O P Bhalla & Anr vs Jagat Singh Arya & Ors
2010 Latest Caselaw 5305 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           FAO.No.253-57/2005

%                                                Reserved On: 11.11.2010
                                                  Decided On: 23.11.2010

O.P. BHALLA & ANR.                                           .... Appellants
                       Through: Mr.Atul Nigam, Adv.

                                  Versus

JAGAT SINGH ARYA & ORS.                        .... Respondents
                 Through: Mr. Astender Kumar, Adv.

CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether reporters of Local papers may be                  Yes
       allowed to see the judgment?
2.     To be referred to the reporter or not?                    Yes
3.     Whether the judgment should be reported in                Yes
       the Digest?

:      MOOL CHAND GARG,J.

1. This appeal arises out of an order passed by the learned ADJ in an application filed by respondent No.1 under Order 39 Rule 1 and 2 CPC in a Suit bearing No.494/2004 which is the suit for declaration and permanent injunction against the appellants, Sh. O.P. Bhalla & Sh. J.R. Bhalla whereby the learned ADJ restrained the appellants from dispossessing respondent No.1 from the suit property.

2. Vide impugned order, the learned ADJ has passed the following Orders:

"16. The plaintiff is in settled possession of the suit property since 1988. He has made two and half storey building by spending a lot of money on it. No case was filed during lifetime of Smt. Ishwari Devi and only after her death the case was filed. There is strong prima facie case in favour of the plaintiff and the balance of convenience is also in favour of the plaintiff and if the plaintiff is dispossessed of the suit property he is going to suffer irreparable loss. Dispossession of the plaintiff is stayed till the dispose of the suit.

17. Nothing herein contained shall testamount to any opinion on the merits of the facts of the case."

3. According to the appellants, the impugned order is not sustainable as the said order is directly in conflict with rights and interest of the appellants as determined and decided vide judgment and decree granted in their favour in a Suit No.973/2002 titled as „Sh. O.P. Bhalla & Anr. Vs. Ms. Sudesh Sharma & Ors. with respect to property bearing No.RZ-273, Gali No.17, Tughlakabad Extension, New Delhi (hereinafter referred to as the Suit Property). By way of interim order, the lower Court has not only gone contrary to law but has also adversely denied the facts of the judgment and decree in the aforesaid Suit which was instituted as back as in the year 1988.

4. Briefly stating the facts giving rise to the filing of the Suit in question by the respondent No.1 against the appellants are, that the suit property belongs to their deceased mother Smt. Ishwari Devi who expired while being in hospital in May, 1988. After her death, they became her legal heir and came into possession of the aforesaid property. Sh. S.K.Sharma and Sh. K.K. Khanna conspired to dispossess the deceased Ishwari Devi in May, 1988 and took possession of the suit property without the consent of Smt. Ishwari Devi or the appellants in collusion with one of the brothers of the appellants, Sh. P.P. Bhalla and failed to restore the same to the appellants despite the request made by them. Thus, the appellants filed Suit No.973/2002 under Section 6 of the Specific Relief Act challenging their illegal dispossession. Initially the said suit was contested by Sh. S.K. Sharma while Sh. K.K. Khanna and Sh. P.P. Bhalla were proceeded ex parte. A written statement was filed by Sh. S.K. Sharma where incoherent defences were taken. In para 9 of the written statement Sh. S.K. Sharma had pleaded that:

"The defendant No.1 has already raised as single storey construction and this construction continued for about two months immediately after defendant No.1 was put in possession of the western site of the property in suit No.1988. Similarly, the said Shri J.S. Arya who in occupation of the eastern side of the property in suit has already raised single storeyed construction soon after he was put in possession in May, 1988 by defendant No.1"

5. During the pendency of the suit, Sh. J.S. Arya moved an application under Order 1 Rule 10 in the Suit No.973/2002 which was dismissed on 10.08.1993 by Sh.J.B. Goel, ADJ, Delhi. After the

dismissal of the application Sh. J.S. Arya, respondent No.1 did not take any subsequent legal action by challenging the dismissal order. And as such, the said order became final. As per law, it is on 10.08.1993 that with the dismissal of the application under Order 1 Rule 10, the first time that right to sue had first accrued in favour of respondent No.1. The said respondent with the dismissal of its application under Order I Rule 10 has lost the remedy to challenge, after expiry of three years by a declaratory from the date of dismissal of the application under Order I rule 10 CPC.

6. It has also been pleaded by the appellants that even though Sh.J.S. Arya was not made a party to the aforesaid suit but he was solely prosecuting and conducting the matter. In Suit No.973/2002, it is the respondent, J.S. Arya who has solely examined himself as a witness. The important aspect which is to be seen is from the fact that the entire case as what is being pleaded in the present suit has already been narrated and put forward in the Suit No.973/2002. Thus, the documents on the basis of which Sh. J.S. Arya is relying in the present Suit has already been discussed and taken care of in the previous suit, which has not found favour with the Court and the suit filed by the appellant has been accepted whereby the defendants in Suit No.973/2002 have been directed to restore the possession of the suit property and the interest of respondent No.1 is affected by the principle of lis-pendens as discussed in the judgment. Rather in para 29 of the judgment in Suit No.973/2002, the Court has held that the documents produced by the witness (J.S. Arya) contradicts the oral testament of the witness and as such the same were not trustworthy. It is a matter on record that appellant neither challenged the order dismissing his application under Order I Rule 10 CPC nor filed a suit for specific performance or a declaration within a period of 3 years despite denial of execution of the documents now relied upon by respondent No.1 in the Suit in question asserting his title in the property and, therefore, the right, if any, in favour of respondent No.1 stood extinguished on account of the law of limitation considering provisions contained under Order XXI Rule 58 of the CPC.

7. In order to enforce the judgment/decree passed in Suit No.973/2002, the appellant field execution proceedings. To thwart the fruits of the judgment/decree in Suit No.973/2002 after a span of over 13 years from the date of dismissal of the application under Order I Rule 10 CPC, the respondent by means of the present suit which is instituted as in November, 2004 is trying to upset the judgment passed in suit referred above by seeking the following reliefs:-

"To pass a decree declaring the plaintiffs (respondent) as an absolute owner of the suit property. This Hon‟ble Court may further be pleased to pass permanent injunction restraining the defendants, its agents, representatives, servants from interfering and dispossessing the plaintiff from the suit property."

8. It has been pleaded by the appellants that the present suit is not maintainable on facts and law. The suit seeking declaratory relief, having filed beyond a period of three years from the day the right to sue first accrued, is barred by Article 58 of the Limitation Act, 1963. Besides, the plaint is filled with incongruities and substantively no relief can be granted to the respondent/plaintiff. There cannot be any reliance upon the documents by itself as their genuineness is in doubt, besides, a clear finding having come on record of their not coming from the genuine source in Suit No.973/2002. But, the ld. Court has completely disregarded the aspect of the Law of limitation by giving it a new twist to its application and has ignored the fact that no reliance could be placed upon the documents as filed in the present suit as the finding has already come of their affect in Suit No.973/2002. As the suit is factually and legally bad, no prima facie case is made out and it is the appellant who after spending nearly 15 years in litigation over their rights and having succeeded in now being scuttled by a false and frivolous suit. The irreparable loss, injury and balance of convenience lies in favour of the appellant.

9. I have heard the submissions from both the sides. I have also seen the averments made by the respondent in his application filed under Order 1 Rule 10 CPC, certified copy whereof has been placed on record by the appellant and is available at the case file on page 129. The said application reads as under:-

"1. That the applicant J.S. Arya S/o late Sh. Fateh Singh occupied half portion of premises bearing No.RZ-273, Gali No.17, Tuglakabad Ext. Kalkaji, New Delhi measuring 100 sq. yds. As he purchased the land in dispute from Smt. Ishwari Devi w/o Sh. C.L. Bhalla on 16.05.1988 for which she had already executed Will, General Power of attorney, Agreement to Sell signed by the witnesses on the same day as the payment was made for consideration of sale of the plot through bank draft amounting to `30,000/- in the name of Smt. Ishwari Devi in Bank of Timarpur on 26.5.88. The cheque was issued from Bank of Maharashtra, Alakhnanda Branch, Delhi to her and remaining amount was paid in cash to her and plaintiffs in the presence of witnesses on the same day.

2. That the applicant took the possession of the plot on 16.5.88 and raised construction upto 3 storeyed and has been residing with his family members and has sufficient documents including ration card, house tax bill, electricity bills, personal letters etc.

3. That the applicant has come to know about pendency of the present case only on 11.02.1992 through Sh. S.K. Sharma who visited the premises alongwith the persons to whom he sold the remaining portion of the premises in dispute recently who visited the premises in dispute on 11.02.1992 alongwith Smt. Sudesh Sharma and told about pendency of the case. Hence, applicant is the necessary party to contest the case.

It is, therefore, respectfully prayed that the applicant may be added as defendant in the abovesaid proceedings in the interest of justice."

10. This application was replied to by the appellants, the reply is available at page No.131. In this reply while referring to the case of respondent No.1, it was specifically denied that he was ever in occupation of any portion or part of the suit property on the date of filing of the suit. It was pleaded that the deceased mother of the appellants was dispossessed by Sh. S.K. Sharma and Sh. K.K. Khanna without her consent and otherwise without following due course of law in the concluding week of May, 1988 when she was struggling for life. It was specifically denied that respondent purchased a portion of the land from their deceased mother on 16.05.1988. Admittedly, she was admitted in the AIIMS on 09.05.1988 as a seriously ill patient and was kept in ICU, in such a situation the question of executing any Will,

GPA, agreement to sell relied upon by the respondent cannot be even thought of or imagined. It was specifically stated that the alleged documents were patently fake, fabricated and forged.

11. Some other averments made in the reply also shows that insofar as the case set up by the respondent in the suit for declaration which has been filed by him subsequent to the decision in the Suit filed by the appellants were specifically denied. These averments are:

"The application who claims title on the basis of the said documents has incurred penalty for fabricating false documents for the purpose of being used in judicial proceedings. It is false to allege that any amount of `30,000/- was paid to the deceased mother on 26.5.1988 when she never came out of the Hospital after being admitted on 9-5-88. The deceased died at the Hospital on 30.05.1988. The witness who may have signed the documents are fake.

2. Para 2 of the application is denied. The question of the applicant taking possession of the portion of the plot on 16.5.1988 from the deceased mother does not arise when she was admitted to the hospital on 9.5.1988 and died on 30.5.1988. It is also false to allege that the applicant raised a three-storeyed construction on the plot. It appears that the applicant in connivance with the defendant and in utter violation of the injunction order issued by the learned Court dated 23.9.1988 has raised the said construction. The defendants and the applicant through whom he claims has incurred the penalty of contempt for which the plaintiffs are moving a separate application. It appears that the applicant in connivance with the defendants, in order to confuse and disgress the issues involved in the suit has mentioned himself to be interested in the property on the basis of false and fake documents.

3. Para 3 of the application is false and is denied. The applicant, knew about the suit and is simply acting for and on behalf of the defendants in order to somehow defeat the claim of the plaintiff. It is submitted that if ever, the applicant is in possession of the property he is there as a trespasser and is bound to surrender possession of the property alongwith the construction thereon in execution of the decree that shall be passed, and will be bound by the principles of lis-pendence, which is without prejudice to such contempt proceedings which the plaintiffs may take against the applicants and the defendant. The applicant has further mentioned Smt.Sudesh Sharma who has got nothing to do with the suit property. She is none else but the wife of defendant No.1 who is in possession. The applicant is

neither necessary nor a proper party and the application is designed to delay and digress the suit.

12. A bare reading of the reply filed by the appellants to the application under Order I Rule 10 of the CPC which was filed on 17.11.1992 coupled with the order dated 12.02.1992 passed on the application filed by the respondent extinguished the rights, if any, of respondent No.1 to seek declaration of his title commenced. Before I go further, I may simply take note of the order which has been passed by the learned ADJ in Suit No.97/1990 while disposing of the application filed by respondent No.1 under Order I Rule 10 CPC:-

"7. On the pleadings of the parties as manay as 8 issues were framed on 13-9-1989 and therafter the plaintiffs has examined PW-1, PW-2 and PW-3(partly) and this application was moved on 12-2-1992, i.e. after about 3 ½ years of the institution of the suit and the only explanation is that he was not aware of this suit till 11-2-1992, when Sh. S.K. Sharma (who is defendant No.1) visited the premises alongwith his wife and told about the pendency of the case. The question is, whether the deceased had executed any agreement to sell and other documents for consideration on 16-5-1988 and had delivered possession of any portion of the property to the applicant? Neither the applicant, nor the defendant No.1 have placed on record any such documents and as such in the absence of any such documents, there is no material prima facie to be satisfied about the bona fides of the case of the applicant, the plausibility of his claim and the genuineness of his interest in the litigation. The applicant has come at a very late stage of the case and this also is indicative of lack of bona fides on his part. The plaintiffs have opposed the application of the applicant. It was held in AIR 1969 Punjab & Haryana 57 that as a rule the Court should not add a person as a defendant in a suit when the plaintiff is opposed to such addition. The reason is that the plaintiff is the „dominus litis‟. He is the master of the suit. He cannot be compelled to fight against a person against whom he does not wish to fight and against whom he does not claim any relief. This principle has also been followed in AIR 1977 Oriss 138, Meghraja Aggarwala Vs. Radhey Shyam Aggarwal, where it has been further held that the plaintiff must be allowed full discretion to put his case in the manner he likes and should not be forcibly involved into controversies with persons against whom he does not claim any relief. The plaintiffs specifically alleged that it was the defendants No.1 to 3 who had taken wrongful possession of the premises and the applicant is in collusion with them and would be bound by the decree that may be passed against them by the rule of lis pendecis. They deny the possession

of the application when suit was filed. In these circumstances, it cannot be said that the applicant is necessary or a proper party and he cannot be forced upon the plaintiffs with whom they do not want to fight. This application thus has no merit and is dismissed with costs of `100/- "

13. In these circumstances, the order of the learned ADJ impugned before me in this case needs to be scrutinized. Before doing that, I may take note of the issues which has been framed in this case by the learned ADJ and which are as follows:

1. Whether the Suit is bad for limitation? OPD

2. Whether the documents such as agreement to sell, affidavit, Will and GPA are forged and fabricated documents? OPD

3. Whether the plaintiff is entitled to the decree of declaration and permanent injunction as prayed for? OPP

4. Relief.

14. The basis of granting injunction to respondent No.1 by the impugned order have been narrated by the learned ADJ in paragraphs 2 to 8 of the impugned order which are incorporated hereunder for the sake of reference:

"2. In brief the case of the plaintiff is that he is owner of the property bearing No.RZ-273/17, Tughlakabad Extn., New Delhi measuring 100 Sq. yds. Having purchased the same from Smt. Ishwari Devi wife of late Sh. Chuni Lal on 16.5.1988. The documents GPA, agreement to sell, Will, receipt and affidavit etc. were duly executed.

3. It is further averred that deceased Smt. Ishwari Devi was the mother of defendants No.1 and 2 and late Sh. Puran Parkash Bhalla who died in 2001. The defendant No.3 is widow of Sh.P.P. Bhalla and daughter in law of deceased Smt. Ishwari Devi. The defendants No.4 and 5 are the sons of Late Sh. P.P. Bhalla and grand sons of deceased Smt. Ishwari Devi.

3. It is further averred that late Smt. Ishwari Devi was the owner of plot measuring 200 sq. yds. having purchased the same for `6,800/- from Sh. Som Nath son of Sh. Boota Ram R/o 444, Rampura, Delhi as General Attorney of Har Lal s/o Sh. Kure, R/o Tughlakabad, New Delhi vide agreement to sell, receipt, affidavit etc. dated 28.10.1977. Two temporary rooms latrine and bath room with boundary wall were constructed on the said plot.

4. It is further averred that in the year 1988 plaintiff had been living with his family in 50 sq. yds. bearing No.RZ- 228/19, Tughlakabad Extn., New Delhi. In the month of April, 1988, the plaintiff came to know through Bajrank Property Dealter that plot No.273/17, Tughlakabad Extn., New Delhi measuring 200 sq. yds. was available for sale. On further enquiry from the said dealer the plaintiff came to know that plot was owned by one Smt. Ishwari Devi and her son Sh. O.P. Bhalla and Sh. P.P. Bhalla neede money for her mother‟s treatment. As there was no customer available for big plot of 200 sq. yds. The said plot was divided into two plots of 100 sq. yds. each.

5. It is further averred that a plot of 100 sq. yds on the eastern side with temporary structure of two rooms was sold to the plaintiff by Smt. Ishwari Devi through her sons involving the said property dealer to the plaintiff for a consideration of `30,000/- and the remaining half plot measuring 100 sq. yds on western side with bath and latrine was sold in favour of Smt. Sudesh Sharma, w/o Sh. S.K. Sharma, R/o RZ-274/17, Tughlakabad Extn., New Delhi for a sum of `30,000/-

6. It is further averred that the payment was made by way of two bank drafts bearing No.155358 and 155359 which were got encashed by Smt. Ishwari Devi.

7. The document such as GPA, Will, agreement to sell etc. were delivered to the plaintiff and the possession was also handed over to the plaintiff. The plaintiff got the old structure demolished and constructed two rooms on the ground floor in August, 1988 and started residing therein. He got a ration card and is paying House Tax in respect of the suit property since 1988-1989. The name of the plaintiff and his family members is also got incorporated in the voter list and a telephone connection is also installed there since 1990 in the name of his wife. The plaintiff thereafter made constructions from time to time and has constructed two and half storeyed building there and let out first and second floor to different tenants.

8. It is further averred that on 1.2.1992 plaintiff came to know from late Sh. S.K. Sharma husband of Smt. Sudehs Sharma that the legal heirs of late Smt. Ishwari Devi have filed a false suit though Smt. Sudesh Sharma has already sold the portion purchased by her from Smt. Ishwari Devi. Thereafter, plaintiff moved an application U/o 1 Rule 10 CPC for being impleaded as party in that case. However, the same was dismissed. Ultimately the suit filed by the legal heirs of Smt. Ishwari Devi was decreed by Ld. Civil Judge on 19.08.2004 and the plaintiff apprehended that he might be

dispossessed from the suit property of which he was lawful owner and the suit for declaration and injunction was filed.".

15. The appellants have contested the suit. They raised an issue of limitation and also brought to the notice of the learned ADJ the factum of moving an application under Order I Rule 10 CPC by respondent No.1 for being impleaded as party as also the order of dismissal of the said application dated 10.08.1993.

16. A bare perusal of the application, reply and order as quoted above goes to show that all the documents which have been sought to be relied upon by the appellants in this case were very much before the learned ADJ to decide the application in Suit No.97/1990. The right of respondent No.1 to base his claims on these documents was contested by the appellants in their reply which was filed on 17.11.1992.

17. Thus, the right, if any, to assail the stand of the appellants for deciding the genuineness of the documents relied upon by respondent No.1 which are the basis of his claim in the present suit, commenced from that date and the limitation in accordance with Article 58 expired on 16.11.1995. The suit in question has been filed much beyond the period of limitation. It is also not a case where the respondent No.1 filed objections to the execution of the decree by invoking Order XXI Rule 58 of the CPC or filed an appeal against the final judgment in Suit No.97/1990 within limitation. All these aspects have simply been overlooked by the learned ADJ. He has blindly accepted the case set up by respondent No.1 in allegedly having purchased the property from Smt. Sudesh Sharma which fact has been denied by the appellants as far as back as in 1992. He has then said that respondent No.1 being not a party in the suit filed under Section 6 of the Specific Relief Act would not be bound by the decree passed in favour of the appellants without referring to the order passed by the learned Civil Judge in having dismissed the said application and the stand of the appellants that the documents on the basis of which respondent No.1 wanted to put up his title as a defense to the suit filed by the appellant was without any basis.

18. Now coming to the observations made by the ADJ regarding the plea of limitation, I may simply observe that the order passed by the

ADJ is contrary to law and is not sustainable. It is not in accordance with the provisions contained under Article 58 of the Limitation Act, despite denial of the claim of respondent No.1 by the appellants in 1992 itself. The limitation to claim declaration as is sought to be done by the present suit expired on 09.08.1996, even if we take the date of dismissal of the application under Order I Rule 10 CPC as the date to start the period of limitation wherein a final view regarding rejection of the claim of respondent No.1 that he had purchased a portion of the property as pleaded.

19. In view of that, observations made in para 13 of the impugned order that the Suit was not barred by limitation is not sustainable. In these circumstances, the order passed by the learned ADJ under Order 39 Rule 1 and 2 CPC in favour of the respondent cannot be sustained. The same is accordingly set aside.

20. Accordingly, the appeal is allowed. A costs of `25,000/- is imposed upon respondent No.1 to be paid within one month from today.

21. A copy of this order be sent to the trial Court for information. C.M.12669/2005 Disposed of as infructous.

MOOL CHAND GARG,J NOVEMBER 23, 2010 'anb'