Kiran Sibal & Anr. vs Kaushalaya Devi Educational ...
2009 Latest Caselaw 5409 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                    Date of Reserve: November 11, 2009
                                                       Date of Order: December 23, 2009

+IA 7808 of 2006 in CS(OS) 514 of 2006
%                                                                               23.12.2009
      Kiran Sibal & Anr.                                                ...Plaintiffs
      Through: Mr. BB Singh, Advocate

        Versus

        Kaushalaya Devi Educational Trust & Ors.                        ...Defendants
        Through:, Advocates

        JUSTICE SHIV NARAYAN DHINGRA

1.      Whether reporters of local papers may be allowed to see the judgment?

2.      To be referred to the reporter or not?

3.      Whether judgment should be reported in Digest?


        ORDER

1. By this order I shall dispose of an application under Section 7 Rule 11 of Civil

Procedure Code made by defendants no.2 and 3 for rejection of the suit.

2. It is submitted by defendants no.2 and 3 that the suit of the plaintiff was barred

under Section 11 of CPC because of principle of res judicata as an earlier suit filed by the

plaintiff before the Court at Karnal being Civil Suit 581 of 1981 titled as Ms. Kiran Sibal

vs. Kaushal Educational Trust and others wherein Kaushalya Devi Educational Trust was

a party was dismissed. The plaintiff had claimed same reliefs as claimed in the present

suit and had also by way of an interim application sought restraint order against the

defendants from selling the property situated at Kausalya Park, Hauz Khas, New Delhi

and also sought appointment of a receiver for the properties. It is submitted that in the suit

before the Karnal Court while trial Court appointed receiver in respect of the property in

question, the matter went to the appellate court and the appellate court set aside the order

CS(OS) 514 of 2006 Kiran Sibal & Anr. v. Kaushalaya Devi Educational Trust & Ors.Page 1 Of 6 of appointing a receiver on 19th May, 1984. This order of appellate Court was challenged

by the plaintiff herein before Punjab & Haryana High Court by way of an appeal which

was dismissed vide order dated 31st May, 1985. The suit before the Karnal Court

ultimately was dismissed by the Court holding inter alia that plaintiff had no locus standi.

Other issues were also decided against the plaintiff herein. It is submitted that the

dismissal of suit by the Court at Karnal would amount to res judicata and the present suit

was not maintainable. It is also submitted that the suit was highly barred by limitation.

3. The plaintiff in the present suit had sought relief of rendition of accounts against

defendants no.2, 3 and 4 and sought a decree of declaration that all acts, deeds and things

done by defendants in respect of suit property of the Trust i.e. defendant no.1 were null

and void and sought a personal decree against defendants no.2, 3 and 4 or return of gains

along with interest @ 18% per annum. The contention of applicant is that as far back as

1987 when the plaintiff filed suit before the Court at Karnal, the plaintiff was aware of the

disposal of the trust properties and had made prayer in that suit itself for giving complete

accounts of the Trust and the realizations done by defendants from the disposal of the

properties including the property at Hauz Khas. The appellate court, in its order dated

19th May, 1984,while setting aside the order of the trial court, had categorically

mentioned the averments made by the plaintiff herein showing that the plaintiff had

complete knowledge of the property in question being sold in 1983. The plaintiff herein

had contended that on 7th November 1983 Shri R.P. Kapur went to Delhi to gather further

information about the suit property and found that one Dr. R.K. Deka had put up a board

on the left side of the outer gate of No.5, Kaushalya Park and inspection also showed that

possession of flats has been surrendered to respective parties who had put their locks. The

observations in the Punjab and Haryana High Court's order also shows that the property

had been sold as far back as in 1983 to the knowledge of plaintiff. It is submitted that the

CS(OS) 514 of 2006 Kiran Sibal & Anr. v. Kaushalaya Devi Educational Trust & Ors.Page 2 Of 6 suit filed by plaintiff against defendants in 2006 was, therefore, miserable time-barred as

it had been filed after 23 years of cause of action.

4. The third stand taken by applicants/ defendants is that the plaintiff had no locus

standi to institute the present action by way of this suit since plaintiff was not a

beneficiary of the trust and the judgment in this regard has become final. It is also

submitted that the trust itself ceased to exist after the plaintiff and other siblings and

beneficiaries under trust had received their shares at the time of partial dissolution and

dissolution of the trust. The amounts received by different beneficiaries have been shown

in the application.

5. Similar applications have been made under Order 7 Rule 11 CPC by other

defendants as well, who are occupants of different flats and it is stated that the suit was

highly undervalued and also that the suit was barred by limitation, barred by principle of

res judicata and it was barred by provisions of Section 34 and 41 of Specific Reliefs Act.

Defendants have submitted that the plaintiff had been filing litigations one after another

in order to harass the defendants and this litigation is initiated at different fora by

different persons, sometime by plaintiff and sometime by her father acting at the behest of

plaintiff with the result that for last over 25 years, the defendants had been facing

litigations let loose by plaintiff and there have been around 28 cases filed by plaintiff and

the plaintiff should be asked to disclose the orders of those cases.

6. In reply to the application under Order 7 Rule 11 CPC, it is contended by plaintiff

that the decision of the Court at Karnal in respect to subject property situated in Delhi is

of no consequence since the Court at Karnal had no jurisdiction to adjudicate upon the

rights qua immovable property situate in Delhi and thus the decision rendered by Karnal

Court was non-est. Thus, the present suit was not barred by principle of res judicata. It is

CS(OS) 514 of 2006 Kiran Sibal & Anr. v. Kaushalaya Devi Educational Trust & Ors.Page 3 Of 6 also submitted that this Court in a Civil Suit No.2 of 1981 titled as Shri R.P. Kapoor

versus Kaushalya Devi Educational Trust has held and adjudicated that the trust created

by Mrs. Kaushalya Devi was a private trust and the trustees, after death of Mrs.

Kaushalya Devi (the settler of the Trust) had forged and manipulated the trust deed so

created by Mrs. Kaushalya Devi in an attempt to convert a private trust into a public

charitable trust and the settlement deed dated 30th October 1979 expanding the activities

of the trust and changing objects of the trust, was void.

7. Regarding limitation it is submitted that every unlawful act of the trustees gives

rise to a new cause of action in favour of plaintiff and the plaintiff was entitled to file the

suit challenging the acts of the trustee at any point of time.

8. It is to be noted that plaintiff along with the present plaint did not file documents

of previous litigations in respect of the trust or in respect of the trust properties despite the

fact that she was one of the parties to the litigation and she was the plaintiff in Civil Suit

NO.560 of 1981 pending before the Court of Shri Randhir Singh Sub Judge, Karnal. In

the suit filed by her before the Sub Judge, Karnal she had sought following reliefs:

a. that the defendants be directed to tender full and complete account of sales or other disposal of the Trust properties in each case;

b. a complete account of use and usage of the realizations from the disposal of the Trust properties in each case;

c. permanent injunction restraining the defendants from alienating any trust property during the pendency of the suit;

d. a decree restraining defendant (Smt. Sheila Kapoor) from operating upon Trust properties in view of the breach of obligations already incurred by her in her past administration of the trust properties.

CS(OS) 514 of 2006 Kiran Sibal & Anr. v. Kaushalaya Devi Educational Trust & Ors.Page 4 Of 6

9. It is undisputed fact that the subject matter of the present suit was the subject

matter of suit filed before the Court at Karnal. That suit was also filed by the plaintiff.

Plaintiff's plea that the Court at Karnal had no jurisdiction over the immovable property

situated at Delhi and therefore the present suit was not barred by res judicata, in my

opinion, is untenable. Plaintiff cannot take a plea that the Court at Karnal had no

jurisdiction over the subject matter. The trust properties included the properties at Karnal

and Delhi. The plaintiff had a choice to choose the forum and she could have filed the suit

at Karnal or at Delhi and she had chosen to file a suit before the Court of Karnal which

she pursued till the end. After she failed in the suit at Karnal, she had no legal right to

urge now that the Court at Karnal had no jurisdiction and the judgment rendered by the

Court of Karnal would not operate as res judicata. When a person files a suit at one forum

chosen by him he cannot later on, when the decision goes against him, be allowed to say

that the forum chosen by him or her had no jurisdiction and he will choose another forum

now and start another round of litigation for same cause of action.

10. I, therefore, consider that the present suit filed by plaintiff is barred under Section

11 of Civil Procedure Code by principle of res judicata and is not maintainable.

11. The suit is also barred by limitation. Plaintiff filed the earlier suit in 1981 because

the property which is the subject matter of the present suit, was being sold by the trustees

at that time. She had asked for accounts and had also sought a restraint order. That itself

shows that the cause of action in this case arose in 1981 and till 1983 all the flats had

been sold to different persons who have now been made defendants by plaintiff. The suit

for injunction or declaration could have been filed within three years. The present suit has

been filed after a period of 23 years. In a period of 12 years, a person can claim

ownership by way of adverse possession and can lay his stake over the property as owner.

CS(OS) 514 of 2006 Kiran Sibal & Anr. v. Kaushalaya Devi Educational Trust & Ors.Page 5 Of 6 This period of twelve years has been provided in Limitation Act because the Legislature

considered that if a person keeps on sleeping for twelve years, he loses his right to sue.

No suit with respect to property rights can be entertained by the Court after a period of 23

years, when to the knowledge of plaintiff defendants had been in possession after

purchasing the properties. The contention of plaintiff is that only agreements to sell were

executed with flat owners and no sale deed was executed. It is an undisputed fact that

defendants were in possession in pursuance of payment of full consideration. The plaintiff

did file a suit at that time in 1981 before the Karnal Court to stop the sale but failed. Now

after 23 years she has no right to allege that her present suit was within the period of

limitation vis-à-vis the purchasers or vis-à-vis the sellers. I, therefore, hold that the suit is

hopelessly barred by limitation.

12. There is no necessity to advert to other pleas taken by the applicant. I find that the

present suit filed by plaintiff is hopelessly barred by limitation as well as by principle of

res judicata, even if the plaintiff had a locus standi to file the present suit.

13. In the result, the application filed by defendants under Order 7 Rule 11 CPC is

allowed and the suit of the plaintiff is hereby dismissed being barred by principle of res

judicata as well as barred by limitation.

December, 2009                                          SHIV NARAYAN DHINGRA J.
rd




CS(OS) 514 of 2006      Kiran Sibal & Anr. v. Kaushalaya Devi Educational Trust & Ors.Page 6 Of 6