Delhi High Court

Vidur Impex & Traders Pvt. Ltd. & ... vs Pradeep Kumar Khanna & Ors. on 31 May, 2013

Author: P.K.Bhasin

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% I.A. Nos. 20563/2012, 608/2013, 2049/2013 & 4433/2013
in CS(OS) 3195/2012

+ Date of Decision: 31st May, 2013

# VIDUR IMPEX & TRADERS PVT. LTD. & ORS. ..... Plaintiffs
Through: Mr. Sunil Gupta, Sr. Advocate with
Mr. Manoj, Mr. Bijoy Kumar Jain &
Mr. M.T. Reddy, Advocates

VERSUS
$ PRADEEP KUMAR KHANNA & ORS. ..... Defendants
Through: Mr. Sanjeev Anand, Mr. Yakesh Anand,
Ms. Kajal Chandra, Ms. Sonam Anand,
Mr. Nimit Mathur & Mr. Prateek Kumar,
Advocates for D-1(i-iii)
Dr. Abhishek Manu Singhvi, &
Mr. Sanjay Jain, Sr. Advocates with
Mr. M.S. Vinaik, Ms. Ruchi Jain &
Mr. Deepak Bashta, Advocates for D-2

CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN

P.K.BHASIN, J:

Six plaintiffs in this suit are private limited Companies and they claim
to have purchased property no. 21, Aurangzeb Road, New Delhi(hereinafter

CS(OS) No. 3195/2012 Page 1 of 26
to be referred to as 'the suit property') from its erstwhile owner late Shri
Pradeep Kumar Khanna(who is being represented in this suit by his widow
and two daughters and reference to whom shall hereinafter be made as
'the deceased owner of the suit property') by way of six separate sale
deeds executed on 20th May,1997 and registered on 30th May,1997. Each
of the six sale deeds in favour of the six plaintiffs was in respect of 1/6th
undivided share of the deceased owner of the suit property.

2. The plaintiffs had filed a suit in this Court(being suit no. 1675 of 1997)
against the deceased owner of the suit property on the allegations that he
had while executing the six sale deeds in their favour taken the entire sale
consideration and also delivered possession of a portion of the suit property
and had promised to deliver the vacant possession of the remaining
portions soon but thereafter he did not honour his promise to deliver the
possession of the entire suit property to them. That necessitated the filing
of the aforesaid suit for Declaration, Possession, Mandatory and Permanent
Injunction. In that suit the plaintiffs had claimed the following reliefs:
a) "A decree of Declaration that the defendant his agents, employees or
anyone acting under him have no right to occupy, possess and hold the
property marked "A" in Blue Colour in the plan annexed hereto & also
stated in schedule filed with the plaint.
b) An order of Mandatory injunction directing the defendant
i. To handover the vacant & peaceful possession in respect of said remaining
portion of the property described in the schedule-A herein annexed and

CS(OS) No. 3195/2012 Page 2 of 26
also as shown in Blue Ink in the plan annexed hereto.
ii. In default of the defendant handing over the possession. If necessary,
direction be issued by this Hon'ble Court to appoint any person including
the Bailiff to comply with the order passed by this Hon'ble Court as prayed
in (b)(i) with the help of police.
c) A decree of perpetual injunction restraining the defendant, his servants,
agents, employees and/or anyone acting under him from transferring or
letting out or creating in any manner third party interest and from
changing the nature or character of the portion marked "A" in Blue Ink in
any manner whatsoever.
d) Award costs of the present proceedings in favour of the plaintiffs and
against the defendant.
e) Such further or other orders as this Hon'ble Court may deed fit, just and
proper."

3. The said suit came to be transferred to the District Courts on 27th
January, 2004 as a result of increase in the pecuniary jurisdiction of the
District Courts. During the pendency of that suit the deceased owner of the
suit property had died on 12th January, 2002 and an application was moved
by the plaintiffs on 2nd July,2008 to bring on record his widow and two
minor daughters as his legal representatives. They opposed that application
on various grounds. However, before that application could be decided by
the Court the plaintiffs withdrew that suit on 1st June, 2011.

4. After withdrawing the aforesaid suit the plaintiffs filed the present
suit against the legal heirs of the deceased owner of the suit
property(defendant nos. 1(i-iii), one M/s Tosh Apartments Pvt.

CS(OS) No. 3195/2012 Page 3 of 26
Ltd.(defendant no.2 ), legal heirs of one late Mr. L.K.Kaul (defendant nos.3(i
& ii) and one M/s Bhagwati Developers Pvt. Ltd.(defendant no.4), with
which Company they claimed to have entered into an agreement to sell the
suit property in before the execution of the sale deeds by the deceased
owner of the suit property in their favour on the basis of agreements of sale
and power of attorney executed in their favour by the deceased owner of
the suit property and which Company has already got an Award in its favour
from the arbitrator directing them to hand over the possession of the suit
property to it and to execute the sale deeds in its favour.

5. The plaintiffs claim in the present suit that in the year 2001 it became
known to them that a civil suit(being suit no. 425/1993) had been filed in
this Court by defendant no.2 herein(M/s Tosh Apartments Pvt. Ltd.) against
the deceased owner of the suit property for a decree of specific
performance of an agreement for sale dated 13th September, 1988 executed
by him in its favour. In that suit this Court had vide order dated 18th
February, 1993 restrained the deceased owner of the suit property from
creating any third party interest in respect of the suit property. It appears
that during the pendency of the that suit the defendant no.4 Company filed
proceedings before the Calcutta High Court for the implementation of the
Award which it had got from the arbitrator against the plaintiffs herein and

CS(OS) No. 3195/2012 Page 4 of 26
in those proceedings a Receiver was appointed to take over the possession
of the suit property. The defendant no.2 came to know about that order
and so it filed an application in its suit no.425/1993 to ensure that the
plaintiffs herein do not get the possession and notice of that
application(being I.A.No.625/2001) appears to have been given to the
present plaintiffs also. The plaintiffs appeared in that suit in the year 2001
itself but they did not move any formal application for their impleadment in
that suit nor the plaintiff of that suit(defendant no.2 herein) had sought
their impleadment. The plaintiffs claim to have asserted their title in the
suit property. In that suit this Court had also appointed a Receiver in
respect of the suit property who took over its possession and which
continues to be with the Receiver till date. The plaintiffs subsequently
moved a formal application under Order 1 Rule 10 of the Code of Civil
Procedure(in short 'C.P.C.') for their impleadment in that suit but that
application was dismissed by the learned Single Judge vide order dated 26th
May, 2008. The appeal filed against that order was also dismissed by the
Division Bench vide order dated 20th February, 2009.

6. Further averments made in the present suit by the plaintiffs were that
the appeal filed by them in the Hon'ble Supreme Court(being
C.A.No.5918/2012) against the aforesaid order of the Division Bench also

CS(OS) No. 3195/2012 Page 5 of 26
was rejected vide judgment dated 21st August,2012. Though in the plaint it
was also pleaded by the plaintiffs that they had sought review of the
judgment of the Supreme Court but during the course of hearing of the
present matter I was informed that their review petition had also been
dismissed on 13th December, 2012.

7. The plaintiffs thereafter filed the present suit alleging that the
Supreme Court's judgment, which is now reported in (2012) 8 Supreme
Court Cases 384 dismissing their appeal against the rejection of their
application for their impleadment in suit no.425/1993 had resulted in a
situation where it became necessary for them to seek a declaration in
respect of their title in the suit property on the basis of six sale deeds
executed in their favour by its deceased owner which relief of declaration
otherwise under normal circumstances they need not have sought since in
law the sale deeds in their favour, validity whereof had not been challenged
by anyone, had conferred upon them absolute right and title in the suit
property. It was also pleaded that though the deceased owner of the suit
property during his lifetime had filed a suit against the plaintiffs claiming
that he had never executed any sale deeds in favour of the present plaintiffs
but that suit was withdrawn by him.

CS(OS) No. 3195/2012 Page 6 of 26
8. The reliefs claimed by the plaintiffs in the present suit are as under:

"a) Decree for declaration that plaintiffs herein are the absolute joint owners
in respect of Land and Property No.21, Aurangzeb Road, New Delhi-110001
by virtue of six registered Sale Deeds (a) Sale Deed dated 20/30.05.1997
executed & registered by Pradeep Kumar Khanna in favour of Vidur Impex &
Traders Pvt. Ltd. (2) Sale Deed dated 20/30.05.1997 executed & registered by
Pradeep Kumar Khanna in favour of Panchvati Plantation Pvt. Ltd. (3) Sale
Deed dated 20/30.05.1997 executed & registered by Pradeep Kumar Khanna
in favour of Haldiram Bhujia Bhandar Pvt. Ltd. (4) Sale Deed dated
20/30.05.1997 executed & registered by Pradeep Kumar Khanna in favour of
Star Exim Pvt. Ltd. (5) Sale Deed dated 20/30.05.1997 executed & registered
by Pradeep Kumar Khanna in favour of VKS Finvest Pvt. Ltd. and (6) Sale Deed
dated 20/30.05.1997 executed & registered by Pradeep Kumar Khanna in
favour of Convenient Tours & Travels Pvt. Ltd;.
b) Decree for declaration that the defendant Nos. 1(i) to 1(iii) remained
with no right, title and interest as the legal heirs of Pradeep Kumar Khanna
since deceased in respect of and relating to the land and property No.21,
Aurangzeb Road, New Delhi-110001 after the execution and registration of
sale deeds in favour of the plaintiffs;
c) Pass a decree of permanent Injunction restraining defendant
Nos.1(i) to 1(iii) from claiming themselves and representing themselves as
owners of land and property No.21, Aurangzeb Road, New Delhi and/or
from executing and registering any Sale Deed in favour of any third party or
creating any third party interest or entering into any compromise of any
nature whatsoever;
d) Decree for recovery of possession in favour of the plaintiff and against
the defendants and/or against their men, agents and associates be passed
directing the defendants and/or the Court Receiver appointed by this Hon'ble
Court to quit, vacate and deliver the vacant possession of the property to the
plaintiffs;
e) An enquiry into damages be made by this Hon'ble Court and after
ascertaining the quantum of damages suffered by the plaintiffs, this Hon'ble
Court may be pleased to award damages for such sum as this Hon'ble Court

CS(OS) No. 3195/2012 Page 7 of 26
may deem fit and proper;
f) Pass such further or other orders as this Hon'ble Court may deem fit and
proper."

9. Along with the plaint an application for ex parte ad interim injunction
was also filed by the plaintiffs for restraining the legal heirs of the deceased
owner of the suit property from claiming themselves to be the owners of
the suit property or creating any kind of third party interest in the suit
property or delivering its possession to anyone. However, no ex parte
injunction was granted by this Court and even after the defendants had
entered appearance no injunction was granted in favour of the plaintiffs.
During the pendency of the injunction application another injunction
application was filed for restraining the legal heirs of the deceased owner of
the suit property from entering into any kind of settlement with defendant
no.2 M/s Tosh Apartments Pvt. Ltd. In that application also no ex parte
relief was granted to the plaintiffs.

10. The suit is being hotly contested by the legal heirs of the deceased
owner of the suit property, defendant nos. 1(i-iii) as well as by M/s Tosh
Apartments Pvt. Ltd., defendant no.2, which is already fighting a legal battle
in its suit no.425/1993 since the year 1993 to have the agreement to sell
allegedly executed in its favour in respect of the suit property by its

CS(OS) No. 3195/2012 Page 8 of 26
deceased owner Mr. Pradeep Kumar Khanna specifically enforced through
his legal heirs now.

11. These defendants in their respective written statements have raised
various objections.

12. Defendant nos.1(i-iii) also filed an application under Order VII Rule
11 CV.P.C. (being I.A.No.608/2013) and similarly defendant no.2 also
moved an application for the rejection of the plaint(being
I.A.No.2049/2013).

13. The applications of the plaintiffs for ad interim injunction and the
defendants' applications under Order VII Rule 11 Cr.P.C. were taken up for
hearing together and lengthy arguments were advanced from both the
sides.

14. Dr. Abhishek Manu Singhvi, learned senior counsel for defendant
no.2(M/s Tosh Apartments Pvt. Ltd.) had very strongly contended that not
only the plaintiffs are not entitled to any ad interim relief sought by them in
the two injunction applications filed by them but the plaint itself is liable to
be rejected at the threshold without framing of any issues and recording of

CS(OS) No. 3195/2012 Page 9 of 26
evidence of the parties because the Hon'ble Supreme Court has already
considered their case in detail while hearing their appeal against the orders
of this Court declining their request for their impleadment in the suit for
specific performance filed by defendant no.2 against the deceased owner
of the suit property and had observed that the six sale deeds being relied
upon by them to claim title in respect of the suit property did not have any
legal sanctity as they had been executed by the deceased owner in
violation of the stay order passed by this Court in the suit of defendant no.2.
It was also submitted that the Hon'ble Supreme Court had in very strong
words condemned the conduct of the plaintiffs herein as well as defendant
no. 4 M/s Bhagwati Developers Pvt. Ltd. in entering into a clandestine
transaction in respect of the suit property and getting an Award from an
arbitrator and order of approval of that Award from Calcutta High Court
without disclosing to that Court about the pendency of the suit of
defendant no.2 herein against the deceased owner of the suit property and
the ad interim injunction passed by this Court in that suit. In this regard, my
attention was drawn to the following observations, and more particularly
to the highlighted ones, made by the Hon'ble Supreme Court in its judgment
dated 21st August,2012 :

"2. Whether M/s. Vidur Impex and Traders Pvt. Ltd., and five other
companies (hereinafter described as the appellants), who are said to have

CS(OS) No. 3195/2012 Page 10 of 26
purchased the suit property, i.e. 21, Aurangzeb Road, New Delhi in
violation of the order of injunction passed by the learned Single Judge of
the Delhi High Court are entitled to be impleaded as parties to Suit
No.425/1993 filed by respondent No.1 - M/s. Tosh Apartments Pvt. Ltd. is

one of the two questions which arises for consideration in these appeals filed against judgment dated 20.2.2009 of the Division Bench of the Delhi High Court.....................................................................

24. The Division Bench approved the rejection of the Appellants' prayer for impleadment as parties in Suit No. 425/1993 by observing that after executing the agreement for sale in favour of Bhagwati Developers they do not have any subsisting interest in the property. The Division Bench also agreed with the learned Single Judge that the application filed by the Appellants lacked bona fides because they purchased the suit property from Respondent No. 2 despite the order of injunction passed by the High Court and there was no tangible explanation for filing the application after a long time gap of about 8 years.

25. Learned senior counsel for the Appellants emphasised that his clients were not aware of the agreement for sale executed by Respondent No. 2 in favour of respondent No. 1, the suit for specific performance and permanent injunction filed by Respondent No. 1 in the Delhi High Court and injunction order dated 18.2.1993 till January, 2001 when the learned Single Judge restrained Respondent Nos. 2 and 4 from transferring possession of the suit property to the Appellants, and argued that the High Court committed serious error by declining their prayer for impleadment as parties to the suit. He submitted that the Appellants are bona fide purchasers for consideration and are entitled to contest the suit filed by Respondent No. 1, else their right in the suit property will get jeopardized. Learned senior counsel then argued that the agreement for sale executed by the Appellants in favour of Bhagwati Developers did not result in alienation of the suit property and the High Court committed an error in holding that the Appellants had no subsisting right in the subject matter of the suit.....

41.4. In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation.

41.6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the Court................................................................

42. In the light of the above, we shall now consider whether the learned Single Judge and the Division Bench of the High Court committed an error by dismissing the Appellants application for impleadment as parties to Suit No. 425/1993. At the cost of repetition, we consider it necessary to mention that Respondent No. 1 had filed suit for specific performance of agreement dated 13.9.1988 executed by Respondent No. 1. The Appellants and Bhagwati Developers are total strangers to that agreement. They came into the picture only when Respondent No. 2 entered into a clandestine transaction with the Appellants for sale of the suit property and executed the agreements for sale, which were followed by registered sale deeds and the Appellants executed agreement for sale in favour of Bhagwati Developers. These transactions were in clear violation of the order of injunction passed by the Delhi High Court which had restrained Respondent No. 2 from alienating the suit property or creating third party interest. To put it differently, the agreements for sale and the sale deeds executed by Respondent No. 2 in favour of the Appellants did not have any legal sanctity. The status of the agreement for sale executed by the Appellants in favour of Bhagwati Developers was no different. These transactions did not confer any right upon the Appellants or Bhagwati Developers. ...........That apart, after executing agreement for sale dated 18.3.1997 in favour of Bhagwati Developers, the Appellants cannot claim to have any subsisting legal or commercial interest in the suit property............

43............Although, the Appellants have pleaded that at the time of execution of the agreements for sale by Respondent No. 2 in their favour in February 1997, they did not know about the suit filed by Respondent No. 1, it is difficult, if not impossible, to accept their statement because the smallness of time gap between the agreements for sale and the sale deeds executed by Respondent No. 2 in favour of the Appellants and the execution of agreement for sale by the Appellants in favour of Bhagwati Developers would make any person of ordinary prudence to believe that Respondent No. 2, the Appellants and Bhagwati Developers had entered into these transactions with the sole object of frustrating agreement for sale dated 13.9.1988 executed in favour of Respondent No. 1 and the suit pending before the Delhi High Court. In any case, the......................................

44................... In the present case, the agreements for sale and the sale deeds were executed by Respondent No. 2 in favour of the Appellants in a clandestine manner and in violation of the injunction granted by the High Court. Therefore, it cannot be said that any valid title or interest has been acquired by the Appellants in the suit property and the ratio of the judgment in Surjit Singh v. Harbans Singh (supra) would squarely apply to the Appellants case because they are claiming right on the basis of transactions made in defiance of the restraint order passed by the High Court.......................................................................

46........................... It is not in dispute that Respondent No. 1 had filed the suit for specific performance on 1.2.1993 and the learned Single Judge of the Delhi High Court passed the order of injunction on 18.2.1993. The arbitral award for specific performance of the agreement for sale of the same property entered into between the Appellants and Bhagawati Developers was obtained on 7.1.1999.........The contention of the Appellants and Bhagawati Developers that they were unaware of the proceedings before the Delhi High Court cannot be accepted because in Suit No. 161/1999 filed by Respondent No. 2 for declaring that the agreements for sale and the sale deeds relied upon by the Appellants were false and

fabricated, a specific reference was made to the suit filed by Respondent No. 1...........................................................................................................................

47. The learned Single Judge and the Division Bench of the Delhi High Court have assigned detailed and cogent reasons for appointing a receiver to take care of the suit property. The clandestine nature of the transactions entered into between respondent No.2 and the appellants on the one hand and the appellants and Bhagwati Developers on the other would give rise to strong presumption that if a receiver is not appointed, further attempts would be made to alienate the property in similar fashion......................................................

49. In the result, the appeals are dismissed. For their contumacious conduct of suppressing facts from the Calcutta High Court and thereby prolonging the litigation, the Appellants and Bhagwati Developers are saddled with cost of Rs. 5 lakhs each..........................................................."

15. Dr. Singhvi further submitted that the Supreme Court having already held against the plaintiffs that they even otherwise had ceased to have any interest in the suit property because of their having entered into sale agreements with defendant no.4 herein, M/s Bhagwati Developers Pvt. Ltd., no relief of declaration or injunction can be given to them by this Court for that reason also. They were also not entitled to get any relief, Dr. Singhvi submitted, in view of the provisions of Section 41(j) of the Specific Relief Act. Another submission made was that the plaintiffs had unconditionally withdrawn their earlier suit filed against the deceased owner of the suit property, filing of which case was suppressed also from this Court, for a

declaration that they were the owners of the suit property and entitled to get its entire possession and so this suit was even otherwise barred under Order XIII Rule 1(4) C.P.C. and for that reason also the plaint was liable to be rejected.

16. Mr. Yakesh Anand, learned counsel for the legal heirs of the deceased owner of the suit property(defendant no.1(i-iii) while adopting the submissions of Dr. Singhvi had submitted that before the highest Court of the land the plaintiffs herein had sought to assert their rights as owners of the suit property and the present defendants had claimed there also that on the basis of the six sale deeds allegedly executed by late Mr. Pradeep Kumar Khanna, though he himself had during his lifetime denied having those sale deeds, these six plaintiffs could not be said to have acquired any title in the suit property since when those sale deeds were executed late Mr. Khanna already stood restrained from creating any third party interest in the suit property by this Court in the suit for specific performance filed by defendant no.2 herein against him(suit no.425/1993). The Supreme Court after considering these submissions had come to the conclusion that the six sale deeds being relied upon by the appellants there(plaintiffs herein) did not have any legal sanctity and therefore, this Court cannot be called upon to pronounce that those very sale deeds were validly executed by the

deceased owner of the suit property and had transferred the title in favour of the plaintiffs. Learned counsel contended that High Court is bound by the conclusions of the Supreme Court which were not at all tentative conclusions meant only for the proceedings before the Supreme Court.

17. Mr. Anand further submitted that the plaintiffs had concealed in the present suit that they had earlier filed a suit against the deceased owner of the suit property seeking a declaration that they were the owners of the suit property and that that suit was withdrawn. He drew my attention to his written statement wherein this objection was taken and also to the copy of the plaint of that earlier suit to show that the reliefs claimed in that suit and the present suit were almost identical and so the plaintiffs were not entitled to any relief because of concealment of a material fact from this Court. Another submission made was that the suit is time barred also even on the basis of averments made in the plaint and for that reason also the plaint is liable to be rejected and in fact the suit itself is liable to be dismissed straightaway.

18. On the other hand, Mr. Sunil Gupta, learned senior counsel for the plaintiffs had submitted that it cannot be denied that the Supreme Court had expressed its views in strong words against the plaintiffs and defendant

no.4 herein and which remarks were highlighted from the defendants' side in respect of the sale deeds in favour of the plaintiffs executed by the deceased owner of the suit property as well as in respect of the transaction between the plaintiffs herein and defendant no.4 M/s Bhagwati Developers Pvt. Ltd. but those observations are no bar to the maintainability of the present suit since all those observations were made by the Supreme Court for the purpose of dismissing their appeal and affirming the judgments of the Single Judge Bench and Division Bench of this Court dismissing their application under Order 1 Rule 10 C.P.C. filed by them in the suit no.425/1993 of defendant no.2 herein. Mr. Gupta further contended that since the plaintiffs had failed to get themselves impleaded in that suit to protect their title over the suit property which was sought to be put under cloud by the plaintiff of that suit by moving an application in that suit in the year 2001 restraining the legal heirs of the deceased owner of the suit property from handing over the possession of the suit property to the plaintiffs herein they could very well file an independent suit to protect their title over the suit property. Mr. Gupta further contended that the present suit in any case cannot be rejected at the threshold without trial. Learned senior counsel further submitted that the observations of the Supreme Court in that matter do not attract the principle of res judicata also since the points which are the subject matter of the present suit were

neither directly nor substantially in issue in the proceedings before the Supreme Court which had arisen out of the orders of the Single Judge Bench and Division Bench of this Court passed in the suit in which the defendant no.2 herein was seeking specific performance of the agreement of sale allegedly executed in its favour in 1986 by the deceased owner of the suit property. In any event, submitted Mr. Gupta, plaint cannot be rejected by invoking the doctrine of res judicata unless the defendants adduce necessary evidence to show that there was similarity of the disputes which are involved in the present suit and in the suit of defendant no.2. Similarly the objections about suit being time barred and the bar under Order XXX111 Rule 1(4) C.P.C. also cannot be decided without evidence being adduced by the parties and as far the objection of the bar under Order XXXIII Rule 1(4) C.P.C. was concerned the same has not been taken in the pleadings. The effect of non-disclosure of the earlier suit of the plaintiffs also, according to Mr. Gupta, could be considered after trial as it will have to be examined whether that fact was such a material fact which should have been disclosed in the present suit and that can be done only after pleadings of that suit are examined.

19. In support of the submission that no civil suit can be dismissed summarily without framing of issues arising out of the pleadings of the

parties and giving opportunity of adducing evidence to the parties and particularly to the plaintiff whose suit is sought to be dismissed without trial and also because of bad conduct of any litigant, Mr. Sunil Gupta cited one judgment of the Supreme Court in "Alka Gupta vs Narinder Kumar Gupta", (2010) 10 Supreme Court Cases 141. This decision was also relied upon in support of the submission that the present suit is not barred on the principle of res judicata because of the observations made by the Supreme Court against the plaintiffs in their appeal. Mr. Gupta drew my special attention to the following observations of the Supreme Court in Alka Gupta's case(supra):

" IV. A suit cannot be dismissed without trial merely because the court feels dissatisfied with the conduct of the plaintiff.

27. The Code of Civil Procedure is nothing but an exhaustive compilation- cum-enumeration of the proinciples of natural justice with reference to a proceeding in a court of law. The entire object of the Code is to ensure that an adjudication is conducted by a court of law with appropriate opportunities at appropriate stages. A civll proceeding govered by the Code will have to be proce4eded with and decided in accordance with law and the provisions of the Code, and not on the whims of the court. There are noshort-cuts in the trial of suits, unless they are provided by law. A civil suit has to be decided after framing issues and trial permitting the parties to lead evidence on the issues, except in cases where the Code or any other law makes an exception or provides any exemption.

28. The Code enumerates the circumstances in which a civil suit can be dismissed without trial. We may refer to them(not exhaustive):

(a) Dismissal as a consequence of rejection of palint under Order 7 Rule 11 of the Code in the following grounds:

                      (i)      where it does not disclose a cause of action;
                      (ii)     where the relief in the palint is undervalued and the

plaintiff fails to correct the valuation within the time fixed;

(iii) where the court fee paid is insufficient and the plaintiff fails to make good the deficit within the time fixed by court;

(iv) where the suit appears from the statement in the plaint to be barred by law;

(v) where it is not filed in duplicate and where the plaintiff fails to comply with the provisions of Order 7 Rule 9 of theCode.....

30. But where the summons have been issued for settlement of issues, and a suit is listed for consideration of a preliminary issue, the court cannot make a roving enquiry into the alleged conduct of the plaintiff, tenability of the claim, thestrength and validity and contents of documents, without a trial and on that basis dismiss a suit. A suit cannot be short-circuited by deciding issues of fact merely on pleadings and documents produce4d without a trial.

31. In this case, the learned Single Judge has adjudicated and decided questions of fact and rendered a judgment, without evidence tested by cross- examination..........

32. The observation of the learned Single Judge that "the facts of this case do not require any opportunity for leading evidence to be given to the plaintiff' violates Order 15 Rule 3 of the Code. Where summons have been issued for settlement of issues and where issues have been settled, unless the parties agree, the court cannot deny the right of parties to lead evidence. The render a final decision of denying such opportunity would be high-handed, arbitrary and illegal. Even the Division Bench committed the same error.

34. The High Court recorded factual findings on inferences from the plaintiff's (appellant) conduct and branded her as an unscrupulous person who abuses the process of court and as a person who utters falsehoods and manipulates documents without there being a trial and without there being an opportunity to the plaintiff to explain her conduct. To say the least, such a

procedure is opposed to all principles of natural justice embodied in the Code of Civil Procedure. At all events, the alleged weakness of the case of the plaintiff or unscrupulousness of the plaintiff are not grounds for dismissal without trial."

20. On the point of non-applicability of the principle of res judicata in the facts of the present case Mr. Gupta also cited another judgment of the Supreme Court in " Sajjadanashin Sayed MD vs Musa Dadabhai Ummer & others", (2000) 3 Supreme Court Cases 350 and also many other earlier judgments of the Supreme Court. Those judgments are reported in AIR 1952 SC 143 "Pragdasji Guru vs. Ishwarilalbhai", (1982) 1 SCC 4, "Gangabai vs. Chhabubai", (1994) 4 SCC 422, "Krishan Lal vs. State of J&K.", (2000) 6 SCC 301, "Amma vs. Kunjikutta", (1996) 1 SCC 735, "State of Mah. vs. National Construction", (2005) 11 SCC 481, "Dharam Bir Singh vs. Mansi Sahkari" and 2010 (9) SCC 145 "Haryana State Electricity Board vs. Hanuman Rice Mills & Ors."

21. From the aforesaid narration of the background facts giving rise to the present suit and the submissions made from both the sides it is clear that earlier to the pronouncement of the judgment of the Supreme Court in the plaintiffs' appeal(2012 (8) SCC 384) there was no declaration of any Court that the six sale deeds which were being relied upon by the six plaintiff

Companies were not validly and legally executed by the deceased owner of the suit property or that part of the suit property had not been handed over to the plaintiffs herein by the deceased Mr. Pradeep Kumar Khanna as was being claimed by them. It is the plaintiffs' own case in the plaint of the present suit that there was no challenge to their title by anyone and so they never had to approach any Court for getting a declaration that they had become the owners of the suit property by virtue of the six sale deeds executed in their favour by the deceased owner Mr. Pradeep Kumar Khanna. The plaintiffs had pleaded in para no. 18 of the plaint of the present suit as under:

"18. As there was no challenge to the title of the Plaintiffs, with Plaintiffs regularly appearing before this Hon'ble Court in Suit No. 425 of 1993, including but not limited to pursuing its challenge to the ex-parte orders dated 22.01.2001, 08.02.2001 and dated 08.10.2001, passed in I.A. Nos. 625/1993, I.A. No. 1211/2001 and IA No. 9576/2001, inter alia, seeking its vacation thereof, Plaintiffs were never advised to get themselves formerly impleaded in the said suit, or for that reason Tosh Apartments Pvt. Ltd. (Defendant No. 2), who is dominus litus in Suit No. 425 of 1993, ever took any step to get the Plaintiffs impleaded in the said suit, in the first instance. However, this Hon'ble Court on passing orders, directing parties in Suit No. 425 of 1993 to file their Evidence by way of Affidavit on 26.05.2008, Plaintiffs were advised to file an application for impleadment as Defendants in the said suit, on basis of which, an application under Order I, Rule 10 of Code of Civil Procedure, 1908 was preferred by the Plaintiffs in Suit No. 425 of 1993, inter alia, seeking impleadment as Defendants in the said suit. A learned Single Judge of this Hon'ble Court vide order dated 26.05.2008, affirmed by the Hon'ble Division Bench vide order dated 20.02.2009 and Hon'ble Apex Court vide Judgment and

Order dated 21.08.2012, however, held that Plaintiffs are not necessary parties, as envisaged under Order I, Rule 10 of CPC and, therefore, in a suit for specific performance, cannot seek impleadment as a Defendant. A Review Petition stands preferred by the Plaintiffs against Judgment and Order dated 21.08.2012, passed by the Hon'ble Apex Court in C.A. No. 5918/2012, same of which is pending adjudication as on date. The Judgment and Order dated 21.08.2012 of the Hon'ble Apex Court while dismissing prayer of impleadment by the Plaintiffs in Suit No. 425 of 1993, holds that in a suit for specific performance, Plaintiffs have no locus standi to get themselves impleaded as a Defendant, which judgment, without prejudice to Review Petition preferred by the Plaintiffs, has necessitated into filing of the present suit, inter alia, seeking a declaration that Plaintiffs are true and only rightful owner of the property in issue. The sequitur of the law laid down by the Hon'ble Apex Court in Judgment and Order dated 21.08.2012s, has resulted into a situation, where Plaintiffs need to seek a declaration from this Hon'ble Court qua their rights by virtue of the afore-stated six Sale Deeds, inasmuch as, under normal circumstances, Plaintiffs need not have sought any such declaration, in the first instance. The registration and execution of Sale Deeds in favour of the Plaintiffs qua the suit property confers absolute right, little and interest in favour o the Plaintiffs, under law, while however, challenge to the Sale Deeds by Defendant No. 2, through an interlocutory application in Suit No. 425 of 1993, and threat of seeking restoration of an allegedly dismissed suit, being Suit No. 161/1999, including but not limited to ex-parte ad-interim/ interim orders being passed against the Plaintiffs in their absence qua the property in issue, without their impleadment or intervention, necessitates filing of the instance suit for reliefs, as prayed for hereinafter. Plaintiffs, by virtue of the present suit, are also seeking vacant and peaceful possession of the suit property, same of which is being deprived to them, despite Plaintiffs being only true, rightful and registered owners of the property in issue and in accordance with provisions of law, cannot be deprived of the vacant and peaceful enjoyment and possession of the property in issue."

22. From a meaningful reading of these averments made in the plaint itself by the plaintiffs it is clear that they had at no stage prior to the

decision of the Supreme Court in their appeal any doubt about the validity and legality of their title in respect of the suit property based on the six sale deeds executed in their favour by the deceased owner. Whatever doubt was sought to be created by the deceased owner of the suit property by filing a suit for a declaration that the sale deeds being relied upon by the present plaintiffs were not executed by him stood cleared because of the withdrawal of that suit by the deceased owner himself. So, for filing of the present suit there had to be some cause of action in favour of the plaintiffs for claiming a declaration that they are still the owners of the suit property by virtue of six sale deeds in their favour executed by the deceased owner.

23. If one reads in between the lines the averments made in para no.18 of the plaint it becomes clear that the only cause of action necessitating the filing the present suit claimed by the plaintiffs is the adverse observations made by the Hon'ble Supreme Court in its judgment in the plaintiffs' appeal to the effect that the sale deeds being relied upon by the plaintiffs herein were having no legal sanctity and that the transaction between them and Bhagwati Developers Pvt. Ltd.(defendant no.4 herein) was a clandestine and collusive deal arrived at to defeat the right of the defendant no.2 herein(M/s Tosh Apartments Pvt. Ltd.). The plaintiffs now feel that those observations have now cast a cloud over their title in the suit property

based on the six sale deeds in question. However, the adverse observations of the Supreme Court cannot become a cause of action for the plaintiffs and for that matter any litigant to approach the High Court to obtain a decision contrary to the decision of the Supreme Court. Now, whether or not the observations made by the Supreme Court in respect of the sale deeds being relied upon by the plaintiffs herein to get a declaration of title in their favour operate as res judicata or not is not the question to be considered and decided by this Court at the stage of consideration of applications under Order VII Rule 11 C.P.C. All that this Court is required to be consider is whether those observations can give a cause of action to the plaintiffs to approach this Court. The answer is an emphatic 'no'. In fact, what the plaintiffs are seeking from the High Court is the expunging of the adverse observations made by the Supreme Court in its judgment in the appeal of the plaintiffs. High Court can certainly not venture to do that. What the plaintiffs could not get from the Supreme Court they cannot get from this Court by claiming that the Supreme Court's adverse observations against them gave them a cause of action to file the present suit. In the brief written synopsis submitted on behalf of the plaintiffs it was submitted in para no. 2.9. that " That being the correct legal position as regards the rights of the plaintiffs under their sale-deeds, the present suit remains unaffected by the few stray and extra-legal observations made by the SC in Vidur

Impex vs Tosh......" and in para no. 2.8 that "the observations in paras 42,43 and 44 of the Supreme Court order actually do not lay down the complete law in regard to the consequences of rejection of an impleadment application filed by a subsequent transferee in a suit brought by the prior transferee. The judgment in Vidur Impex vs. Tosh does not lay down the complete law in this regard......".

24. So, a bare reading of the plaint makes it more than evident that the plaintiffs are really aggrieved by the decision of the Supreme Court and not by any of the acts of any of the defendants but their grievance cannot be redressed by this Court.

25. The applications under Order VII Rule 11 C.P.C. are allowed and the plaint stands rejected as without being any cause of action. Consequently, all other miscellaneous applications also stand rejected and one I.A. No.4433/2013 filed by the defendant no.1(i-iii) becomes infructuous.

P.K. BHASIN, J

MAY 31, 2013