Mrs. Vaneeta Khanna And Anr. vs Shri Rajeev Gupta And Ors.
2008 Latest Caselaw 179 Del

ORDER

Shiv Narayan Dhingra, J.

IA Nos. 1388/2007 and 4939/2007

1. By this order, I shall dispose of the above two IAs moved by the defendants under Order 7 Rule 11 CPC.

2. The plaintiffs in the instant suit are husband and wife. They had filed a suit before learned Additional District Judge under Section 5 and 6 of Specific Relief Act contending therein that in pursuance of sale transaction with defendant No. 2, who was a G.P.A holder of defendant No. 1, they became owner of property No. 8/289, Sunder Vihar, Paschim Vihar, New Delhi after payment of full sale consideration and execution of agreement to sell, GPA, Special Power of Attorney by defendant No. 2 in favor of plaintiffs. The vacant physical possession of suit property was delivered to the plaintiff on 12th May 2004 and plaintiffs after taking possession had put their locks on the property. It was contended that after entering into the sale transactions and handing over the possession, defendant No. 1 and 2 colluded with each other and they also colluded with sisters of defendant No. 1 and in order to deprive the plaintiffs of the property so purchased, trespassed the property. Plaintiffs discovered this trespass when plaintiffs visited the property on 24th July, 2004 Plaintiffs filed a suit for passing of a decree directing defendants to vacate the suit property and to restore back the possession of the suit property to the plaintiffs. Simultaneously, prayers were also made for passing a decree for specific performance of the agreement to sell dated 12th May, 2004 on the ground that the sale consideration has already been paid to the defendant. Along with this prayer, a prayer for mesne profits @ Rs. 15,000/- per month for unauthorized use and occupation of the property by the defendants was also made and another prayer for passing a decree of permanent injunction restraining defendants and their agents, family members from selling, alienating or parting with the possession of the property was made. This suit of the plaintiff was dismissed at initial stage on an application of defendants made under Order 7 Rule 11 by the learned Additional District Judge on the ground that the plaintiffs had not disclosed to the Court about execution of a collaboration agreement dated 18th May 2004 between defendants No. 2 and the plaintiff. Statement of plaintiff was recorded by the learned ADJ under Order 10 CPC. The plaintiff had stated that the signatures on the agreement dated 18th May 2004 appeared to be his, but he was not aware how the defendant obtained his signatures on the documents. Learned Additional District Judge further observed that the plaintiffs by not producing and disclosing the execution of collaboration agreement had tried to overreach the Court and was guilty of withholding the information of this document and thus played fraud on the Court and dismissed the suit on this ground. Against this order, the plaintiff had approached this Court by way of an RFA No. 631 of 2004 This Court observed that since the suit was filed by the plaintiff under Section 6 of the Specific Relief Act to recover the possession on the ground the respondents were trespassers, no appeal would lie from the order or decree passed in such a suit in view of Section 6(3) of Specific Relief Act. This Court, however, considered the appeal on merits and held that appellant approached the trial court with uncleaned hands and suppressed the material and relevant facts and dismissed the appeal. Against the dismissal of the appeal, the plaintiff preferred an SLP before the Hon'ble Supreme Court and the Supreme Court passed following order:

The petitioners herein had filed a Suit purported to be under the provisions of Section 5 and 6 of the Specific Relief Act. However, in the said Suit the petitioners had prayed for grant of permanent injunction or in the alternative recovery of possession or in the further alternative a decree for specific performance of contract. Such a Suit was not maintainable in law. However, the learned Judge had dismissed the Suit purported to be in terms of Order VII Rule 11 of the Code of Civil Procedure on the ground that the plaintiff has played a fraud by withholding the relevant agreement and material in the matter.

In view of the fact that the plaintiff can file an appropriate Suit, we do not think it to be a fit case for us to exercise our discretionary jurisdiction under Article 136 of the Constitution. The Special Leave Petition is dismissed accordingly.

3. In view of the observations of the Supreme Court that the suit filed by the plaintiff claiming multifarious reliefs under Section 5 and 6 of the Specific Relief Act was not maintainable and the plaintiff can file an appropriate suit, the plaintiffs filed instant suit before this Court whereby plaintiffs had prayed for a decree of declaration that plaintiff No. 1 was the sole and exclusive owner of the property in question and also sought a decree of possession and decree for mesne profits and damages amounting to Rs. 3,16,000/- for wrongful usage and occupation of the property by the defendants. The plaintiffs also sought decree for permanent injunction against further sale or transfer of the property and decree for declaring the various documents as null and void which were executed by the defendants subsequent to the execution of documents in favor of the plaintiffs.

4. In the application by defendant No. 1, he has taken the stand that plaintiffs had not disclosed any cause of action against him and the transaction relied upon by the plaintiffs was between plaintiffs and defendant No. 2. Defendant No. 1 had not executed any document in favor of the plaintiffs. Defendant No. 1 was always in physical possession of the property. It is further stated that earlier defendant No. 1 had a deal with defendant No. 2 and executed a GPA and S.P.A. dated 12th May 2004 in favor of defendant No. 2. However, this GPA and SPA were subsequently cancelled by defendant No. 1 vide deed of cancellation dated 19th August, 2004 Since GPA/SPA were duly registered, the deed of cancellation was also got registered. Defendant No. 2 also gave a declaration in favor of defendant No. 1 that all disputes have been settled between him and defendant No. 1 qua suit property and defendant No. 2 have no right over the suit property. It is submitted that defendant No. 1 received no consideration from the plaintiff, however, defendant No. 1, subsequent to cancellation of G.P.A. and S.P.A. In favor of defendant No. 2 sold the property in question to defendants No. 3, 4 and 5 and executed a registered agreement to sell GPA etc. and received full consideration from defendants No. 3, 4 and 5 and handed over the possession to them. It is also submitted that since the earlier suit of the plaintiff under Section 5 and 6 of the Specific Relief Act has been dismissed, the subsequent suit was not maintainable. Another ground taken is that in earlier suit, plaintiff had valued the suit property at Rs. 5 lac and had also entered into an agreement to sell with defendant No. 2, who is also a builder to develop the suit property. In fact, a fraud was played by defendant No. 2 in collusion with plaintiffs upon defendant No. 1. The suit filed by the plaintiffs was not maintainable under Section 11 of the CPC since the matter has been directly in issue in the former suit.

5. Defendants No. 3 to 5 in their application took the stand that no cause of action accrued against them as they had nothing to do with the transactions between plaintiffs and defendants No. 1 and 2. The other ground taken by the defendants 3 to 5 is also that in view of the dismissal of the SLP by the Hon'ble Supreme Court, the instant suit is not maintainable.

6. A perusal of the present suit would show that the plaintiffs have given the sequence of events involving defendants No. 1 and 2 and how plaintiff was made to sign various documents on the representation that defendant No. 2 was duly authorized by defendant No. 1 to sell the property. The plaintiffs have placed on record the documents signed between defendants No. 2 and the plaintiffs as well as copies of those documents handed over to the plaintiffs to convince that the defendant No. 2 had transferable rights in the property. It is not disputed that defendant No. 1 had executed a registered irrevocable GPA in favor of defendant No. 2 and defendant No. 2 was given authority to sell this property further and on the basis of this authority to sell the property, the defendant No. 2 executed a GPA in favor of plaintiff No. 2 and also executed an agreement to sell in favor of plaintiff No. 1. In the agreement to sell, it was specifically mentioned that the possession of the property had been handed over to the plaintiffs. It is specifically averred by the plaintiffs that defendant No. 2 is a property grabber and is facing several cases of property grabbing. The various FIRs against the defendant No. 2, as detailed in the plaint are FIR No. 420 of 2002 police station CR Park, FIR No. 233 of 2001 Police Station Paschim Vihar, FIR No. 335 of 2002 police station Paschim Vihar, FIR No. 292 of 2005 Police Station Punjabi Bagh, FIR No. 12 of 2005 registered with Police Station Rajinder Nagar and FIR No. 938 of 2004 lodged by the plaintiff against defendant No. 2 with Police Station Paschim Vihar. It is also stated that defendant No. 2 was the BC (Bad Character) of the West Zone Area and was in the business of property grabbing with the help of his gang.

7. It is not in dispute that the earlier suit filed by the plaintiff was one under Section 6 of the Specific Reliefs Act and considered so by this Court and the Supreme Court. Section 6 of the Specific Relief Act is based on the principle that no one can be allowed to take law into his own hands for taking possession, even if he is the lawful owner of the immovable property. Section 6 of the Specific Relief Act allows a person dispossessed forcibly or deceitfully to regain the possession of immovable property. The proceedings under Section 6 of Specific Reliefs Act are in the nature of summary proceedings and the Court has only to decide whether the person dispossessed was in settled possession before he was being forcible and unlawfully dispossessed. The Court has not to decide or consider the ownership of the property and that is the reason that a judgment/decree passed under Section 6 is not appealable under 6(3) of Specific Reliefs Act. The Supreme Court while dismissing the SLP has categorically observed that the plaintiff can file a suit (based on the title). In Sanjay Kumar Pandey and Ors. v. Gulbahar Seikh and Ors. the Supreme Court had upheld this view observering:

4. A suit under Section 6 of the Act is often called a summary suit inasmuch as the enquiry in the suit under Section 6 is confined to finding out the possession and dispossession within a period of six months from the date of the institution of the suit ignoring the question of title. Sub-section (3) of Section 6 provides that no appeal shall lie from any order or decree passed in any suit instituted under this section. No review of any such order or decree is permitted. The remedy of a person unsuccessful in a suit under Section 6 of the Act is to file a regular suit establishing his title to the suit property and in the event of his succeeding he will be entitled to recover possession of the property notwithstanding the adverse decision under Section 6 of the Act. Thus, as against a decision under Section 6 of the Act, the remedy of unsuccessful party is to file a suit based on title. The remedy of filing a revision is available but that is only by way of an exception; for the High Court would not interfere with a decree or order under Section 6 of the Act except on a case for interference being made out within the well-settled parameters of the exercise of revisional jurisdiction under Section 115 of the Code.

8. The instant suit has been filed by the plaintiffs based on the title and it is not a summary trial suit under Section 6 of the Specific Reliefs Act. I consider that the instant suit is very much maintainable despite the fact that Section 6 suit of the plaintiff has been dismissed on the ground that the plaintiff did not approach the Court with clean hands, although the plaintiff has refuted this fact. The plea of the defendant No. 1, 3, 4 and 5 that no cause of action arose against them is not tenable. Defendant No. 1 looks instrumental in the fraud. He first executed an irrevocable GPA in favor of defendant No. 2 giving him authority to sell the property in question. After defendant No. 2, on the basis of this GPA allegedly received consideration and sold the property to the plaintiffs and handed over the possession and executed documents as alleged by the plaintiff, defendant No. 1, cancelled the GPA on the basis of an alleged settlement with defendant No. 2 and defendant No. 2 declared that he had nothing to do with the property. The conveyance documents like agreement to sell, GPA were executed by defendant No. 2 on behalf of defendant No. 1 with the plaintiffs and possession was handed over. Even if it is believed that there was a collaboration agreement, as was propounded by defendant No. 2 before the trial court, there is no denial of the fact that this collaboration agreement also states that defendant No. 2 was the absolute owner of the property and had clear title on the basis of documents executed by defendant No. 1 in favor of defendant No. 2. Thus it is not a case where no cause of action arose against defendant No. 1. Defendants No. 3, 4 and 5 are the persons who were allegedly sold the property by defendant No. 1 immediately after cancellation of GPA in favor of defendant No. 2. It is the case of defendant No. 1 himself that there was an injunction issued by a competent Court against the sale of the property. If despite injunction and earlier transaction property is sold, it gives rise to cause of action against seller and purchaser both.

9. Prima facie it seems that defendant No. 2 and other defendants have been in collusion with each other in order to deprive the plaintiffs of the property. Learned Counsel for plaintiffs has also brought to the notice of the Court other similar transactions and cases in respect of defendant No. 2 and his gang. I consider that there is sufficient cause of action against all the defendants to proceed and it is not a case where suit can be dismissed for want of cause of action.

10. As far as value of the suit is concerned, this issue can be taken by the defendants in the written statement. The Court will decide at an appropriate stage whether the valuation done by the plaintiffs was correct or not. The instant suit cannot be dismissed on this ground as well.

11. Resultantly, both the applications of defendants are hereby dismissed.

12. Another peculiar feature of this case is that the defendant No. 2's name is 'Judge Chawla'. It is not known whether this name was given to him by his parents or he himself acquired this name, but the name of the plaintiff No. 2 itself is deceptive. Nobody can be allowed to name himself or his sons or wards in the manner that the name looks designation. Somebody may name himself as District Collector, another may name himself as Prime Minister, one may name himself as Chief Justice, another may name himself as Law Minister and put caste behind this. The result would be that somebody will be telling other that he is talking to 'Chief Justice Gupta'. There maybe no Chief Justice in the name of 'Gupta', in fact he would be a person named as 'Chief Justice Gupta' who will be cheating others using this name. Somebody may name himself 'Law Minister Gupta' to cheat others. I consider that Legislature should take cognizance of such names and make appropriate law so that people do not start naming themselves or their sons and daughters with designations of high positions and in the garb of having such a name, one may start cheating innocent people.

IA No. 6581/2006

1. In view of my observations made in the above two IAs being IA Nos. 1388/2007 and 4939/2007 under Order 7 Rule 11 CPC, it would be appropriate that the corpus of the suit property be kept intact during pendency of this suit. If the corpus itself is washed out and the defendants are allowed to further sell the property or transfer the possession of the property, this would render the suit itself infructuous. The balance of convenience is also in favor of the plaintiff who had prima faice case showing that the property was transferred to the plaintiffs for a valid consideration and the possession was also handed over to the plaintiffs.

2. I, therefore, allow this application and it is directed that defendants shall not sell, transfer, alienate or create any third party interest in the suit property during pendency of the suit. Defendants are also further restrained from transferring the possession to any other person and status quo shall be maintained in respect of the suit property.

3. The application stands disposed of.

CS(OS) No. 1200/2006

Parties are directed to file original documents within four weeks. They are directed to appear before the Joint Registrar for admission/denial of the documents on 28th March, 2008 and for framing of issues before the Court on 15th July, 2008.