Hema Khattar & Anr vs Shiv Khera
2012 Latest Caselaw 5859 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Judgment delivered on: September 28, 2012
+                               FAO (OS) No.470/2012
       HEMA KHATTAR & ANR                       ..... Appellants
               Represented by: Mr.Pradeep K. Bakshi, Advocate with
               Mr.Jitender Ratta, Advocate


                       versus

       SHIV KHERA                                   ..... Respondent
                Represented by: Mr.Vivek K. Tankha, Sr.Advocate
                instructed by Mr.Sakal Bhushan, Mr.Avijit Singh and
                Mr.D.Kumanan, Advocates

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE MANMOHAN SINGH

PRADEEP NANDRAJOG, J. (Oral)

1. Appellants, as plaintiffs, have filed a suit seeking declarations, permanent injunction and decree in sum of `45,00,719/-.

2. The prayer made in the suit reads as under:

"(a) Decree of Declaration in favour of the Plaintiffs and against the Defendant, declaring that-

(i) The Agreement for Construction dated 6.6.2009 had been obtained by fraud and misrepresentation and as such, the same is null and void, non-est, being vitiated by fraud and all proceedings initiated pursuant thereto are invalid and void ab-initio; and

(ii) The Agreement for Construction dated 6.6.2009 stood terminated by mutual consent between Plaintiff No.1 and the Defendant and superseded by an oral arrangement/agreement between Plaintiff No.2 and the Defendant with regard to construction of Defendant's

Property at C-6/4, Vasant Vihar, New Delhi-110057; and

(b) Decree of Permanent Injunction in favour of the Plaintiffs and against the Defendant, restraining Defendant from initiating and carrying on with any proceedings arising out of and on the basis of Agreement for Construction dated 6.6.2009; and

(c) Decree in favour of the Plaintiffs and against the Defendant for a sum of Rs.45,00,719/- (as per Annexure- A) being the balance of expenses incurred and spent by Plaintiff No.1 towards the construction of the Property of Defendant; and

(d) Decree in favour of the Plaintiffs and against the Defendant for interest @18% per annum on the aforesaid amount of Rs.45.50 Lac from the date of the Suit till its payment; and

(e) Award costs in favour of the Plaintiffs and against the Defendant towards expenses for the suit proceedings;"

3. Suffice would it be to state that the declarations sought are in favour of both plaintiffs and against the sole defendant. The decree for permanent injunction is also claimed in favour of both plaintiffs and so is the money decree.

4. We may highlight at the outset that in the prayer clause the decree(s) claimed are jointly in favour of the plaintiffs without indicating a particular decree to be with respect to a particular plaintiff.

5. The contextual setting of the plaint is the statement by the plaintiffs that on June 6, 2009, only plaintiff No.1 entered into a written construction agreement with the sole defendant requiring plaintiff No.1 to execute the work of re-development of property bearing Municipal No.C-6/4, Vasant Vihar, New Delhi-110057, on the terms agreed to between plaintiff No.1 and the defendant in writing as per agreement for construction dated June 6,

2009. Averments have been made that the parties i.e. plaintiff No.1 and the defendant could not proceed ahead with the discharge of their respective obligations under the written agreement and thus it was decided that inter-se, the plaintiff No.1 and the defendant, the relationship be severed. At the stage it was agreed that plaintiff No.2, who is the husband of plaintiff No.1, would take over the execution of the pending works. As per the plaint, it was orally agreed between plaintiff No.2 and the defendant that such amounts which the defendant had paid to plaintiff No.1 would be treated as payments to the account of plaintiff No.2, who would likewise take the benefit of the work executed by plaintiff No.1 and would discharge further obligations to complete the balance works.

6. We highlight that the plaint does not plead a novation of the written agreement by an oral agreement. It pleads a complete accord and discharge of the responsibilities and liabilities of plaintiff No.1 vis-à-vis the defendant and vice-versa. The plaint then avers that after the accord between plaintiff No.1 and the defendant and simultaneous discharge of the obligations, a distinct oral agreement was entered into between plaintiff No.2 and the defendant.

7. Proceeding ahead with further averments, it is pleaded that the written agreement dated June 6, 2009 was the result of a fraud and misrepresentation.

8. Since the defendant was enforcing his rights against plaintiff No.1 with respect to the construction agreement dated June 6, 2009, which embodies an arbitration clause, averments have been made that the defendant would not be entitled to initiate any proceedings which relate to or emanating from construction agreement dated June 6, 2009.

9. Vide impugned order dated September 17, 2012, the learned Single

Judge has left it to the option of the plaintiffs to choose whether they would like to proceed with the suit with respect to the money decree claimed or would like to proceed with the suit with reference to the declarations sought and injunction sought.

10. Suffice would it be for us to state that being not a signatory to the written agreement dated June 6, 2009, plaintiff No.2 is nobody to join in an action with his wife averring that the said agreement is vitiated on account of fraud and misrepresentation. Similarly, with respect to the mutual termination of the written agreement between plaintiff No.1 and the defendant, plaintiff No.2 is nobody to join in a common action to plead that a declaration be granted in his favour that the written agreement stood superseded by mutual consent.

11. If this is so, plaintiff No.2 cannot seek to restrain the defendant from initiating proceedings arising out of or initiating on the basis of a written construction agreement dated June 6, 2009.

12. It may be true that the contextual setting of the money decree claimed by plaintiff No.2 against the defendant may require him to plead that when his wife, by a mutual agreement with the defendant, was relieved of the obligations to execute the works under the written agreement dated June 6, 2009, he had an oral agreement with the defendant under which he was to execute certain works and for which had to be paid. But, this would be a distinct cause of action founded on his oral agreement, as claimed by him, which he entered into with the defendant. Past events would be not a part of his cause of action, but would at best be his evidence.

13. Law draws a distinction between evidence and a cause of action.

14. The learned Single Judge has accordingly rightly opined that the suit, as filed, not only suffers from a mis-joinder of a cause of action but even

also mis-joinder of parties and has rightly given the option to the plaintiffs to opt.

15. We find no merits in the appeal which is dismissed in limine.

16. No costs.

C.M.No.17022/2012 Dismissed as infructuous.

(PRADEEP NANDRAJOG) JUDGE

(MANMOHAN SINGH) JUDGE SEPTEMBER 28, 2012/jk