Smt. Vidyawanti Wadhwa (Now ... vs Sh. Parmeshwari Lal & Ors.
2014 Latest Caselaw 1969 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+             RSA No. 68/2014 & CM Nos. 4070-71/2014 (Delay),
              4072/2014 (Exemption)

%                                                        21st April, 2014

SMT. VIDYAWANTI WADHWA (NOW DECEASED)
THROUGH LRS.                               ....Appellant
                 Through: Mr. Dinesh Chander Yadav, Advocate


                          VERSUS

SH. PARMESHWARI LAL & ORS.                         ...... Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

CM No. 4072/2014 (Exemption)

Exemption allowed subject to just exceptions.

CM Nos. 4070/2014 and 4071/2014 (for condonation of delay)

For the reasons stated in the applications, the delay in filing and re-

filing the appeal is condoned.

The applications are disposed of.

RSA No. 68/2014

1. This second appeal is filed against the concurrent judgments of the

courts below; of the trial court dated 23.3.2012 and of the first appellate

court dated 25.7.2013; by which the suit of the appellant/plaintiff stands

rejected under Order 7 Rule 11 CPC. The subject suit is a suit seeking

declaration, manadatory and permanent injunction with respect to the

property No. A-18, Lajpat Nagar, New Delhi. Appellant/plaintiff claimed

rights in this property by virtue of an agreement to sell dated 9.2.1971

executed in her favour by Sh. Durga Dass with late Sh. Girdhari Lal

Wadhwa. Sh. Girdhari Lal Wadhwa died on 23.3.1981 leaving behind the

appellant/plaintiff as his legal heir. Appellant/plaintiff thus claimed rights in

the suit property on the basis of agreement to sell and the Will, both dated

9.2.1971, executed in favour of late Sh. Girdhari Lal Wadhwa by the

original owner Sh. Durga Dass.

2. Trial court rejected the suit plaint by holding that appellant/plaintiff

had only filed a suit for declaration valuing the suit at Rs. 200/- for the relief

of declaration and Rs. 130/- for the relief of permanent injunction and since

vacant peaceful possession was claimed, the suit without paying court fees

was not maintainable. Trial court also relied upon Section 41(h) of the

Specific Relief Act, 1963 to hold that the suit was not maintainable when

equally efficacious remedy was available. Though, what is the equally

efficacious remedy is not stated, however, actually it would mean filing of a

suit for specific performance by the appellant/defendant and/or a suit for

possession. Trial court has also rejected the plaint on account of an order

passed by this Court on 19.5.1993 in CWP No.1274/1982 titled as Sohan

Singh Vs. Union of India whereby the suit property was transferred in

favour of Sh. Pritam Lal defendant no. 7, respondent no.2 herein way back

in September 1994 by a conveyance deed being executed in favour of

defendant no. 7/respondent no. 2.

3. The first appellate court has taken an additional line of reasoning in

rejecting the plaint by holding that appellant/plaintiff as also her predecessor

failed to pay the balance consideration under the agreement to sell dated

9.2.1971, and therefore, no rights can be claimed by the appellant/plaintiff in

the suit property. This has been observed in the following words by the

appellate court:

"21. Appellants have claimed the title to the suit property through will dated 09.02.1971 of Sh. Durga Dass executed in favour of Sh. Girdhari Lal. Appellants have filed the copy of the same before Ld. Trial Court for deciding an application under Order 7 Rule 11 CPC the documents filed by the plaintiff/appellant herein are deemed to be correct and valid. In the said will Sh. Durga Dass has bequeathed suit property to Sh. Girdhari Lal. According to the terms of the will, Durga Dass has stated that he has sold the suit property to Girdhari Lal and

as it is late to take sale permission of the suit property, Durga Dass executed agreement to sell in favour of purchaser or in anyone to whom purchaser wanted to transfer. It was further stated that Girdhari Lal shall become the owner of the suit property and will obtain the rights of the executants. It is further stated that in case Girdhari Lal pre-deceases Durga Dass then his legal heirs shall become the owner of the suit property. It is further stated that Durga Dass and his legal heirs will have no concern with the suit property but Girdhari Lal shall pay the remaining amount of the suit property to legal heirs of Durga Dass and the will should be affected after making the remaining payment to legal heirs of Durga Dass. A perusal of these terms clearly reveals that the will was to become operative only if Girdhari Lal would have paid the remaining amount to legal heirs of Durga Dass. It is an admitted fact that Girdhari Lal died on 23.03.1981. No payment of the remaining amount was made by Girdhari Lal during his life time to Durga Dass. It was only after his death that the appellants approached respondent no.1 the legal heir of Durga Dass for paying the balance amount and as late as on 15.02.1997 the efforts were made to make this payment. Even otherwise since Girdhari Lal did not comply with the condition of paying the remaining amount to legal heirs of Durga Dass, the dated 09.02.1971 never became effective/ operative. It was only in case of Girdhari Lal pre- deceasing Durga Dass that the appellant would have succeeded to suit property under the terms of the Will. It is pertinent to note that the payment of remaining amount was not postponed or deferred as a liability which the legal heirs of Girdhari Lal had to discharge. The liability was of Girdhari Lal alone and there is not averment that Grdhari Lal made the payment during lifetime or after death of Durga Dass. Since the will did not become effective, the suit property was not bequeathed in favour of Girdhari Lal not in favour of legal heirs as admittedly Gridhari Lal did not pre-decease Durga Dass. Thus the plaint does not disclose any cause of action against the respondents."

4. In my opinion, no substantial question of law arises for entertaining

this appeal under Section 100 CPC, inasmuch as the suit as framed for

declaration and injunction was not maintainable because rights were claimed

in the suit property only on the basis of an agreement to sell and Will,

though neither the appellant/plaintiff nor her predecessor-in-interest late Sh.

Girdhari Lal Wadhwa came into possession of the suit property. In such

circumstances, appellant/plaintiff had to file a suit for specific performance

for the agreement to sell dated 9.2.1971 and in any case at least a suit for

possession with respect to suit property. Not only the suit was not filed for

specific performance or possession but also the suit was not properly valued

for the purposes of court fees and jurisdiction. It is further to be noted that

once a conveyance deed was executed in favour of defendant no.

7/respondent no. 2 unless and until the title in favour of defendant no.

7/respondent no. 2 was cancelled and a conveyance deed executed in favour

of the appellant/plaintiff, the suit as framed would not be the correct suit for

claiming the real relief which the appellant/plaintiff claims to be entitled to.

In my opinion, the suit for specific performance of the agreement to sell

dated 9.2.1971 would be barred by limitation as the subject suit was filed in

the year 1997 i.e more than 26 years after entering into of the alleged

agreement to sell. Even the claim on the basis of the Will dated 9.2.1971

would be barred by limitation inasmuch as the predecessor-in-interest of the

appellant/plaintiff late Sh. Girdhari Lal Wadhwa died way back on

23.3.1981 and the suit was filed in the year 1997. Thus, looking at it from

any angle; as to the form of the suit's appropriate cause of action not being

pleaded and appropriate relief not being prayed; suit not being valued

properly for the purposes of court fees and jurisdiction and appropriate court

fees not being paid; and finally of the suit quite clearly barred by limitation,

the courts below have correctly rejected the suit under Order 7 Rule 11 CPC.

I would like to add that such a suit is liable to be dismissed by additionally

exercising powers under Order 12 Rule 6 CPC on the admitted facts.

5. In view of the above, there is no merit in the appeal, and the same is

therefore dismissed, leaving the parties to bear their own costs.

APRIL 21, 2014                                     VALMIKI J. MEHTA, J
godara