Kawal Sachdeva vs Madhu Bala Rana & Ors
2013 Latest Caselaw 1727 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Date of decision: 17th April, 2013

+              I.A. No.3890/2013 (of D-3 to 8 u/O 14 R-5 CPC)
                                       in
                               CS(OS) 3227/2011

       KAWAL SACHDEVA                                           ..... Plaintiff
                  Through:                  Mr. Dinesh Garg and Ms. Rachna
                                            Agrawal, Advocates.

                                         Versus
    MADHU BALA RANA & ORS                ..... Defendants
                  Through: Mr. M.M. Singh, Adv. for D-2.
                           Mr. Gurmit Singh, Adv. for D-3 to 8.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1.

The plaintiff has sued for possession pleading, that Major Ranbir

Singh Rana was the sole absolute owner of property no.J-1/161-A,

Rajouri Garden, Delhi and acting through his wife and attorney defendant

no.1, vide

Sale Deeds of the year 2009 has sold the middle and rear portion of the

said property admeasuring 910 sq. yds. to the plaintiff; that though

possession/constructive possession of the entire property sold was under

the Sale Deeds delivered but in fact possession of some portions was

not

delivered on the plea that the goods of the defendant no.2 who is the

daughter-in-law of the defendant no.1 and Major Ranbir Singh Rana were

lying therein; that the defendant no.2 instead of removing her goods has

not only refused to deliver possession but also collusively inducted

defendants no.3 to 8 as her tenants in the said portion. The plaintiff has

thus sued for possession and for future mesne profits with interest.

2. The defendant no.1 has supported the plaintiff.

3. The defendant no.2 has contested the suit pleading the property to

be belonging to the HUF of Major Ranbir Singh Rana and she and her

son, on the demise of her husband, having a right in the said property.

4. The defendants no.3 to 8 inter alia claim the suit for possession to

be barred under Section 50 of the Delhi Rent Control Act, 1958. They

however admit having been inducted into the property by the defendant

no.2.

5. Following issues were framed on 14.01.2013:-

(i). Whether the property belongs to the HUF of Major Ranbir

Singh Rana and the defendant no.2 and her son as members

of

the said HUF, have a right to continue in possession of the

same? OPD-2

(ii). Whether the defendant no.2 has any other right, title, claim

or interest over the suit property so as to retain possession

thereof? OPD-2

(iii). If the aforesaid issues are decided against the defendants,

whether the plaintiff is entitled to any mesne profit/damages

for use and occupation and if so, from whom and at what

rate and for what period? OPP

(iv). If the above issue is decided in favour of the plaintiff,

whether the plaintiff is entitled to any interest on arrears of

mesne profit and if so for what period, from whom and at

what rate? OPP

(v). Relief.

6. No issue on the plea of the defendants no.3 to 8 of the suit being

barred by Section 50 of the Rent Act was framed for the reason that if the

defendant no.2 fails to establish any right in the property, the defendants

no.3 to 8 cannot derive any tenancy rights through her.

7. The defendants no.3 to 8 filed this application seeking framing of

the following issues:

(i). Whether the suit is barred under Section 50 of the Delhi Rent

Control Act, 1958? OPD 3 to 8

(ii). Whether the suit has been filed by the plaintiff in collusion

with defendants no.1&2 to illegally evict defendants no.3 to

8 from the tenanted portions in the suit property? OPD 3 to 8.

8. The said application first came up for consideration on 06.03.2013

when it was the contention on behalf of the defendants no.3 to 8 that it

being their plea in their written statement that the premises were let out to

them by the defendant no.1 as well as the defendant no.2 and that they are

paying rent to the defendant no.2 only at the asking of the defendant no.1

and the defendant no.1 being admittedly the attorney of the owner of the

property having joined in letting out of the property to the defendants

no.3 to 8, the defendants no.3 to 8 would enjoy the protection of the Rent

Act even if the defendant no.2 fails in setting up a right to the property.

9. It was on 06.03.2013 enquired from the senior counsel then

appearing for the defendants no.3 to 8 whether there was anything

whatsoever to show that the defendant no.1 had joined the defendant no.2

in the letting of the property to defendants no.3 to 8. Though the senior

counsel for the defendants no.3 to 8 in the course of hearing on

06.03.2013 argued that there is plethora of earlier litigation and

complaints inter se the parties but admitted that copies of none of them

were on record and sought time to check whether the defendants no.3 to 8

at any earlier point of time had taken the plea of being a tenant under

both, defendants no.1&2 and/or of the defendant no.1 having joined in

letting out of the property by the defendant no.2.

10. Accordingly, further hearing on the application was adjourned to

enable the parties to file documents.

11. No documents were filed by the defendants no.3 to 8 though the

plaintiff filed documents in pursuance to the order dated 06.03.2013. The

counsel for the defendants no.3 to 8 on 21.03.2013 stated that the said

defendants would be relying on the documents filed by the plaintiff only.

12. Today, the counsel for the applicants/defendants No.3 to 8 fairly

states that in the documents filed in pursuance to the order dated 6th

March, 2013, there is nothing to show that the applicants/defendants No.3

to 8 at any time prior to the written statement in the present suit took a

plea of the premises having been let out to the applicants/defendants No.3

to 8 by the defendant No.2 on behalf of the defendant No.1 or the

defendant no.1 having joined in letting out to them by the defendant no.2.

13. On enquiry, it is further fairly stated by the counsel for the

applicants/defendants No.3 to 8 that the documents of letting in favour of

the applicants/defendants No.3 to 8 are also by the defendant No.2 only

and do not show the defendant No.2 to have acted under any authority

from or on behalf of or as an agent of the defendant No.1. He however

again contends that since the said applicants/defendants No.3 to 8 in the

written statement in the present suit have taken a plea of collusion

between the defendants No.1 & 2, an issue be framed on the aforesaid

aspect.

14. The senior counsel appearing for the defendants no.3 to 8 on

06.03.2013, in support of the contention that since the defendants no.3 to

8 have taken a plea in their written statement, even in the absence of any

material thereon an issue ought to be framed, had referred to S. Surjit

Singh Sahni Vs. Smt. Brij Mophan Kaur 65 (1997) DLT 670.

15. It was however put to the senior counsel appearing for the

applicants / defendants no.3 to 8 on 06.03.2013 as to what meaning is to

be ascribed to the word "material" in Order14; whether issues are to be

framed on the clever drafting of the Advocates or on the facts as

emerging on record. It was also observed that it cannot be lost sight of

that an issue once framed requires evidence to be led thereon and which

means delay in the disposal of the suit. It was yet further observed in the

order dated 06.03.2013 that this aspect, though may not have been

considered at any earlier point of time, time has come for Courts to look

into the said aspect and the law which may have been good in times gone

by, cannot be said to be good in the face of a changing societal status

where false pleas in pleadings have become rampant. It is therefore felt

that unless the Courts peruse the pleadings together with the material on

record to determine whether the plea taken can be said to be a material

one or not so as to invite framing of an issue thereon, the litigants,

interested in protracted trial, would by clever drafting of pleadings and

taking of pleas which otherwise have no legs to stand, would have a large

number of issues framed, entitling them to examine a number of

witnesses, thereby making a mockery of the judicial process. It was also

prima facie observed in the order dated 06.03.2013 that in the state of the

pleadings in the present suit, the plea of collusion between the defendants

no.1 and 2 is not made out. Liberty was also granted to the defendants

no.3 to 8 to press this aspect if at any point of time in trial it was felt that

the defendant no.2 is not pursuing her defence diligently and properly and

is in collusion with the plaintiff and the defendant no.1.

16. Thus, the reluctance to frame the additional issues as sought.

17. Reference may at the outset be made to D.M. Deshpande Vs.

Janardhan Kashinath Kadam (1998) 8 SCC 315 where in the absence of

particulars viz. date, mode and terms of creation of tenancy in the

pleadings, it was held that an issue on a bare claim of tenancy ought not

to have been framed.

18. This Court in Lakshmikant Shreekant (HUF) Vs. M.N. Dastur &

Company Pvt. Ltd. 1998 (44) DRJ 502 held that the Court is required to

frame issues of fact or of law that necessarily and properly arise for

determining the real controversy involved on the pleadings of the parties

and that such issues arise when a material proposition of fact or law is

affirmed by one party and denied by the other and the Court would not

frame an issue which does not arise on the pleadings nor a issue need be

framed on a point of law which is perfectly clear. It was further held that

the Court is required to apply its mind and understand the facts before

framing the issue. It was yet further held that if the plea is mala fide or

preposterous or vexatious and can be disposed of without going into the

facts or is contrary to law or the settled legal position, the Court will not

be justified in adopting a hands off policy and allow the game of the

defendant to have its sway.

19. Similarly in Zulfiquar Ali Khan Vs. Straw Products Limited 87

(2000) DLT 76 it was observed that it is a notorious fact that to drag the

case, a litigant often takes all sorts of false or legally untenable pleas and

it was held that legal process should not be allowed to be misused by such

persons and only such defence as give rise to clear and bona fide dispute

or triable issues should be put to trial and not illusory or unnecessary or

mala fide based on false or untenable pleas to delay the suit. It was yet

further held that the Court is not bound to frame an issue on unnecessary

or baseless pleas, thereby causing unnecessary and avoidable

inconvenience to the parties and waste of valuable Court time.

20. The High of Bombay also in Mohammad Hayatkhan Karimkhan

Vs. Taramati MANU/MH/1494/2010 held that in order to frame an issue

it is necessary to consider whether the plea raised is bona fide or merely

raised to delay decision in the matter and which entitles the litigant so

raising the plea to remain in possession of the property until adjudication

of the issue. It was further held that it is also necessary to see whether

there is sufficient material placed on record to frame an issue and to make

a reference. The learned Judge observed that it is well settled that no

frivolous plea need be a matter of reference and the Court before framing

an issue is entitled to see whether such plea is bona fide and has any basis

in the material placed on record. Reliance was placed on the judgment of

the Division Bench of that Court in Pulmati Shyamlal Mishra Vs.

Ramkrishna Gangaprasad Bajpai 1981 Maharashtra Law Journal 321

laying down that it is not correct to assume that the Court is under any

obligation to frame and remit the issue of tenancy mechanically, merely

on the same being raised in the written statement without judicial

satisfaction of its necessity and justification; that remittance of any such

tenancy issue and the trial thereof is known to have become a long

winding and time consuming process enuring the delay for the benefit of

the person in possession of the land and which prompts and tempts such

persons to take such pleas to perpetuate his unmerited possession. The

Bombay High Court further held that the Court has a duty to examine the

substance and refuse to frame and remit any issue if the same appears to

be demonstrably frivolous and mala fide. Reliance in this regard was

placed on the law laid down by the Apex court on Thomas Antony Vs.

Varkey Varkey (2000) 1 SCC 35 though in the context of reference to a

Tribunal but holding that the law making reference to the Tribunal

mandatory cannot be said to have intended that even a patently frivolous,

mala fide and illegal plea taken by a party merely to delay the proceeding

and to remain in possession is to be referred to the Tribunal and the

statutory provisions have to be read as envisaging a reference only where

a bona fide and legally sustainable plea is taken.

21. The Bombay High Court in Sociedade Patriotica Dos Baldios Das

Novas Conquistas Vs. Sudhakar Sagun Bhandari

MANU/MH/0819/2008 also held that under order 14 of the CPC an issue

can only arise when a material proposition of fact or law is affirmed by

one party and denied by the other and when a vague plea is taken, the

Court should hesitate to frame an issue on such a vague plea, unless the

party is able to give particulars in support of the plea. To the same effect

is the judgment of yet another Bench of the Bombay High Court in Uttam

Sambha Deshmukh Vs. Yamunabai MANU/MH/0387/1998 where a

bald plea unsubstantiated by any documentary evidence was held to be

not sufficient for the purpose of framing an issue.

22. This Bench also in order dated 12.03.2013 in CS(OS) No.505/2010

titled as Kavita Chaudhri Vs. Eveneet Singh; order dated 03.04.2013 in

CS(OS) No.791/2011 titled Satish Handa Vs. Ashok Diwan and order

dated 07.11.2012 in CS(OS) No.2695.2011 titled Satya Gupta Vs.

Guneet Singh held:

(i) that the Court under Order 14 Rule 1(5) is required to, after

reading the plaint and the written statement and after

examination under Rule 2 of Order 10 and after hearing the

parties or their pleaders, ascertain upon what material

propositions of fact or of law the parties are at variance, and

to thereupon proceed to frame and record the issues on

which the right decision of the case appears to depend;

(ii) that issues are not to be framed on whatsoever pleas are

contained in the pleadings but on material pleadings of fact

and law and a plea which has no basis in law to stand on and

/ or a plea qua which law is well settled cannot be said to be

a material plea inviting framing of an issue thereon; and

(iii) it cannot be lost sight of that framing of an unnecessary issue

invites unnecessary evidence and arguments and which

protracts disposal of the suits.

23. Mention may lastly be made of the judgment of the Division Bench

of this Court in Vijaya Myne Vs. Satya Bhushan Kaura 142 (2007) DLT

483 (DB) though in the context of order 12 Rule 6 of the CPC but holding

that admissions can even be constructive which can be inferred from

vague and evasive pleadings and that admissions can even be inferred

from the facts and circumstances of the case. If it were to be held that on

every plea, howsoever vague and unsubstantiated, an issue needs to be

struck, there can be no effective application of Order 12 Rule 6 CPC as

laid down in this judgment.

24. Applying the aforesaid principles, I am unable to agree with the

counsel for the applicants / defendants no.3 to 8. Though undoubtedly

the defendants no.3 to 8 have in their written statement taken a plea of the

letting by the defendant no.2 being on behalf of the defendant no.1 who is

the attorney of the owner of the property and the rent payable by them

being less than Rs.3,500/- per month, this suit in a Civil Court for

possession of the premises is barred by Section 50 of the Rent Act but the

fact remains; (i) that the defendants have never in the past taken the said

plea; (ii) there is no material before this Court to support the said plea;

(iii) it is not as if the applicants / defendants no.3 to 8 had no opportunity

in the past to take such a plea - there have admittedly been a number of

complaints and litigations and in which the applicants / defendants no.3 to

8 claimed to be tenant under the defendant no.2 only and never claimed to

be a tenant under Major Ranbir Singh Rana or the defendant no.1 or of

letting though by the defendant no.2 being with the consent of Major

Ranbir Singh Rana or the defendant no.1; (iv) even the documents of

letting are by the defendant no.2 only and admittedly do not state the

letting by the defendant no.2 being with the consent of or on behalf of the

plaintiff or the defendant no.1; and, (v) oral evidence contrary to the

written document is barred.

25. The plea thus of the applicants / defendants no. 3 to 8 on which

issue is sought thus fails to meet all the parameters listed hereinabove of a

plea on which issue is required to be framed.

26. S. Surjit Singh Sahni supra, a judgment of the Single Judge of this

Court relied upon by the plaintiff in the hearing on 6 th March, 2013 is not

apposite to the matter in controversy. That is a judgment on the scope of

Order 14 Rule 5 of the CPC and lays down that since framing of issues is

the duty of the Court, the Court even if on an earlier occasion has refused

to frame an issue, can always correct its mistake. In that case an issue

proposed was refused in the light of law then prevalent but was again

sought upon change in the legal position. In that context an observation

was made that the reason that the plaintiff may eventually lose cannot be

a ground to refuse issue. However, the said sole observation in the

judgment cannot be said to be taking a different view than the case law

discussed hereinabove.

27. It cannot be lost sight of that the six tenants impleaded as

defendants no.3 to 8 even if were to examine themselves, their

examination and cross examination itself will stretch for a year if not

more. It cannot also be lost sight of that no bar can be put on each of the

said defendants examining witnesses other than themselves and once that

is permitted, the same will enable the applicants / defendants to

perpetuate their possession of the premises, it ultimately held to be

illegal, for at least a decade if not decades.

28. Though jurisprudentially our justice delivery system is an

adversarial one but even the said system does not require the Court /

Judge to be a mute spectator in the litigation before it and to apply its

mind only at the stage of final decision and by which time, if the litigants

are shrewd or cunning, the delay may end up in denial of justice. The

Courts have to keep pace with the times and cannot notwithstanding the

practice, of the litigants taking false pleas to suit their purpose, becoming

rampant, continue to act in a passive manner to conduct the trial

mechanically. The Supreme Court recently in Maria Margarida

Sequeira Fernandes Vs. Erasmo Jack De Sequira (2012) 5 SCC 370 has

also observed that the Judge has to play an active role.

29. No merit is thus found in the application which is dismissed.

RAJIV SAHAI ENDLAW, J APRIL 17, 2013 „bs/gsr‟