Regal Apartments P. Ltd. vs Lilawati Gupta Decdt. Thr. Lr'
2006 Latest Caselaw 1329 Del

JUDGMENT

Mukundakam Sharma, J.

1. This appeal is directed against the judgment and order passed by the learned Single Judge on 19th April, 2006 whereby the application filed by the appellant under Section 14(1) of the Limitation Act read with Section 151 Code of Civil Procedure, being IA No. 1912/2006 was dismissed and consequently, the suit being CS(OS) No. 570/2005 filed by it for mandatory injunction, specific performance of an agreement dated 1.9.1993, damages and declaration was also dismissed.

2. The learned Single Judge considered the facts of the case and in the light of the same, considered the submissions made in the application filed by the appellant herein, plaintiff in the suit. The learned Single Judge has referred to the fact of the appellant filing a suit in the year 1995, in the District Court praying inter alia for a decree for permanent injunction restraining Smt. Lila Wati, who is also the defendant No. 1 in the suit in which the impugned order is passed, from interfering in the construction being carried on by the appellant within the barsati floor of the suit property, namely, C-95, Anand Niketan, New Delhi. The said suit was numbered as suit No. 18/1995. Vide order dated 8th November, 1995, it was held by the learned Senior Sub Judge that since no evidence was led by the appellant, therefore, the evidence of the appellant was closed and the suit was required to be dismissed and the same was, accordingly, dismissed by the learned Senior Sub Judge.

3. The learned Single Judge has also made a reference to the facts of Suit No. 562/1995, entitled Rajinder Singh v. Lilawati Gupta and Ors., as the appellant has prayed in its application for exclusion of the period w.e.f. 16.9.1996 to 15.4.2005, when the aforesaid Suit No. 570/2005 was instituted by it in this Court, on the ground that it was prosecuting two applications for impleadment in the aforesaid pending proceedings which ought to be taken into consideration for computing the period of limitation. In the said suit, CS(OS) No. 562/1995, an application being IA No. 8648/1996 was filed in his personal capacity by one T.R. Anand, who is the Managing Director of the present appellant, under Order 1 Rule 10 CPC for being imp leaded as a party. The said application was dismissed by the learned Single Judge, vide order dated 24.1.2000. Aggrieved by the said order passed by the learned Single Judge, an appeal registered as FAO(OS) No. 226/2000 was preferred before a Division Bench of this Court but the same was also dismissed vide order dated 1st May, 2000. Thereafter, in May, 2000 the appellant herein filed an application being IA No. 7275/2000, under Order 1 Rule 10 CPC seeking its impleadment as a party to the suit proceedings. Vide order dated 8.9.2000, the said application was also dismissed by the learned Single Judge. However, subsequently by an order dated 21.11.2000, passed in FAO(OS) No. 305/2000, a direction was issued by the Division Bench that the application filed by the present appellant for its impleadment should be re-considered on merits as it was observed that the mere dismissal of the application of T.R. Anand on technical grounds, was not a legal bar on the company to move a fresh application for impleadment. Accordingly, the learned Single Judge re-considered the said application and has passed an order dated 19.4.2006, dismissing the same with costs. Separate orders have been passed by us rejecting the appeal preferred by the appellant against the said order.

4. We have heard the learned Counsel appearing for the appellant and also perused the records as made available on the Court file as also the records of FAO (OS) Nos. 226/2000 and 305/2000, the files of which were summoned by us on the last date of hearing. It is apparent from the records and the averments made by the appellant that the suit in question in which the appellant was seeking impleadment, has been filed by one Sh. Rajinder Singh against Smt. Lilawati Gupta and Ors. for specific performance of an agreement of sale dated 8th April, 1994 in respect of a property bearing No. C-95, Anand Niketan, New Delhi. The claim of the appellant that it is a necessary and proper party in the suit proceedings and that its presence is necessary for effective and complete adjudication of the dispute, subject matter of the suit in question is based on a lease deed dated 1st September, 1993, stated to have been executed by Smt. Lilawati Gupta, defendant No. 1 in the suit in favor of the appellant in respect of the barsati floor of the suit property. The plea of the appellant that the final adjudication of the said suit could not be completed effectually without the presence of the appellant, in view of the lease agreement dated 1.9.1993 has been rejected by the learned Single Judge by a separate order as indicate above, as admittedly, the said lease deed was valid only for the period w.e.f. 1.9.1993 to 31.7.2004 The learned Single Judge has rightly held in CS (OS) No. 562/1995 that even assuming the aforesaid document to be a genuine one, the lease had come to an end and hence no right subsisted in favor of the appellant insofar as the barsati floor of the suit property is concerned and that the appellant is a complete stranger to the agreement between Sh. Rajinder Singh and Smt. Lilawati Gupta.

5. Now, in the impugned order challenged in the present appeal, the learned Single Judge cannot be faulted in his observations that except for filing an application for impleadment, that too only in the year 2000, the appellant did not pursue any substantive remedy at all in respect of enforcing its rights with respect to the lease deed dated 1.9.1993. As is apparent from the narrative herein above, even IA No. 8648/1996 was not filed by the appellant, but by Sh. T.R. Anand in his personal capacity. In fact, the substantive suit that the appellant did file, being Suit No. 18/1995 which was between the same parties and for the same cause of action, the appellant failed to pursue diligently and it came to be dismissed in the year 1995 itself. Even a perusal of the plaint of Suit No. 18/1995 makes it manifest that despite the fact that disputes and differences had arisen between the appellant and Smt. Lilawati Gupta, there is not a whisper therein with regard to the failure on the part of respondent No. 1, Smt. Lilawati Gupta, to perform her part of the agreement dated 1.9.1993.

6. It can also not be lost sight of that the appellant has not shown any due diligence in pursuing its legal remedies as were available to it inasmuch as the appellant has itself admitted in the plaint that it had filed a suit for permanent injunction against Smt. Lilawati Gupta and others on 16.1.1995 before the learned Senior Sub-Judge, which as observed herein above, was not pursued by it diligently and in fact was ultimately dismissed. In the meantime as per the appellant's averments, it became aware of the pendency of the proceedings in Suit No. 562/1995 in March, 1995, when the Local Commissioner visited the site. In spite of becoming aware of the memorandum of understanding dated 8.4.1994, executed by the respondents 1 and 2 in favor of respondent No. 4 and the pending litigation, the appellant chose to remain a silent spectator till the year 2000 and did not institute any independent proceedings for agitating its rights. The appellant cannot be permitted to seek enforcement of the agreement dated 1.9.1993 at this belated stage. The limitation period for seeking legal recourse as may have been available to the appellant has long since expired. We are, therefore, of the opinion that the appellant has failed to make out a case for interference in the impugned judgment and order dated 19.4.2006, passed by the learned Single Judge. We do not find any merit in the present appeal and the same is, therefore, dismissed.