is a genuine cause of concern for every law abiding citizen of the country. There was also no material or legal evidence in support of the observations made by the learned trial Judge against the senior lawyer (SCN) or the financial status of the junior (JNC). This litigation appears to be a prime example of legal engineering where recourse has been taken to judicial process with the sole intention of perpetrating illegal occupation of a colleague's property, where judicial and binding court orders have been flouted with impunity and no remorse.

65. In our considered opinion the respondent No. 1 has been able to prove his case regarding his ownership over the property and also putting JNC in permissive possession of the suit property on leave and license basis and also of cancellation of the said license given in favor of the appellant. The judgment and decree passed in the suit suffers from no infirmity. We also hold that the respondent No. 1 is entitled to a decree which is passed in his favor and against the appellant. The mesne profits which is fixed at Rs. 5,000/- per month is also found to be fair and reasonable in the context of the evidence on record. The only evidence which is available on record is the evidence of the respondent No. 1 - SCN, who has categorically stated that the market rate of rent for a flat of the nature would not be less than Rs. 5,000/-, which would be fair and reasonable. The said pleading is also proved by the evidence adduced in the present case by the respondent No. 1/SCN. In support of such statements he has placed on record certified copies of lease deeds of similar flats in the same building and also in the near vicinity. Those documents have been proved as Exhibits PW1/67 PW1/68, PW1/69 and PW1/70. Therefore, we are of the considered opinion that the mene profits awarded by the trial court is fair and reasonable. The decree passed in respect of the aforesaid payment of mesne profits by the appellant to the respondent No. 1 is also found to be legal and valid and without any infirmity.

66. As a result of the foregoing discussions all the three appeals filed by the appellant fail and are hereby dismissed with costs.