Delhi High Court
Mrs. Gurnam Kaur vs Sh. Pritam Singh Bhatia on 4 August, 2014
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on: 4th August, 2014
+ I.A.18838/2013 (u/s. 151 CPC for directions) in CS(OS) 1350/1995
MRS. GURNAM KAUR ..... Plaintiff
Through Mr. Manish Vashisht Advocate with
Mr. Sameer Vashisht, Advocate
versus
SH. PRITAM SINGH BHATIA ..... Defendant
Through Mr. Vijay K. Gupta, Advocate
for D-1.
Mr. Abhay Pratap Singh, Advocate
for D-5.
Mr. Arun Birbal, Advocate for
D-6 to D-8.
Dr. N. Pradeep Sharma, Advocate for
proposed Defendant.
CORAM:
HON'BLE MR. JUSTICE G.P. MITTAL
1.
By virtue of this order, I propose to dispose of this application
preferred by Defendant No.1 under Section 151 of the Code of Civil
Procedure, 1908 (CPC) with the following prayers:-
(a) Applicant/Defendant No.1 and legal heirs of Defendant No.2
may kindly be permitted to file written statement and
documents in support of their claim;
(b) Proceedings under the Contempt of Court Act, 1971 may kindly
be initiated against the contemnors as detailed and described in
the present application for their fraudulent acts;
(c) The offences committed by contemnors under the Indian Penal
Code, 1860 (IPC) may kindly be referred to CBI or other
investigating agency for needful investigation in the matter as
this Hon'ble Court deems fit and proper; and
(d) Pass any other/further order(s) which this Hon'ble Court deems
fit in the facts and circumstances of the present case.
2. A suit for cancellation of the sale deeds dated 05.08.1991, purported to
have been executed by Late Sardar Sajjan Singh, husband of the
Plaintiff, was filed by her on the ground that her husband Late Sardar
Sajjan Singh had purchased two plots of land bearing nos.D-1/20 and
D-1/21, Rajouri Garden, New Delhi, admeasuring 458 and 373 sq.yds.
respectively by virtue of Sale Deed dated 12.09.1956. He was in
possession of the plots during his lifetime. He died on 18.04.1972.
During his lifetime, Late Sardar Sajjan Singh also executed a Will
dated 26.09.1961 which was probated in the High Court in Malaysia at
Kuala Lumpur on 24.10.1972 and the probate was granted in favour of
the Plaintiff by an order dated 31.12.1973. The plots in question stood
vested in favour of the Plaintiff and she had been in possession and
enjoyment thereof till date without any impediment or interruption.
The Plaintiff's version is that in February, 1993, the Plaintiff initiated
steps for mutation of her name in the records of the MCD so as to
clear the municipal taxes. The concerned officer of the MCD
postponed the matter on one pretext or the other and refused to grant
any hearing to the Plaintiff's attorney/representative. Ultimately, the
Plaintiff's representative was told that mutation of the property had
already been effected in the name of Defendants no.1 and 2 on the
basis of certain sale deeds executed in their favour. On further
inquiries from the office of the Sub-Registrar, the Plaintiff came to
know that Defendants No.1 and 2 vide registered sale deeds dated
05.08.1991, purportedly executed by Late Sardar Sajjan Singh had got
transferred the earlier stated two plots in their favour.
3. The sum and substance of the suit is that Late Sardar Sajjan Singh had
died in the year 1972, that is, much before the execution and
registration of the sale deeds in the year 1991. The sale deeds got
executed in favour of Defendants no.1 and 2 were forged ones.
4. It is averred that Defendant no.1 had also filed a civil suit being
CS(OS) No.3384/1990 on the basis of a General Power of Attorney,
purported to have been executed in his favour by Late Sardar Sajjan
Singh, who was alleged to be his wife's uncle and it was pleaded that
the premises were occupied by two tenants and that the same was
being purchased along with tenants. In the said civil suit, Defendants
No.3 and 4 in their application under Order XXXIX Rule 4 CPC had
although falsely but all the same mentioned that Late Sardar Sajjan
Singh had died in Malaysia in the year 1984. Therefore, even if
Defendants no.1 and 2 were to be bona fide purchasers, they would
have never got the sale deeds executed in their favour. It is the case of
the Plaintiff that Defendants No.6 to 8 claimed to possess sale deeds in
respect of the earlier stated plots from Defendants no.1 and 2. The
Plaintiff thus, prayed for a decree of declaration that she was the
absolute owner and in possession of the properties, D-1/20 and D-
1/21, Rajouri Garden, New Delhi. Apart from various other reliefs, the
Plaintiff claims:-
(a) a decree against Defendants no.1 and 2 for cancellation of Sale
Deed dated 05.08.1991 registered in the office of the Sub-
Registrar;
(b) a decree against Defendants no.6 to 8 for cancellation of the
Sale Deeds registered on 06.04.1995, 03.08.1995, 19.04.1995
and the sale deed awaiting registration and for direction to
Defendants no.6 to 8 to deliver up the Sale deeds to the
Plaintiff.
5. In the instant application filed by Defendant no.1 (Defendant no.2,
who is the son of Defendant no.1 is stated to have expired on
03.02.2003 and his death certificate has been placed along with copy
of this application as Annexure D-1), Defendant no.1 alleges that the
summons/notice of the suit were never served upon Defendants no.1
and 2. The suit was dismissed in default on 09.01.2007, publication of
the notice of restoration was done in certain newspapers but notice of
restoration was never served upon them. It is stated that the plaint was
amended on 02.03.1998 but no notice of the amended plaint was
served upon Defendants no.1 and 2. The case of Defendant no.1 is
also that all the Defendants except Defendant no.1 and 2 colluded and
connived with each other to bring the present suit for claiming
purported reliefs. It is averred that as a part of the conspiracy,
Defendants no.1 and 2 have been kept away from the present
proceedings intentionally and fraudulently in order to get a favourable
order in detriment to the interests of Defendants no.1 and 2 (Defendant
no.2 now deceased).
6. According to Defendant no.1, Defendants no.1 and 2 had never
executed any Power of Attorney in favour of Mr. S.K. Bhatia,
Advocate and he was never authorised by them to appear in the suit.
It is averred that said Mr. S.K. Bhatia even went on to file written
statement dated 02.12.2002 whereas Defendants no.1 and 2 could not
have filed any such written statement. It is averred that Defendant
no.2 has expired leaving behind a widow, a son and two daughters and
no steps were taken for substitution of his legal heirs.
7. It is claimed that in the last week of May, 2013, Defendant no.1 came
to Delhi in connection with some work and during his visit to the suit
property, it was discovered that some unscrupulous persons have
ulterior aim and evil eye on the suit property. It was further learnt that
such unscrupulous persons are litigating in the Court claiming
themselves to be the purchasers of the suit property with malafide
intention on the basis of forged and fabricated documents.
8. The application has been contested by the Plaintiff by way of filing a
reply. The plea set up by the Plaintiff is that several attempts were
made to serve summons upon Defendants no.1 and 2. Summons were
sent through the Senior Sub-Judge, Amritsar, Dasti also. The clerk of
the counsel for the Plaintiff also accompanied the Bailiff in the Court
of Senior Sub-Judge, Amritsar but Defendants no.1 and 2 kept away
and therefore, they were served by publication dated 14.03.1997 in
prominent newspapers, that is, Indian Express, New Delhi Edition,
Indian Express, Chandigarh Edition, Punjab Kesari, Jalandhar Edition
and Punjab Kesari, Delhi Edition.
9. It is stated that a number of lawyers including Ms. Sushma Juyal and
Ms. Meenakshi Dogra had filed their vakalatnama on behalf of the
Defendants and many other Advocates appeared on behalf of
Defendants no.1 and 2.
10. I have heard Mr. Manish Vashisht, Advocate for the Plaintiff and Mr.
Vijay K. Gupta, Advocate for Defendant no.1, who is the applicant
herein and has also informed that Defendant no.2 has since expired.
11. At this moment, it will be apposite to refer to the various orders passed
by this Court from 26.05.1995 till 20.02.1997. A number of attempts
were made to serve Defendants no.1 and 2 by registered post and
ordinary process. On the summons issued on 26.05.1995, one Boota
Singh, at the given address reported that Defendants no.1 and 2 had
shifted to Kang Poultry Farm, Sector 38, Chandigarh. Summons dated
20.07.1995 were then attempted to be served at the address of Kang
Poultry Farm. One person by the name of Amrik Singh, who was
owner of Kang Poultry Farm informed them that there was no such
poultry farm named King Poultry Farm. The summons were then sent
on 16.11.1995 when it was reported that Defendant no.2 has left the
residence. Again summons were issued on 12.12.1996 which reported
that Defendants no.1 and 2 are not residing there. Similarly, on
04.03.1997, summons were received back unserved and thus, an
application for substituted service dated 17.10.1995 was moved by the
Plaintiff. By an order dated 01.02.1996, the application was kept
pending and as stated above, further attempts were made to serve
Defendants no.1 and 2 by ordinary process till 26.05.1997. Even
when the application for substituted service was moved, the learned
Joint Registrar had taken care to get the publication done in the
prominent newspapers in circulation in Delhi as well as in Punjab.
Thus, the publication of summons was done in Indian Express, New
Delhi Edition, Indian Express, Chandigarh Edition, Punjab Kesari,
Jalandhar Edition and Punjab Kesari, Delhi Edition on dated
14.03.1997.
12. A number of Advocates put in appearance on behalf of Defendants
no.1 and 2 from 03.03.1998 till 28.01.2005. I would extract the same
as under:-
Date Counsels Defendants
03.03.1998 Ms. Sushma Juyal For D1 and D2
07.09.1998 Ms. Anu Mehta For D1 and D2
03.02.1999 Ms. Pinki Anand For D1 and D2
07.05.1999 Ms. Anu Mehta For D1 and D2
01.09.1999 Ms. Anu Mehta For D1 and D2
26.05.2000 Ms. Reema Khurana For D1 and D2
05.09.2000 Ms. Divya Tiwari For D1 and D2
18.10.2001 Ms. Meenakshi Dogra For D1 and D2
19.04.2002 Ms. Meenakshi Dogra For D1 and D2
10.10.2002 Ms. Pinki Anand For D1 and D2
12.12.2002 Ms. Meenakshi For D1 and D2
13.08.2003 Ms. Shashi For D1 and D2
03.12.2003 Ms. Shashi Tripathi For D1 and D2
06.08.2004 Ms. Kiran Arora For D2 only
12.08.2004 Ms. Kiran Arora For D2 only
12.10.2004 Ms. Kiran Arora For D2 only
28.01.2005 Mr. H.K. Sharma For D2 only
13. In the application, although Defendant no.1 has stated that he never
authorised Mr. S.K. Bhatia, Advocate but there is no specific averment
that the Advocates mentioned earlier (in the table) were never
authorised to appear. Since Defendants no.1 and 2 claim execution of
four sale deeds by Late Sardar Sajjan Singh in their favour in the year
1991, they ought to have been in possession of the original Sale deeds,
if they had really purchased the suit property.
14. This Court by orders dated 28.01.2014, 27.03.2014 and 01.05.2014
asked Defendant No.1 (applicant herein) to produce the original sale
deeds dated 05.08.1991 in the Court. Since the sale deeds were not
produced on 27.03.2014, last opportunity was granted to them to
produce the sale deeds on the next date, subject to payment of costs of
Rs.20,000/-. On 01.05.2014, although costs were paid, but further time
was sought to produce the Sale deeds. By this time, Defendant no.1
never informed the Court that Defendant no.1 is not in possession of
the original sale deeds or that the same have been lost, misplaced or
have been fraudulently obtained by anybody.
15. During the hearing of arguments, the learned counsel for Defendant
No.1 has handed over a copy of the FIR No.1 2 3 registered in Police
Station SAS Nagar, Punjab on 09.06.2014. In the FIR a story has
been setup that these sale deeds were handed over to one R.K.
Tandon, to get some prospective buyer. It is stated in the FIR that
"Since he was close to my son, by reposing faith in him I handed over
to him the aforesaid original sale deeds with the hope that he will
return the same. After few days, I requested to him to return the sale
deeds but he disclosed that the same have been handed over to my son
Paramjit Singh, since deceased. On inquiry from my son he said that
he has not received the same from him. When contacted, Sh. R.K.
Tandon, he claimed that he had returned the same to my son but
because of him being alcoholic he must have misplaced the same. I
have no other option but to report the same to the police by lodging a
DDR with regard to the misplacing of the aforesaid sale deeds and I
published a public notice in the newspaper. But still I was unable to
digest the story/pretence concocted by the aforesaid Sh. R.K. Tandon
that the sale deeds had been handed over to my son. Recently I have
been approached be one Rajinder Singh, resident of Patiala saying
that my two plots lying vacant in New Delhi and he inquired from me
as to whether I am interested to sell the same. On my inquiry he
disclosed that he came to know about my ownership of the aforesaid
plots from Sh. R.K. Tandon, property dealer who in order to satisfy
him showed him the original sale deeds of the aforesaid plots."
16. It is improbable may unbelievable that valuable original title
documents would be handed over by Defendant no.1 to a property
dealer in the year 1993 to find out a customer and a person will keep
quit for over two decades. The four sale deeds dated 05.08.1991 are
for a consideration between Rs.1,75,000/- - Rs.1,80,000/- each. In the
year 1991, a sum of Rs.7 lacs was not a small amount. How much
payment was made in cash, how much by cheque and how much by
pay order has not been mentioned in these sale deeds.
17. Not only this, the sale deeds dated 05.08.1991 could not have been
executed by Late Sardar Sajjan Singh in the year 1991 as he had
already expired on 18.04.1972. All the more, Defendant No.1 should
also have been in possession of the previous documents of title, that is,
Sale deed dated 12.09.1956. The learned counsel for Plaintiff and
Defendant No.1 were directed to produce the sale deed dated
12.09.1956 in the Court within seven days.
18. The learned counsel for the Plaintiff has been able to produce the sale
deed on 28.07.2014 but Defendant No.1 has failed to produce the
same. Obviously, how could he do so when he is not in possession
thereof? Yet, from production of the sale deed dated 12.09.1956, it is
established that Defendant No.2's plea that the sale deeds dated
05.08.1991 were handed over to one R.K. Tandon has to be taken with
a pinch of salt.
19. For the purpose of deciding this application, I ought not to have gone
into all these questions in detail. This is only to show a palpably false
claim raised by and on behalf of Defendants no.1 and 2. Suffice it to
say that several attempts were made to serve Defendants no.1 and 2 by
ordinary process and that having failed, Defendants no.1 and 2 were
ordered to be served through publication in reputed newspapers. They
failed to put in appearance. They failed to show sufficient cause that
they did not receive the publication. Curiously, Defendant No.1 has
given his address as resident of 679, Gali Pipalwali, Maan Singh
Chowk, Amritsar, Punjab in the sale deeds dated 05.08.1991
propounded by him which are sought to be cancelled by way of instant
suit. The application is completely silent as to when Defendants no.1
and 2 shifted from the address as mentioned in the sale deeds which
has also been mentioned in the memo of parties filed in the suit.
20. It is also very strange that though Defendants no.1 and 2 were
interested in resale of these plots since the year 1993 and had also
given the original documents (as claimed by Defendant no.1 in the
FIR) to a property dealer R.K. Tandon, but strangely enough they
could not find any customer for more than 20 years.
21. In the application, it is claimed that in the last week of May, 2013
Defendant no.1 came to Delhi in connection with some work and
therefore, visited the suit property and then it was discovered that
some unscrupulous persons had an evil eye on the suit property and
wanted to usurp the same. The source of this information has also not
been stated by Defendant no.1 (the applicant herein).
22. Suffice it to say that Defendants no.1 and 2 were aware of the
proceedings. They were avoiding the process of the Court and were
therefore, served by publication.
23. I am of the considered opinion that Defendants No.1 and 2 did pass on
instructions to some Advocate to put in appearance but did not execute
proper vakalatnama lest they may be caught. The application under
Section 151 CPC moved Defendant no.1 (applicant) to join the
proceedings is bereft of any merit; the same is accordingly dismissed.
24. The matter seems to be very serious as there are certain unscrupulous
people who are trying to play with the valuable property assuming that
its owner is settled abroad and misusing the process of the Court. The
applicant (Defendant No.1) himself made a request for referring the
matter for investigation to the CBI.
25. In the facts and circumstances of the case, the Commissioner of
Police, Delhi is required to register an FIR within a period of seven
days and to depute a responsible officer to carry out investigation on
urgent basis. The investigation shall be supervised preferably by an
officer not below the rank of DCP, working in EOW of Delhi Police.
26. The status report shall be filed in the Court on or before 16.09.2014.
(G.P. MITTAL)
JUDGE
AUGUST 04, 2014
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