Smt. Champa Devi vs Sh. Param Ved Goel
2014 Latest Caselaw 6334 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          CM(M) No. 1004/2014
%                                                     1st December , 2014

SMT. CHAMPA DEVI                                          ......Petitioner
                           Through:      Mr. Shekhar Aggarwal and Mr.
                                         Suresh Kumar, Advocates.

                           VERSUS

SH. PARAM VED GOEL                                           ...... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This petition under Article 227 of the Constitution of India impugns the

order of the court below dated 19.7.2014 by which the application of the

petitioner/plaintiff for restoration of the suit which was withdrawn by her on

23.7.2007 has been dismissed after recording of evidence of the

petitioner/plaintiff with respect to whether the petitioner had or had not given

the consent.

2. The court below records that though the case of the petitioner/plaintiff is

that she is an illiterate lady and she did not know that she is appearing in court

and making a statement for withdrawal of the suit but the petitioner/plaintiff

cannot be believed inasmuch as admittedly she asked one advocate Mr. M.

Sultan Siddiqui to appear in her case and the said advocate was not

summoned in evidence by the petitioner/plaintiff to show that she did not

ask her advocate Mr. M. Sultan Siddiqui to withdraw the suit. The court

below also notes that earlier a suit filed for the same property by the plaintiff

was allowed to be withdrawn subject to payment of costs of Rs.2000/- and

thereafter the subject suit was filed. In fact the petitioner/plaintiff personally

appeared before the judge and recorded statement in court for withdrawal of

the suit. The presiding officer of the court hence allowed the

petitioner/plaintiff to withdraw the suit in terms of her statement.

3. The relevant observations made by the court below for dismissing of

the application read as under:-

" A perusal of the entire testimony of AW1 revealed that she deposed contradictory facts in her examination in Chief and cross - examination. She categorically denied to have made any statement before the Ld. Predecessor which is contradictory to the records. The order dated 23/07/2007 passed by Ld. Predecessor clearly demonstrate that the statement of the applicant / plaintiff was recorded by the Ld. Predecessor on 23/07/2007 during Court proceedings qua the withdrawal of the suit. Therefore, the testimony of AW1 is not reliable in this regard.

The applicant / plaintiff also got examined Smt. Neelam Kaler who deposed by way of affidavit Ex. AW2 . She also deposed about engaging Sh. M.S. Siddiqui, Advocate for the purpose of adjournment before date of hearing i.e. 26/07/2007. During her cross-examination AW2, could not remember the name of the Counsel who had prepared

her affidavit Ex. AW2. She admitted that affidavit Ex. AW2/A was already prepared before her visit with said Counsel. She had not met the Counsel prior to preparation of the affidavit, Ex. AW1/A. She further admitted that the affidavit Ex. AW1/A got prepared by the applicant / plaintiff when she visited her.

It is noteworthy that the applicant / plaintiff alleged collusion & connivance between her Counsel and the defendant and also claimed her illiteracy and ignorance to be the reason for making application for withdrawal of the suit, however not a single evidence was led by the applicant / plaintiff to substantiate any such collusion and connivance. Even she did not get Sh. M.S. Siddiqui, Advocate examined as witness in support of her contentions. No plausible explanation could be furnished by the applicant / plaintiff for non- examination of Sh. M.S. Siddiqui, Advocate, who was the material witness to establish her contentions.

8. In the afore-discussed facts and circumstances, I am of the considered opinion that the evidence led by the applicant / plaintiff could not substantiate her stand. Her contentions are found to be contrary to the judicial record. Accordingly, the application Under Section 151 CPC dated 21/08/2007 seeking restoration of the suit is wholly devoid of merit and is accordingly dismissed. File be consigned to Record Room after due compliance."

(underlining added)

4. I completely agree with the aforesaid observations and it is clear that

the plaintiff is deliberately harassing the defendant. The fact that petitioner

has no case becomes clear from paras 3 to 5 of the preliminary objections in

the written statement and which read as under:-

"3. That the Defendant Sh. Param Ved Goel, along with his partner Sh. Ravinder Kumar, purchased the property bearing no.B-1, Acharya Niketan, Mayur Vihar, Phase-I, Delhi-91, measuring 1000 Sq. Yards, hereinafter referred to as the

property in question, from one Sh. Vedraj Gupta in 1984-1987 by way of registered power of Attorney, Sh. Vedraj had purchased the property in question vide registered sale deed dated 29.9.1958 from Mittal Sons Pvt. Ltd. The Khasra Girdawari and Intakal are in the name of Sh. Vedraj Gupta. A copy of the sale deed, Khasra Girdawari and the intakal in favour of Sh. Vedraj Gupta and Power of Attorney dated 04.12.1989 in favour of Sh. Param Ved Goel and his partner executed by Sh. Vedraj Gupta & a few of the House Tax receipts from 1972 till date are attached hereto as Annexure-A collectively, though the Defendant is paying the house tax regularly without any default. The Defendant, Sh. Param Ved Goel, was running a factory in the name of M/s Rashtriya Proofing Bhawan and the same was shifted in terms of the Orders dated 24.11.2000 of the S.D.M. Preet Vihar, Delhi in compliance of the then prevalent Supreme Court Orders pertaining to water pollution. The site plan of the property in question and the orders of the S.D.M attached hereto and are marked as Annexure B (collectively) to the Written Statement. From the last about 6-7 yrs and even at present, there are three tenants namely Gorakh Nath, Nanhe and Jaipal in the property in question and also the Defendant is running the building material business in the said property.

4. That the Plaintiff alleges to have purchased the portion of the Property In Question hereinafter referred to as the 'Suit Property' from one Sh. Mangru. The said Sh. Mangru was a tenant inducted by Sh. Param Ved Goel in respect of two rooms in the property in question. Sh. Mangru was paying monthly rent of Rs.90/- to Sh. Param Ved Goel through Money Orders as well. The said Sh. Mangru had been earlier trying to grab the property in question and a D.D.no. 27 dated 29.11.1989 was also got registered against Mangru. Mangru was evicted by the orders of the then Additional Rent Controller, Sh. N.P.Kaushik in Suit No. E-137/1992 Titled Sh. Param Ved Goel Vs. Sh. Mangru and the tenancy portion was recovered from the Accused Mangru on 01.06.1998 in execution proceedings. The copies of receipts of various money orders, D.D.no. 27 dated 29.11.1989, the eviction order of ARC and a subsequent order

of the Delhi High Court in C.M.(Main) No. 200/1998 Titled Sh. Mangru Vs. Sh. Param Ved Goel are attached hereto and marked as Annexure-C collectively.

5. That after being evicted from the property in question Mangru threatened Sh. Param Ved Goel and his partner of taking revenge but the Defendant did not give a second thought to the threat advanced by Mangru. However, Mangru involved the Defendant in false litigation titled Mangru Versus M.C.D. bearing Suit No. 409/2001 and other alleging therein that the Defendant is raising unauthorized construction on the property in question that has been acquired by the D.D.A. The Respondent D.D.A. in the said litigation replied that D.D.A has no concern with the property in question. The other Respondent in the said suit namely M.C.D. also replied in the same terms. The said suit of Mangru was dismissed in default and the concerned court was informed that the said Sh. Mangru has passed away. Later, Mangru reappeared and on seeking the restoration of the said suit, the court was pleased to impose the cost of Rs.600/- on Mangru. Mangru never paid the same to the Defendant, Sh. Param Ved Goel, and vanished away and the suit was ultimately dismissed. A copy of the suit no.409/2001, the reply by the D.D.A and M.C.D. to the suit are attached hereto for the kind perusal of this Hon'ble Court and the same is marked as Annexure-D." (emphasis is mine)

5. Of course, this court has not to see the merits of the case while

deciding the case of withdrawal however some prima facie view with

respect to the existence of malafides have to be seen and therefore I am of

the opinion that petitioner/plaintiff actually had even no case on merits and

she would have for some reason known to her withdrawn the suit by

recording her statement before the presiding officer of the court and which is

therefore not to be disbelieved.

6. Learned counsel for the petitioner argues that every day gives a fresh

cause of action with respect to suit for possession by placing reliance upon a

judgment delivered by this Court in the case of Mahesh Chand Vs.

Sumnesh Kumar Chaturvedi CM(M) 455/2014 decided on 18.11.2014,

however, this judgment has no application in the facts of the present case

where the defendant in the suit claimed title from the year 1989 and in fact

predecessors of defendant/respondent claimed title from 1972. The subject

suit was filed in the year 2007 (even the earlier suit was filed in 2005) was

therefore barred by Article 65 of the Limitation Act,1963 read with Section

27 of the Limitation Act which provides for extinguishing of title after a

period of 12 years.

7. Dismissed.

DECEMBER 01, 2014                            VALMIKI J. MEHTA, J.
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