Sh.Rajinder & Ors. vs Harsh Vohra & Ors.
2011 Latest Caselaw 5118 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI



%                                               Date of decision : 18.10.2011



                            WP(C) No.7547/2011



SH.RAJINDER & ORS.                       ...      ...       ...         PETITIONERS


                        Through : Mr.Lekh Raj Rehalia, Advocate


                                   -VERSUS-


HARSH VOHRA & ORS.                                              ... RESPONDENTS

                        Through : Nemo.


CORAM :

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE RAJIV SHAKDHER

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

2.      To be referred to Reporter or not?                              NO

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



_________________________________________________________________________________________
WPC No.7547/2011                                                             Page 1 of 13
 SANJAY KISHAN KAUL, J. (ORAL)

CM No.17076/2011

Allowed subject to just exceptions.

+ WP (C) No.7547/2011

1. The petitioners, owners of land in question, executed a

sale deed dated 07.10.1996 in respect of the land in

question and mutation was also carried out in the

revenue records in favour of the respondents. The

petitioners, however, filed a suit alleging that they

have received only part payment under the sale deed

and balance consideration was not paid and sought

cancellation of documents of title and for them to be

declared null and void. Arising from those suit

proceedings, a Civil Revision Petition No.183/2007 and

FAO No.25/2009 were filed, which were decided by the

learned single Judge of this Court on 01.12.2009. The

learned single Judge noticed that it is the case of the

petitioners that they have agreed to sell the land for

higher consideration and understood that they were

only signing documents of mortgage and not the sale _________________________________________________________________________________________

deed when they executed the documents. There were,

in fact, four suits which arose out of the transaction in

question as there were four sale deeds. The petitioners

also stated in the plaint that they had filed appeal

against the mutation of the land in the name of the

respondents which was dismissed, the second appeal

was dismissed by the Financial Commissioner and it is

thereafter that the petitioners instituted the suit for

declaration and injunction. The issues were framed on

18.05.2006 and all the suits were directed to be tried

together.

2. It is at the aforesaid stage that the petitioners instead

of filing affidavits by way of examination-in-chief of

their witnesses filed an application under Order 14 Rule

5 and Order 11 Rule 16 of the CPC. An application was

also filed subsequently under Section 340 of Cr.P.C.,

which was dismissed on 05.07.2007. It is against this

order that a Criminal Appeal No.460/2007 was filed

which was subsequently converted into FAO

No.25/2009, which was decided by the learned single

Judge. The petitioners also made a grievance that no

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orders were passed on their applications filed under

Order 14 Rule 5 and Order 10 of CPC.

3. The learned single Judge has found that the orders of

the Trial Court were misquoted and the revision

petition was not only signed by the petitioners, but by

their counsels. Even though certified copies of orders

were filed along with the revision petition, court found

that the orders reproduced in the body of the pleadings

filed had been misquoted; an act which was roundedly

deplored. It also found that after dismissing the

application under Section 340 of Cr.P.C., the Trial Court

had listed the matter for hearing of the applications

under Order 14 Rule 5 and Order 10 of CPC. A finding

has been arrived at by the learned single Judge that not

only was the revision petition misconceived, but it was

an attempt to browbeat the trial court and the suit

proceedings have been unnecessarily delayed. The

FAO No.25/2009 was qua the dismissal of the

application of the petitioner under Section 340 of

Cr.P.C., which has also been dealt with by the learned

single Judge on merits, finding no infirmity in the same.

The operative portion is as under:

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"From the aforesaid, it will be seen that the petitioners having only by misquoting the orders filed the frivolous proceedings before this Court but during hearing also just read judgments herein above without reference to the facts. I am, in the circumstances, constrained to dismiss these proceedings with costs of Rs.10,000/- on the petitioners."

4. The learned single Judge did not lay the matter to rest

at that stage since in exercise of supervisory

jurisdiction, the learned single Judge found that the very

maintainability of the suits was in question and thus

directed a preliminary issue to be framed in that behalf.

The aforesaid order attained finality as it was not

challenged further and was taken into consideration by

the Trial Court in passing the order dated 20.11.2010.

The plaint was rejected holding that the only remedy

available to the petitioners as plaintiffs was to seek

recovery of the balance consideration of the suit

amount, if any, and not for cancellation of the sale

deed.

5. The petitioners aggrieved by this order filed RFA

No.104/2011 before this Court. The learned single

Judge of this Court dismissed the appeal as

misconceived by the order dated 17.02.2011. The _________________________________________________________________________________________

learned single Judge found that the suit did not lie in

view of the provisions of Section 55 (4) of the Transfer

of Property Act, 1882. There is also a finding recorded

that the suit was barred under Order 2 Rule 2 of CPC as

earlier suits had been withdrawn without liberty to file a

fresh suit. The petitioners aggrieved by that order filed

a SLP bearing No.15374/2011, which was dismissed in

limine, on 06.07.2011.

6. It is after these rounds of litigation, that the present writ

petition under Article 226 of the Constitution of India

has been filed praying for the following reliefs:

" a) issue an appropriate writ, order or direction in the nature of Mandamus by setting aside the judgment and order dated 1.12.2009 passed by the Hon'ble Mr.Justice Rajiv Sahai Endlaw, the Learned single Judge of this Hon'ble Court in Civil Revision Petition No.183/2007 and FAO No.25/2009 which is beyond jurisdiction and in violation of Order 20 Rule 1 CPC read with Section 35 of CPC;

b) issue an appropriate writ, order or direction in the nature of Mandamus by setting aside the judgment and order passed by the Additional District Judge, Delhi dated 20.11.2010 in Civil Suit Nos.102/08/1999 to 105/08/1999 and the records be summoned.

c) issue an appropriate writ, order or direction in the nature of Mandamus by setting aside _________________________________________________________________________________________

the judgment and order dated 17.2.2011 passed by the Hon'ble Mr.Justice Valmiki J.Mehta, the learned single Judge of this Hon'ble Court in RFA No.104/2011 which is also without jurisdiction and mainly hinges on the findings given by the Hon'ble Mr.Justice Rajiv Sahai Endlaw, the learned Single Judge of this Hon'ble Court vide order dated 1.12.2009 passed in CRP No.183/2007 and FAO No.25 of 2009 which in fact is the complete violation of procedural provisions of the CPC is apparent on the face of the record when all issues arising on the basis of the pleadings were framed by the Additional District Judge Delhi on 18.05.2006 and the cases were listed on 31.8.2006 for plaintiff's evidence;

d) the aforesaid three orders may kindly be set aside and the matter be remanded back to the Court of learned Additional District Judge, Tis Hazari, Delhi when the aforesaid Civil Suit No.102/08/1999 to 105/08/1999 for fresh disposal in accordance with the law;

e) then notice issued by Hon'ble Mr.Justice Shiv Narain Dhingra learned Single Judge of this Hon'ble Court to the respondents in FAO No.25/2009 be recalled and the respondents be proceeded under Section 340, 195 Cr.P.C. in view of the order dated 19.9.2006 passed by Additional District Judge, Delhi in M/44/2006;

f) and pass such other or further order/orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case and in the interest of justice."

_________________________________________________________________________________________

7. The Registry raised an objection about the

maintainability of such a writ petition, but the learned

counsel for the petitioners insisted that the matter may

be placed before the court for hearing subject to the

office objection. The writ petition has accordingly been

placed before us.

8. We have heard learned counsel for the petitioner at

length.

9. It is the say of the learned counsel for the petitioners

that the petitioners have not received justice at the

hands of various forums where proceedings have gone

on. It is his say that the learned single Judge fell into

an error while passing the order dated 01.12.2009 and

the directions passed there could not have been taken

into account by the Trial Court while passing the order

dated 20.11.2010. Learned counsel further contends

that the dismissal of the special leave petition does not

give finality to the matter as the dismissal was in

limine. Learned counsel for the petitioners strenuously

contends that this court in exercise of power of under

Article 226 of the Constitution of India has every right

to look into the matter as the rights of the petitioners _________________________________________________________________________________________

under Article 300A of the Constitution of India have

been violated as the petitioners have been deprived of

their property without following the legal process.

10. Learned counsel has relied upon the Indian Oil

Corporation Ltd. v. State of Bihar and Ors.; AIR 1986

SC 1780 to contend that the dismissal of a special

leave petition by Supreme Court by a non-speaking

order is no bar to the trial of the same issues in High

Court under Article 226 of the Constitution of India. It

may be noticed that the matter in controversy was a

service dispute.

11.Learned counsel for the petitioners next referred to

State of UP through Secretary v. Atulji Mishra & Ors.;

(2003) 10 SCC 210 to contend that the High Court must

first issue notice to the respondents, call upon their

reply and then pass an order under Article 226 of the

Constitution of India. We may note that this case again

pertained to the issue of parity in employment and

equal pay for equal work where Supreme Court found

that the records ought to have been called and a

reasoned order should have been passed. Learned

counsel for the petitioners referred to the Gurudevdatta _________________________________________________________________________________________

Vksss Maryadit and Ors. v. State of Maharashtra and

Ors.; (2001) 4 SCC 534, State of Himachal Pradesh v.

Dhanwant Singh; JT 2004 (2) SC 367 and A.V.Papayya

Sastry and Ors.v. Govt. of A.P.& Ors. (2007) 4 SCC 221

to contend that that the statutory provisions cannot

take away the constitutional rights and that where a

fraud takes place, it vitiates all judicial proceedings.

12. We have given our thought to the matter and

considered it appropriate to pen down a detailed order,

setting the facts in controversy.

13. We find that the matter really does not pertain to

deprivation of any constitutional rights of the

petitioners qua the right of property in view of the

petitioners voluntarily entering into a transaction for

sale of the property. It is of course the say of the

petitioners that they have executed what were

purportedly mortgage papers. The fact, however,

remains that the sale deed was duly registered and

mutation carried out and all endevours of the

petitioners to get the mutation set aside were

unsuccessful. The petitioners kept on moving

applications including one under Section 340 Cr.P.C. _________________________________________________________________________________________

which formed subject matter of adjudication of the

learned single Judge vide order dated 01.12.2009.

Learned single Judge deplored the mode and manner of

conduct of proceedings on behalf of the petitioners

especially the factum of incorrectly quoting the orders

in the petition to give an impression as if the trial court

was delaying the proceedings qua certain applications

while records showed that it was the petitioners who

were pressing the application under Section 340 of

Cr.P.C. first. The dismissal of that application has been

upheld as no perjury was found nor any inconsistencies

in the statements of the defendants. This order has

become final and the same is stated not to have been

assailed further. It is by this very order where the court

exercising supervisory jurisdiction under Article 227 of

the Constitution of India directed the Trial Court to

examine the legality and validity of the claim as framed

in the plaint in the form of a preliminary issue. This

preliminary issue has been decided against the

petitioners vide the order dated 20.11.2010 by the Trial

Court which has received the imprimatur of this Court

by dismissal of the RFA No.104/2011 vide order dated _________________________________________________________________________________________

17.02.2011. The special leave petition has also been

dismissed.

14. In our considered view, this puts the controversy to rest

insofar as the claim of the petitioners over the

cancellation of documents is concerned. We may notice

that the Trial Court had left it to the petitioners, if so

advised, to file legal proceedings for recovery of the

balance consideration of the sale deed as pleaded by

them since that was not the relief claimed in the suit.

15. We must strongly deprecate the practice of repeated

litigation on the same cause of action, wasting the time

of the court. The lis, as agitated by the petitioners, has

attained finality. The Registry also pointed out that

such a writ petition would not be maintainable as the

order passed in RFA No.104/2011 by a learned single

Judge of this Court is not to be set aside in the writ

petition by this Court. Not only that, the orders passed

in Civil Revision Petition No.183/2007 and FAO

No.25/2009 are also not to be set aside by this Court

under Article 226 of the Constitution of India, and that

too, after a period of 2 years. The petitioners seek to

continue litigation under one pretext or the other and _________________________________________________________________________________________

courts must come down with heavy hand on such

litigation.

15. We thus dismiss the writ petition with exemplary costs

of Rs.25,000/- to be deposited with the Delhi High

Court Legal Services Committee within a period of two

weeks.

CM No.17075/2011

In view of the dismissal of the writ petition, no further

directions are called for on this application.

The application stands disposed of.

SANJAY KISHAN KAUL, J.

OCTOBER 18, 2011                                        RAJIV SHAKDHER, J.
dm

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