Smt. Tara Devi vs White House Flat Owner???S ...
2010 Latest Caselaw 3096 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  CS(OS) NO. 1430/2009 & IA NO. 3301/2010

                                    Reserved on : 31.05.2010
                                  Date of Decision : 05.07.2010

Smt. Tara Devi                                ......     Plaintiff
                             Through:   Mr. Arjun Singh Bawa,
                                        Advocate.

                              Versus

White House Flat Owner's                  ......         Defendants
Association & Ors.
                             Through:   Mr. S. P. Singh, Advocate.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.    Whether Reporters of local papers may be
      allowed to see the judgment?                         YES
2.    To be referred to the Reporter or not ?              NO
3.    Whether the judgment should be reported
      in the Digest ?                                      NO

V.K. SHALI, J.

IA No. 3301/2010 (u/O VII Rule 11 CPC)

1. This order shall dispose of IA No.3301/2010 under Order

VII Rule 11 read with section 151 CPC filed by the

defendants.

2. Briefly stated the facts of the case which are not in dispute

are that the plaintiff is purported to have purchased a flat

no. 8D situated on the Eight Floor of the building

commonly and widely known as White House at 10

Bhagwandas Road, New Delhi - 110001. According to the

plaintiff the said flat had been demolished by the NDMC

long back but the demolition was only symbolic and not a

complete demolition as only a puncture in the ceiling was

made. It is alleged that the builder namely M/s Taj World

Fame Builders of which one Mr.Sunder Das Madan was the

main person running the show had raised 8th to 12th floor

on the said premises without appropriate sanction from the

local body as a consequence of which orders for demolition

of the said floors were passed after protracted litigation

right upto the Supreme Court by the NDMC. Thereafter an

actual demolition was also carried out and some of the

upper floors were completely demolished while as it is

alleged that the remnants of the flat of the plaintiff on the

eighth floor is still in existence, and therefore, he has filed

the present suit seeking a decree of permanent prohibitory

injunction against the White House Flat Owners

Association Floor Association, a registered society under

Societies Registration Act and its various office bearers. It

has also been prayed that a mandatory injunction against

the defendant no.1 be passed to command them to

facilitate and give full cooperation for obtaining sanction

and the requisite permission from the appropriate

authorities like NDMC and Fire Department etc. for re-

erection of the flat no. 8D, White House at 10 Bhagwandas

Road, New Delhi - 110001. This prayer was made

ostensibly on account of the changed circumstances

because according to the new Master Plan 2021 the FAR is

purported to have been increased and accordingly it is

stated that in case the flat on the eighth floor is raised that

will be well within the permissible limits and hence the

present case.

3. The defendants were served and they have put in their

appearance. They filed an application under Order VII

Rule 11 read with section 151 CPC for rejection of the

plaint on the ground of lack of cause of action as well as on

the ground that the building or rebuilding of the flat in

question by the plaintiff would not arise as the rights and

liabilities of the plaintiff have been finally adjudicated and

set at rest by the Apex Court by a direction that the

plaintiff's who are the owners of the flats on 8th to 12th floor

be granted a compensation of Rs.60,00,000/- on account of

the principal amount having been paid towards the price of

their respective flats and the interest at specified rate.

4. I have heard the learned counsel for the parties and

perused the record including the orders passed by the

various forums including the Apex Court in the previous

round of litigation between the different flat owners and the

builder or the flat owners association. The first contention

which has been raised by the defendant is that the present

suit of the plaintiff is without any cause of action. In order

to canvass this argument the learned counsel of the

plaintiff has drawn the attention of the Court to the orders

of the Regular First Appeal bearing no. 86/2009 titled

S. M. Mathur & Anr. Vs. White House Flat Owners

Association & Ors. filed under Section 96 CPC against the

judgment dated 24.08.2009 by the learned Single Judge of

this Court dismissing the suit of appellants in the said case

on the ground of adjudication of the rights and the

liabilities of the parties by the Supreme Court in civil

appeal no. 3694/1997 where the question of liability and

validity of the demolition order qua the unauthorizedly

constructed flats on the 8th to 12th floor of the suit property

were determined finally. The Apex Court although upheld

the legality and validity of the demolition order but it

directed the builder to pay to each of the flat owners within

six months a sum of Rs.60,00,000/- on account of amount

having been paid by each flat owner in purchasing the

unauthorized flat which has been declared as

unauthorized, failing which the builder was liable to pay an

interest @ 21% per annum.

5. On the basis of this order of the Apex Court, it was

contended that the said order has conclusively decided the

rights and the liabilities of the plaintiff qua the flat in

question and since he has been directed to be paid a sum

of Rs.60,00,000/-, therefore, he is not left with any right

qua the flat and accordingly there is absolutely no cause of

action available with him to file the present suit.

6. The contention was sought to be met by the learned

counsel for the plaintiff, by urging that he was not a party

before the Apex Court, and therefore, that order would not

be applicable to him. Apart from this, it was contended

that as the plaintiff has not been paid a sum of

Rs.60,00,000/- by the builder, therefore, it did not preclude

him from filing the present suit.

7. I have carefully considered these submissions of the

respective sides. I feel that there is no merit in the

contention of the learned counsel for the plaintiff. There is

no dispute about the fact that the builder of the property in

question had received sanction of NDMC only to build two

levels basement stilt and seven floors. The construction of

8th to 12th floors by the said building was unauthorized in

respect of which the NDMC has passed an order of

demolition which was the subject matter of highly

contested litigation between the aggrieved parties and the

NDMC in many forums like the appellate tribunal NDMC,

Writ Petition in the High Court and finally resulted into an

order being passed by the Apex Court where it upheld the

validity of the order of demolition but after evaluating the

situation it directed that each of the flat owner who was

impleaded as a party be paid by the builder a sum of

Rs.60,00,000/- within a period of six months failing which

he was directed to pay a sum of Rs. 60,00,000/- and

interest @21% per annum on the said sum. This order of

the Court was not assailed by the present plaintiff, and

therefore, notwithstanding the fact that it was not a party

to the said proceedings, the order will bind him. I feel that

the order of Apex Court would apply to the plaintiff as the

said decision was in the nature of a proceedings which

though initiated as individual proceedings by an individual

flat owner or a group of flat owners but ultimately became a

representative appeal before the Apex Court where the

rights and liabilities of all the parties whose flats were on

the 8th to 12th floor of the said structure were decided by

the Apex Court. After having passed an order that the

plaintiff and the other flat owners are entitled to recover a

sum of Rs.60,00,000/- without or with interest after a

specified period of time. The present plaintiff is not left

with any right whatsoever qua the flat even though

remnants of the said flat may be in existence at the

property in question. It will be pertinent here to mention

that even the existence of the remnants at the site by the

defendants is disputed.

8. The contention of the learned counsel for the

plaintiff that the plaintiff was not given a sum of

Rs.60,00,000/- or that he would not be able to recover

the said amount along with the interest as directed by

the Supreme Court on account of the fact that the builder

namely M/s Taj World Fame Builders of which one Mr.

Sunder Das Madan was the main person who has fled

from the country and hardly gives rise to the cause of

action to the plaintiff to institute the present suit in respect

of a flat purported to have been owned by him at some

point of time. The proper course of remedy would be to

initiate appropriate proceedings before the appropriate

forum by the plaintiff. Therefore, the defendants are

perfectly right in contending that the present suit is liable

to be rejected as there is no cause of action accruing in

favour of the plaintiff to institute the present suit.

9. The second ground which is subsidiary to the first one is

that the rights and liabilities of the parties have been

adjudicated by the Apex Court in Civil Appeal No.

3694/1997 in a representative matter instituted by one of

the flat owner or a group of flat owners which conclusively

decided the rights qua the respective flats. Hence the

present suit is barred by res judicata is also a very

convincing argument which would be applicable to the facts

of the present case.

10. Order VII Rule 11 (d) CPC specifically lays down that the

plaint is liable to be rejected if it is otherwise barred by

law. The principle of res judicata is a principle of public

policy which brings finality to the lis between the parties

by prohibiting them from taking up the same issue again

and again in different forums or through different parties

provided the ingredients mentioned in Section 11 CPC are

satisfied. As observed by this Court that the earlier round

of litigation was representative in character and the issue

involved in the said issue being directly and substantially

related to the issue involved in the present suit and the

said issue having been finally adjudicated by the Apex

Court by directing the plaintiff and other flat owners to be

paid a sum of Rs.60,00,000/- stands conclusively

adjudicated between the parties, and therefore, the said

issue also stands adjudicated and the present suit is

barred by principle of res judicata under Order VII Rule

11(d) CPC.

11. The third ground which has been raised by the plaintiff is

regarding the privity of contract and suit being liable to be

rejected on the ground of gross abuse of the process of law.

In my considered opinion the suit as framed by the plaintiff

is liable to be rejected under Order VII Rule 11 (a) being

without any cause of action and under clause (d) being

barred by principle of res judicata.

12. For the aforementioned reasons, the plaint of the plaintiff is

rejected.

V.K. SHALI, J.

JULY 05, 2010 KP