Skipper Bhawan Flat Buyers Assn. & ... vs Skipper Towers Pvt. Ltd.
2012 Latest Caselaw 5219 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       CMs 7932/2009, 21202/2011 in RFA (OS) No. 23 of 1998

%                                    Judgment delivered on: 3rd September, 2012

Skipper Bhawan Flat Buyers Assn. & Ors.                       ... Appellant

                                  through :        Mr. D. Verma, Mrs. Neha S.
                                                   Verma, Advocates

                                        VERSUS

Skipper Towers Pvt. Ltd.                                        ...Respondents

                                  through:         Mr. Mukul Rohtagi, Sr. Adv.
                                                   with Mr. R.K. Sanghi,
                                                   Mr.Satyendra Kumar, Advs.
                                                   for applicants
                                                   Mr. Rajiv Bahl, Adv. for OL

        CORAM :-
        HON'BLE THE ACTING CHIEF JUSTICE
        HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW


A.K. SIKRI (Acting Chief Justice)

RP 162/2003

RFA(OS) 23/1998 was decided by a Division Bench of this Court vide judgment dated 23.11.2001 and one of us (A.K. Sikri, Acting Chief Justice) was a member of that Bench. Thereafter the applicant M/s William Jacks and Company (India) Ltd. filed Review Application No.162/2003 seeking review of this judgment. Main reason for filing the application for review was that vide judgment dated 23.11.2001, the applicant was allotted 4822 sq.ft. area on the 12 th floor of Skipper House at 22, Bara Khambha Road, New Delhi - 110001 whereas it had obtained

the decree dated 5.9.1997 in Suit No.728/1987 allotting an area of 7460.342 sq.ft. on the 11th floor which decree had become final as no appeal was filed thereagainst. The plea, therefore, was that such a decree could not be varied in the aforesaid proceedings in which applicant was not a party and more so when the decree obtained by it had become final. This application was disposed of vide order dated 26.5.2004. While rejecting the application, the Division Bench, however, referred the matter back to the Committee appointed by it to determine the question of calculation of cost of area as booked by the applicant. According to the applicant, certain issues were not decided by that order. Aggrieved by this order, the applicant approached the Supreme Court by way of Special Leave Petition. In this Special Leave Petition, the Supreme Court passed orders dated 31.3.2009 with direction to hear the review application filed by the applicant on the merits of the case. This is how the aforesaid application has come up for hearing. During the pendency of this review petition, the applicant has also filed CM 21202/2011 seeking allotment of space on the 12th floor on the ground that on this floor, there is going to be further construction under the supervision of the Committee and, therefore, applicant can be allotted space therein. After remand from the Supreme Court, the applicant also filed CM 7932/2009 with a request to hear the review petition.

2. As already pointed out above, applicant had filed Suit No.728/1987 before the original side of this Court. In this suit, it was stated that applicant had booked certain area in the Skipper House and Agreement for Sale dated 29.6.1982 was entered into between the applicant and Skipper Towers Pvt. Ltd. Area booked was measuring 10,000 sq.ft. @ Rs.550/- per sq.ft. in installments. Balance amount was to be paid by

30.9.1987. As certain disputes arose, the applicant filed aforesaid suit for specific performance. It was decreed vide order dated 5.9.1997 allotting an area of 7460.342 sq.ft. Judgment debtor had not filed any appeal thereagainst and, therefore, this decree has attained finality.

3. However, RFA(OS) 23/1998 was filed by Skipper Bhawan Flat Buyers Association and Ors. against judgment dated 5.9.1997 before the Division Bench of this Court in which judgment dated 23.11.2001 was passed. Vide this judgment, area of various allottees was reduced including that of the applicant from decretal area to 4822 sq.ft. The submission was that once the decree had been passed which had attained finality, that could not be altered in some other appeal in which not only the applicant was not a party, but the applicant was not even heard in the matter. It is submitted that the aforesaid proceedings in RFA could not be treated as representative suit as permission of the court under Order 1 Rule 8 of the CPC is mandatory and was not taken. Reference is made to the judgment of the Supreme Court in Kalyan Singh v. Smt. Choti & Ors. (1990) 1 SCC 266. It is also submitted that public notice dated 19.11.2000 issued in the RFA by the Division Bench was of no consequence. Main argument, thus, is that once the decree had become final between the parties, it could not be varied. For this purpose, judgment of the Apex Court in Premier Tyres Ltd. v. Kerala State Road Transport Corporation, AIR 1993 SC 1202 is referred wherein it is held as under:

"1. The short and the only question of law that arises for consideration in this appeal is the effect of non filing of appeal in the connected suit tried together with common issues.

xxx xxx xxx

3. The validity of this finding has been assailed by Shri Raja Ram Aggarwal, the learned Sr. Advocate appearing on behalf of the appellant. It is urged that Section 11 of the Civil Procedure Code does not apply as such. According to him since both the suits were connected and decided by a common order the issue in neither suit can be said to have been decided in a former suit. Therefore, the basic ingredient of Section 11 of the C.P.C. was not satisfied. The submission derives some support from observations in Narhari v. Shanker [1950] 1 SCR 754, that, 'even when there are two suits it has been held that decision given simultaneously cannot be a decision in the former suit'. But this decision was distinguished in Sheodan Singh v.Smt. Daryao Kunwar : [1966] 3 SCR 300, as it related to only one suit, therefore, the observations extracted above were not relevant in a case where more than one suit were decided by a common order. The Court further held that where more than one suit were filed together and main issues were common and appeals were filed against the judgment and decree in all the suits and one appeal was dismissed either as barred by time or abated then the order operated as res judicata in other appeals, 'In the present case there were different suits from which different appeals had to be filed. The High Court's decision in the two appeals arising from suits Nos. 77 and 91 was undoubtedly earlier and therefore the condition that there should have been a decision in a former suit to give rise to res judicata in a subsequent suit was satisfied in the present case. The contention that there was no former suit in the present case must therefore fail'. In Shri Ramagya Prasad Gupta v. Sri Murli Prasad : [1974]3SCR915 , an effort was made to get the decision in Sheodan Singh : [1966] 3 SCR 300 (supra) reconsidered. But the Court did not consider it necessary to examine the matter as the subject matter of two suits being different one of the necessary ingredients for applicability of Section 11 of the C.P.C. were found missing.

4. Although none of these decisions were concerned with a situation where no appeal was filed against the decision in connected suit but it appears that where an appeal arising out of connected suits is dismissed on merits the other cannot be heard, and has to be dismissed. The question is what happens where no appeal is filed, as in this case from the decree in connected suit. Effect of non filing of appeal against a judgment or decree is that it become final. This finality can be taken away only in accordance with law. Same consequences follows when a judgment or decree in a connected suit is not appealed from."

4. It is also submitted that the aforesaid judgment of Supreme Court in Premier Tyres Ltd. (supra) has been relied upon in the subsequent judgment in the case of Harbans Singh & Ors. v. Sant Hari Singh & Ors., JT 2009 (2) SC 32.

5. The aforesaid argument appears to be attractive when it is taken in isolation and without the context of the present proceedings. Once the background in which judgment dated 23.11.2001 in RFA (OS) 23/1998 and other connected case is taken note of, it would become apparent that these arguments have no merit. This is stated so in detail in the judgment and the salient aspects thereof are recapitulated in brief.

6. The judgment debtor (hereinafter referred to as „the Skippers‟) who were constructing commercial building at 22, Bara Khambha Road, New Delhi (hereinafter referred to as „the Skipper Tower‟) advertised the proposed construction and solicited buyers. The bookings started in the year 1976 and went on for a long period. Many persons booked the flats. Admittedly the space booked by the Skippers was much more than the space which was ultimately constructed and available in the building. The land on which the Skipper Tower was to be constructed belonged to

six persons/group of persons having 1/6th share each who had all entered into collaboration agreement with the Skippers. Disputes arose between the Skippers and the owners of the land. Even thereafter, the Skippers kept on making bookings. Because of the disputes, complete construction could not be made. Buyers, on the other hand, started filing suits for specific performance. Number of suits were filed and the idea of that can be gauged from the fact that along with RFA No.23/1998, 219 other RFAs were also decided which had arisen from the judgment and decree passed in those suits. Crisply said, the area available was less than the subject matter of the area covered by all the suits. Thus, had all the suits been decreed, no way the decrees could be executed. When these suits started piling up before the learned Single Judge, the learned Single Judge thought it appropriate to appoint a Committee which could consider the claims of all the flat buyers and suggest the areas which could be allotted to each of them depending upon the area booked by these flat buyers and payments made. The Committee did detailed exercise and filed exhaustive report before the learned Single Judge who was seized of all the suits. However, when the suits came up for hearing and dealt with by another Single Bench, he took the view that each suit for specific performance was to be dealt with on its own merits. The report was thus discarded and separate orders passed in each of the suits, albeit by common judgment. That is how spate of appeals came to be filed. Lead appeal was RFA(OS) 23/1998 filed by Skipper Bhavan Flat Buyers Association which association was formed by many flat buyers. The Division Bench was of the opinion that in a situation like this, the report should not have been discarded and should have been acted upon and it was doing substantial and complete justice to all the flat buyers. Obviously in this report, area which was suggested to be given to each of

the buyers stood reduced as full area, as booked, could not have been given to any buyer.

7. It would also be pertinent to mention that Skipper Bhawan Flat Buyers Association had come to the Court in a representative capacity. Others who had filed the appeals were those whose suits had either not been decreed by the learned Single Judge or the decree was not to their satisfaction. What is emphasized is that in none of the cases, Skippers filed the appeals as nobody was there to file those appeals. That was the reason that where the suits were decreed, in which category the applicant belong to, no appeals were filed.

8. Accepting the report would have meant affecting those also in whose favour decrees were passed but which were not under challenge. Reason for not challenging, as already stated above, is Sardar Tejwant Singh, who was the anchor of Skipper Group was behind the bars. The Division Bench, in such circumstances, felt that since others can be affected, let there be a public notice issued. Public notice was issued. Even specific notices to all the parties including applicant were issued. It would be significant to state that even the Committee while doing its exercise had issued notices to all the flat buyers. The justification for adopting this course of action was given in the detailed judgment in the following words:

"...This opinion of ours is influenced by the following considerations:

1) Order dated 1st October, 1991 passed by the learned Single Judge and the terms of reference mentioned therein gave power to the Committee to consider the cases of all the flat buyers for allotment/equitable allotment of the space.

2) This order was challenged in appeal. The Division Bench affirmed this order and dismissed the appeal. The learned Single Judge was bound by the interim order dated 1st October, 1991 passed earlier in the suit which was even the stamp of approval from the Division Bench.

3) The Committee invited all the flat buyers to lodge their claims and considered the claims on merits. Therefore, there was legitimate expectation in the mind of the flat buyers that once the Committee had been appointed by this court with directions to look into the claims of all flat buyers and they succeed before the Committee, they would be allotted the space. The court was, thereafter, required only to accepted Report with or without modifications having regard to the objections which were filed by some flat buyers.

4) In a matter like this where the skippers created problems for the flat buyers by booking the space more than the available space, the court cannot confine itself to the case of those only who filed the suits. What would be the position if, in respect of one particular flat the Skippers entered into agreement with two or more persons? If only one of them files the suit for specific performance although he entered into agreement with Skippers at a later date and paid lesser money that was paid by another person who entered into an agreement at an earlier date and paid full consideration before the agreement? Would it be equitable in such circumstance to decree the suit of the person who had filed the suit, ignoring the claim of the person who failed to do so. Answer is obviously, No. This example in respect of one flat can be magnified in the instant case as similar problem would emerge in respect of other flats. Therefore, it was but proper, in a situation like this, to consider the claims of all persons even when the claims of those flat buyers who filed the suits had to be decided. Otherwise, it would create inequitable results.

5) Even technical problem can also be taken care of. Afterall, the Committee considered the cases of all the claims and submitted the Report. Depending upon the outcome of the Report and the ultimate decision thereon by the court with modifications, if any, those claimants who are held entitled to allotment of the space could be given the space subject to their filing requisite application with court fee as if it was a suit filed by such person.

6. The approach of the learned Single Judge vide order dated 1st October, 1991 and confirmed by the Division Bench was, therefore, reasonable, just and proper. It was adopted with the purpose of doing justice in the broader sense of the matter keeping aside narrow and pedantic approach. Situation may arise when, to do complete justice in the matter courts have to ignore the technicalities of law. As aforesaid, even if claims of those who filed the suits had to be decided, it could not be done in isolation and without considering the entire gamut, amplitude and peculiarity of the nature of problems being faced in such cases. As is clear by now that these cases relating to this building have posed a peculiar problem. It has to be dealt with by adopting an approach which is justice oriented. Imparting justice has to be the prime consideration with the growing complexity of social relations, new types of problems would come in the courts. There may not be perfect precedent to follow. If following an old principle yields wrong results or leads injustice, occasion would be ripe to formulate new principle. New situation demand new solutions. By treading the beaten path, one may not reach the goal. The goal is to do justice. In such situations social engineering has to be the guiding factor. It would be opportune to quote from the book "The Nature of the Judicial Process" which is a compilation of the Storrs lectures delivered by Benjamin N.Cardozo at Yale University. Quoting various eminent Jurists, Cardozo makes the following remarks:

"It is true, I think, today in every department of the law that the social value of a rule has become a test of growing power and importance. This truth is powerfully driven home to the lawyers of this country in the writings of Dean pound. "Perhaps the most significant advance in the modern science of law is the change from the analytical to the functional attitude"(Refer :Pound, "Administrative Application of Legal Standards" Proceedings American Bar Association, 1919, pp. 441, 449). "The emphasis has changed from the content of the precept and the existence of the remedy to the effect of the precept in action and the availability and efficiency of the remedy to attain the ends for which the precept was devised. (Refer: p.451, of. Pound, "Mechanical Jurisprudence, "Columbia L.R. 603. Foreign Jurists have the same thought: "The whole of the judicial function," says Gmelin, (Refer: Sociological method," trnasl., 9, Modern Legal philosophy Series, P. 131.) "has... been shifted. The will of the State expressed in decision and judgment is to bring about a just determination by means of the subjective sense of justice inherent in the judge, guided by an effective weighing of the interests of the parties in the light of the opinions generally prevailing among the community regarding transactions like those in question. The determination should under all circumstances be in harmony with the requirements of good faith in business intercourse and the needs of practical life, unless a positive statute prevents it; and in weighing conflicting interests, the interest that is better founded in reason and more worthy of protection should be helped to achieve victory."(Refer: Gmelin, supra; of. Ehrlich, "Die juristische Logik," p. 187; Duguit, "Les Transformations due profit deputies le Code Napolean, "transl., Continental Lega Hist. Series, Vol.XI pp. 72, 70.) "On the other hand, "says Geny, (Refer :Op.cit., Vol II, p.92 Section

159) "We are to interrogate reason and conscience,

to discover in our inmost nature, the very basis of justice; on the other, we are to address ourselves to social phenomena, to ascertain the laws of their harmony and the principles of order which they exact." And again: (Refer: Vol. II, p.91) "Justice and general utility, such will be the two objectives that will direct our course."

It may also be added that one has to be more liberal while dealing with the procedural aspects of the case. In the field of procedure, major changes have been witnessed over a period of time. The tendency today is in the direction of a growing liberalism. Cardozo in the aforesaid lectures, taking note of this tendency has also stated:

"The new spirit has made its way gradually; and its progress, unnoticed step by step, is visible in retrospect as we look back upon the distance traversed. The old forms remain, but they are filled with a new content. We are getting away from what Enrich calls "die spielerische und die mathematische Entischeidunig" (Refer:Enrich, "Die juristinsche Logik," p.295; cf.pp.294, 296). The conception of a lawsuit either as a mathematical problem or as a sportsman's game. Our own Wigmore has done much to make that conception out of date. (Refer: Treaties on Evidence). We are thinking of the end which the law servers, and fitting its rules to the task of service."

We must adopt an active posture and view in a larger perspective the functionalism of legal humanism. If the situation demands adoption of a broad principle to meet the ends of justice, the court should not feel shy in adopting the same. 'The history of law is the history of the effort to mould legal institutions and doctrines to meet the felt necessities of each period in the Nation's development'. Access to justice is the demand of the day. The problem of access to justice has many dimensions. What is crucial is that people

should be the participants and beneficiaries in the administration of justice. The Supreme Court has already given new dimensions to the access jurisprudence in expanding the principle of locus standi which led to the introduction of public interest litigation in this country.

Cappelletti clarified his view on the crucial aspect of access to court in the Administration of Justice thus:

"The right of effective access to justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured by a workable remedy within the framework of the judicial system. Effective access to justice can thus be seen as the most basic requirement-the most basic 'human right'-of a system which purports to guarantee of legal rights. (Australian law Reform Commission, Discussion Paper No.4, p.3)."

Once we are able to find the way that too within the existing norms, of course, by giving it a new meaning, and more so when it advances the justicing process, there should not be any difficulty in adopting the same. Afterall it has also to be seen in the present case that it is not in the nature of adversary litigation any longer. We are dealing with class action. It is not necessary to indulge in a detailed jurisprudential exercise. Our purpose would be served by mentioning that even our own Supreme Court has shown the path by holding repeatedly that the procedure is the hand maid of justice. It is to facilitate justice and further its end. It is the means designed for furtherance of justice and not to frustrate the same. (Refer: Sangram Singh v. Election Tribunal, Kota, AIR 1955 SC 422).

It may be interesting to note at this stage that the Committee in the concluding paragraph of its Report itself indicated the peculiar nature of the problem, the approach adopted by it and advised the flat buyers not to indulge in conventional litigation. This is what it observed:

"Our task was both exciting and innovative. We are not required to try suits for specific performance, as we have said. Our commission was to facilitate a just settlement between hostile parties. Out of the conflicting and opposing claims we had to find what was just and equitable. In the final analysis, we have tried to make the best of a bad bargain.

We have reached the end of our report. Before we close we will added a word of advice to the flat buyers. The disputes will have to be settled within an openness to compromise on the lines suggested by us or as may be suggested by the court. Because the final word is with the court. But one thing is clear. Conventional litigation will not avail the flat buyers. They should avoid lawsuits. The Poet John Prom fret in 1700 wrote:

"Law-suits I'd shun, with as much studious care. As I would dens where hungry lions are".

If some of the flat buyers were convinced by the aforesaid advice and did not file individual suits after the recommendation of the Committee allotting them certain area believing that they would get the same now from the court on the basis of this recommendation, they cannot be faulted with. Rejecting their claims only because they adhered to the aforesaid advice, would amount to causing gross injustice to such persons.

We may hasten to add that this approach is adopted keeping in view the peculiar nature of these cases and the magnitude of the problem involved. By no means

we are suggesting that even in routine problems of trivial types, such procedural requirements are to be given go-by."

9. Report submitted by the Committee was thus made the basis. Each case was also discussed separately. This is how the final orders came to be passed. Once we take that into account, we are of the opinion that there is no merit in this review application filed by the applicant inasmuch as what is now sought to be argued was all before the Division Bench but the Division Bench adopted the aforesaid approach in consonance with justice.

10. We would also like to point out that the applicant had the knowledge of the proceedings. However, it stayed away from the proceedings when the appeals were being heard. On this ground also, we say that the applicant is precluded from filing such an application for review. In N.K. Prasada v. Government of India & Ors., (2004) 6 SCC 299, the Apex Court has observed as under:

"24. The principles of natural justice, it is well-settled, cannot be put into a strait-jacket formula. Its application will depend upon the facts and circumstances of each case. It is also well-settled that if a party after having proper notice chose not to appear, he a later stage cannot be permitted to say that he had not been given a fair opportunity of hearing. The question had been considered by a Bench of this Court in Sohan Lal Gupta (Dead) through LRs. and Ors. Vs. Asha Devi Gupta : (2003)7SCC492 of which two of us (V.N. Khare, C.J. and Sinha, J.) are parties wherein upon noticing a large number of decisions it was held: (SCC p.506, para 29) "29.The principles of natural justice, it is trite, cannot be put in a straitjacket formula. In a given case the party should not only be required to show

that he did not have a proper notice resulting in violation of principles of natural justice but also to show that he was seriously prejudiced thereby.

25. The principles of natural justice, it is well settled, must not be stretched too far."

11. The justice oriented approach adopted by the Division Bench also finds support from the judgment of Supreme Court in Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corporation Ltd., Haldia & Ors., (2005) 7 SCC 764 wherein the Supreme Court observed as under:

"44. We are aware of the normal rule that a person must have a fair trial and a fair appeal and he cannot be asked to be satisfied with an unfair trial and a fair appeal. We are also conscious of the general principle that pre-decisional hearing is better and should always be preferred to post- decisional hearing. We are further aware that it has been stated that apart from Laws of Men, Laws of God also observe the rule of audi alteram partem. It has been stated that the first hearing in human history was given in the Garden of Eden. God did not pass sentence upon Adam and Eve before giving an opportunity to show cause as to why they had eaten forbidden fruit. (See R. v. University of Cambridge). But we are also aware that principles of natural justice are not rigid or immutable and hence they cannot be imprisoned in a straight-jacket. They must yield to and change with exigencies of situations. They must be confined within their limits and cannot be allowed to run wild. It has been stated: "To do a great right after all, it is permissible sometimes to do a little wrong". [Per Mukharji, C.J. in Charan Lal Sahu v. Union of India, (Bhopal Gas Disaster), SCC p.705, para 124]. While interpreting legal provisions, a court of law cannot be unmindful of hard realities of life. In our opinion, the approach of the Court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than

doctrinaire, functional rather than formal and practical rather than 'precedential'."

(emphasis supplied)

12. We do not, therefore, find any merit in this review application which is accordingly dismissed. CM 7932/2009 also stands disposed of.

CM 21202/2011

13. In this application, the applicant has pointed out that space is admittedly available on 12th floor. No allotment has been made to anybody on the 12th floor. Therefore, if the area is granted to the applicant on this floor, it will not prejudice any other allottee and no other allotment would be disturbed. Since the matter is now pending before the Supreme Court and Supreme Court has appointed a Committee, replacing the committee appointed by this Court, which is headed by Justice S.K. Mahajan (Retd.), it would be open to the applicant to make such a request to that Committee as such an exercise is being undertaken by the said Committee. This application is disposed of with these observations.

All pending applications shall also stand disposed of in view of the above.

ACTING CHIEF JUSTICE

(RAJIV SAHAI ENDLAW) JUDGE SEPTEMBER 03, 2012/pk