Ved Prakash Yadav vs Naryan Das And Ors.
2012 Latest Caselaw 5774 Del

       *      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                                Date of Decision : 26.09.2012

+      CS(OS) 1042/2005
       VED PRAKASH YADAV                         ..... Plaintiff

                            Through:   Mr. R.M. Sinha, Advocate

                   versus

       NARYAN DAS AND ORS.                       ..... Defendant

                            Through:   Mr. Kirti Uppal, Sr. Adv. with Ms. Aastha
                                       and Mr. Rohit Sharma, Advocates


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

                            JUDGMENT

V.K.JAIN, J. (ORAL)

IA No.11014/2010 (delay)

This is an application for condonation of delay of 20 days in filing IA No.11013/2010.

In view of the submissions made therein, the application is allowed and the delay in filing IA No.11013/2010 is condoned.

The application stands disposed of.

IA No.11013/2010 (under Order 22 Rule 4 CPC)

Mr. Kirti Uppal, learned senior counsel, who appears on behalf of proposed LRs of deceased defendant no.1, states that he would appear on behalf of proposed

LRs 1 to 3, who are already on record as defendants. Proposed LR. No.4 Mr. Vaibhav is also present in person.

In view of the submissions made therein, the application is allowed and the persons mentioned in para 2 are brought on record as LRs of deceased defendant no.1. Amended memo of parties be filed.

The application stands disposed of.

IA No.7017/2005 (under Order 7 Rule 11 CPC)

The case of the plaintiff is that he purchased house measuring 7683 sq. yards bearing Khewal no.68/67, out of Khasra Nos. 53(3-15), 57(1-16) and 58(2-16) situated at Arjun Nagar, VIII Himayunpur, New Delhi vide documents such as an agreement to sell, receipt and General Power of Attorney dated 6.12.1999 and became owner by virtue of those documents coupled with vacant possession of the suit property. It is further alleged in the plaint that the defendant no.1 approached the plaintiff for purchase of the suit property and, though, the transaction could not be finalized, a settlement was reached between the parties whereby they stated and agreed as under:

(i) That defendant no.1 had paid a sum of Rs.3,87,00,000/- to the plaintiff towards the cost and towards the expenses to get the property in question vacated from the then tenants.

(ii) The defendant no.1 had paid a sum of Rs.7,13,00,000/- to the plaintiff as a tentative profit.

(iii) In addition to the above, the plaintiff and the defendant no.1, agreed that the property in question will be transferred to the defendant no.1, but with an imediment that property in question will be further sold and the profit will be shared by both the plaintiff and the defendant

no.1 in 50% each which, means and construed that the efforts will be made to sell the property in question for more than the cost of Rs.11 crores, and whatever more will, the property in question fetch shall be divided between the plaintiff and the defendant no.1in equal share i.e. 50% each.

(iv) That plaintiff and the defendant no.1 further agreed that the defendant no.1, or his nominee will have to obtain No objection from the plaintiff, if the property in question is agreed to be sold or transferred or parting with the possession to any one.

Both the plaintiff and the defendant no.1, agreed to reduce in writing, what had been acted upon between them, and whatever to be acted upon i.e. to give effect to clause/ settlement explained in sub para (iii) & (iv) of this para, a memorandum of understanding was signed between the plaintiff and the defendant no.1 on 18.6.2001.

2. It is alleged in para 7 of the plaint that defendant no.1 with ulterior motive, got the property in question transferred to him from the plaintiff vide documents, details of which are not available with the plaintiff. It is further alleged in para 8 of the plaint that in July, 2005, the plaintiff came to know that defendant no.1 had sold the property in question to the persons mentioned therein.

3. The plaintiff has claimed the following reliefs in the present suit:

(i) Decree of mandatory injunction directing the defendants to sell the property in question i.e. House bearing number 2, Area, measuring 7683 sq. yards, situated at Arjun Nagar, Village Himyunpur, New Delhi, pursuant to clause no.5 and 6 of the Memorandum of Understanding dated 18.6.2001 i.e. to sell the property in question only with the no objection of the plaintiff and to share the profit (sale

consideration- investment made by the defendant no.1) in equal share with the plaintiff.

(ii) Decree of permanent injunction may be passed in favour of the plaintiff against the defendants or their nominee restraining them from selling, alienating, transferring, creating third party interest or otherwise parting with the possession of the property in question i.e. House bearing number 2, Area, measuring 7683 sq. yards, situated at Arjun Nagar, Village Himyunpur, New Delhi in violation of clause no.5 and 6 of Memorandum of Understanding dated 18.6.2001 i.e. not to sell the property in question till no objection is obtained from the plaintiff and without paying the profit (sale consideration - investment of the defendant no.1) in equal share with the plaintiff.

4. IA No.7017/2005 has been filed by the defendant no.1 seeking rejection of the plaint on the ground that the relief for mandatory and permanent injunction have already become infructuous in view of the admission that defendant no.1 has already sold the suit property to third parties. While IA 1703/2007 seeking amendment of the plaint is pending, the learned senior counsel for the defendant no.1 has pointed out that vide order dated 15.2.2007, this Court had directed that IA 7017/2005 would be taken up for hearing on the next date whereafter, if necessary, the other applications under Order VI Rule 17 and under Order XXXIX Rules 1 and 2 CPC shall be considered. The order dated 15.2.2007 was not challenged by the plaintiff and, therefore, has become final inasmuch as the application for rejection of plaint has to be considered first and it is only thereafter that the other applications, including the application seeking amendment of the plaint can be taken up for consideration, if found necessary.

5. It is settled preposition of law that while considering an application for rejection of the plaint, the Court can take into consideration only the averments made in the plaint and the documents filed by the plaintiff. Neither the defence taken in the written statement nor the documents filed by the defendant can be considered at this stage.

6. Order VII Rule 11 of the Code of Civil Procedure, to the extent it is relevant, provides that the Court shall reject the plaint where it does not disclose a cause of action. Therefore, what I have to examine as to whether the averments made in the plaint disclosed a cause of action to claim the reliefs sought therein or not.

7. This is plaintiff's own case that in para 8 of the plaint that defendant no.1 had sold the suit property to the persons mentioned in that para. Since the property in question already stood sold by the defendant no.1 to defendants no.2 to 4, on the date the suit was filed, no mandatory injunction could have been sought directing the defendants to sell the suit property in terms of clause 5 and 6 of the MoU dated 18.6.2001. Similarly, no perpetual injunction could have been sought restraining the defendants from alienating, transferring the suit property or part with its possession. No other relief was claimed.

8. I, therefore, hold that the plaint does not disclose any cause of action, either for grant of mandatory injunction or for grant of perpetual injunction. The plaint is, therefore, rejected.

CS(OS) 1042/2005 & IA No.1703/2007 (under Order 6 Rule 17 CPC) In view of rejections of plaint, the suit and all pending applications stand disposed of.

V.K. JAIN, J SEPTEMBER 26, 2012/rd