Anil Kumar Sinha vs Miss Ranjana Sharma & Anr
2010 Latest Caselaw 340 Del

10
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                                   DECIDED ON: 21.01.2010

+                                  CS (OS) 232/2007
                                   I.A. Nos.719, 5299, 5300
                                   & 15006/2009

        ANIL KUMAR SINHA                                                         ..... Plaintiff
                       Through: Mr. M.K. Singh, Advocate.

                          versus


        MISS RANJANA SHARMA & ANR.                                  ..... Defendants
                       Through: Mr. Aman Mehta, Advocate for D-1.
                       Mr. Praveen Kumar, Advocate for proposed defendant.



        CORAM:
        HON'BLE MR. JUSTICE S. RAVINDRA BHAT

1.

      Whether the Reporters of local papers                YES
        may be allowed to see the judgment?

2.      To be referred to Reporter or not?                   YES

3.      Whether the judgment should be                       YES
        reported in the Digest?

        MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)

% The present common order will dispose of four applications preferred by the various parties.

I.A No.719/2009 seeks review of the order of this Court dated 4.12.2008; it is preferred by the

defendant. I.A. Nos.5299 & 5300/2009 have been filed by the plaintiff seeking impleadment of

one Mr. Vinay Kumar Sinha and for temporary injunction restraining him from disturbing the

status quo, respectively. The plaintiff also claims confirmation of an ad interim ex parte status

I.A.Nos.1434/07, 7863/08, 719, 5299 & 5300/09 in CS (OS) 232/07 Page 1 quo order made on 22.4.2009, in I.A. No.15006/2009.

2. The plaintiff in the Suit alleges to have acquired two plots A-4 & A-5, Samta Enclave,

Qutab Vihar, Najafgarh, New Delhi ("the suit property"); it is stated that the defendant was the

vendor. The suit also alleges that the plaintiff is an animal lover and wishes to put up a

veterinary hospital, for the purposes of which he engaged the services of the defendant. It is

claimed that the defendant assisted him in the acquisition of the suit property. The plaintiff

alleges that the money for such acquisition was spent by him. In support of the claim that the

plaintiff is a real and true owner of the suit property, he relies upon copies of documents, such as

registered power of attorney, registered affidavit, registered Will executed by one Kaushlaya

Devi in favour of the defendant and subsequently similar documents executed by her in favour of

the plaintiff, in 2001. Copies of those documents have been placed on the record.

3. The plaintiff alleged that since he was relying heavily on the defendant, for the conduct

of his affairs and even on the construction of the hospital, for which reason, he used to remit

money periodically he did not suspect any ulterior motives. It is stated that in these

circumstances, when he visited India during the Pooja festival in October, 2005, he discovered

that the defendant had put up a new sign board on the property. The relevant averments, in this

regard, made in the Suit are to the following effect: -

"38. That the plaintiff and his cousin visited the hospital thereafter on the next date but were not allowed to enter the hospital and were again threatened by the defendant and his men and they out of fear left the scene. It is submitted that the plaintiff was surprised to find that the hospital has been closed by the defendant. It is submitted that the defendants have removed the sign board of the hospital from the building. The plaintiff again contacted the police who told him to file a court case as she is claiming ownership right on the property. That the plaintiff had a short stay in India and has to return back to USA authorized his friends and relatives to pursue the case.

I.A.Nos.1434/07, 7863/08, 719, 5299 & 5300/09 in CS (OS) 232/07 Page 2

39. That the defendant is carrying out major addition and alternation in certain portion of the building of the said hospital. The defendant has put a new sign board on the hospital building as Shalil International School and has in the course of time started a school named above in the said building. It is submitted that the defendants have illegally occupied the building and are changing the construction of the building.

41. That from the fact stated above, it is crystal clear that the defendant has defrauded the plaintiff by winning his confidence and has misappropriated property and money to the tune of more than Rs.50 Lacs. She has neither any title nor interest in plot No.4 and 5 detailed in Schedule-I below. Her possession is unlawful. The plaintiff asked her to deliver the possession over the schedule-I of property along with all its fittings and fixtures but she refused. The defendant also failed to return the said amount of Rs.9,68,009/-"

4. It is submitted that the defendant's possession is unlawful and her attempts to build on

the property by carrying on unauthorized or illegal constructions, passing off the premises as her

own, cannot be sustained in law. On the basis of these allegations, the plaintiff approached this

Court for the relief of inter alia a decree of possession and also decree for a sum of Rs.9,68,009/-

which according to the plaintiff she had to pay back to him. The plaintiff also seeks decree of

specific performance of the agreement to sell alleged to have been entered into by him in 2001 in

relief clause (c).

5. This Court by its ex parte order dated 9.2.2007 on the basis of the suit allegations and

copies of the documents placed on the record directed the defendant not to alienate or create third

party rights or part with possession of the suit property. The defendant thereafter entered

appearance and resisted the proceedings. On 21.03.2007, the Court continued the interim

injunction till further orders; however, the temporary injunction application was not disposed

since no further hearing was held on that.

6. The defendant in the Suit filed an application - I.A.7863/2008 complaining that she was

I.A.Nos.1434/07, 7863/08, 719, 5299 & 5300/09 in CS (OS) 232/07 Page 3 illegally dis-possessed on 26-28 May, 2008 at the behest of the plaintiff. It was alleged on the

basis of a criminal complaint, she was taken into custody and had remained there for three days

during which period, possession of the suit premises was taken over. Apparently, considerable

disputes arose, and a number of criminal proceedings are pending in this regard. The defendant

states that plaintiff also had initiated criminal proceedings against her alleging offences of

trespass on the basis of the allegations leveled in this Suit sometime in October, 2005 itself. I.A.

7863/2008, therefore, sought for a direction that the Court should pass appropriate orders of

restitution whereby the defendant's possession should be taken back in respect of the suit

property. This Court after issuing notices to the parties and considering the pleadings by order

dated 4.12.2008 directed as follows: -

"Having heard learned counsel for the parties on this application, this court find it necessary to appoint a Local Commissioner to ascertain the factum of possession. Accordingly, Sh.Raman Kumar, Mobile No.9968319041 is hereby appointed as Local Commissioner who shall visit the premises in question to find out as to who is in possession of the property and if the plaintiff is not found in possession then further ascertain if the occupants in the property are in possession at the behest of the plaintiff. His fee is fixed at Rs.15,000/- to the paid by the applicant/defendant.

In case Local Commissioner finds any difficulty in executing the commission, he can seek the help of the Local Police.

The application stands disposed of."

7. Apparently, the Local Commissioner visited the site after being apprised of the order. His report dated 20.12.2008 is a matter of record, and relevant extracts thereof reads as follows: -

"4. I reached the suit property at 2:30 p.m. on 11.12.2008. The Defendant was present in person at the suit property. No one was present on behalf of the plaintiff. After waiting for about half an

I.A.Nos.1434/07, 7863/08, 719, 5299 & 5300/09 in CS (OS) 232/07 Page 4 hour, neither the Plaintiff or his Counsel or any other representative came at the site till the conclusion of Commission.

5. At the time of inspection, I found that gate of the suit property was locked from inside by means of a chain and lock. On ringing the door bell, one gentleman called Mr. Parmanand Kumar came from inside and refused to open the Gate. Copy of said order was showed by me to that man. HE was fully explained the contents of in his vernacular language by me which he understood. He also stated that he has been appointed by one Mr. Vinay Kumar Sinha to look after the suit property. He further stated that he was living in the suit property for the last two years. He stated that he had no permission from Mr. VinayKumar Sinha to open the Gate in his absence for anyone.

6. It is worthwhile to mention here that I was accompanied by one photographer who was hired by the Defendant. The photographer took number of photographs of the suit property in my presence. Photographs are annexed hereto and marked as Annexure "B".

6. I once again explained him the contents of the order. In spite of knowing the contents of the order, he refused to open the Gate and he did not allow me to enter in the suit property.

7. Thereafter, he called one gentleman Mr. Rakesh Kumar who introduced himself as a Security Guard and stated that he had been appointed by Rakshak Securities, Matiala Village, Dwarka on the constructions of said Mr. Vinay Kumar Sinha. He was also carrying a Gun with him. Besides those, there were two other persons in the suit property with him.

8. In my presence, from outside the gate, the Photographer managed to take photograph of the Car which was parked inside the suit property. The Defendant told me that the said Car belonged to her School, M/s Sahil International School.

9. The Commission came to an end at 4:10 p.m. The Commission took place in the presence of Ms Ranjana Sharma, Defendant and her Counsel. Till the conclusion of the commission no one was present on behalf of the plaintiff."

8. The defendant by her application - I.A. 719/2009 contends that the order of the Court I.A.Nos.1434/07, 7863/08, 719, 5299 & 5300/09 in CS (OS) 232/07 Page 5 dated 4.12.2008 though seemingly disposing of the application for restitution, cannot be considered as dis-positive of the controversies arising in the application. It is submitted that the Court had directed appointment of a Local Commissioner to ascertain the correct facts. In the circumstances, the Court could not have entirely disposed of the application which amounts to rejection of the claim for restitution. It is argued that the circumstances, appearing on the record, clearly clarified that the plaintiff in the Suit had conceded to the defendant's possession; that the defendant was dis-possessed from the premises in May, 2008 was complained of by her in application - I.A.7863/2008, on the strength of the order made on 4.12.2008 appointing the Local Commissioner that fact stands established. In the circumstances, contends learned counsel, the defendant's request for restitution should be granted.

9. The plaintiff opposes the application; he submits that the defendant's conduct dis-entitles

her to the relief. The plaintiff claims to be a victim in the entire episode since the person found

in possession, i.e., Vinay Kumar Sinha had been entrusted with limited authority to look after the

affairs of the property. It is further argued that the plaintiff has in fact filed a criminal police

complaint in April, 2009, against the said Vinay Kumar Sinha. It is submitted that Vinay Kumar

Sinha was vaguely known to the plaintiff and he was given limited powers to deal with the

property, as subsequent events shows that he has tried to usurp the same and claimed as his own.

On this allegation, the plaintiff seeks impleadment of Mr. Vinay Kumar Sinha in I.A.

No.5299/2009 and for injunction to restrain him from altering the status quo regarding

possession or creating third party rights and confirm all the ex parte order made in that regard in

I.A. No.5300/2009 and 15006/2009.

10. Mr. Vinay Kumar Sinha's version in answer to the plaintiff's contentions made in I.A.

Nos.5299, 5300 & 15006/2009 is that he is not an interloper or third party given limited

authority, but in fact had acquired ownership of the suit property in 2005 itself. He relies upon

four documents, i.e., copies of two General Power of Attorneys and copies of two Agreements to

I.A.Nos.1434/07, 7863/08, 719, 5299 & 5300/09 in CS (OS) 232/07 Page 6 Sell, stating that he paid valuable consideration to the plaintiff for acquiring the said plots.

Besides, he relies upon what are termed as the receipts evidencing the payments as well as two

documents which it is stated evidence his possession of the suit plot as they record mutation in

his favour. Lastly, the said non-applicant - Vinay Kumar Sinha also relies upon a copy of the

Special Power of Attorney dated 10.10.2005.

11. The Court has carefully considered the submissions of the parties.

12. The underlying assumption of the 9.2.2007 order made ex parte in this case - was that the

defendant was in possession; the plaintiff in the substantive relief claimed in the Suit asked for a

decree of possession.

13. The Court was prima facie satisfied that the plaintiff had some documents in his favour.

He never disclosed at the stage (of filing of the suit) about the involvement of anyone other than

the defendant. The Suit is blissfully silent about the role of Vinay Kumar Sinha or that the

plaintiff had executed any documents in his favour as is sought to be urged today. The veracity

of the documents is not in question since the plaintiff has not claimed any relief against Vinay

Kumar Sinha in the present Suit.

14. It is now, after the defendant approached this Court for restitution of possession (of the

suit property) and after the disposal of I.A. 7863/2008 that the plaintiff has come out belatedly

with the version that Vinay Kumar Sinha was given some authority to deal with the property.

The plaintiff's explanation in this regard is suspect, to put it very mildly. As far as the version of

Vinay Kumar Sinha in reply to I.A. 5299/2009 is concerned, though copies of several documents

have been placed on the record, not one of them evidences clear possession being granted to him.

Learned counsel had emphasized that the Will executed by the plaintiff in fact talks about

handing over of possession of the suit properties to him. However, having regard to the

I.A.Nos.1434/07, 7863/08, 719, 5299 & 5300/09 in CS (OS) 232/07 Page 7 circumstances as well as the fact that facially it purports to be a testamentary document, the

Court cannot be credulous about its veracity. So far as the argument that the said Vinay Kumar

Sinha acquired any ownership rights in respect of the property is concerned, both the documents

relied upon are unregistered. That claim, therefore, is prima facie untenable.

15. Interestingly, the plaintiff at the earliest point of time during which the plaintiff came out

with the story of conferring some powers for executing some documents in favour of Vinay

Kumar Sinha is in reply to I.A.7863/2008. It was then contended that the plaintiff had executed

some document or power of attorney. However, no copy was produced and the plaintiff's

explanation today is that he was not aware and not was even in possession of a copy thereof. It

was further stated that the plaintiff has revoked that document immediately on becoming aware

of it. Reliance is placed on that Revocation Deed dated 4.9.2008.

16. The above discussion would show that on the strength of the documentary evidence on

the record, this Court was satisfied that the plaintiff's right had to be secured by injuncting the

defendants from altering the status quo and also restraining them from creating any third party

rights. The plaintiff never suggested at that stage that anyone other than Shri Rajesh Kumar

Sinha (his brother who instituted the present Suit in his behalf) had been clothed with any

authority in respect of these properties. It is a matter of record that the plaintiff had instituted

certain criminal proceedings by filing complaints against the defendant; and also that the

defendant to these proceedings, during the course of some enquiry/investigation, was taken in the

custody for a period of three days. Those three days turned to be extremely crucial in the present

case since the possession of the premises has been now claimed by Vinay Kumar Sinha.

17. As discussed previously, Vinay Kumar Sinha's reliance on documents stated to have

been executed by the plaintiff (which the latter denies) does not inspire any confidence. During

I.A.Nos.1434/07, 7863/08, 719, 5299 & 5300/09 in CS (OS) 232/07 Page 8 the course of hearing today, learned counsel for Vinay Kumar Sinha submitted that till date no

claim for specific performance had been made and no civil proceeding had been instituted

against the plaintiff in respect of the agreement to sell or the power of attorney alleged to have

been executed by him (the plaintiff). His instructions are that a demand for such specific

performance has been made today and arbitration claimed today in terms of the arbitration clause

which is embodied in the Agreement to Sell. One more significant fact that the plaintiff has not

claimed any substantive relief against Vinay Kumar Sinha by filing a Suit for possession under

Section 6 of the Specific Relief Act; the limitation period for such action has expired. The

plaintiff had also not sought for any action available under criminal law by recourse to Section

145 Cr.PC. He is banking upon the general complaints alleging trespass against Vinay Kumar

Sinha.

18. In view of the above reasons and having regard to the overall circumstances of the case,

this Court is satisfied that the explanation by the plaintiff and the party sought to be impleaded -

Vinay Kumar Sinha are not credible, or prima facie believable, to say the least. The Court

cannot also rule out the possibility of collusion between the plaintiff and the said Vinay Kumar

Sinha.

19. Section 144 of the Civil Procedure Code (CPC) embodies the doctrine of restitution

which civil courts in India are empowered to use, to balance competing rights, and do justice to

the parties, in pending actions. In the decision reported as Kavita Trehan and Anr v. Balsara

Hygiaene Products Ltd. 1994 (5) SCC 380, it was held that the law of restitution is not confined

to the conditions prescribed in Section 144 and that the Court having regard to the ends of justice

made such orders as are expedient in the peculiar circumstances of the case. When this Court

made order on 4.12.2008, it was not mindful that the full facts that were on the record. That the

I.A.Nos.1434/07, 7863/08, 719, 5299 & 5300/09 in CS (OS) 232/07 Page 9 Court disposed of the application for restitution appears to have been an erroneous oversight.

Consequently, this Court reviews and recalls that order.

20. In view of the above reasons, I.A. No.719/2009 and I.A. No.7863/2008 are allowed. Vinay Kumar Sinha, who is respondent in I.A. Nos.5299 & 5300/2009 is hereby directed to hand over the possession of the suit premises to the defendant within four weeks from today. Learned counsel for the newly added defendant Vinay Kumar Sinha requests that four weeks' time may be granted to hand over the possession to the defendant and a week thereafter for filing affidavit of compliance. The Court, therefore, permits the said newly added defendant four weeks' time from today to vacate the premises and hand over the possession to the defendant and compliance affidavit be filed within five weeks from today.

21. For the same reasons, I.A. Nos.5299 & 5300/2009 are hereby allowed. The said Vinay Kumar Sinha against whom this Court has made an order today, is hereby impleaded in the Suit.

22. I.A. No.1434/2007 (O-39, R-1&2) is also disposed of with the direction to the defendant not to alter the status quo or create any third party rights of the suit properties the moment the possession is handed over to her.

CS (OS) 232/2007

List on 19th May, 2010.

A copy of this order be given dasti under the signatures of Courtmaster.

S. RAVINDRA BHAT (JUDGE) JANUARY 21, 2010 /vd/

I.A.Nos.1434/07, 7863/08, 719, 5299 & 5300/09 in CS (OS) 232/07 Page 10