Davinder Nath Lohtia vs Jagjit Singh Bajaj & Ors
2013 Latest Caselaw 4394 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Date of decision: 25 th September, 2013

+                               RFA 722/2010

       DAVINDER NATH LOHTIA                     ..... Appellant
                   Through: Mr. Gaurav Malhotra and Ms.
                            Gaganpreet Chawla, Advocates.

                                Versus

    JAGJIT SINGH BAJAJ & ORS                               ..... Respondents
                  Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This first appeal under Section 96 of the Civil Procedure Code (CPC),

1908 seeks setting aside of the judgment and decree dated 9th September,

2010 of the Court of Additional District Judge (ADJ) (17, Central), Delhi in

Suit No.241/2009.

2. Notice of the appeal was issued. The appellant failed to serve the

respondents No.4, 8 & 9 inspite of repeated opportunities. None appeared

on behalf of the appellant on 27th July, 2012 and on 17 th August, 2012. In

the circumstances, the appeal was dismissed in default. Application for

restoration was filed by the appellant and which was allowed vide order

dated 4th July, 2013, subject to payment of costs to the Delhi High Court Bar

Association Lawyer's Social Security and Welfare Fund, which is stated to

have been deposited, and the matter posted for today for service of the

respondents No.8 & 9. The respondents No.8 & 9 remain unserved with the

report of both of them being not available at the address given by the

appellant. On the last date i.e. 4 th July, 2013, it was made clear that if the

appellant does not serve the respondents No.8 & 9, the appeal insofar as

against them shall be dismissed for non-prosecution.

3. As such it was enquired from the counsel for the appellant today as to

why the appeal insofar as the respondents No.8 & 9, be not dismissed for

non-prosecution. The counsel for the appellant appearing in the morning

sought adjournment stating that she was not the 'main counsel'. In the

circumstances, the matter was passed over till post lunch to enable the 'main

counsel' to appear.

4. Mr. Gaurav Malhotra, Advocate for the appellant appears.

5. In the interregnum aforesaid, while going through the file, it was

realized that the suit from which this appeal arises was filed by the

respondent No.1 Sh. Jagjit Singh Bajaj against the respondent No.2 Sh.

Virender Khatri, the respondents No.4 to 9 and the appellant, for declaration

with respect to his rights in property No.66 admeasuring 640 sq. yds.,

Banarsi Dass Estate, Civil Lines, Delhi and for mandatory and permanent

injunctions. The appellant, who is informed to have been the defendant

No.2 in the suit, the counsel states had filed a written statement pleading, (i)

that the respondent No.4 Sh. Anil Aggarwal and the respondent No.9 Sh.

Ankur Aggarwal had approached the appellant for loan of Rs.15 lakhs and

which the appellant had agreed to give on the security of the Sale Deed of

the aforesaid property executed by the respondent No.4 Sh. Anil Aggarwal

in favour of the respondent No.9 Sh. Ankur Aggarwal and on the security of

possession of a portion of the said property till repayment of the said loan;

(ii) that though in pursuance to the said loan against mortgage with

possession, the appellant was put into possession of a portion of the property

but was dispossessed therefrom by the respondent No.2 Sh. Virender Khatri

and proceedings under Section 145 of the Criminal Procedure Code were

instituted and thereafter the suit aforesaid was filed by the respondent No.1

Sh. Jagjit Singh Bajaj claiming rights in the property.

6. The suit, from which this appeal arises, was referred to mediation.

The counsel for the appellant states that the appellant did not come to know

of mediation. In the mediation, a Settlement Agreement in the form of

Memorandum of Understanding dated 4th September, 2010 was signed

between the respondent No.1 Sh. Jagjit Singh Bajaj (plaintiff in the suit) and

respondent No.2 Sh. Virender Khatri (defendant No.1 in the suit) wherein

Sh. Virender Khatri inter alia admitted the rights of respondent No.1 Sh.

Jagjit Singh Bajaj in the said property. Upon the said Settlement Agreement

coming before the Court of the ADJ before whom the suit was pending, the

counsel for the plaintiff therein Sh. Jagjit Singh Bajaj withdrew the suit

insofar as against the defendants other than the respondent No.2 Sh.

Virender Khatri i.e. against the respondents No.3 to 9 and the appellant

herein and the suit was decreed as per the compromise aforesaid between

the respondent No.1 and the respondent No.2.

7. It has as such been enquired from the counsel for the appellant as to

what can be the grievance of the appellant against the decree, which insofar

as the appellant is concerned, is, of withdrawal of the suit against the

appellant.

8. The counsel for the appellant states that the suit could not have been

compromised between the respondent No.1/plaintiff and the respondent

No.2/defendant No.1 without the consent of the other defendants i.e. the

respondents No.3 to 9 and the appellant herein. However, upon being asked

to show as to which provision of law bars such a compromise between the

plaintiff and one of the defendants, especially when the suit insofar as

against the other defendants is being sought to be withdrawn, he is unable to

show any.

9. In my opinion, there is no bar to such a compromise particularly when

the rights of the appellant/defendant No.2 are not affected thereby.

10. Though the counsel for the appellant has faintly stated that the

respondent No.1/plaintiff, by the decree aforesaid, has been declared as the

owner of the property but I do not find any such decree of declaration to

have been passed by the learned ADJ. The decree passed, is as per the

compromise between the respondent No.1/plaintiff and the respondent

No.2/defendant No.1 and which is not found to affect the rights of the

appellant/defendant No.2.

11. Even otherwise, the rights claimed by the appellant in the property are

only as a mortgagee and not as an owner. The said rights as a mortgagee

remain unaffected in law by any dealing of the property inasmuch as a

mortgage attaches itself to the property, in whomever's hands the property

may be or passes. Upon it being pointed out to the counsel for the appellant

that by wrongly pursuing this appeal for the last three years, he may have

made other claims against the respondents No.4 & 9 alleged to be

mortgagors of the appellant, the counsel for the appellant states that the

appellant has in fact filed a suit for recovery of money against the

respondent No.9 Sh. Ankur Aggarwal.

12. The suit could have been filed by the respondent No.1 only against

the respondent No.2 Sh. Virender Khatri even behind the back of the

appellant. Merely because the appellant was impleaded as a party to the

suit, would not disable the respondents No.1 & 2 from compromising the

suit amongst themselves, when the suit insofar as against the appellant was

withdrawn and the compromise was not made binding on the appellant.

13. The appeal is therefore thoroughly misconceived and is dismissed.

Though the appellant has taken sufficient time of the Court in pursuing a

misconceived appeal, I refrain from imposing any costs on the appellant.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

SEPTEMBER 25, 2013 bs..