Promod Khanna & Anr. vs Subod Khanna & Anr.
2013 Latest Caselaw 3426 Del

$
*        IN THE HIGH COURT OF DELHI AT NEW DELHI
+                            CS (OS) No. 2203/2006

%                                                             Reserved on: 22nd July, 2013
                                                              Decided on: 5th August, 2013
PROMOD KHANNA & ANR.                                                        .....Plaintiffs
                Through:                                   Mr. Sandeep Aggarwal, Advocate.

                                       versus

SUBOD KHANNA & ANR.                                                         .....Defendants
                Through:                                   Mr. G.D. Chopra, Advocate.

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

I.A. No. 80/2011 and 6086/2011 (by Defendants under Order VII Rule 10
CPC for rejection of plaint) in CS (OS) No. 2203/2006

1.

By I.A. No. 80/2011 the Defendants seek rejection of the amended

plaint under Order VII Rule 11 read with Section 151 CPC. Vide I.A. No.

6086/2011 under Order VII Rule 10 read with Section 151 CPC the

Defendants seek direction to the Plaintiffs to value the reliefs in accordance

with law and on their failure to do so rejection of the plaint.

2. Arguments on both the applications have been heard together.

3. Learned counsel for the Applicants/Defendants states that Prayer-(c)

in the amended plaint is for a decree of mandatory injunction in favour of the

Plaintiffs and against the Defendants directing the Defendants to revert back

the possession of „Part-A & C‟ of the property bearing No. W-105, Greater

Kailash-II, New Delhi to the Plaintiffs after removing any construction done

on the said „A‟ and „C‟ portion illegally and without any authority. It is

contended that a suit for relief of mandatory injunction without seeking

consequential relief of possession is not maintainable and thus the amended

plaint is liable to the rejected on this ground. Reliance is placed on

Devender Lal Mehta vs. Shri Dharmender Mehta and another, AIR 2009

Delhi 189; Geetanjali Nursing Home (P) Ltd. vs. Dileep Makhija, AIR 2004

Delhi 53 and Jagdish Chandra vs. Basant Kumar Ghos and another, AIR

1963 Patna 308 (FB). It is further contended that for seeking relief of

possession ad-valorem court fee has to be paid as held in Punjab Exchange

vs. Rajdhani Grants Ltd., 1975 Rajdhani Law Reporter 485.

4. As regards Relief-(b) it is contended that even for a decree of

declaration ad-valorem court fee is required to be paid and in the absence of

ad-valorem court fee being paid the plaint is liable to be rejected. Reliance is

placed on Suhrid Singh @ Sardool Singh vs. Randhir Singh and others, AIR

2010 SC 2807; Ami Chand vs. Raj Pal and others, AIR 2011 Punjab and

Haryana 109 and Mahant Purshottam Dass and others vs. Har Narain and

others AIR 1978 Delhi 114 (FB). It is further urged that Shri Amod Khanna

and Ms. Angela Khanna, son and daughter of Plainitff No.1 who have signed

the documents as executants of the settlement have not impleaded as party,

neither as the Plaintiffs nor as Defendants and thus the suit is liable to be

rejected as joint promisees are not impleaded. Reference is made to Santosh

Kumar vs. Bahadur Singh etc. 1982 Rajdhani Law Reporter 672.

5. Further though the case of the Plaintiffs is based on fraud however, no

particulars of fraud or misrepresentation have been stated in the amended

plaint. The Plaintiffs seek declaration of their title on the basis of another

Memorandum of Family Settlement and that the one filed by the Defendants

is a forged document. The Plaintiff have not produced the said

Memorandum of Family Settlement and in the absence of prayer seeking

decree of declaration qua the purported genuine settlement, the suit merely

seeking cancellation of the Memorandum of Settlement with the Defendants,

cannot be entertained.

6. Learned counsel for the Plaintiffs/non-applicant on the other hand

contends that before filing I.A. No. 80/2011 the Defendants had filed I.A.

No. 3235/2007 on the same grounds however, the same was withdrawn in

view of the amendments carried out in the plaint. The case of the plaintiff is

that the settlement has not been given effect to and thus the Plaintiffs are in

constructive possession of the suit property. The suit property is in the name

of the Plaintiffs and the Defendants. The suit property was vacant plot

which was in symbolic possession of both the Plaintiffs and the Defendants

on which the Defendants have later raised construction. The alleged

Memorandum of Family Settlement is not a complete document and the

Defendant No. 1 did not pay the balance amount since the same was not

acted upon and thus the same is meaningless. A perusal of the plaint clearly

shows that the manipulation, forgery and fabrication in the alleged

Memorandum of Family Settlement has been specifically alleged and thus

amended plaint cannot be rejected being vague. Relying on Babli Brar vs.

Adesh Kanwarjit Singh Brar, 2011 (180) DLT 418 it is stated that in the

plaint only material facts are required to be stated and not the evidence. The

plaint should be read holistically and meaningfully. Since the relationship is

such that the property was in trust, thus all the parties are in constructive

possession of the property. The moment the Plaintiffs are able to prove that

the documents are null and void, the possession would revert back to the

Plaintiffs. It is further contended that in a relief of partition where the parties

are enjoying the possession of the property only fixed court fee is required to

be paid and to ascertain whether the suit has been properly valued for the

purposes of court fee or not, only the averments made in the plaint have to be

seen without reference to the plea taken by the Defendants. Reliance is

placed on Sushma Tehlan Dalal vs. Shivraj Singh Tehlan, 2011 (123) DRJ

91. Relying on Neelavathi and others vs. M. Natarajan and others, 1980 (2)

SCR 307 it is contended that the question of court fee must be considered in

the light of the allegations made in the plaint and the decision thereon cannot

be influenced either by the pleas in the written statement or by the final

decision of the suit on merits. The material allegations contained in the

plaint should be construed and taken as a whole. It was further held that the

averments in the plaint that the Plaintiffs could not remain in the joint

possession and he was not given any income from the joint property would

not amount to his exclusion from the possession.

7. I have heard learned counsel for the parties.

8. By the amended plaint the Plaintiff has sought the following reliefs: -

"(a) Pass a decree of permanent injunction in favour of plaintiffs and against the defendants, whereby, the defendants acting themselves or through their agents, servants, attorneys, etc. be restrained from carrying out any contraction activities on part "A" & "C" of property bearing No. W-105, Greater Kailash Part-II, New Delhi- 110048, belonging to the Plaintiffs, as described in the site plan of the property annexed with the sale deeds;

(b) pass a decree of declaration in favour of Plaintiffs and against the defendants, thereby, declaring any purported documents such as, purported memorandum of family settlement on non-judicial stamp papers dated 4.4.2006, possession letters, dated 4.4.2006, letters to MCD for mutation dated 4.7.2006, the power of attorneys and special power of attorneys dated 29.5.2006 and any other documents, deeds, affidavits etc. in respect of property bearing No. W-105, Greater Kailash Part-II, New Delhi- 110048, signed and executed by the Plaintiffs being forged, fabricated, manipulated, interpolated, illegal, null and void, as the same were obtained fraudulently and under misrepresentation of facts and is not binding on the Plaintiffs;

(c) Pass a decree of Mandatory Injunction in favour of Plaintiffs and against the Defendants, whereby directing the defendants to revert back the possession of part "A" & "C" of the property bearing No. W-105, Greater Kailash Part-II, New Delhi-110048 to the Plaintiff, after removing any construction done on the said "A" & "C" portion illegally and without any authority;

(d) Award cost in favour of the Plaintiffs and against the defendants."

9. As regards the fabrication and manipulation in the draft memorandum

of family settlement inter alia it is clearly stated by the Plaintiffs in Paras

10C to 10H that when the purported Memorandum of Family Settlement

printed by the Mediator on non-judicial stamp papers was given to Plaintiff

No. 2 for signing, she noticed that this purported Memorandum of Family

Settlement was not the same. In the purported Memorandum of Family

Settlement, Schedule -I was having 13 properties as joint properties instead

of nine joint properties listed in Schedule-I of the „Actual Memorandum of

Family Settlement.‟ Schedule-II was having seven joint properties instead of

three joint properties in Schedule-II of the actual Memorandum of Family

Settlement. Even the names of Angela Khanna, Payal Arora and Cherry

Khanna were added which were not there in the actual Memorandum of

Family Settlement. The Schedule-IV of the Actual Memorandum of Family

Settlement which referred to the valuation of the properties was missing and

there was no mention of codicils and payment of equalizer amount of Rs.

7.51 crores payable by the Defendants to the Plaintiffs. Besides these, there

was also other changes in certain other paragraphs and Schedules. It is thus

evident that detailed facts have been mentioned in the plaint. Further it is

well settled that no evidence is required to be mentioned in the plaint which

would be for the Plaintiff to prove while adducing evidence. Thus I find no

reason to reject the plaint on the ground that the details of forgery,

fabrication and manipulation are not mentioned.

10. As regards the contention of the learned counsel for the defendants

that the suit seeking injunction without seeking the relief of possession is not

maintainable, on the face of it appears to be sound however, the said

proposition is not applicable to the facts of the present case. It is well settled

that at this stage only the averments in the plaint are required to be seen as

held by the Hon‟ble Supreme Court in Neelavathi (supra). In the case before

the Hon‟ble Supreme Court the averment in the plaint was that the Plaintiff

could not remain in the joint possession as he was not given any income

from the joint family property. It was held that the property to which the

Plaintiffs therein were entitled was undivided joint family property though

not in the fit sense of terms and thus in law all the co-owners were in

possession of the same. To continue to be in joint possession in law it is not

necessary that the Plaintiff should be in actual possession of the whole or

part of the property. In Devender Lal Mehta (supra) relied upon by learned

counsel for the Defendants, the Plaintiffs and Defendant therein were not

joint owners of the property and the Plaintiff himself had claimed that this

was his property and has sought a decree against the Defendants restraining

them from causing them any hindrance or interference in the ingress or

egress of the Plaintiff therein. Even as per the plaint the Defendants therein

were in possession of the suit property not as joint owners but as tress

passers. Similarly in Geetanjali Nursing Home (P) Ltd. (supra) also this

Court held that though a suit for injunction simplicitor would not lie

however, where the parties are in jural or fiduciary relationship, the

possession of the parties in the eye of law has to be deemed to be that of the

Plaintiff and thus there is no requirement of his obtaining decree of

possession. Thus I find no merit in the contention of the learned counsel for

the Defendants that the amended plaint is required to be rejected on the

ground that no decree for possession has been sought by the Plaintiff. Since

no decree for possession is required to be sought no ad-valorem court fee is

required to be paid.

11. Coming to the contention of learned counsel for the

Defendants/applicant that ad-valorem court fee is required to be paid for the

relief (b) seeking declaration of the purported Memorandum of Family

Settlement being forged, fabricated, manipulated, illegal, null and void, in

Suhrid Singh @ Sardool Singh (supra) relied upon by the learned counsel for

the Defendants itself, it was held that if „B‟ who is the non-executant, is in

possession and sues for declaration that the deed is null and void and does

not bind him or his share, he has to merely pay the fixed court fee. In the

present case admittedly the Plaintiff No. 2 has not signed the Memorandum

of Family Settlement and the claim of the Plaintiffs is that the documents

signed by the Plaintiff No. 1 has been manipulated and he has not executed

the purported Memorandum of Settlement. Thus ad-valorem court fee is not

required to be paid.

12. No doubt the Plaintiffs in plaint have stated in Para 10D that the

Plaintiff No. 1 and his son signed the Memorandum of Family Settlement

which as per the Mediator was identical to the Memorandum of Family

Settlement signed earlier by the parties, it is clearly stated in Para-10H that

the purported memorandum of Family Settlement had not been signed by the

parties added later on i.e. Angela Khanna, Payal Arora and Cherry Khanna.

Thus the Plaintiffs are disputing the authenticity and genuineness of this

purported Memorandum of Settlement and in view thereof it could not be

said that the persons who signed this document as executants, being joint

promisee, are required to be impleaded as parties in the suit. Further the two

tests required to be satisfied for determining the question as to who is a

necessary party are - (1) there must be a right to some relief against such

party in respect of the controversies involved in the proceedings and (2) no

effective decree can be passed in the absence of such party. The son of the

plaintiffs does not qualify either of the test and thus is not a necessary party

in whose absence the suit must fail. Hence, I find no merit in this objection

of learned counsel for the defendants as well.

13. In view of the aforesaid discussion I find no merit in the applications

and the same are dismissed.

(MUKTA GUPTA) JUDGE AUGUST 05, 2013 'vn'