Vinay Rai vs Anil Rai
2010 Latest Caselaw 3916 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     FAO(OS) No.485/2008 & CM No.17481/2008

Vinay Rai                              .....Appellant through
                                       Mr V.P. Singh, Sr. Adv. with
                                       Mr Vinod K. Shukla,
                                       Mr Shakeel Ahmed &
                                       Ms Chitra Sharma, Advs.

                  versus

Anil Rai                               .....Respondent through
                                       Mr Arvind Nigam, Sr. Adv.
                                       with Mr Sandeep Mittal, Adv

%                               Date of Hearing: August 10, 2010

                                Date of Decision: August 25, 2010

      CORAM:
*     HON'BLE MR. JUSTICE VIKRAMAJIT SEN
      HON'BLE MS. JUSTICE MUKTA GUPTA
      1. Whether reporters of local papers may be
         allowed to see the Judgment?                   No
      2. To be referred to the Reporter or not?         Yes
      3. Whether the Judgment should be reported
         in the Digest?                                 Yes

VIKRAMAJIT SEN, J.

1. This Appeal assails the Order dated 23.10.2008,

dismissing the Defendant‟s application under Order VII Rule 11

read with Order XII Rule 6 and Section 151 of the Code of Civil

Procedure, 1908 („CPC‟ for short). It is undeniably evident that

Order XII Rule 6 of the CPC has no role to play in the present

controversy. The application mentions and relies on the details

set out in the Written Statement. Succinctly stated, the

application raised four grounds for the rejection of the Plaint by

the learned Single Judge. The first argument was that no

concluded contract had concretized between the parties and

what was reduced to writing was merely a „Wish List‟. Secondly,

it was averred that the Suit was barred by the principle of

prescription. Thirdly, it was pleaded that the Suit had not been

correctly valued for the purposes of Court Fees and proper and

adequate court fees had not been affixed on the plaint. Fourthly,

it had been articulated that the Plaintiff had not obtained leave

of the Court for filing a fresh action at the time when CS(OS)

No.,118/2005 was dismissed. Each of these four contentions

have also been canvassed before us.

2. Mr. V.P. Singh, learned Senior Counsel for the Appellant,

has additionally pressed Section 41(h) of the Specific Relief Act,

1963 („SR Act‟ for short) to contend that the Suit itself is not

maintainable as it seeks a mandatory and permanent injunction.

In this connection, Mr. Arvind Nigam, learned Senior Counsel

for the Respondent, submits that this argument had not been

raised before the learned Single Judge. We have questioned the

Appellant on the legal propriety of raising a ground in an Appeal

against an interlocutory Order which ground had not been

voiced before the learned Single Judge. In response thereto, Mr.

Singh has sought to rely on the following observations made in

Gurcharan Singh -vs- Kamla Singh, (1976) 2 SCC 152:-

11. Before we examine this quintessential aspect presented before us with complex scholarship by Shri S.C. Misra we had better make short shrift of certain other questions raised by him. He has desired us, by way of preliminary objection, not to give quarter to the plea, founded on Section 6 of the Act, to non-suit his client, since it was a point raised de novo at the Letters Patent stage. The High Court gave thought to this objection but overruled it, if we may say so, rightly. The Court narrated the twists and turns of factual and legal circumstances which served to extenuate the omission to urge the point earlier but hit the nail on the head when it held that it was well-settled that a pure question of law going to the root of the case and based on undisputed or proven facts could be raised even before the Court of last report, provided the opposite side was not taken by surprise or otherwise unfairly prejudiced. Lord Watson, in Connecticut Fire Insurance Company v. Kavanagh, stated the law thus:

When a question of law is raided for the first time in a Court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interest of justice to entertain the plea. The expediency of adopting that course may be doubted when the plea cannot be disposed of without deciding nice questions of fact in considering which the Court of ultimate review is placed in a much less

advantageous position than the courts below. But Their Lordships have no hesitation in holding that the course ought not in any case to be followed unless the court is satisfied that the evidence upon which they are asked to decide establishes beyond doubt that the facts if fully investigated would have supported the new plea.

We agree with the High Court that the new plea springs from the common case of the parties and nothing which may work injustice by allowance of this contention at the late stage of the Letters Patent appeal has been made out to our satisfaction. Therefore, we proceed to consider the impact and applicability of Section 6 of the Act to the circumstances of the present case.

3. A careful reading of the above extract will make it

manifest that the case does not support the Appellant‟s stand

even in the minutest measure. The proceedings before the Court

of Original Jurisdiction had come to their final end, in

contradistinction to an intermediary stage as in the case in hand

is, since only an interim application has been considered and

decided in the impugned Order. For the same reason, reliance

on Ravulu Subba Rao -vs- CIT, AIR 1956 SC 604 is of no

advantage to the Appellant. We think it imperative that all legal

points such as limitation, estoppel, res judiciata and

maintainability in law of the suit etc. must necessarily be raised

before and thereupon cogitated upon and decided by the Trial

Court in the intermediary stages of the lis for a decision to be

rendered with regard thereto. We think so for the simple reason

that in the continuum of the case, corrective action should not

be thwarted. We are in no manner of doubt that a party who

invites the Court to bring legal proceedings to a conclusion

earlier than what is envisaged by established procedure must

present all the grounds before the Court of first instance. Such a

party cannot be permitted to attack the order on fresh grounds

at the appellate stage as that would work disadvantage to the

other party. We are fortified in this view by the observations

made in Umashanker Pandey -vs- B.K. Uppal, 1991(2) SCC 408

where their Lordships in conclusion held that - "the petitioner

would not be justified in assailing the impugned order on

entirely fresh grounds which he has not raised before the High

Court except in review petition, the order of which is not

challenged".

4. Nevertheless, since arguments had already advanced

appreciably on behalf of the Respondent/Plaintiff before it was

brought to light that the prohibition of Section 41(h) of SR Act

would bar a suit claiming a mandatory and permanent

injunction, we think it expedient to decide the Preliminary

Objection. The argument of Mr. Singh is that, assuming an

enforceable contract had been entered into between the parties,

the said provision proscribes an injunction being granted where

an equally efficacious remedy, viz. Specific Performance in the

case in hand, can be sought for by the Plaintiff. There cannot be

any cavil that the Court is continuously obligated to separate

the chaff from the grain, that is, to bring a vexatious or legally

ill-founded suit to its earliest conclusion; and that frivolous

litigation, which would inexorably lead to a sterile end, must be

nipped in the bud. We need not dilate upon this duty beyond

merely mentioning T. Arivandandam -vs- T.V. Satyapal, (1977) 4

SCC 467. However, it is equally well-established, and for the

pragmatic reasons, that a piecemeal consideration of a lis is not

envisaged or encouraged in law.

5. In the present context, it should be plainly and facially

clear from a reading of the Plaint and [as recently expanded in

Liverpool & London S.P. & I Assn. -vs- M.V. Sea Success, (2004)

9 SCC 512)] on a perusal of admitted documents that the plaint

is bound to fail, and if so, the agony of the litigants should be

quickly euthanized. While on this subject, we think it apposite to

clarify that a document filed by a party can be relied upon only

once it is proved in accordance with law. However, to the

contrary, it would always be open to the opposite party to

completely rely on the document, even in the absence of its

formal proof. In other words, documents filed by the Plaintiff

can be used by the Defendant to its advantage and vice versa;

the party filing a document cannot be allowed to deny it except

where he has clearly caveated in this context.

6. Mr. Nigam explains that since there are multifarious and

numerous claims between the parties, the Plaintiff in his own

wisdom had sought the relief of mandatory and permanent

injunction so that a final and definitive answer may be received

from the Court which would then have binding effect and force

between the parties on particular and individual disputes. In

Abdul Gafur -vs- State of Uttarakhand, (2008) 10 SCC 97 their

Lordships have again recognized the right of every person to

initiate civil proceedings. It would be inopportune and unfair to

non suit a party at the threshold as this argument and

explanation is a plausible one at the present stage of the

litigation. This is especially so since the Defendant, in fact,

asserts that no concluded contract/Family Agreement had come

into being. No party should be allowed to approbate and

reprobate and this is clearly what the Defendant is attempting

to achieve. On the one hand, it is affirmed on his behalf that the

relief of Specific Performance is available to the Plaintiff and in

the very next breath it is asserted by him that no contract had

evolved between the parties. There is no gainsaying that parties

can take alternative pleas. In such circumstances, however, a

suit cannot be defeated at the threshold by taking into

consideration pleas that are essentially contradictory. Had the

Defendant admitted that the Family Arrangement was for all

intents and purposes an enforceable contract, the position

would be different. The argument of learned Senior Counsel for

the Appellant is rejected. For these reasons also, Rajendra

Kumar -vs- Mahendra Kumar Mittal, AIR 1992 All 135 and

Jasmer Singh -vs- Kanwaljit Singh, AIR 1991 P&H 194 are not of

much relevance.

7. We shall now consider each of the four arguments raised

by the Appellant/Defendant before us. In respect of the aspect of

Court Fees, the learned Single Judge had held against the

Respondent/Plaintiff, which led him to file FAO(OS)

No.475/2008 assailing the finding. On 10.8.2010, the said

Appeal was disposed of in view of the statement made by

learned Senior Counsel for the Plaintiff/Respondent that Court

Fees in accordance with the determination of the learned Single

Judge would be affixed on the Plaint.

8. The vexed question is whether the Rai Family Agreement

dated 19.3.2000, which is the subject matter of the injunctory

relief, represented a concluded contract or was in the nature of

a mere Wish List. The learned Single Judge, in our view, has

pertinently pointed to the legal enunciation made in the

trailblazing decision of Kale -vs- Dy. Director of Consolidation,

(1976) 3 SCC 119. Their Lordships had recommended the

upholding of family arrangements rather than setting them at

naught on technical or trivial grounds. The same proposition has

been reiterated very recently by distinctly different Benches in

Manish Mohan Sharma -vs- Ram Bahadur Thakur, (2006) 4

SCC 416 and Hari Shankar Singhania -vs- Gaur Hari Singhania,

(2006) 4 SCC 658 to the effect that family arrangements

command special equities and should be enforced. It is these

observations that have prompted the learned Single Judge into

rejecting the contention of the Appellant, despite noticing that

the Plaintiff had labelled the said understanding between the

parties before the Settlement Commission as a mere Wish List.

We find no reason to disturb this view.

9. Our attention has also been drawn to Anathula Sudhakar -

vs- P. Buchi Reddy, AIR 2008 SC 2033 : 2008(4) SCC 594 where

their Lordships have opined that - "where title of plaintiffs is

disputed and claim for possession is purely based on title, and

the plaintiffs have to rely on various principles of law relating to

ostensible ownership and section 41 of TP Act, validity of a oral

gift by way of „pasupu kumkum‟ under Hindu Law, estoppels

and acquiescence, to put forth a case of title, such complicated

questions could properly be examined only in a title suit, that is

a suit for declaration and consequential reliefs, and not in a suit

for an injunction simpliciter". The parties must be given a fair

opportunity to explain their rival stands in the Trial, especially

keeping in mind that they are brothers. The close relation

between the parties propels us to the opinion that the

pronouncements in Kale, subsequently followed in Manish and

Hari, should persuade the Court away from a technical and

rigorous approach.

10. We shall now proceed to decide the next Objection raised

by the Appellant/Defendant which is to the effect that the Suit is

barred by limitation. We have already mentioned that the so

called Rai Family Agreement is dated 19.3.2000. The

Defendant/Appellant contends that the Plaintiff would have

gained knowledge of the Defendant‟s unwillingness to

implement the Rai Family Agreement through E-mails

exchanged between the parties going back to the year 2002, at

which time the cause of action would have arisen. The subject

Suit has been filed in February, 2006 and by which time three

years had elapsed, the Appellant contends. In the impugned

Order, the learned Single Judge has reproduced the events

which, according to him, tantamounted towards implementation

of the Rai Family Agreement, starting from January, 2001 and

allegedly carrying well past 2002. It has also been averred in

the Plaint that some events, on which the Settlement is to be

completed, occurred as late as in May, 2006. It appears to us,

therefore, that evidence will have to be recorded on these

events and it is only on their probative and legal appreciation

that a final decision on this point can be returned. The CPC

envisages the framing of myriad Issues and it is only in respect

of the Issues which do not require evidence or those Issues

which are purely legal in character, that a dismissal at the

preliminary stage is possible. These are essentially appreciation

of facts resulting in the exercise of informed discretion. An

Appellate Court must not intervene in the exercise of discretion

unless it is palpably perverse. The conclusion of the learned

Single Judge that this objection must await the conclusion of the

Trial Court is not perverse and we are loathe to interfere with it.

Furthermore, the rationale in Kale must have prevailed upon

the learned Single Judge to give latitude to the Plaintiff in this

regard because the dispute stems from a Family Arrangement.

11. The last point, that is, the Suit is barred under Order II

Rule 2 of the CPC, was not seriously canvassed before us. In the

application, it has been pleaded that no leave to file the present

Suit had been granted by the Court entertaining CS(OS)

No.118/2005 [as mentioned in the application] and/or CS(OS)

No.1158/2005 [as mentioned in the Rejoinder] filed by the

Appellant and, therefore, the present Suit should be rejected

under Order VII Rule 11(d) of the CPC. In response thereto, it

has been pointed out that the previous suit was filed by the

relatives of the Plaintiff/Respondent and the present

Respondent/Plaintiff was the Defendant therein and hence the

aforementioned provisions did not apply. Perhaps, for this

reason, the Objection that has been taken has not been pressed

before us.

12. For these manifold reasons, we find no reason to interfere

with the impugned Order. The Appeal is without merit and is

dismissed. Pending application is also dismissed.

                                           ( VIKRAMAJIT SEN )
                                                 JUDGE




                                           ( MUKTA GUPTA )
August 25, 2010                                 JUDGE
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