Nawal Singh vs Mehant Narain Dass & Anr
2013 Latest Caselaw 5831 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                Date of decision: 17th December, 2013.

+     RFA 749/1994, CM No.587/1995 (u/O 6 R-17 CPC) & CM
      No.13038/2011 (for restoration of the appeal)

      NAWAL SINGH                                       ..... Appellant
              Through:          Mr. S.N. Gupta, Advocate.

                          Versus

    MEHANT NARAIN DASS & ANR         ..... Respondents
             Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The appeal impugns the judgment and decree dated 13 th July,

1994 of the Court of the learned Additional District Judge (ADJ), Delhi

of dismissal of Suit No.6/1994 filed by the appellant for specific

performance of an Agreement dated 5th December, 1984 by the

respondent/defendant No.1 Mahant Narain Dass to sell the property

consisting of one room with varandah and open courtyard built on a

piece of land admeasuring 50 sq. yds. situated at Khasra No.400,

Village-Kilokri known as Temur Nagar, New Delhi to the

appellant/plaintiff for a sale consideration of Rs.50,000/-. The

respondent/defendant No.2 Sh. Vinod Kumar Gupta was impleaded

being an occupant as tenant of the said property.

2. It was inter alia the case of the appellant/plaintiff that the

respondent/defendant No.1, at the time of Agreement to Sell itself and

against receipt of the entire sale consideration of Rs.50,000/-, had

delivered vacant, peaceful and physical possession of the property to the

appellant/plaintiff and had promised to execute the Sale Deed after

obtaining the necessary permissions but failed to execute the Sale Deed

and started attempting to dispossess the appellant/plaintiff therefrom and

in which regard the appellant/plaintiff had earlier filed a suit for

injunction against the respondent/defendant No.1 and in which interim

order restraining the respondent/defendant No.1 from so dispossessing

the appellant/plaintiff was also issued but before the same could be

served on the respondent/defendant No.1, the respondent/defendant No.1

forcibly dispossessed the appellant/plaintiff from the property on 13th

March, 1985. Accordingly, the suit was filed on 13 th October, 1987,

besides for the relief of specific performance, also for the relief of mesne

profits/damages for use and occupation at the rate of Rs.400/- per month.

3. The respondent/defendant No.1 contested the suit by denying the

Agreement to Sell and receipt of Rs.50,000/- and claiming the

appellant/plaintiff to have fraudulently got the same executed from the

respondent/defendant No.1. The respondent/defendant No.2 also

contested the suit claiming to be a bona fide tenant in the property at a

rent of Rs.600 per month with effect from 1 st May, 1985. Both the

respondents/defendants were proceeded against ex-parte in the suit; the

respondent/defendant No.1 after leading his evidence and the

respondent/defendant No.2 without leading any evidence.

4. The learned ADJ vide the impugned judgment, though held the

respondent/defendant No.1 to have been unsuccessful in

proving/establishing that the appellant/plaintiff had got the Agreement to

Sell admittedly executed by him, executed from him fraudulently or for

the reasons alleged but held the appellant/plaintiff to be still not entitled

to the relief of specific performance on a finding of the property being of

the temple known as Shiv Mandir of which the respondent/defendant

No.1 was only a Pujari and thus had no right to sell the same.

5. The appeal came up before this Court for admission first on 8 th

May, 1995, when no error was found in the reasoning given by the

learned ADJ for denying the relief of specific performance to the

appellant/plaintiff. It however appears that the counsel for the

appellant/plaintiff sought the relief before this Court, of refund of

Rs.50,000/- which had been paid by the appellant/plaintiff to the

respondent/defendant No.1 and which relief was not claimed in the suit.

Permission was as such sought to amend the plaint to claim

compensation in the alternative. The matter was adjourned to enable to

appellant/plaintiff to move appropriate application.

6. Thereafter, CM No.587/1995 for amendment of the plaint was

filed and vide order dated 22nd August, 1995, notice of the appeal and of

the application for amendment of plaint was ordered to be issued.

7. The notices issued were returned unserved with the report that the

respondent/defendant No.1 was a mental patient and the

respondent/defendant No.2 was not available at the address given.

8. The order dated 30th March, 1998 in this appeal records that the

respondent/defendant No.2 had been served. However, none appeared

on his behalf. The matter continued to languish for the service of the

respondent/defendant No.1. On 4th March, 1999, the counsel for the

appellant/plaintiff informed that the respondent/defendant No.1 had

expired. Thereafter, application was filed for substitution of one Smt.

Giano Devi wife of Sh. Nirmal and one Sh. Raghuvir son of Sh. Nirmal

as legal heirs of the deceased respondent/defendant No.1. Though their

relationship with the deceased respondent/defendant No.1 was not

disclosed but they were sought to be substituted by pleading that they

were in occupation of the premises possessed by the deceased

respondent/defendant No.1 and claiming thus to be the successors of the

deceased respondent/defendant No.1. The said persons i.e. Smt. Giano

Devi and Sh. Raghuvir appeared in person before this Court on 19 th

November, 1999 in response to the notice issued to them and stated that

the deceased respondent/defendant No.1 was a Sadhu and did not have

any legal heirs. The said persons however subsequently filed a reply

pleading that the deceased respondent/defendant No.1 had left a Will

dated 17th August, 1990 in their favour and that they were maintaining

the property in question and though not having any objection to

substitution as legal heirs but opposing the application as barred by time.

The said legal heirs also filed a reply to the application for amendment

of the plaint. The appellant/plaintiff thereafter filed an application for

condonation of the delay in applying for substitution of the legal heirs

and the matter again continued to languish. Ultimately, vide order dated

6th September, 2006, the delay in applying for substitution of the legal

heirs of the deceased respondent/defendant No.1 was condoned and the

said Smt. Giano Devi and Sh. Raghuvir substituted as the legal heirs of

the deceased respondent/defendant No.1.

9. Thereafter, when the appeal came up for hearing, none appeared

for the respondents/defendants and again notice was ordered to be served

on them and the proceedings languished at the said stage. Though the

counsel for the legal heirs of the deceased respondent/defendant No.1

appeared initially but stopped appearing thereafter. The

respondent/defendant No.2 was ultimately served by publication but

none appeared on his behalf.

10. None appeared for the appellant/plaintiff also when the appeal

came up for hearing on 9th December, 2010, when it was dismissed in

default and for non-prosecution. CM No.13038/2011 has been filed for

restoration of the appeal; again notice of this application was issued and

the counsel appeared for the legal heirs of the deceased

respondent/defendant No.1 but again stopped appearing. The

respondent/defendant No.2 was again served by publication and none

appeared on his behalf.

11. Today also none appears for either of the respondents/defendants.

They are proceeded against ex parte.

12. Accordingly, for the reasons stated, CM No.13038/2011 is

allowed and the appeal restored to its original position.

13. The counsel for the appellant/plaintiff has been heard.

14. The counsel for the appellant/plaintiff has stated that the

appellant/plaintiff has merely stated that the appellant/plaintiff claims

refund of Rs.50,000/- paid by him to the deceased respondent/defendant

No.1 together with a sum of Rs.20,000/- spent by the appellant/plaintiff

in carrying out works on the property between December, 1994 and

March, 1995, when the appellant/plaintiff was in possession of the

property.

15. However, the said relief as aforesaid was not claimed in the suit as

originally filed and has been claimed for the first time in the application

filed on 8th May, 1995 in this appeal for amendment of the plaint.

16. The counsel for the appellant/plaintiff states that the said amount

together with interest @ 24% per annum claimed thereon with effect

from 5th December, 1984, when the amount was paid, will be a

substantial amount today.

17. However, the first obstacle which the appellant/plaintiff is to get

over, is of whether the said amendment is to be allowed.

18. As noticed above, the deceased respondent/defendant No.1

against whose legal heirs only the claim for refund of Rs.50,000/- and

for Rs.20,000/- can be maintained, had in his written statement denied

the Agreement to Sell as well as receipt of Rs.50,000/-. Though the

learned ADJ in the impugned judgment has returned a finding of the

deceased respondent/defendant No.1 having failed to prove that the

appellant/plaintiff had got his signatures on the Agreement to Sell

fraudulently and under a misrepresentation but no finding has been

returned on the aspect of payment of Rs.50,000/ - obviously because

there was no claim therefor. Though one view can be that once the plea

of the deceased respondent/defendant No.1 of the Agreement having

been got signed by him fraudulently and under misrepresentation has

been negatived, it ipso facto follows that whatever is written in the said

Agreement has to be believed but according to me, in the facts of the

present case, the failure of the deceased respondent/defendant No.1 to

establish that the Agreement to Sell was got signed from him under

misrepresentation cannot lead to an inference of receipt by the deceased

respondent/defendant No.1 of Rs.50,000/- even though it is so recorded

in the Agreement to Sell. The Agreement to Sell does not state the mode

in which the said sum of Rs.50,000/- has been received; it rather states

that the said amount had been received vide a separate legal receipt. The

appellant/plaintiff however in his examination-in-chief did not prove the

said receipt. No copy of the said receipt is also found on the Trial Court

file. The appellant/plaintiff in his cross-examination, when quizzed in

this regard deposed that he had paid Rs.50,000/- in cash and as to the

source stated that he was in service getting a salary of about Rs.1,000/-

per month in 1984 and the said amount was the sale proceed of a house

in Kartar Nagar sold by him. Upon being quizzed further, he stated that

the sale proceeds of the Kartar Nagar house were the funds of himself

and his family; that he had not intimated his office of the purchase of the

property; that out of Rs.50,000/-, he had contributed only Rs.5,000/- and

his wife had contributed about Rs.12,000/ or Rs.13,000/- and the

remaining amount had been contributed by his children. He further

admitted that he had not withdrawn the amount of sale consideration

from any Bank.

19. The deceased respondent/defendant No.1 in his deposition

categorically denied having received the said amount.

20. I am of the view that no finding on the aspect of the claim for

refund of Rs.50,000/- with interest can be given, even if the amendment

were to be allowed, without giving the parties an opportunity to lead

evidence. It is more so qua the claim for Rs.20,000/-.

21. What I have wondered is whether the formality of allowing the

amendment, either recording the evidence in this Court or remanding the

case to the learned ADJ for recording evidence, is worthwhile.

22. In my opinion, no. The deceased respondent/defendant No.1 has

already died; the legal heirs substituted are not the children of the

deceased respondent/defendant No.1 but stated to be in possession of the

property where the deceased respondent/defendant No.1 was residing. It

is in the pleadings that the deceased respondent/defendant No.1 was

residing in the same temple property with respect to a part of which, the

Agreement to Sell was executed. The persons substituted as legal

representatives, when they first appeared in person denied having

inherited any property from the deceased respondent/defendant No.1,

though subsequently in their reply stated that the deceased

respondent/defendant No.1 had left a Will in their favour. The said Will

is not on record. It appears that the Will, if any would be with respect to

the rights as Pujari in the temple. The temple has already been held to

be not the property of the deceased respondent/defendant No.1 and it is

for this reason only that the relief of specific performance has been

denied.

23. A decree for recovery of money against the legal heirs of a

deceased judgment debtor can be executed only from the asset/property,

if any left by the deceased judgment debtor. There is nothing to show

that the deceased respondent/defendant No.1 has left any asset/property.

For this reason also, the decree, even if any, passed in favour of the

appellant/plaintiff and against the deceased respondent/defendant No.1

for recovery of Rs.70,000/- with interest, cannot be executed against his

legal heirs substituted in this appeal, without it being established that

they had inherited any property from the deceased respondent/defendant

No.1.

24. The litigation has already remained pending since 1985 i.e. now

for about nearly three decades. The negligence/defaults of the

appellant/plaintiff in not claiming the said relief and in prosecution of

this appeal are writ large. At each and every stage, repeated

adjournments/opportunities were availed of. Such a litigant is not

entitled to any indulgence from the Court.

25. I am therefore of the opinion that no case for allowing the

amendment of the plaint at this stage is made out and resultantly no case

for granting the relief claimed in this appeal by way of amendment is

made out.

26. The appeal and the application for amendment are accordingly

dismissed. No costs.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

DECEMBER 17, 2013 Bs..