Sh.Tara Singh & Ors. vs Smt. Laxmi Rana & Anr.
2011 Latest Caselaw 3101 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No.283/2011

%                                                        4th July, 2011

SH.TARA SINGH & ORS.                             ...... Appellants
                          Through:    Mr. Summit Kaushal, Adv.


                          VERSUS

SMT. LAXMI RANA & ANR.                             ...... Respondents

                    Through:           None.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

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

    2.   To be referred to the Reporter or not?    Yes

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

VALMIKI J. MEHTA, J (ORAL)

CM No.11863/2011(exemption)

Allowed subject to all just exceptions.

Application stands disposed of.

CM No.11862/2011(condonation of delay)

Delay in filing the appeal is condoned subject to just exceptions.

Application stands disposed of.

+ FAO No. 283/2011

1. The challenge by means of this First Appeal under Order 43 Rule

1(u) CPC is to the impugned judgment dated 10.2.2011 of the Appellate

Court, and which judgment of the Appellate Court has set aside the judgment

of the Original/First Court dated 3.3.2010. By the judgment dated 3.3.2010,

the Original Court of the Civil Judge dismissed an application under Order 6

Rule 17 CPC of the respondents herein (the plaintiffs in the suit) and also

simultaneously allowed an application under Section 151 CPC of the present

appellants (the defendants in the suit) thereby dismissing the suit. The suit

had been dismissed even before any evidence was led by the parties i.e. not

at the stage of normal final arguments, and effectively under Order 7(11)

CPC, on the grounds that proper cause of action was not pleaded and the

respondents/plaintiffs had stated false facts in the suit plaint.

2. The facts of the case are that one Sh. Budh Singh, the

predecessor in interest of the respondents/plaintiffs owned the property

being Khasra No. 586, Karkardooma, Tehsil Vivek Vihar, East Delhi. The

family tree of Sh. Budh Singh is given at page 3 of the impugned judgment

and which shows that Budh Singh had three sons namely Thandi Ram, Tej

Singh and Tara Singh. The plaintiffs are the grand children of Thandi Ram.

The appellants/defendants are the successors in interest of Tej Singh and

Tara Singh, the other sons of Budh Singh. Originally the plaintiffs had laid

out a case in the plaint that there was a partition of the property and a

particular portion in the property fell to their share and which was

accordingly claimed in the plaint. Thereafter, the plaintiffs sought to amend

their plaint to convert the suit into a suit for partition. This amendment

application (hereinafter the first amendment application) was dismissed by

the Civil Judge vide order dated 8.9.2008. Subsequently, the subject

amendment application (hereinafter the second amendment application)

came to be filed on the ground that in another civil suit between the legal

heirs of Budh Singh being suit no. 188/06/97 titled as Om Prakash vs. Sh.

Budh Singh & Ors it was decided by a judgment and decree dated

18.12.2006 that the subject property was an ancestral property, and

consequently by the second amendment application, the

respondents/plaintiffs sought to bring on record their entitlement to share in

the property by virtue of the judgment and decree dated 18.12.2006 passed

by the Court of Sh. Atul Kumar Garg, ADJ, Karkardooma Court, Delhi in the

suit titled as Om Prakash vs. Sh. Budh Singh & Ors. As stated above,

the Court of the first instance while dismissing the second application of the

respondents/plaintiffs under Order 6 Rule 17 CPC, simultaneously allowed an

application under Section 151 CPC of the present appellants/defendants for

dismissal of the suit. The relevant portion of the order of the First Court

dismissing the suit reads as under:-

"I have heard the arguments and perused the record. Perusal of the suit shows that the plaintiff has filed a suit for declaration and permanent injunction thereby alleging that the family arrangement was made by Sh.Budh Singh with regard to suit property and the same was accepted by the parties, but the sons of Late Sh. Budh Ram namely Sh. Tej Singh, Tara Singh and Thandi Ram raised the construction over the portion to accommodate themselves and their families. It is further alleged that the plaintiffs are now in exclusive possession of portion of the suit property as shown in the site plan which has been disputed by the defendants. It is further alleged that the defendants are not having good relations with the plaintiffs and they are

creating nuisance and defendant no. 9 to 13 are minors and defendant no. 6 to 8 are married who are living separately. In para 12 and 13 plaintiffs have disclosed the cause of action that the defendants are creating hurdles in the possession of the plaintiffs and on 4.8.2005, the defendants have loudly uttered that the plaintiff would be thrown away on the street and only this incident has made cause of action to file this suit. In the entire plaint, the plaintiffs have nowhere alleged in what manner the defendant have denied the legal status of the plaintiffs being the LR of Late Sh. Dhoni Ram or in what manner they are interfering or threaten to create third party interest over the suit property or to dispossess the plaintiff without due process of law. In the absence of any specific incident, it is clear that the cause of action of the property is not complete. Merely by going through the plaint of the plaintiff, it is clear that the plaintiffs have no cause of action in their favor. Just by uttering that he plaintiffs would be dispossessed has no sufficient cause to file the suit. Until and unless, the defendants have done any substantial act against the plaintiffs, till then they would have no cause of action to file the suit. Besides it, defendants no. 9 to 13 have been made party to this suit despite the fact that they are minor and defendant no. 6 to 8 are married and are living separately. If these persons have no concerned with the alleged cause of action of the plaintiff and even they have not challenged the title of the plaintiff in any manner, then the suit is not maintainable against them as well. As such, the plaintiffs have not disclosed any cause of action in the suit and the suit of the plaintiff is liable to be rejected U/o 7 Rule 11 CPC and the same is hereby rejected. Decree sheet be prepared accordingly. File be consigned to record room."

3. I have already referred to the fact that the suit has not been

dismissed at the stage of final arguments after evidence has been led by

both the parties. A reference to the aforesaid portion of the judgment dated

3.3.2010 of the Court of first instance shows that the suit has been dismissed

effectively on merits and thereby has decided disputed questions of facts

without trial. Whether or not a threat has been meted out for the purpose of

seeking injunction on the basis of averments in the plaint is a disputed

question of fact which requires trial. Further, even assuming that the

plaintiffs may have stated some false facts would not mean that a suit of this

nature, seeking rights in an immovable property, can be dismissed at the

threshold without trial. It has been repeatedly laid down by the Supreme

Court in its various judgments that the doctrine of falsus in uno, falsus in

omnibus has no application in India. Of course it is a moot point as to

whether any false facts were stated by plaintiffs, because, this finding cannot

be given unless there is trial on the disputed facts.

4. Learned counsel for the appellants sought to vehemently argue

two basic points:-

i) The respondents/plaintiffs had not come to the Court with clean hands

and since they had lied with respect to their possession in the suit

property, the suit was rightly dismissed by the first court.

ii) Secondly, it was argued that the second amendment application was

not maintainable as the first amendment application had already been

dismissed by an earlier order dated 8.9.2008.

5. In my opinion, both the arguments urged on behalf of the

learned counsel for the appellants cannot be accepted. On the first

argument I have already stated above that the doctrine of falsus in uno,

falsus in omnibus has no application in India. Additionally, a suit as per the

procedure laid down in CPC, where there are disputed questions of facts, can

only be decided after trial and not on an interim application of the

defendants/appellants under Section 151 CPC. To the second argument the

answer is that the doctrine of res judicata does not apply to an amendment

application when new/subsequent facts are sought to be introduced by the

amendment. Furthermore interim orders passed by a first court also can be

set aside in an appeal against a final judgment of the first court in view of

the provision of Section 105(1) of the CPC. The judgment of the first court

dated 3.3.2010 dismissed the suit, and which judgment was challenged in an

appeal, and thus the Appellate Court was fully entitled to consider even the

validity of the earlier order dated 8.9.2008 dismissing the first amendment

application by virtue of Section 105(1) CPC. No doubt, the Appellate Court

does not seem to have referred to this provision, but in substance, it is this

provision which really can be applied.

6. In my opinion, merely because two views are possible, this Court

is not entitled to interfere with the impugned judgment, whereby the suit has

simply been remanded back to the Trial Court for a decision in accordance

with law after evidence is led by both the parties. There is no illegality in

allowing of an amendment application whereby subsequent events are

sought to be brought on record. In any case, once rights in the immovable

property are claimed in the suit, merely because additional set of facts are

sought to be added for claiming relief with respect to same immovable

property, more so on same subsequent events, I do not feel that there is any

injustice caused by impugned judgment of the Appellate Court dated

10.2.2011 which allowed the second amendment application. If the

appellants/defendants have any case on merits then they are well advised to

contest the suit on merits and seek to get it dismissed on the basis of their

stand which according to them is correct. However, it is not permissible for

the Courts to presume the case of one party to be correct and the other

party to be incorrect and thus dismiss a suit involving disputed questions of

facts without trial, and which is sought to be got done by the appellants. In

view of the above, there is no merit in the appeal. Dismissed.

JULY 04, 2011                                  VALMIKI J. MEHTA, J.
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