Delhi High Court
Kiran Girhotra & Ors. vs Raj Kumar & Ors. on 10 November, 2009
Author: Manmohan Singh
* HIGH COURT OF DELHI : NEW DELHI
+ I.A. No. 11196/2009 in CS(OS) No.75/2004
Kiran Girhotra & Ors. ...Plaintiff
Through : Mr. O.P. Khadaria with
Ms. Indra, Advs.
Versus
Raj Kumar & Ors. ...Defendants
Through : Mr. Sunil Kumar, Adv. for
defendant No.2
Mr. Ravi Gupta, Sr. Adv. with
Mr. Naveen Gupta, Adv. for
defendant No.3
Reserved on: 9th September, 2009
Decided on : 10th November, 2009
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
MANMOHAN SINGH, J.
1. By this order, I shall dispose of the plaintiff‟s application under
Order 39 Rule 4 of the Code of Civil Procedure, 1908 (hereinafter
referred to as „CPC‟) being I.A. No.11196/2009 wherein it is prayed
that the order dated 3rd February, 2004 be modified and in addition to
earlier order defendants No.2 to 4 be restrained thereby to (a) not to
cause any construction in the suit plot; (b) to handover the peaceful
possession to the plaintiffs and (c) alternatively to seal the suit
property in question.
PRESENT APPLICATION
2. The above mentioned application has been filed by the plaintiff
under Order 39 Rule 4 read with Section 151 CPC mainly on the
ground of change of circumstances, namely:-
a) That Mr. Sunil Gupta, defendant No.3 has started the
construction in the plot bearing No.W-137, Greater Kailash
Part-II, New Delhi in the month of August, 2009.
b) That probate has been granted in favour of the plaintiff vide
order dated 14th January, 2009 in Probate Petition
No.46/2006 which is a judgment in rem and no appeal has
been filed against any Class-I legal heirs of late Sh.
Harbhagwan and the plaintiffs are legally authorized to
administer all the properties left by their late father Sh.
Harbhagwan.
3. There are various civil and criminal litigations pending between
the parties with regard to the two properties being the suit property
and property bearing No.Q-29, Tagore Park, Model Town, New
Delhi. For the purpose of deciding the present application, one of the
properties i.e. W-137, G.K.-II, New Delhi concerning the application
in which relief is sought will be referred as suit property here-in-after.
4. The plaintiffs filed a suit under Section 31 of the Specific Relief
Act, 1967 for declaration, permanent and mandatory injunction and
for possession of suit property.
PREVIOUS INTERIM ORDER
5. In I.A. No.631/2004 under Order 39 Rule 1 and 2 CPC on 3 rd
February, 2004 an interim order was passed in the presence of counsel
for the parties against the defendants restraining them from creating
any third party interest in the suit property as well as property bearing
No.Q-29, Tagore Park, Model Town, New Delhi. The said order was
confirmed by order dated 1st December, 2005.
6. The case of the plaintiff is that Sh. Harbhagwan son of Shri Jai
Kishan Das purchased the following two properties:-
a. Property bearing No. W-137, Greater Kailash Part-II,
New Delhi by means of registered Sale deed dated
27th April, 1973 executed by M/s. DLF Limited in
his favour;
b. Property bearing No. Q-29, Tagore Park, Model
Town, New Delhi purchased vide registered Sale
Deed dated 3rd October, 1959.
7. Sh. Harbhagwan and his wife disowned and disinherited their
son Mr. Raj Kumar, defendant No.1 by giving a public notice dated
14th August, 1987 in the newspaper „Statesman‟. Defendant No.1 was
also ousted from the parental house on 17th January, 1994 by way of a
decree of the court in the suit filed in the year 1997 and various
criminal and civil cases are pending against him and he started
residing at Nazafgarh, New Delhi (separate place).
8. Sh. Harbhagwan during his lifetime had executed a Will dated
15th May, 1996 which was registered by him vide registration
No.19906 in additional Book No.3 Volume-2660 at pages 137-138
registered on 17th May, 1996 in favour of his wife Smt. Pushpa
Kumari. Sh. Harbhagwan expired on 4th November, 1997.
9. Sh. Harbhagwan had a number of self acquired properties
including the suit property. According to the plaintiffs, defendant
No.1 forged a Will dated 30th October, 1997 after the death of his
father with the collusion and conspiracy of defendants No.2 to 4,
namely, Mr. Amit Pahwa, Mr. Sunil Gupta and Mr. Jayant Ghadia
respectively and got the said Will registered with the Sub-Registrar,
Kashmere Gate, Delhi on 2nd June, 1999 without notice to any of the
legal heirs of the deceased and on a stamp paper of Rs.2/- which was
purchased from the Stamp Vendor for the purpose of Agreement.
During the years 1998-2000, public notices were given by the
plaintiffs and their mother against defendant No.1 declaring that he
had no right, title or interest in the properties left behind by his father
late Sh. Harbhagwan.
10. In the month of February, 2000 Jayant Ghadia (defendant No.4
herein) filed a suit for specific performance against Raj Kumar,
defendant No.1 herein being CS(OS) No.382/2000 in respect of the
suit property on the basis of receipt executed and relied upon by Mr.
Raj Kumar as Agreement to Sell. On 22nd February 2000 an ad
interim order was passed to the following effect:-
"In the meanwhile the status quo qua possession and
construction as of today shall be maintained by both the
parties in respect of suit property being No.137, Block W,
Greater Kailash, New Delhi."
11. As per the report of the Local Commissioner, Mr. Jayant Ghadia
was in possession of the suit property when the visit was made.
12. In October 2000, the plaintiffs herein moved an application for
their impleadment in CS(OS) No.382/2000. The said application was
allowed vide order dated 9th August, 2002 and they were impleaded as
defendants in the said Suit No.382/2000.
13. Simultaneously, the plaintiffs also applied for probate of the last
Will of their father in the year 2000.
14. Various proceedings were initiated by the plaintiffs against
defendant No.1 including registration of FIR No.429/2000 registered
in respect of forged Will wherein an order under Section 156(3) for
investigation was passed and the plaintiffs have also obtained status
quo orders in their favour against him.
15. Mr. Raj Kumar admittedly was aware of the interim order dated
22nd February, 2000 as he was represented by counsel in Suit
No.382/2000, still, on 27th June, 2003 he sold/transferred the suit
property by means of registered Sale Deed dated 27th June, 2003 in
favour of Mr. Amit Pahwa (defendant No.2) for a sum of
Rs.9,00,000/- (Rupees Nine Lac only). The said Sale Deed was duly
registered vide Registration No.5111 in Additional Book No.1
Vol.3418 on pages 30 to 41 registered on 27th June, 2003.
16. Within 28 days Mr. Amit Pahwa sold and transferred the same
property in the name of Sh. Sunil Gupta, defendant No.3 on 25 th July,
2003 by executing a number of documents namely Agreement to Sell,
General Power of Attorney, Will, Affidavits, Possession letters etc.
17. On 7th August, 2003 the defendants No.2 and 3 herein also
moved an application for impleadment in CS (OS) No.382/2000 filed
by Mr. Jayant Ghadia, defendant No.4.
18. The contention of the plaintiffs is that Sh. Raj Kumar, defendant
No.1 had at no point of time had any right, title or interest in the suit
property of the plaintiffs as he was also never in possession of the
same. Moreover, the interim order was passed on 22nd February, 2000
by this court to maintain status quo. Therefore, defendants 2 to 4
derive no right, title or interest in the suit property from defendant
No.1. They have prior knowledge of all the previous litigation, public
notices, criminal cases and interim orders with respect to the property
in question but despite the protection given by this court in favour of
the plaintiffs, the defendants 1 to 4 deliberately entered into the sale
transaction in respect of the suit properties in their favour at a
throwaway price.
19. The plaintiff submitted that the plaintiffs are in possession of all
the original titles of the suit property which were shown to this court
in another litigation being FAO No.793/2003 which proves the
possession of the plaintiffs and, therefore, the plaintiffs are the lawful
co-owners. On the other hand, defendant No.3 has not shown a single
document in his favour.
20. It is contended by the plaintiff that on the date of transferring
the said titles and interest, as per the judicial record Sh. Jayant Ghadia,
defendant No.4 was in possession and other defendants were aware
about the status quo order passed by the court as defendants No.2 and
4 were represented by the same counsel.
21. The plaintiffs submit that defendant No.3 Sh. Sunil Gupta got
into forcible and illegal possession of the suit property in early
August, 2003 by demolishing the front boundary wall and FIR
No.266/2003 was registered with Chittaranjan Park Police Station,
New Delhi. Sh. Jayant Ghadia, defendant No.4 who was in
possession at that time also filed a contempt application in his suit and
filed the Criminal Writ Petition No.955/2003 for getting the FIR
registered against Sh. Sunil Gupta and Sh. Raj Kumar. Thereafter the
plaintiffs in the month of August, 2003 moved a contempt application
being I.A. No.8514/2003 in CS(OS) No.382/2000 against defendants
and an application being I.A. No.8513/2003 for sealing of the
property.
22. An anticipatory bail application was moved by defendant No.3
herein on 27th December, 2003 which was rejected by this court vide
order dated 25th May, 2004 in Crl. Misc. (Main) No.5304/2003. The
order passed by this court reads as under:-
"Heard. The property in dispute was owned by one
Harbhagwan. He executed a Will in favour of his son Raj
Kumar who on the bsis of the said Will executed an
agreement to sell dated 4thDecember 1999 in favour of the
complainant Jayant Gardia. Later on some dispute arose
between the complainant and Raj Kumar aforesaid
whereupon complainant filed civil suit for specific
performance of the agreement to sell and in that suit an
interim injunction directing to the opposite party to maintain
status quo was passed by this court in the civil suit on 22 nd
February 2000. The Local commissioner was also
appointed. The Local commissioner submitted his report on
23rd February 2000 confirming the possession of the
complainant on the said plot. Yet Raj Kumar aforesaid sold
the property to one Amit Pahwa vide sale deed dated 27 th
June 2003 and Amit Pahwa executed various documents,
namely, power of attorney, agreement to sell etc in favour of
the present petitioner on 25th July 2003. It seems that the
petitioner on the basis of these documents encroached upon
the plot. When the complainant came to know about it he
lodged FIR. The petitioner further admits the fact that the
possession was handed over to the complainant on 6th
January 2004. Even thereafter petitioner executed
collaboration agreement with Yogesh Gupta on 27th
December 2000 for the development of the said property. A
perusal of the said collaboration agreement indicates that the
possession has already been handed over to the developer
i.e. Yogesh Gupta knowing fully well that the status quo
order passed by the civil court continued to be in force.
Learned counsel for the petitioner submits that this
collaboration agreement has been arrived at without the
knowledge and approval of the complainant. However,
there is no document on record to suggest this besides it is
pointed out by the IO that the petitioner has not joined the
investigation despite service of notice.
Considering the conduct of the petitioner, I think it is
not a fit case for grant of anticipatory bail. Rejected.
Sd/-
O.P. DIWEDI, J."
23. It is contended by the plaintiffs that in order to defeat the rights
of the plaintiffs and to overreach the interim order passed by this court
on 22nd February, 2000 and after rejection of bail by this court on 25 th
May, 2004 the defendant No.4 in connivance and collusion with the
other defendants filed an application under Order 23 Rule 1 read with
Section 151 CPC before the Vacation Judge for withdrawal of Suit
No.382/2000.
24. The said suit was withdrawn by Sh. Jayant Ghadia (defendant
No.4 herein) without giving any intimation to the plaintiffs who were
defendants in the said suit and the orders were passed on 9 th June,
2004.
25. In the application, it was stated by Sh. Jayant Ghadia that the
parties have settled their matter in respect of the suit property.
26. It is stated by the plaintiffs that the said act of the defendants is
deliberate as there was no urgency to withdraw the suit during the
vacation period and at the back of the plaintiffs. It was done by the
defendants with the mala fide intention to deprive the valuable rights
of the suit property of the plaintiffs.
27. The allegation made by the plaintiffs is that the said suit was
withdrawn intentionally as there was an order of status quo passed on
22nd February, 2000 regarding the construction and possession of the
suit property and the suit was withdrawn by Sh. Jayant Ghadia,
defendant No.4 in connivance with the other defendants in order to
play a fraud upon the court which is apparently an abuse and misuse
of the process of law. On the date of withdrawal the present plaintiffs
were parties to the suit and the application dated 7th August, 2003 on
behalf of defendants 2 and 3 herein was pending for impleadment in
the said suit.
28. The plaintiffs have argued that the defendants were also aware
that in the plaintiffs‟ application for interim relief, there was a relief
for restraining construction of the suit property but the same was not
pressed by the plaintiffs when the parties‟ interim order was passed on
3rd February, 2004 as interim order for construction of the suit
property was already passed in CS(OS) No.382/2000. Thus, there is a
mala fide intention of the defendants in withdrawing the suit.
29. The plaintiffs submit that the defendant No.3 Mr. Sunil Gupta
has admitted in his written statement filed by him in CS(OS)
No.1692/2007, consolidated with the present suit, that he has no
concern with the plot bearing No.W-137, Greater Kailash-II, New
Delhi, which reads as under:-
"This answering defendant has got nothing to do with the
plot situated at Greater Kailash, Part-II, New Delhi and,
therefore, the various allegations made by the plaintiffs
against the answering defendant in respect of the plot in
Greater Kailash, Part-II, New Delhi are absolutely wrong
and false and the same are denied."
30. The defendant No.3 thereafter also filed an application seeking
his impleadment under Order 1 Rule 10 in the probate proceedings
wherein he stated that he had purchased the two properties from Sh.
Amit Pahwa who himself had purchased the same from Sh. Raj
Kumar and since he had vital interest in the aforesaid two properties
and also in the determination of the legality and validity of the alleged
Will dated 9th September, 1997, he apprehended that Sh. Raj Kumar
may connive with the plaintiffs, therefore, the application under Order
1 Rule 10 was filed and the same was allowed vide order dated 24 th
December 2004.
31. The plaintiffs challenged the said order before this court by
filing a Civil Miscellaneous Main Petition being No.285/2005. The
said petition was allowed by Hon‟ble Mr. Justice Sanjay Kishan Kaul
by his order dated 31st August, 2006 and while passing the order the
learned single Judge observed as under:-
"Not only that no probate was obtained or applied for of the
Will dated 30th October 1997 and the sale has been effected
in pursuance of the said Will without no objection of the
other legal heirs. Thus, the purchasers are only speculators
who have purchased the litigated property.
The purchaser Sh.Amit Pahwa and thereafter respondent
Sunil Gupta herein also got into speculative purchase of
litigated property.
The respondent No.1 Sunil Gupta cannot hide behind the
plea of bonafide purchase since the purchase itself cannot be
said to be bonafide. If the petitioners failed in establishing
the Will propounded by them the consequences would
follow and in that eventuality if the respondent No.1 is able
to avail of certain benefits in accordance with law the same
would be available to him."
32. The defendant No.3 challenged the said order before the
Supreme Court by filing Civil Appeal No.4729/2007 which was
dismissed and the judgment was reported as 2007 AD SC 1. The
Supreme Court in Paras 16 and 17 of the judgment observed as
under:-
"16. Raj Kumar evidently was aware of the proceedings. If
the proceeding had been initiated for grant of probate the
appellant and/or his predecessor Sh.Amit Pahwa would be
deemed to have notice thereof.
17. Citation as is well known should be conspicuously
displayed on a notice board. Before purchasing the
properties Amit Pahwa and consequently the appellant had
taken calculated risk. In situation of this nature he is not a
necessary party. He took the risk of the result of the probate
proceedings. His apprehension that Raj Kumar may not
take any interest in the litigation cannot by itself a ground
for interfering with the impugned judgment. It is
speculative in nature."
33. The plaintiffs have also referred to the reply to the application
under Order 39 Rule 4 filed by defendant No.3 in the present suit
wherein in Para 20, the defendant No.3 has stated that Sh. Jayant
Ghadia was not in possession of the suit property and with effect from
25th July, 2003 it is the answering defendant who has been in
uninterrupted possession of the suit property and he is also not bound
by any report of the Local Commissioner as the answering defendant
is in peaceful possession of the property.
34. Learned counsel for the plaintiffs has argued that the said
statement made by defendant No.3 is contrary to the written statement
filed by him in CS(OS) No.1692/2007 and also from the admission of
facts recorded by the court in Crl. M.M. 5304/2003 wherein while
seeking bail, defendant No.3 had admitted that he handed over the
possession to Sh. Jayant Ghadia on 6th January, 2004.
35. The probate of the suit property and other properties of the
deceased was granted in favour of the plaintiffs vide judgment dated
14th January, 2009. The Will propounded by Sh. Raj Kumar
(defendant No.1 herein) and relied upon by defendant No.3 and other
defendants No.2 and 4 was declared as forged as per the CFSL report.
No appeal is stated to have been filed. The defendants have not
denied the factum of grant of probate in favour o f the plaintiffs.
36. The defendant No.3 has admitted that he started construction in
the plot bearing No.W-137, Greater Kailash, Part-II, New Delhi in the
month of August, 2009. Thus, the present application under Order 39
Rule 4 read with Section 151 CPC has been filed on the ground of
change of circumstances for variation of interim order already passed.
37. The present application has been opposed by defendant No.3 by
stating that the application under Order 39 Rule 4 is not maintainable
as the said provision applies only for discharge, variation and setting
aside the injunction order and can be invoked only by a party against
whom any interim order has been passed and the present application is
also barred by the principle of res judicata.
38. It is submitted that along with the present suit, the plaintiffs had
filed an application being I.A. No.631/2004 seeking a similar relief of
restrain of construction. The said application was considered on 3 rd
February, 2004 and disposed of on 1st December, 2005 but no such
relief for construction was granted to the plaintiffs.
39. It is also contended that another application being I.A.
No.6362/2004 for the relief of injunction qua construction was sought
by the plaintiffs but no such injunction was granted. Since the
application of the plaintiffs under Order 39 Rules 1 and 2 CPC was
finally disposed of and no appeal was filed against the said order,
hence the order attained finality.
40. It is argued by the counsel for defendant No.3 that defendant
No.3 was not a party in the Suit No.382/2000 filed by Sh. Jayant
Ghadia (defendant No.4) and the suit filed by him has already been
withdrawn. The interim orders granted on 22nd February, 2000 for
construction and possession are automatically vacated, hence there is
no hurdle for the defendant No.3 to carry on construction in the suit
property.
41. It is alleged by defendant No.3 that the said order has also lost
its significance, the moment the suit has been dismissed as withdrawn
on 9th June, 2004 by order passed in I.A. No.1956/2004.
42. He submits that there is no hardship to the plaintiffs as regards
the relief sought, as the plaintiffs would not gain any advantage by not
allowing the construction except to deprive the defendant No.3 of the
fruits of his property. The defendant No.3 is raising construction
which is authorized and permitted by the MCD and is willing to give
an undertaking that in case, ultimately the plaintiffs succeed in their
suit, the defendants shall not claim any equity. Even otherwise, the
plaintiffs have not pleaded any injury/hardship in the interim
application. The defendant No.3 has referred and relied upon 1986
RLR 518 (para 5), 1996 (34) DRJ 290 (DB) (para 18) and Union of
India vs. Naman Singh Sekhawat 2008 (4) SCC 1 (para 26 and 27).
43. As regards the grant of probate in favour of the plaintiffs, the
learned counsel for defendant No.3 has also argued that defendant
No.3 has filed a suit for declaration, possession and mesne profits
being CS(OS) No.878/2009 in this court against the plaintiffs and
others, wherein the prayer is sought for declaration against the
defendants declaring that the probate granted on 14th January, 2009 be
declared as fraudulent proceedings and bad in law and not binding
upon defendant No.3. Thus, the present application is not
maintainable as there is hardly any change in circumstances.
44. According to the defendant No.3, the possession is with him
since 25th July, 2003. The said possession, according to him, was
handed over by defendant No.2 Sh. Amit Pahwa who sold and
transferred the said property against consideration. As regards the
filing of FIR against defendant No.3, the said proceedings have now
been withdrawn/settled.
45. It is also denied by defendant No.3 that the defendant No.4 filed
the application in collusion with him under the provisions of Order 23
Rule 1 CPC in Suit No.382/2000 as he was never a party in the said
suit. He submits that he has not signed the application and the
plaintiff can withdraw his suit filed by him unconditionally and no
person can object to the said unconditional withdrawal. The said suit
was for specific performance primarily against defendant No.1 and the
same was ultimately withdrawn in the presence of counsel for
defendant No.1. The question of any notice to any other party does
not arise in law. The court has allowed the said withdrawal without
feeling a necessity to issue a notice in the said application to any party
and the said order has become final as the plaintiffs‟ application to any
party and the said order has become final as the plaintiffs‟ application
for recalling withdrawal order has been dismissed on 23rd April, 2009.
The contempt application of the plaintiffs is also dismissed.
46. The relief sought in this application has already been declined in
the earlier application which was dismissed vide order dated 23 rd
January, 2007, hence the status quo order sought regarding
construction and possession in the present proceedings cannot be
granted. The application filed by the plaintiffs deserves to be
dismissed with heavy costs.
47. After hearing learned counsel for the parties and their rival
submissions and having gone through the pleadings in the matter, now
I shall deal with the application filed by the Plaintiff under Order 39
Rule 4 read with Section 151 CPC for variation of the order due to
change of circumstances.
48. Various pleas and documents have been referred by the parties
with regard to the pending litigation. It is not necessary to refer all the
proceedings as this court is of the view that at this stage only short
point is to be determined in the application filed by the Plaintiffs as to
whether the Plaintiffs are entitled for the relief claimed in the
application.
49. The parties are involved in a dispute regarding property
bearing No.W-137, Greater Kailash Part-II, New Delhi and also
property No.Q-29, Tagore Park, Model Town,Delhi. The dispute
which was subject matter of Suit No.124/03 pending before the
Additional District Judge filed by the Plaintiffs seeking permanent
injunction against the defendants has been consolidated with the
present suit vide order dated 15th May 2006
50. Admittedly, in the suit filed by Mr. Jayant Ghadia being CS(OS)
No.382/2000 before this court, an interim order was passed on 22nd
February, 2000 wherein status quo order qua possession and
construction in respect of the suit property No. 137, Block W, Greater
Kailash, Part-II, New Delhi. The said interim order was in force uptil
9th June 2004 when Mr. Jayant Ghadia withdrew the suit by filing an
application under Order 23 Rule 1 of the Code of Civil Procedure
during the vacation period. It is not denied by defendant No.3 that the
present Plaintiffs were impleaded as defendants in that suit and the
application on behalf of defendants No.2 and 3 herein for their
impleadment was pending at the time of withdrawal of the suit. When
the said suit was withdrawn, admittedly no notice was issued to the
plaintiffs nor copy was supplied.
51. It is not denied by the counsel for defendant No.3 that
defendant No.2 and 3 have acquired the alleged rights in the suit
property during the pendency of the interim order passed by this court.
In case the conduct of the defendants is examined, it would, prima
facie, appear that none of the defendants in the present suit have cared
to obey the interim orders passed by this court on 22 nd February 2000
in CS(OS) No.382/2000 and the order dated 3rd February 2004 passed
in the present suit (directing the parties not to create any third party
interest). Both the orders have been violated by the defendants
mercilessly and without any fear or respect. Thus, it has become
necessary to discuss the conduct of each of the defendants.
DEFENDANT NO.1 Sh. RAJ KUMAR
52. CS(OS) No. 382/2000 was filed by Mr. Jayant Ghadia,
defendant No.4 against Mr. Raj Kumar for specific performance on
the basis of receipt executed by him in his favour. Mr. Raj Kumar
had, inter-alia, acquired the right of the suit property on the basis of
propounded Will dated 30th October, 1997 which has now been
declared forged and fabricated in the probate proceedings and final
judgment has been pronounced on 14th January, 2009. He has not
sought any probate of the alleged propounded Will dated 30 th October,
1997. He was duly represented by a counsel and was fully aware
about the interim orders passed by the court. Admittedly he had no
titles or original documents of the suit property. On 27th June, 2003
he sold/transferred the suit property to Mr. Amit Pahwa, defendant
No.2 by virtue of Sale Deed. He, as per documents filed, was
disowned and disinherited by his parents in the year 1987 by virtue of
various notices placed by the plaintiffs during the period 1997 to 2000
in the newspapers. FIR No.429/03 was also registered against him and
others and according to the Plaintiffs he was in custody for some time.
He has now stopped appearing in the present matter.
DEFENDANT NO.2 AMIT PAHWA
53. Defendant No.2 purchased the suit property from defendant
No.1 on 27th June 2003 during the pendency of the interim order
passed by this court. Later on, in his written statement filed in the
year 2003 and in the anticipatory bail application for the same year he
admitted the fact that he had filed a suit for damages against Mr. Raj
Kumar, defendant No.1 who trapped him and is the actual culprit.
DEFENDANT NO.3 Mr. SUNIL GUPTA
54.(a) Mr. Amit Pahwa, defendant No.2 allegedly sold the
Greater Kailash property to defendant No.3 on 25th July 2009 by
execution of agreement to sell, GPA, Will, Affidavits etc within 28
days from the date of its purchase. Upon sale, FIR No.226/03 was
registered against him. The bail sought by him was rejected by this
court in Crl. Misc. Main No.5304/03 on 25th May 2004. While
rejecting the bail it was recorded by O.P. Dwivedi, J. as under:-
"It appears that defendant No.3 on the basis of
the documents, namely, power of attorney,
agreement to sell etc encroached upon the plot
and when the defendant No.4 (Mr. Jayant
Ghadia) came to know about it, he lodged the
FIR. The defendant No.3 thereafter admits the
fact that the possession was handed over to the
defendant No.4 on 6th January 2004. It was also
recorded in the said order that even thereafter
the defendant No.3 executed collaboration
agreement with Yogesh Gupta on 27.02.2004 for
the development of the said property by virtue of
the agreement, which indicates that the
possession has also been handed over to the
developer i.e. Yogesh Gupta knowing fully well
that the status quo order passed by civil court
continues to be in force."
b) Despite above mentioned orders passed by this court, defendant
No.3 subsequently filed various affidavits and pleadings and
made a statement that after the purchase of the property from
Amit Pahwa on 25th July 2003 he is in possession and enjoying
the property from that date itself.
c) In the written statement filed by him in CS(OS) No.1692/2007
(originally the suit was filed in the year 2003 by the plaintiffs)
which is consolidated with the present suit, the defendant No.3
has specifically stated that he has got no concern with the plot
bearing No.W-136, Greater Kailash-II, New Delhi. The relevant
portion of his admission in the written statement reads as under:-
"This answering defendant has got nothing to do with
the plot situated at Greater Kailash, Part-II, New Delhi
and, therefore, the various allegations made by the
plaintiffs against the answering defendant in respect of
the plot in Greater Kailash, Part-II, New Delhi are
absolutely wrong and false and the same are denied."
DEFENDANT NO.4 MR. JAYANT GHADIA
55. Defendant No.4 purchased the suit property from defendant
No.1 (Raj Kumar) by way of alleged receipt/agreement at the strength of
registered Will dated 30.10.1997 the same has now been declared as
forged document. Defendant No.4 filed the suit bearing No.CS(OS)
382/2000 against Raj Kumar wherein the interim order was passed. He
was also aware that the property in question was sold by the defendant
No.1 to defendant No.2 by way of registered Sale Deed dated 27.06.2003
and later on, defendant No.2 to defendant No.3 on 25 th July 2003 on the
basis of GPA, Agreement to Sell, Will etc. because he himself filed the
contempt petition and also lodged FIR against the defendant No.3.
Despite having full knowledge, he withdrew the suit on 9th June 2004,
during the vacation time without any communication to the plaintiffs and
without serving any copy thereof.
56. It is not clear if as per the judicial record the possession of the
suit property was again handed over to Mr. Jayant Ghadia, defendant
No.4 by defendant No.3 on 6th January 2004 and on 3rd February 2004 an
interim order was passed in this suit not to create any third party interest,
then how the defendant No.3 subsequently has been claiming possession
in the suit property. No explanation has been given by him nor
documents have been produced except that the defendant No.3 was filing
affidavits and pleadings that he is in possession after purchase of the suit
property on 25th July 2003 from Mr. Amit Pahwa.
57. I do not agree with the contention of defendant No.3 that prior
to the purchase of the property the defendant No.3 was not aware about
the interim order dated 22nd February 2000 passed in CS(OS)
No.382/2000. It is the admitted fact that defendant No.2 and 3
themselves filed an application in the said suit for their impleadment
during the first week of August 2003. Even assuming for the sake of
argument that he got the knowledge about the interim order during the
end of July or the first week of August, 2003 itself, but at that time,
defendant No.4 was in possession and because of the interim order, it
could not have been transferred to defendant No.3. Even if he took the
possession forcibly or otherwise with the consent of defendant No.4, as
per judicial record, he had again handed over the possession to the
defendant No.4 on 6th January, 2004. Further, after filing the
impleadment application the defendant No.3 admittedly executed a
collaboration agreement with Mr. Yogesh Gupta on 27th February 2004
for development of the suit property as recorded in the order dated 25 th
May 2004 in Crl. Misc (Main) No.5304/03. The said act of defendant
No.3 is in violation of the orders passed in the present suit on 3 rd
February, 2004. Not only that the defendant No.3 also handed over the
possession to the developer i.e. Mr. Yogesh Gupta as per the
collaboration agreement. The said circumstances clearly indicates that
Mr. Amit Pahwa, Sunil Gupta and Mr. Jayant Gerdia, defendants 2 to 4
were having the knowledge about the interim orders otherwise why Mr.
Jayant Ghadia, defendant No.4 would have withdrawn the suit on 9 th
June 2004 by filing of an application stating that the disputes have been
settled by the parties. No other explanation whatsoever has been given
by defendant No.3 that how he got the possession of the suit property
after 6th January, 2004. In case he got the possession after the withdrawal
of the suit on 9th June, 2004 even then, it amounts to breach of orders
passed on 3rd February, 2004.
58. It is well settled law that the guilty party is liable to be thrown
out at any stage. In the case of S.P. Chengalvaraya Naidu vs.
Jagannath, AIR 1994 SC 853 it is held that:-
"We are constrained to say that more often than not, process
of the court is being abused. Property-grabbers, tax-
evaders, bank-loan-dodgers and other unscrupulous persons
from all walks of life find the court process a convenient
lever to retain the illegal gains indefinitely."
59. I do not agree with the plea of the defendant No.3 regarding the
bona fide purchase of the suit property. In view of the facts and
circumstances mentioned above, prima facie, it cannot be said that the
purchase of suit property by the defendant No.3 from defendant No.2
was bonafide. The defendant No.3 has claimed the possession of the
suit property by way of GPA, Agreement to Sell, Will etc and other
documents executed by defendant No.2, which are unregistered and
unstamped documents. A bare reading of Section 49 of the Registration
Act makes it clear that to make a document admissible in evidence there
should be proper registration and stamping under the Stamp Act as the
possession of the prop0erty is also transferred in the present case, hence
transfer of right can only be valid if the documents of the property are
registered and stamped. Unregistered/Unstamped documents shall have
no effect on the property and they are unenforceable under Section 54 of
the Transfer of Property Act. In 2001 the Registration Act was amended
and the provision of Section 17 (1A) was inserted which provides that a
document purporting to operate as an Agreement to Sell shall be
registered if it has been executed on or after the commencement of the
Registration and Other Related Laws (Amendment) Act, 2001 and if
such a document is not registered on or after such commencement it
would have no effect for the purposes of Section 53-A of the Transfer of
Property Act. In the case of Avinash Kumar Chauhan vs. Vijay
Krishna Mishra, 2009 II AD (SC) 109, the Apex Court has held that:-
"If all purposes for which document is sought to be brought
in evidence are excluded, we fail to see any reason as to
how the document would be admissible for collateral
purposes."
60. Defendant No.3 has argued that the probate has been obtained in
the fraudulent manner and he has already filed a suit in this court against
the plaintiffs and others challenging the said proceedings on various
grounds wherein summons have been issued to the defendants. In the
case of Indian Association vs. Shivendra Bachadur Singh & Ors in
104(2003) DLT 820(DB) (DHC) it has been held that the judgment of
court in probate proceedings is a judgment in rem and not judgment in
personam.
61. Learned counsel for the defendant No.3 has heavily relied upon
the judgment reported as 1995(34) DRJ (DB) Raj Kumar Nigam &
Ors vs. Khalifa Khajan Singh & Ors, wherein the Division Bench has
held that by not allowing construction on the property the plaintiffs do
not gain any advantage except that they will have the satisfaction of
being able to deprive the defendants of the fruits of their property. The
same are the arguments of the senior counsel appearing on behalf of the
defendant No.3, who has also argued that the defendant No.3 is
prepared to give undertaking to this court that the construction be
allowed to the defendant No.3 at his own risk and cost and subject to the
final outcome of the present litigation and in case the plaintiffs succeed
in the matter, the defendant No.3 would not have any claim of equity.
The said judgment referred by the learned counsel for the defendant
No.3 is not applicable to the facts and circumstances of the present case,
firstly in the same para of the said judgment, the Division Bench do not
find any merit of the claim of the plaintiffs as observed in the said
judgment and secondly, the suit in that case was filed for damages and
not for possession as referred in Para 13 of the said judgment. The
following relevant portion of the said judgment reads as under:-
"The learned counsel for the appellants has also submitted
that the plaintiffs have filed a suit for damages. They have
not filed a suit for possession. Therefore, they cannot seek
to restrain the defendants from carrying on construction in
the premises. In other words the submission is that
plaintiffs cannot be permitted to go beyond their pleadings.
In a suit for damages the plaintiffs cannot seek to restrain
another from carrying on construction on his own property."
62. The next submission of the learned counsel for the defendants is
that the application filed by the Plaintiffs under Order 39 Rule 4 of the
Code is not maintainable under the provisions as it applies only for
discharge, variation or setting aside the injunction order and can only
be invoked by a party against whom any interim order has been passed.
I do not agree with the submission of the learned counsel for defendant
No.3 in this regard. In order to appreciate the provisions of Order 39
Rule 4 which clearly indicates that the order of injunction may be
discharged, varied or set aside on application made thereto by any party
and proviso of the said provision lays down the following:-
"Provided further that where an order for injunction has
been passed after giving to a party an opportunity of being
heard, the order shall not be discharged, varied or set aside
on the application of that party except where such discharge,
variation or setting aside has been necessitated by a change
in the circumstances or unless the court is satisfied that the
order has caused undue hardship to that party."
63. In the present case the plaintiffs have filed the application for
variation of the order due to change of the circumstances in relation to
the order already passed on 3rd February 2000, therefore, the submission
of the learned counsel for defendant No.3 has no force and cannot be
accepted. Even otherwise, I am of the view that it is the substance of the
application that matters and not the nomenclature given in the cause title
of the application. Under Section 151 CPC the court has inherent power
to consider an application wherein a wrong provision is mentioned. It
cannot be an obstacle for granting the relief made out from the contents
of the application. It is settled law that no party can be permitted to
sidetrack the main issue and allowed to control the court proceedings,
sometime by going to elementary procedure law, sometimes by pressing
hyper-technical issues with the sole motive of delaying the disposal of
main suit and to continue with violations and keep on reaping fruits at
the cost of prolonging decision on main controversies as held in
132(2006) DLT 169 Delhi High Court in the case of Lynameeh
Machozer Fabric Ltd vs. V.S. Filteration Ltd.
64. I also do not agree with the learned counsel for the defendant
No.3 that since the hardship in the application has not been pleaded,
therefore, the application is liable to be dismissed. The application is to
be read as a whole. It is clear after reading the application that the
plaintiffs have been able to demonstrate the various grievances and their
hardships. At the request of the plaintiffs the Local Commissioner was
appointed after filing the present application to verify the status of the
construction carried on by defendant No.3.
65. The next contention of defendant No.3 is that the principle of
res judicata will apply in the present application as in the plaintiffs‟
earlier application filed being I.A. No.631/04 seeking the relief to
restrain construction in the property, no such relief was granted despite
confirmation order dated 1st December, 2005. Even the contempt
application filed by the plaintiffs was dismissed. I do not agree with the
learned counsel for defendant No.3. It is a matter of fact that when the
interim order was granted in this matter in I.A. No.631/04 and on
confirmation on 1st December, 2005 the circumstances were entirely
different than the present circumstances. At that time the probate
proceedings were pending wherein the defendant No.1 Mr. Raj Kumar
had propounded the registered Will on the basis of which he transferred
to the defendant No.4 and later on to the defendant No.2 Mr. Amit
Pahwa. However, the probate proceedings have already been decided
and the propounded Will has been declared as a forged Will. The
judgment was passed in the month of January, 2009. Consequently none
of the defendants had tried to construct the property during the pendency
of the interim order and even subsequently till July, 2009. It was for the
first time that the defendant No.3 in the month of August, 2009 started
construction in the suit property. Therefore, in view of the said change
of circumstances, the question of res judicata does not apply in the
present case.
66. The contention of the learned counsel for defendant No.3 is that
along with the suit, the plaintiffs have earlier filed an application being
I.A. No. 631/2004 seeking the similar relief to restrain construction in
the suit property. However, after considering the application, it was
disposed of on 1st December, 2005 and no such relief of restrain of
construction was granted to the plaintiffs even in the contempt
application filed by the plaintiffs.
67. When the application of the plaintiffs was listed for
consideration, no construction was being carried out by the defendants
nor had any specific finding been given by the courts while deciding I.A.
No. 631/2004. Since the construction has been started by the defendant
No.3 in the suit property only in the month of August, 2009 therefore,
the question of res judicata in the application does not arise. The
judgment cited by the defendant No.3 is not applicable in the present
case, the plea of defendant No.3 cannot be accepted under the said
circumstances.
68. I do not agree with the submissions of learned counsel for
defendant No.3 that the suit was legally withdrawn by defendant No.4
and no notice as per law was required to be served upon the parties. It is
well settled law that the court should not allow the withdrawal of a
matter if it prejudices the right of the other party and the party
withdrawing the suit wants to achieve an ulterior goal by adopting an
oblique method. In the present case, withdrawal of the Suit No.382/2000
tantamounts to the vacation of the interim order granted on 22 nd
February, 2000 for restraining of construction. Defendant No.3 got the
possession of the suit property although without any explanation and has
now started the construction in the month of August, 2009. One can
easily assess that withdrawal of the suit on the part of defendant No.4
with the collusion of the other defendants was to take the advantage of
the said vacation of the interim order. The plaintiffs were admittedly
defendants in the said suit and no copy of the application was served
upon the most affected party. The withdrawal of the suit, without any
doubt, has prejudiced the rights of the plaintiffs in view of the facts and
circumstances of the present case.
69. The contention of the learned counsel for defendant No.3 cannot
be accepted that after withdrawal of the suit, the plaintiffs‟ application
for recalling the order dated 9th June, 2004 has been dismissed. The said
application has been dismissed in default. Had the plaintiffs appeared
before the court at the time of withdrawal of the suit, the court might not
have passed the order for withdrawal on the application under Order 23
Rule 1 CPC. It creates doubt in the mind as to where was the occasion by
the defendant No.4 to withdraw the suit during the vacation period as it
could have been withdrawn by the adoption of the proper procedure by
the defendant if the withdrawal was bonafide.
70. I also do not agree with the contention of the defendant No.3
that defendant No.3 is constructing the suit property for his residential
purposes. The said submissions are without any substance as although
the present application is concerning only Greater Kailash property but
as per the plaint, the defendants have also given the same treatment in
the same fashion in respect of another property in Model Town
belonging to the plaintiffs in which probate has also been granted. Prima
facie, since the title of the suit property is defective, being unstamped,
the possession is illegal and doubtful and the conduct of defendant No.2
is not proper, therefore, the defendant No.3 cannot be allowed to make
any construction in the suit property.
71. It is pertinent to mention that the defendants No. 2 to 4 have
purchased the property with the undisputed fact that all the titles of the
suit property and other properties are in possession of the plaintiffs and
the findings in this regard are given by this court in the appeal decided
by Hon‟ble Mr. Justice Madan B. Lokur. It is a matter of surprise that the
defendants no.2, 3 and 4 have purchased the suit property as well as
another property of the plaintiffs without seeing the original titles of the
properties. This is one of the circumstances which shows that the
defendants in this matter have been in connivance with each other.
72. Lastly, learned counsel for the defendant No.3 has argued that
there is no question of hardship as the plaintiffs would not gain any
advantage by not allowing the construction. I do not agree with the
learned counsel for defendant No.3. The conduct of defendant No.3 is
not proper as, prima facie, he has violated the orders passed by the court
and titles of the property are defective, the possession is also contrary to
the orders and as per the judicial record, cannot be permitted to raise the
construction in the suit property as balance of convenience and equity do
not lie in his favour.
73. After thoughtful consideration of the entire gamut of the matter,
I am of the considered view that the plaintiffs have been able to make a
prima facie case in their favour and therefore, are entitled for the relief of
variation and modification of the order dated 3 rd February, 2004 in
addition to the earlier order of restraining the defendants No.2 to 4 from
causing any construction in the suit plot bearing No.W-137, Greater
Kailash, Part-II, New Delhi till the final disposal of the suit.
74. As regards the other reliefs i.e. handing over the peaceful
possession and sealing of the suit property, the said reliefs cannot be
allowed in the present application as in the original application filed by
the plaintiffs, there was no such prayer nor did the plaintiffs file a fresh
application for injunction. The application is accordingly disposed of.
75. With the above said directions, in order to preserve order and to
know the present status of the construction of the suit property the Local
commissioner Ms. Mamta Jha, Mobile No. 9891038008, who was also
appointed earlier in the present matter, is appointed to immediately visit
the suit property to ascertain the present status of the construction being
done by defendant No.3. The Local commissioner shall also be entitled
to take photographs and to obtain police assistance from the local Police
Station to execute the above said orders. The fee of the Local
Commissioner is fixed at Rs.20,000/- which shall be paid by the
defendant No.3. The plaintiff No.4 and defendant No.3 are permitted to
accompany the Local commissioner who shall file her report within two
weeks from today. Copy of the orders may be given dasti to the Local
Commissioner. Observations made in this order shall have no bearing on
the final outcome of the suit.
CS(OS) NO. 75/2004
76. List this matter before the Court on 8th January, 2010 for
framing of issues.
MANMOHAN SINGH, J.
NOVEMBER 10, 2009
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