Delhi High Court
Om Prakash vs Sh. G.P.Tiwari & Anr. on 7 September, 2010
Author: V.B.Gupta
* HIGH COURT OF DELHI : NEW DELHI
TR.P.(C) 31/2010
% Judgment reserved on: 1st September, 2010
Judgment delivered on: 7th September, 2010
Om Prakash
S/o Late Sh. Mani Ram
Resident of 3/5144, Krishna Nagar,
Karol Bagh,
Model Basti,
New Delhi- 110 005
....Petitioner
Through: Mr.B.K.Sood & Mr.Vipul Sharda,
Advs.
Versus
1. Sh. G.P.Tiwari
S/o. late Shri J.P.Tiwari,
Resident of 68/5373, Regharpura,
Karol Bagh,
New Delhi
2. Shri Subhash Kumar Tiwari,
S/o.Late Shri J.P.Tiwari,
R/o.68/5373, Regharpura,
Karol Bagh,
New Delhi. ....Respondent
Through: Mr. Madan Lal Sharma & Mr.Varun
Nischal, Advs. for respondent No.1.
Mr.M.P.Singh, Adv. for respondent
No.2.
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
TR.P.(C) 31/2010 Page 1 of 6
V.B.Gupta, J.
Present petition has been filed under Article 227 of the Constitution of
India read with Section 24 of the Code of Civil Procedure (for short as "Code")
for transfer of suit No.278 of 2008 pending before Shri Sidharth Sharma, Civil
Judge, (Central) Delhi, to the Court of Shri Pankaj Gupta, Additional District
Judge (North District) Delhi, where suit No.53 of 2010 filed by petitioner against
respondents is pending.
2. In this petition, it is stated that petitioner entered into an Agreement to Sell
dated 28th July, 1990, for purchase of property No.325, Deepali, Pitampura, Delhi
with respondent no.2 on the basis of representations made by him that respondent
no.1 and he (respondent No.2) are the joint owners of suit property and
respondent no.1 has relinquished his rights/title in the said property in his favour.
Thus respondent no.2 is the sole owner and therefore competent to sell the
aforesaid property.
3. Since, respondent no.2 did not perform his obligation under the
Agreement to Sell, petitioner filed a suit for specific performance which is
pending in the Court of Shri Pankaj Gupta, Additional District Judge (North
District) Delhi. Respondent no.1 got himself impleaded in that suit and is one of
the party therein. In that suit, talks for compromise were going on between the
parties. During the course of proceedings, respondent no.2 revealed the pendency
of a suit stated to have been filed by respondent no.1 against respondent no.2.
That suit was instituted in 2008 by respondent No.1 against respondent No.2,
seeking declaration that Relinquishment Deed dated 28th May, 1990 was forged
and cancellation of the same was sought.
4. It is further stated that institution of subsequent suit for decree of
declaration and cancellation of Relinquishment Deed, is nothing but a
mischievous device to defeat the valuable rights of the petitioner in respect of the
suit property. Since both the suits involve the same and identical question of
validity of execution and registration of Relinquishment Deed, these suits as such
are required to be taken up together and disposed of simultaneously by one Court.
5. Notice of this petition was issued to the respondents. In reply, respondent
No.1 has stated that petitioner is not a party in suit No.278 of 2008 which is
sought to be transferred by way of the petition, therefore, petitioner has no locus
standi to file this petition.
6. The cause of action, issues involved, subject matter and question of law
and facts involved in above mentioned two suits are altogether distinct and
separate. Respondent No.1 is not a party to the alleged agreement to sell, i.e. the
subject matter of suit No.53 of 2010 and there is no privity of contract between
petitioner and respondent no.1. Transfer of suit No.278 of 2008 will cause an
irreparable loss of a legal remedy to respondent no.1, inasmuch as the vital right
of second appeal would be taken away in case the transfer is allowed.
7. No reply was filed by respondent No.2.
8. However, arguments have been advanced by learned counsel for all the
parties.
9. In suit no.53 of 2010, Petitioner has sought following relief:-
"a) pass a decree for specific performance
in respect of Agreement to Sell dated the
18th June, 1990, directing the defendant to
execute the sale deed in favour of the
plaintiff in respect of Plot No.325
admeasuring 356.33 sq. yds. at Deepali,
Pitam Pura, Delhi, and to hand over vacant
and peaceful possession of the plot to the
plaintiff.
b) if the court come to the conclusion for
any reason that the agreement to sell cannot
be specific enforced, then this Hon'ble
Court should pass a decree under Section 21
of Specific Relief Act, 1963 for
Rs.10,95,000/- (Rs.Ten Lakh Ninety Five
Thousand) towards refund of the amount
paid by the plaintiff to the defendant and
damages suffered/assessed by the plaintiff."
10. On the other hand, in suit no. 278 of 2008 filed by respondent no.1,
following relief has been sought:-
"a. Decree of declaration may be passed in
favour of plaintiff and against defendant
thereby relinquishment deed dated
28.05.1990 got registered as Document
No.5418 in book No.I Volume No.6398 on
Pages 172 dated 07.06.1990 in the office of
Sub-Registrar-VI, Kashmiri Gate, Delhi in
respect of suit property i.e. property No.325
admeasuring 356.33 Sq. Yds., lying and
situtated at Deepali, Pitampura, Delhi may
be declared as forged, fabricated,
manufactured and void document having
been not executed or got registered by
plaintiff and not binding upon plaintiff and
further plaintiff may be declared joint owner
having equal ½ share in the suit property. It
is further prayed that office of Sub-
Registrar-VI, Kashmiri Gate be intimated
with regard to above decree of declaration
with the direction to make appropriate entry
in its records"
11. Bare reading of the prayer made in above two suits shows, that property
involved in these two suits is same, that is, 325, Deepali, Pitampura, Delhi. While
petitioner has sought a decree for specific performance in respect of agreement to
sell dated 18th June, 1990 in respect of property No.325, Deepali, Pitampura,
Delhi, whereas in suit No.275 of 2008, a declaration is sought that
Relinquishment Deed dated 28th May, 1990 registered in respect of the property
No. 325, Deepali, Pitampura, Delhi, be declared as forged.
12. It is well settled that to avoid multiplicity and conflicting orders by
different Courts, the High Court under Section 24 of the Code can transfer cases
in a Court where the proceedings can be taken after consolidating the suits. Also
where the defence in all the suits is practically one and the same and common
questions of fact and law arise for decision, to secure the ends of justice and to
prevent multiplicity of proceedings and also the possibility of conflicting
judgments, Courts have generally held that it is better to have all such suits tried
at one place only by the same Court. Ultimately the question depends on the
interest of justice and not the convenience of one party or the other.
13. Since, validity of Relinquishment Deed dated 28th May, 1990 and
Agreement to Sell dated 18th June, 1990, in respect of same property, that is,
No.325, Deepali, Pitampura, Delhi are involved, it would be in the fitness of
things and also in the interest of both parties, that these two suits should be tried
together by one Court only.
14. Under these circumstances, it is ordered that suit no.278 of 2008 titled as
"G.P.Tiwari vs. Subhash Kumar Tiwari" pending before Shri Sidartha Sharma,
Civil Judge (Central District) Delhi, is transferred to the Court of Shri Pankaj
Gupta, Additional District Judge (North District) Delhi, where suit no.53 of 2010
titled as "Om Prakash vs. Subhash Kumar Tiwari and Anr." is pending. Both
these suits are directed to be heard and disposed of simultaneously by the Court of
Shri Pankaj Gupta, Additional District Judge (North District), Delhi.
15. Present petition stands disposed of accordingly.
16. Copy of this judgment be sent to the concerned Courts.
7th September, 2010 V.B.GUPTA, J.
'sn'
