Parminder Singh & Anr. vs Virender Pal Singh Jolly
2014 Latest Caselaw 1754 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+            FAO No.71/2012 and C.M. Nos.17081/2010 (stay)
             &2039/2013 (stay)

%                                                          1st April, 2014

PARMINDER SINGH & ANR.                               ....Appellants
                 Through:                Mr. Manjit Singh Ahluwalia,
                                         Advocate.

                          VERSUS

VIRENDER PAL SINGH JOLLY                     ...... Respondent

Through: Mr. Maninderjeet Singh, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This first appeal is filed under Order 43(1)(u) of Code of Civil

Procedure, 1908 (CPC) impugning the order of the appellate court dated

23.8.2008 by which the appellate court set aside the order of the trial court

dated 19.12.2006 which had allowed the application of the

defendants/appellants under Order 7 Rule 11 CPC and rejected the plaint.

2. Respondent/plaintiff filed a suit for challenging the ex parte

judgment and decree dated 27.11.1997 against him (in suit No.114/1993)and

in favour of the defendants/appellants on the ground that the same was

obtained by practicing fraud. The admitted facts however were that the

application filed by the respondent/plaintiff under Order 9 Rule 13 CPC

seeking setting aside of the ex parte judgment dated 27.11.1997 was firstly

dismissed on 23.2.2001. That order dated 23.2.2001 was however set aside

by this Court in a revision application by remanding the matter back for

recording evidence and thereafter deciding the application under Order 9

Rule 13 CPC. Trial court allowed the application under Order 9 Rule 13

CPC by the order dated 2.7.2002, however this Court in civil revision

no.902/2002 set aside the order of the trial court and dismissed the

application under Order 9 Rule 13 CPC. Respondent/plaintiff had filed an

SLP before the Supreme Court but the same was dismissed. Therefore the

ex parte judgment and decree dated 27.11.1997 became final.

3. The ex parte judgment and decree dated 27.11.1997 pertains to

a suit for possession filed by the appellants/defendants against the

respondent/plaintiff being suit No.305/1987. The suit property bearing

no.125-C, Pocket A-2/B, Paschim Vihar, New Delhi had been allotted to the

father of the appellants/defendants by the DDA vide allotment letter dated

10.1.1983. Possession of the same was taken from the DDA on 10.3.1984.

Appellants/defendants' father had handed over keys of the flat in question to

one Sh. Surjan Singh (brother-in-law) for looking after the flat. The father

of the appellants/defendants died in unfortunate circumstances as he was

murdered while travelling in a train. The keys of the flat were handed over

by Sh. Surjan Singh to the respondent/plaintiff to get repairs done.

Respondent/plaintiff however illegally occupied the flat and since he refused

to vacate, the suit for possession came to be filed. Respondent/plaintiff had

relied upon fraudulent and fabricated documents being agreement to sell,

power of attorney etc allegedly executed in his favour dated 28.9.1984 by

the father of the appellants/defendants, and as per which respondent/plaintiff

claimed ownership of the flat. As already stated above, this suit was

ultimately decreed ex parte against the respondent/plaintiff vide ex parte

judgment and decree dated 27.11.1997 and the application of the

respondent/plaintiff under Order 9 Rule 13 CPC was dismissed till the

Supreme Court.

4. The respondent/plaintiff did not rest there and filed objections

in execution. These objections were dismissed by the executing court vide

its order dated 3.6.2006 and appeal against the said order was also dismissed

by the appellate court on 1.12.2006.

5. By the application filed by the appellants/defendants under

Order 7 Rule 11 CPC in the present suit it was pleaded that the judgment in

the earlier suit bearing no.305 of 1987 operated as res judicata against the

respondent/plaintiff under Section 11 CPC taken with the fact that the suit

was barred under Section 47 CPC inasmuch as even the objections filed by

the respondent/plaintiff were dismissed and the appeal of the

respondent/plaintiff against the order dismissing objections was also

dismissed as per details already stated above. Trial court allowed the

application under Order 7 Rule 11 CPC and held that the suit was barred by

the provisions of Sections 11 and 47 CPC noting that no particulars of fraud

were pleaded in the plaint.

6. The appellate court has allowed the appeal by the impugned

judgment and dismissed the application of the appellants/defendants, inter

alia by making the following observations on the aspect of fraud and Section

11 CPC:-

"7. I have seen the trial court records, impugned order, grounds of appeal and feel that the order of the Ld. Civil Judge with respect to the order u/o 7 Rule 11 CPC be set aside and file be sent back to the Ld. Trial Court for further trial as per law on the following grounds:

Firstly, so far as the order u/o.8 Rule 10 CPC is concerned, plaintiff/appellant is not registered. Hence the order of the Ld. Civil Judge with respect to the application u/o 8 Rule 10 CPC is maintained.

Secondly, the Ld. Civil Judge stated that the present suit is barred u/s. 41(a) of the Specific Relief Act. Section 41(a) of the Specific Relief Act provides as under:

(a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings.

This section only speaks about the injunction. Reasoning may be correct had the suit been filed only with respect to the injunction but the suit is for declaration as well as fokr injunction.

Thirdly, I have seen the prayer of the injunction in the original suit. Though the relief should be interim relief, the relief is worded in the absolute terms. Plaintiff is seeking in relief of injunction that till the suit is decided and disposed defendant be restrained from executing the decree in the previous suit and that is allowed. Hence the relief is not covered u/s 41(a) of Specific Relief Act.

Fourthly, so far as relief of declaration is concerned it is stated that the previous judgment/decree has to be sought to be null and void on the ground of fraud. However, the fraud is not explained. Merely because the fraud has not been explained cannot be the ground for rejection of the plaint. If the particulars has not been given it could have been taken by examining the pleadings and then the Ld. Civil Judge could pass the appropriate order.

Fifthly, Order 7 Rule 11 provides as under: Rejection of plaint-The plaint shall be rejected in the following cases:

a) where it does not disclose a cause of action;

b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to so correct the

valuation within a time to be fixed by the Court, fails to do so;

c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so.

d) Where the suit appears from the statement in the plaint to be barred by any law;

e) Where it is not filed in duplicate:

f) Where the plaintiff fails to comply the provisions of Rule9: Only ground (a) of Order 7 Rule 11 CPC is applicable in the present case. There is no finding that the order is based on Order 7 Rule 11 (a). So far as the relief of injunction in concerned that may be barred u/o. 7 Rule 11(d) but the reliefs of declaration are not barred u/o. 7 Rule 11(d)by virtue of Section 41 (a) of Specific relief Act.

Sixthly, it is well established and even noted by the Ld. Civil Judge that while dealing with application u/o. 7 Rule 11 CPC only plaint has to be seen but the order shows that the Ld. Civil Judge has travelled beyond the pleadings. It is stated in the order that the plaintiff has not stated the facts and concealed the facts with respect to the dismissal of the application and even dismissal of review application. If these facts were notstated in the plaint then how Ld. Civil Judge note these facts and from where. During the order the Ld. Civil Judge discussed about the res judicata and then it is stated by Ld. Civil Judge that the suit is not barred by res judicata even otherwise res judicata is not the ground u/o 7 Rule 11 CPC. That may be the ground on a separate application u/s. 11 of the CPC.

8. In view of the above, the appeal of the appellant is hereby allowed. The case is remanded back to the Ld. Trial Court for fresh trial as per law."

7. In my opinion, the appellate court committed gross illegality

inasmuch as one fails to understand as to how the appellate court has

overlooked the mandate of Order 6 Rule 4 CPC which required that in any

suit in which fraud is pleaded there have to be pleaded detailed particulars of

the fraud. This is all the more so required in the present case because the

suit was to nullify the earlier judgment and decree dated 27.11.1997 which

operated as res judicata and to which proceedings the respondent/plaintiff

was very much a party. No doubt, a suit can be filed alleging perpetuation

of fraud, however, in cases such as the present, the plea of fraud cannot be

easily used to overcome the bar under Sections 11 and 47 CPC especially

when not only the application under Order 9 Rule 13 CPC was dismissed

right till the Supreme Court but also objections filed by the

respondent/plaintiff in execution of the judgment and decree dated

27.11.1997 were dismissed and even an appeal against that order dismissing

objections was also dismissed.

8. Clearly therefore the impugned judgment of the appellate court

is totally illegal and perverse to say the least. If the impugned judgment is

allowed to stand, really respondent/plaintiff will profit from false litigation,

and continue to illegally hold on to possession of the suit property, and of

which respondent/plaintiff has been illegally in possession way back

from around the year 1997. The appellate court has passed the impugned

judgment in a very cursory and mechanical manner without giving reasoning

as to why particulars of fraud ought not to have been mentioned inasmuch as

it is only after fraud is pleaded that evidence can be led with respect to the

pleadings of fraud and in the absence of pleadings, no evidence can be led

with respect to plea of fraud. In this case, the plea of fraud was clearly a

malafide and dishonest plea to avoid handing over possession of the suit

property to the appellants/defendants and prevent execution of the judgment

and decree dated 27.11.1997 in favour of the appellants/defendants.

9. In view of the above, this appeal is allowed. Impugned

judgment of the appellate court dated 23.8.2008 is set aside and the

judgment of the trial court dated 19.2.2006 is sustained whereby the plaint of

the respondent/plaintiff shall stand rejected under Order 7 Rule 11 CPC.

Considering the facts of the present case, the appeal is allowed with costs of

Rs.50,000/- because I find that the respondent/plaintiff is engaging in

unnecessary false litigation and has been continuing to illegally occupy the

suit property of which the appellants/defendants are the owners. Supreme

Court in the case of Ramrameshwari Devi & Ors. Vs Nirmala Devi & Ors.

(2011) 8 SCC 249 has held it is high time that in certain litigations heavy

costs must be imposed. I am also empowered to impose costs in terms of

Volume V of the Punjab High Court Rules and Orders (as applicable to

Delhi) Chapter VI Part I Rule 15.

APRIL 01, 2014                         VALMIKI J. MEHTA, J.
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