K.L. Garg vs Rajesh Garg & Ors.
2013 Latest Caselaw 360 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Date of decision : 24th January, 2013
+                          CS(OS) 2585/2012

       K.L. GARG                                               ..... Plaintiff
                           Through:      Mr. Sanjay Aggarwal, Advocates.
                                  Versus
       RAJESH GARG & ORS.                                         ..... Defendants
                   Through:              Mr. G. Kumar, Adv.

CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The plaintiff has instituted this suit for recovery of possession of a

portion consisting of two bedrooms, common drawing-dining, kitchen and

bathroom of flat on the second floor of property No. 21/13, Old Rajinder

Nagar, New Delhi and for mesne profits/damages for use and occupation. It

is the case of the plaintiff, that he is the owner of the said flat vide registered

Sale Deed dated 18th October, 2004 copy whereof is filed along with the

plaint; that the defendants no.1 to 4 are the son, daughter-in-law and grand-

children of the plaintiff; that the plaintiff on account of the said relationship

had allowed the defendants to reside with him in the said flat; however the

relationship between the plaintiff and the defendants has soured and the

plaintiff does not want the defendants to reside in his flat and though called

upon the defendants to vacate the same, the defendants failed to do so.

2. Summons of the suit and notice of the application for interim relief to

restrain the defendants from parting with the possession of the said flat to

any other person were issued though no interim relief granted.

3. The defendants have filed the written statement pleading, that the suit

has been filed merely to harass them; that no cause of action has accrued to

the plaintiff against the defendants; that the plaintiff has not approached the

Court with clean hands and has concocted the story of the defendants ill

treating or harassing the plaintiff; that the defendants no. 1 and 2 had

contributed to the purchase consideration of the flat and the defendant no.1

also used to pay the electricity bills of the said flat; that the plaintiff is a

habitual litigant and had also lodged a complaint against another son namely

Shri Pankaj Garg and with whom he subsequently compromised; that

similarly earlier disputes had arisen between the plaintiff and the defendants

and which have subsequently been compromised; that the suit is

undervalued; that in fact the defendants had started living in the flat only at

the instance of the plaintiff and that the defendants are looking after and

caring for the plaintiff. The defendants however do not dispute the receipt

of legal notice from the plaintiff demanding possession but allege the same

to be false.

4. The suit was listed on 14th January, 2013 when finding that the

defence of the defendants in the written statement of having contributed to

the purchase consideration of the said flat while admitting the Title Deed

with respect thereto to be in the name of the plaintiff only did not constitute

any defence in law to the claim of the plaintiff for possession, the counsel

for the defendants was asked to argue. On his request the matter was

adjourned to today.

5. The counsel for the defendants, who states that he is the new counsel

though has filed his Vakalatnama, has argued that the plaintiff has not

approached the Court with clean hands. He has drawn attention to para 4 of

the plaint and contended that the plaintiff has falsely stated that the

defendants had harassed the deceased wife of the plaintiff. It is argued that

the relationship of the defendants with the deceased wife of the plaintiff,

being the mother of the defendant no.1 and mother-in-law of the defendant

no.2 was very good.

6. It has been enquired from the counsel for the defendants as to whether

the said argument even if were to be accepted constitutes a defence to a suit

for possession; a decree for suit for possession is not a discretionary one; if

the plaintiff is found entitled to possession of a property, relief cannot be

denied to him/her merely because he may have on some other aspects not

relatable to possession, lied.

7. No reply is forthcoming.

8. This argument, also does not constitute any defence to the claim for

possession.

9. Though the defendants have not filed any documents whatsoever, the

counsel for the defendants has during the course of hearing handed over

photocopy of a letter purported to be written by the plaintiff to the Editor of

Veer Arjun Newspaper on 19th December, 2003 withdrawing the earlier

advertisement disinheriting the defendants and stating "Shri Rajesh Garg

and my grand children has full legal rights for moveable/immoveable

property stands in my name i.e. K.L. Garg". A right in the property, on the

basis of the said document is claimed.

10. The said document is taken on record.

11. Even though the procedure adopted by the defendants of handing

document across the bar is not in consonance with the prescribed procedure

but I am afraid even the said document does not show that the defendants

have any right to retain possession of the flat aforesaid. All that the said

document purports to do is to recall the earlier notice disinheriting the

defendants. However, such inheritance can happen only on the demise of

the plaintiff and not prior thereto.

12. A contributor to the purchase consideration for immovable property,

only has rights if any, to recover the said purchase consideration from the

purchaser and does not acquire any rights in the immovable property or any

right to retain possession thereof. The only defence thus raised in the

written statement is not a material one so as to invite framing of an issue and

the plaintiff has become entitled to a decree for possession and mesne

profits.

13. The dispute raised in the written statement of under valuation of the

suit is a vexatious one, bereft of any particulars. Nothing is stated, as to on

the basis of which sale/purchase transaction, the valuation given by the

plaintiff is incorrect.

14. Faced with the aforesaid, the counsel for the defendants states that a

Memorandum of Understanding (MoU) was entered into between all the

family members and the original thereof is in the custody of the plaintiff

though a copy thereof is in the custody of the sister of the defendant no.1

and who is out of station and owing whereto the counsel could not bring the

said MoU to the Court today.

15. There is no plea also in the written statement to the said effect.

16. The counsel for the defendants then seeks adjournment by seven days

to amend the written statement.

17. The aforesaid request cannot be entertained. Suits cannot be kept

pending after they have been heard and to allow parties to amend their

pleadings.

18. The suit is thus decreed for possession in favour of the plaintiff and

against the defendants no. 1 and 2 for possession of flat aforesaid on the

second floor of property No.21/13, Old Rajinder Nagar, New Delhi. As per

Bhagwati Prasad Vs. Chandramaul AIR 1966 SC 735 and R.S.

Maddanappa Vs. Chandramma AIR 1965 SC 1812, a decree for mesne

profits follows a decree for possession. However an inquiry under Order 20

Rule 12 has to be held to determine the rate of mesne profits. Considering

the nature of the dispute, it is not deemed appropriate at this stage to order

such inquiry in as much as the suit has been decreed within six months of

institution thereof. Liberty is however given to the plaintiff to apply for

such inquiry if the defendants no. 1 and 2 resist the execution of the decree.

The plaintiff shall also be entitled to costs equivalent only to court fee of

Rs.25,785/- paid on the plaint. Decree is confined against defendants no. 1

and 2 since the defendants No.3 and 4 are minors and no steps were taken

for appointment of their guardian. The decree sheet be drawn up.

19. The counsel for the defendants at this stage states that he has

instructions from the defendants to state that they are willing to give an

undertaking to vacate the said flat after the examination of the children

(defendants no. 3 and 4) scheduled in March-April, 2013 are over.

20. Liberty is granted to the defendants No.1 and 2 to file affidavits of

undertaking to the said effect and on filing whereof this request shall be

considered.

RAJIV SAHAI ENDLAW, J.

JANUARY 24, 2013 PP