Shri Arun Khanna vs Shri Vinod Kumar Khanna & Another
2011 Latest Caselaw 1625 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                      Judgment Pronounced on: 22.03.2011

+            CS(OS) No. 1657/2007

Shri Arun Khanna                                 .....Plaintiff


                             - versus -


Shri Vinod Kumar Khanna & Another             .....Defendants

Advocates who appeared in this case:
For the Plaintiff: Mr. N. Prabhakar.

For the Defendants: Mr. M.G. Dhingra with Ms. Gita
                    Dhingra for D-1.
                    Mr. Rahat Bansal for D-2/MCD.

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may                   No.
   be allowed to see the judgment?

2. To be referred to the Reporter or not?                   No.

3. Whether the judgment should be reported                  No.
   in Digest?

V.K. JAIN, J. (ORAL)

I.A. Nos. 9150/2010 (O.14 R.5 CPC by plaintiff) and 8536/2010 (O.14 R.5 CPC by D-1)

1. The issues in this case were framed on 11 th April,

2008 and read as under:-

1. Whether the plaintiff is entitled to a decree of

declaration, declaring the plaintiff No.1 the owner of the undivided 1/6th share in plot bearing No.39/71, West Punjabi Bagh, Delhi, as prayed for in prayer (A)? OPP.

2. Whether the plaintiff is entitled to a decree of specific performance against the defendant No.1 by enforcement of MOU dated 29.6.2006, as prayed for in prayer (B)? OPP.

3. In the alternate, whether the plaintiff is entitled to a decree of damages of Rs.1.00 crore against the defendant No.1?OPP.

4. Whether the plaintiff is entitled to a decree of perpetual injunction against the defendant No.1 in respect of the portion „C‟ of the suit property, as prayed for in prayer „C‟? OPP.

5. Whether the plaintiff is entitled to a decree of mandatory injunction against the second defendant, as prayed for in prayer „D‟? OPP.

6. Whether the suit is barred by limitation? OPD1

7. Whether the plaint does not disclose any cause of action against the defendant No.1? OPD1

8. Relief.

2. The plaintiff and defendant No.1 are brothers.

There is dispute between the parties with respect to

ownership of the portion C in property bearing No.39/71,

West Punjabi Bagh, New Delhi. The case of the plaintiff is

that this portion of the property was owned by his parents

and vide Will dated 25th February, 1985, half of the portion

marked C in the aforesaid property was bequeathed to him

by his father, late Shri Hira Lal Khanna. The case of the

defendant No.1 on the other hand is that the entire portion

marked C was purchased by him, by way of a sale deed

executed on the basis of a general power of attorney

executed by their parents in favour of his wife and brother-

in-law. The case of the plaintiff in the replication is that the

power of attorney relied upon by the defendant No.1 is

forged and fabricated document. Now in I.A. No.9150/2010

the plaintiff wants an additional issue to be framed in

respect of his allegation that the aforesaid power of attorney

is a forged and fabricated document. The contention of

learned counsel for defendant No.1 is that since there was

no allegation of forgery and fabrication in respect of the

power of attorney dated 18 th July, 1994 in the plaint, he had

no opportunity to rebut the allegation made in this regard

and, therefore, no issue can be framed on the basis of such

an averment. I, however, find no merit in this contention.

Order 8 Rule 9 of the Code of Civil Procedure, to the extent

it is relevant, provides that no pleadings subsequent to the

written statement of a defendant other than by way of

defence to set-off or counter-claim shall be presented except

by the leave of the Court. This Rule, therefore, does permit

filing of a subsequent pleading including a replication with

the prior permission of the Court. Hence, the replication, if

permitted by the Court, becomes a part of the pleadings

and, therefore, a plea taken in the replication even if for the

first time, needs adjudication by the Court. This

proposition of law was accepted by this Court in Moti Ram

v. Baldev Krishan, D.L.T. 15(1979) 90. In that case, the

service of a notice terminating the tenancy was pleaded in

the replication. It was contended by the defendant that the

plaintiff having not pleaded the service of notice, the suit

was defective on this ground. The contention was, however,

rejected by this Court, since the notice was found pleaded in

the replication. Therefore, in this case also, since forgery in

respect of power of attorney dated 18th July, 1994 has been

pleaded in the replication, it cannot be said that the

challenge to power of attorney does not emanate from the

pleadings of the parties. The defendant No.1 had full notice

of the fact that the validity of the sale deed alleged to have

been executed in his favour was being assailed by the

plaintiff on the ground that power of attorney on the basis of

which the sale deed was executed in his favour was a forged

and fabricated document. Therefore, it cannot be said that

if evidence is allowed to be led on this aspect, he would be

taken by surprise and will not be in a position to rebut the

case of the plaintiff. In Maheshwar Dayal v. Amar Singh,

AIR 1983 P&H 197, the Court was of the view that to see

as to whether a fact has been pleaded by the plaintiff by the

plaintiff, the Court is not to confine its gaze to the plaint,

but has to extend it to the replication as well since

replication and plaint together constitute pleadings of the

plaintiff. In taking this view, the High Court placed reliance

on its earlier decision in Jag Dutta v. Smt. Savitri Devi,

AIR 1977 P&H 68 where the landlady had pleaded two

essential ingredients of eviction in the replication, which

was held to be sufficient pleadings in this regard. In fact, in

Salig Ram and Another v. Shiv Shankar and Others,

AIR 1971 P&H 437, a Division bench of the High Court

was of the view that since replication is a part of the

pleadings, anything which is specifically stated therein for

the first time needs to be controverted and if not

controverted, it is assumed that the plea raised is accepted.

The defendant No.1, on filing of replication, came to know of

the plea taken by the plaintiff with respect to the aforesaid

power of attorney. No permission was sought by him to file

a reply to the replication in order to controvert the aforesaid

averment. Be that as it may, since the case of the plaintiff

is that the power of attorney dated 18th July, 1994 is a

forged document whereas the case of the defendant No.1 is

that this document was validly executed by their parents on

18th July, 1994, this issue needs adjudication during trial.

An issue has already been framed with respect to ownership

of 1/6th share in property No. No.39/71, West Punjabi

Bagh, New Delhi. While deciding this issue, the Court will

necessarily have to adjudicate on the validity or otherwise of

power of attorney dated 18th July, 1994 because if this

document was executed by their parents and later the

portion C was sold to defendant No.1, by a sale deed

executed by the attorneys, the Will bequeathing this portion

to the plaintiff would not of any consequence and would not

confer ownership on him. It is, therefore, made clear that

while leading evidence on issue No.1, the plaintiff would be

entitled to lead evidence to prove that the power of attorney

dated 18th July, 1994 is a forged document. Of course,

defendant No.1 would be entitled to lead evidence to rebut

the case of the plaintiff in this regard. As requested by the

learned counsel for defendant No.1, it is made clear that at

the time of final arguments, it will be open to defendant

No.1 to take a plea that the validity of the power of attorney

cannot be challenged, by way of replication filed in January,

2008. The learned counsel for defendant No.1 wants

permission to file documents in this regard. There is no

objection to his request and hence, the parties are permitted

to file additional documents, if any, with respect to the

execution of the power of attorney dated 18th July, 1994.

3. Coming to the application of defendant No.1 (I.A.

No.8336/2010), I find that one of the reliefs claimed by the

plaintiff is mandatory injunction directing defendant No.2

MCD not to sanction any plan with respect to property in

question. The contention of the learned counsel for

defendant No.1 is that there is no averment in the plaint,

necessitating such a relief against MCD. As noted earlier,

the case of the plaintiff is that he is the owner of 1/6 th share

in property No.39/71, West Punjabi Bagh, New Delhi. If the

plea taken by him is correct, the MCD cannot sanction any

plan unless he also joins the other co-owners in applying for

sanction of the building plan. Of course, the relief, which

can be granted to the plaintiff would be by way of perpetual

injunction and not by way of mandatory injunction. I,

therefore, find no merit in the application filed by defendant

No.1. However, issue No.5 needs to be recast and is framed

as under:-

"Whether the plaintiff is entitled to perpetual injunction against MCD as claimed by him."

4. Both the applications stand disposed of in terms of

this order.

I.A. No.8171/2009

5. As noted earlier, there is dispute between the

parties with respect to ownership of portion C in property

No.39/71, West Punjabi Bagh, New Delhi.

6. Vide order dated 10th September, 2007, the Court

directed defendant No.1 to maintain status quo with regard

to title, possession and state of construction of the property

bearing No.39/71, West Punjabi Bagh, Delhi. This order

was modified on 11th April, 2008 to confine it to title,

possession and status of construction of the portion marked

„C‟ in the plan. Vide another order dated 13 th April, 2009,

this order was modified to the extent that the defendant was

directed to maintain status quo with respect to title,

possession and state of construction of portion mark „C‟ to

the extent of 1300 sq.ft.

7. The learned counsel for defendant No.1 states that

on account of status quo order passed by this Court, the

MCD is not sanctioning the plan in respect of portions A

and B of the aforesaid property to the ownership of which

there is no dispute between the parties.

8. It is, therefore, made clear that the status quo

orders passed by this Court from time to time will not come

in the way of defendant No.2 MCD sanctioning a plan for

construction on portions A and B in property No.39/71,

West Punjabi Bagh, New Delhi, if such construction is

otherwise permitted under building bye-laws and there is no

legal impediment in sanctioning of the plan with respect to

portions A and B of the property No.39/71, West Punjabi

Bagh, New Delhi. This, however, would not amount to a

direction to MCD to sanction the plan. MCD will have to

take its own decision in the matter, uninfluenced by the

status quo orders passed in this case.

The application stands disposed of.

CS(OS) No.1657/2007

8. The parties shall appear before the Joint Registrar

on 20th April, 2011 for admission/denial of additional

documents, if any, which may be filed by the parties and for

fixing the dates for cross-examination of the witnesses of the

plaintiff.

(V.K. JAIN) JUDGE MARCH 22, 2011 vkm