Smt.Tarawati(Now Deceased) ... vs Shashi Kumar Mahajan (Now ...
2010 Latest Caselaw 1957 Del

                                         REPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         DATE OF RESERVE: December 07, 2009

                          DATE OF DECISION: April 16 , 2010


+                         RFA 221/1997


SMT. TARAWATI (NOW DECEASED)
THROUGH HER LEGAL REPRESENTATIVE
SHRI I.D. TYAGI                                       ..... Appellant
                Through: Mr. I.D. Tyagi.

               versus

SHASHI KUMAR MAHAJAN (NOW DECEASED)
THROUGH HIS LEGAL REPRESENTATIVES ..... Respondents
             Through: Mr. Madan Bhatia, Sr. Advocate
                      with Mr. Viraj R. Datar and
                      Mr. Chetan Lokur, Advocates

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

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?


: REVA KHETRAPAL, J.

1. By this appeal the appellant assails the order of the learned Trial

Court dated 01.05.1997 dismissing the suit for possession filed by the

appellant as not maintainable.

2. The brief facts as averred in the appeal filed by the appellant are

as follows:-

(i) The appellant had filed a suit for the possession of the first floor

of the property bearing no. N-85, Greater Kailash, Part-I, New Delhi and

for the recovery of Rs.75,000/- as damages against the respondent on the

ground that the appellant had purchased the first floor of the aforesaid

property from its owner Ms. Neelam Mahajan by a Registered Sale Deed

and the defendant was merely a licensee who was in occupation of the

property, and who later on became an unauthorized occupant after the

termination of the license by the appellant.

(ii) The respondent, along with his written statement, filed an

application under Order VII Rule 11 read with Section 151 of the Code

of Civil Procedure for rejection of the plaint on the ground that the

aforesaid suit of the appellant was barred by law and thus liable to be

rejected. The respondent averred that the respondent had filed a civil

suit for partition of the joint Hindu family properties which was

registered as Suit No.3041/1990 wherein the following properties were

sought to be partitioned:

a. Property bearing No. N-85, Greater Kailash, Part-I, New Delhi- 110048.

b. Property bearing No. C-58, Preet Vihar, Delhi-110092.

c. Shop No. 5677 at Gandhi Market, Sadar Bazaar, Delhi-06.

3. The respondent in the aforesaid application further stated that in

the suit filed by the respondent, a Division Bench of this Court, by an

order dated 12th March, 1992 had directed the parties to maintain the

status quo regarding "portion of the property bearing No. N-85, Greater

Kailash, Part-I, New Delhi, which is stated to be in the possession of the

appellant, the respondent herein."

4. The respondent also stated that though the order dated 12th March,

1992 was confirmed by the Division Bench on 21 st October, 1992, in

wilful disobedience of the aforesaid order and in collusion with the

outside agencies/individuals, the appellant violated the said order, in

regard to which contempt proceedings were instituted in this Court

against her by the respondent. The Division Bench, by an order dated

2nd March, 1993 passed in CCP No. 231/1992 admitted the said

contempt petition for hearing.

5. In the application filed by the respondent herein, it was further

alleged that while the suit was founded on an alleged Sale Deed dated

9th September, 1992, in the earlier suit pending on the Original side of

this Court appropriate pleas with regard to the fraudulent and illegal

nature of the entire transaction had been taken by the respondent. It was

alleged therein that the suit was based on a fraudulent claim of title and

is barred by law. It was denied that the appellant had been residing on

the first floor of the suit premises either as a tenant or as a licensee. The

suit property was the subject matter of litigation in the aforesaid suit for

partition being Suit No. 3041/1992 when it was purchased by the

appellant for a paltry amount of money. The relevant extract of the Sale

Deed dated 9th September, 1992 reads as under: -

"WHEREAS Shri-Shashi Kumar Mahajan the brother of the Vendor is occupying the built up portion of the property i.e. a room and W.C. as licensee and refused to vacate the occupied portion and it not within (sic) her means to get the possession of the property: hence she has agreed to sell the first floor (terrace) upto sky limit being „as it is, where it is‟."

6. The appellant filed reply to the application under Order VII Rule

11 CPC denying knowledge of any interim orders passed, as alleged, and

stating that as she was not a party in the suit for partition, she had no

knowledge of the said interim orders. The appellant further stated that

she was neither in collusion with anyone nor had violated any order

passed by this Court and that no contempt proceedings had ever been

initiated against her. She further stated that she had purchased the

property in question from Ms. Neelam Mahajan without any knowledge

of Ms. Neelam Mahajan being a party in any pending litigation in

respect of the premises and accordingly prayed for the dismissal of the

application under Order VII Rule 11 CPC filed by the respondent.

7. The learned Trial Court, after hearing the parties and noting that

the appellant had filed the suit for possession of the ground floor of the

property in question and for the recovery of damages on the ground that

the respondent was in occupation of the premises in question as a

licensee, who later on became an unauthorized occupant after the

termination of the license by the appellant, dismissed the suit by holding

as follows: -

"3. A perusal of the order of Hon‟ble high Court makes it abundantly clear that the defendant was allegedly in possession and a status quo was ordered by Hon‟ble High Court not to disturb his possession. The possession of the defendant is not denied by the plaintiff. In view of this fact, when there is clear order made by Hon‟ble High Court to restrain from dispossessing the defendant I can think that a suit for possession is not maintainable because unless the partition suit is decided and it is held by Hon‟ble High Court that the defendant was not entitled to possession of the portion in his occupation, no suit for recovery of possession shall lie against the defendant. The plaintiff allegedly has derived title from Ms. Neelam who is one of the defendant in the proceedings before the Hon‟ble High Court. Order of Hon‟ble High Court was binding on Ms. Neelam even if she has transferred the property to the plaintiff, I think the possession cannot be recovered by the plaintiff so long as some final order is not made by Hon‟ble High Court. The suit is therefore, dismissed being not maintainable.

File be consigned to record room."

8. Arguments were advanced before this Court by Mr. I.D. Tyagi

appearing for appellant and by Mr. Madan Bhatia, Sr. Advocate,

appearing on behalf of the respondents.

9. Mr. Tyagi, contended that the conclusion of the suit being barred

under any law must be drawn from the averments made in the plaint and

that the provisions of Rule 11(d) of Order VII have a very limited

application. Reference in this regard was made by Mr. Tyagi to the

judgment of the Supreme court in the case reported as Kamla and Ors.

Vs. K.T. Eshwara Sa and Ors. AIR 2008 SC 3174 and in particular to

paragraph 15 of the said judgment which is reproduced as follows: -

"15. Order VII, Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order VII, Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub- clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order VII, Rule 11 of the Code is the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order VII, Rule 11 of the Code is one, Order XIV, Rule 2 is another."

10. Mr. Tyagi also referred to the judgment of the Supreme Court in

the case of Mayar (H.K.) Ltd. & Ors. Vs. Owners & Parties, Vessel

M.V. Fortune Express & Ors., AIR 2006 SC 1828 to contend that the

plaint cannot be rejected on the basis of the allegations made by the

defendant/respondent in the written statement or in an application under

Order VII Rule 11 for rejection of the plaint. The court must read the

plaint in its entirety to ascertain for itself whether the plaint can be

rejected by the Court by exercising the powers under Order VII Rule 11

of the Code. So long as the plaint discloses some cause of action which

requires adjudication by the Court, the mere fact that in the opinion of

the court, the plaintiff may not succeed, cannot be a ground for rejection

of the plaint.

11. Mr. Madan Bhatia, the learned Senior Counsel appearing on

behalf of the respondent, on the other hand, contended that the plaint in

the instant case was not only barred under the provisions of the clause

(d) Rule 11 Order VII of the Code but was also barred by the provisions

of clause (a) of the aforesaid Rule 11, inasmuch as the plaint did not

disclose any cause of action. While conceding that the provisions of

clause (a) of Order VII Rule 11 of the Code were not pressed into

service by the respondent before the learned Trial Court, Mr. Madan

Bhatia contended that this did not impose any embargo on this Court to

call into service the provisions of clause (a) for the purpose of arriving

at the conclusion that the plaint had been rightly rejected by the learned

Trial Court.

12. Mr. Madan Bhatia further relied upon the decisions of the

Supreme Court in the cases reported as Madhukar and Ors. Vs.

Sangram and Ors. (2001) 4 SCC 756; Thota Lakshmi Venkata Bala

vs. Muttamsetti Seethamma 2008 (9) AD SC 27; United Provinces vs.

Mt. Atiga Begum and Ors. AIR 1941 Federal Court 16; Giani Ram

and Ors. Vs. Ramji Lal and Ors. AIR 1969 SC 1144 and Mahant

Dhangir and Anr. Vs. Madan Mohan and Ors. 1988 (1) SCR 679 to

demonstrate the wide amplitude of the powers vested in the Appellant

Court to pass such decree or order "as the case may require" (Rule 33 of

Order XLI) and to determine the questions of fact and law in order to

render complete justice between the parties.

13. Mr. Bhatia, also referred to a catena of judgments to contend that

the appellant, being admittedly a purchaser pendente lite, had acquired

no title in the property, as the sale transaction was hit by Section 52 of

the Transfer of Property Act (for short „TPA‟) and the doctrine of lis

pendens enshrined therein. Mr. Bhatia urged that the learned Trial

Judge, Sh. S.N. Dhingra (as his Lordship then was) rightly dismissed the

suit, for, if the Court had allowed a purchaser pendente lite, from one of

the defendants in the suit for partition, to proceed with the present suit

for eviction of the respondent, who was the plaintiff in the suit for

partition and against whom the purchaser pendente lite had acquired no

title, would have been a monument to absurdity. It was urged that this

was all the more so as the sale was in violation of the status quo orders

passed in favour of the respondent (appellant before the Division Bench)

by the Division Bench in the suit for partition.

14. Mr. Madan Bhatia, the learned Senior Counsel in support of the

aforesaid contention relied upon the decisions of the Supreme Court

reported as Surjit Singh & Ors. Vs. Harbans Singh and Ors. (1995) 6

SCC 50; Lakshmanan vs. Kamal AIR 1959 Kerala 67 (V 46 C 28); K.

Subbayyamma & Ors. Vs. Sajja Chimpirayya & Ors. 1976 (1) Andhra

Weekly Reporter 438; Simla Banking and Industrial Co. Ltd. Vs.

Firm Luddar Mal Khusi Ram and Ors. AIR 1959 Punjab 490; Santa

Singh and Ors. Vs. Rajinder Singh & Ors.; Achut Sitaram

Patwardhan vs. Shivajirao vs. Shivajirao Krishnarao Gaikwar and

Ors AIR 1937 Bombay 244; Kishan Singh vs. Mohinder Singh Etc.

ILR (1973) 2 Punjab & Haryana 142; Sarvinder Singh vs. Dalip

Singh & Ors. 1996 VI AD S.C. 546; Mt. Sant Kaur vs. Teja Singh and

Ors. AIR 933) 1946 Lahore 142; Pt. Ram Charan vs. Parmeshwar

Din AIR 1933 Allahabad 201; Gouri Dutt Maharaj vs. Sukur

Mohammed and Ors. AIR 935) 1948 Privy Council 147; P.I. Iducula

vs. Padmanabhan Nair 1967 KLT 1060; Jayaram Mudaliar vs.

Ayyaswami & Ors. AIR 1973 SC 569; Rajender Singh vs. Santa

Singh AIR 1973 SC 2537 and Dhanna Singh & Ors. Vs. Baljinder

Kaur & Ors. (1997) 5 SCC 476.

15. The common thread running through all the aforesaid decisions is

the maxim pendente lite nihil innovator which means that pending the

suit nothing should be changed. This maxim, known as the rule of lis

pendens is a very well acknowledged rule of public policy, for otherwise

successive alienations would defeat the purpose of litigation, making it

interminable. The ultimate effect of the Rule is not to render void the

conveyance, but the intention is to invest the Courts with complete

control over the alienations made during the pendency of the suit and

thereby to render its judgment binding upon the alienees, as if they were

parties to the already instituted suit. As already stated, in all the

aforesaid decisions it has been laid down that alienation of the disputed

property pendente lite would be hit by the doctrine of lis pendens due to

the operation of the Section 52 of the Transfer of Property Act. It is

proposed to make reference to only two of them, which are apposite to

the case at hand, in order to avoid prolixity.

16. In the case of Jayaram Mudaliar (supra), a three Judge Bench of

the Supreme Court pronounced that a private sale of the Joint Family

Property executed by the karta, not on behalf of the whole family but in

his individual capacity, during the pendency of the suit for partition

brought by a member of the family, would not be binding on the family

and would be hit by Section 52 of the Transfer of Property Act.

17. In Surjit Singh's case (supra), where pending the final decree

proceedings in a partition suit one of the parties assigned its rights under

the preliminary decree by a registered deed in favour of others despite an

order passed by the Trial Court restraining the parties from alienating

any part of the suit property, it was held that the said

alienation/assignment having been made in defiance of the Court‟s

order, the court was obliged to treat the said alienation/assignment as

non est. This was irrespective of whether it was assignment of the

property per se or of the decree pertaining to the property and also

irrespective of whether the assignment was by a Registered Deed or not.

The following apposite observations were made by the Supreme Court in

Surjit Singh's case (supra).

"....When the court intends a particular state of affairs to exist while it is in seisin of a lis, the state of affairs

is not only required to be maintained, but is is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes. Once that is so, Pritam Singh and his assignees, respondents herein, cannot claim to be impleaded as parties on the basis of assignment. Therefore, the assignees-respondents could not have been impleaded by the trial court as parties to the suit, in disobedience of its orders. The principles of lis pendence are altogether on a different footing.......:

18. Mr. Madan Bhatia, the learned Senior Counsel also submitted that

when a blatant abuse of the process of the court comes to the notice of

this Court, such an abuse should not be allowed by the Court to

circumvent and defeat the ends of justice. In this context, Mr. Bhatia

heavily relied upon the decision of the Supreme Court in the cases of

Jhumman Singh vs. Central Board of Investigation and Ors, AIR

1995 Supreme Court 2083, apart from relying upon the decisions

rendered in K.K. Modi vs. K.N. Modi and Ors. (1998) 3 SCC 573;

Amir Din Shahad Din vs. Shiv Dev Singh AIR (34) 1947 Lahore 102

and R.V. Weisz & Anr. Ex parte Hector Mac Donalt 1951 Vol.2, All

England Law Reports 408.

19. After carefully considering the rival submissions of the parties,

this Court is of the view that the suit in instant case was not maintainable

and the learned Trial Court, rightly did not entertain the same. Apart

from the fact that there was a legal bar against the maintainability of the

suit by virtue of the provisions of Section 52 of the Transfer of Property

Act which was brought to the notice of the court by the defendant, the

suit was manifestly vexatious and a blatant abuse of the process of the

Court. It can only be termed as an audacious attempt on the part of one

of the parties to a prior litigation to overreach the court and the Trial

Court in such a case could not have remained a silent spectator, when it

was satisfied that the litigation was inspired by vexatious motives and

was meant only to harass the other parties to the suit.

20. In the case of T. Arivandandam vs. T.V. Satyapal and Anr. 1978

(1) SCR 742 while exercising powers under Order VII Rule 11 of the

Code, the Supreme Court made the following pertinent observations to

curb the filing of frivolous litigations: -

"We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif‟s Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful-not formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Or. VII r.11 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if cleaver drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X C.P.C. An activist Judge is the answer to irresponsible law suits. The trial court should insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code (Ch.XI) is also resourceful enough to meet such men, and must be triggered against them. In this case, the learned Judge

to his cost realized what George Bernard Shaw remarked on the assassination of Mahatma Gandhi :

"It is dangerous to be too good."

The trial court in this case will remind itself of s.35-A C.P.C. and take deterrent action if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless. In any view, that has no survival value and should be disposed of forthwith after giving an immediate hearing to the parties concerned."

21. In the celebrated case reported as Liverpool & London S.P., & I

Association Ltd. Vs. M.V. SEA Success I and Anr., (2004) 9 SCC 512,

the Supreme Court held as under: -

"....It is trite that a party should not be unnecessarily harassed in a suit. An order refusing to reject a plaint will finally determine his right in terms of Order 7 Rule 11 CPC. The idea underlying Order 7 Rule 11(a) is that when no cause of action is disclosed, the courts will not unnecessarily protract the hearing of a ;suit having regard to the changes in the legislative policy as adumbrated by the amendments carried out in the Code of Civil Procedure, the courts would interpret the provisions in such a manner so as to save expenses, achieve expedition and avoid the court‟s resources being used up on cases which will serve no useful purpose. A litigation which in the opinion of the court is doomed to fail would not further be allowed to be used as a device to harass a litigant....."

22. In the case of ITC Limited vs. Debts Recovery Appellate

Tribunal (1998) 2 SCC 70, the Supreme Court while relying upon its

earlier decision in the case of Azhar Hussain vs. Rajiv Gandhi 1986

Supp. SCC 315 with reference to the provisions of Order VII Rule 11

CPC again reiterated that the whole purpose of conferment of such

powers is "to ensure that a litigation which is meaningless and is bound

to prove abortive should not be permitted to occupy the time of the

court."

23. In view of the aforesaid discussion, there is no merit in the present

appeal. The appeal is accordingly dismissed.

REVA KHETRAPAL (JUDGE) April 16, 2010 sk