Pratap Singh And Ors vs Jagjeewan
2014 Latest Caselaw 733 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 FAO No. 136/2013
%                                                    7th February, 2014
PRATAP SINGH AND ORS                                       ..... Appellants
                          Through:       Mr. Vikram Nandrajog and Mr.
                                         Sushil Jaswal, Advs.

                          versus

JAGJEEWAN                                                 ..... Respondent

                          Through:       Mr. Jitender Dewan, Adv. for Mr.
                                         Deepak Dewan, Adv.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

CM. No. 16496/2013(under Order 22 Rule 3 CPC)

For the reasons stated in the application, this application is allowed

and the LR of Smt. Krishna Devi, appellant no. 4 (1), are brought on record,

and who is otherwise on record.

CM stands disposed of.

FAO 136/2013

1. This appeal is filed by the defendants in the suit impugning the order

dated 04.03.2013 by which the application under Order 39 Rules 1 and 2

CPC filed by the respondent herein, and plaintiff before the trial court, was

FAO No. 136/2013 Page 1 allowed by directing status quo during the pendency of the suit. A Local

Commissioner has also been appointed by the impugned order.

2. On behalf of the appellant it is argued that the impugned order is not

only wholly illegal and perverse in granting interim orders during the

pendency of the suit, in fact the suit had to be dismissed on the principles

laid down in Section 11 and Order 23 Rule 1 CPC in as much as various

other suits/litigations with respect to the same suit property, which were

filed by the respondent herein, were either withdrawn or dismissed. It is

argued that the trial court noted this submission of the defendants/appellants

in the impugned order, but, it did not at all consider the effect of dismissal/

withdrawal of the earlier litigations, and which barred the respondent from

filing the present suit in which the interim order have been passed. Learned

counsel for the appellant also argues that the respondent did not file any

documents whatsoever before the courts below showing that he or his

predecessor in interest asserted an open and hostile title by claiming

ownership of the property by adverse possession. It is argued that possession

howsoever long is not adverse possession. It is also argued that the gift deed

which is relied upon by the respondent/plaintiff is not only forged and

fabricated document, but also since admittedly it was not a registered

FAO No. 136/2013 Page 2 document, no title was passed under the said document.

3. Learned counsel for respondent in reply argues that since the

respondent/plaintiff is shown to be in long possession the impugned order is

correct and the appeal be dismissed.

4. In my opinion the impugned judgment clearly is grossly perverse and

in effect gives a stamp of approval to the wholly illegal suit filed by the

respondent/plaintiff. I fail to understand that how can trial court ignore the

factum of many earlier litigations filed by the respondent herein with respect

to same suit property claiming the same or more or less the same rights and

which suits were either unconditionally withdrawn or were dismissed, and

the trial court can gloss over this aspect and hold the suit not only to be

maintainable but grant an interim injunction with respect to the suit property

which is extremely valuable and is a huge area of approximately 10,000 sq.

yards situated in Kali Pahari, Village Sidhora Khurd, New Baba Faridpuri,

West Patel Nagar, New Delhi.

5. The two earlier suits which were filed by the respondent/plaintiff are

Suit Nos. 1006/1999 and 228/2009. These suits are stated in para-4 of the

impugned judgment. In fact this para of the impugned judgement also

shows that Suit No. 228/2009 was dismissed with the costs of Rs. 12,000/-.

FAO No. 136/2013 Page 3 The third suit for injunction bearing Suit No. 302/2007 was also disposed of

against the respondent by rejecting the plaint by the order of 09.01.2013 of

the concerned court. Though the counsel for the respondent/plaintiff states

that an appeal is pending, that aspect is not available by means of documents

either on the record of this Court or of the court below. In any case,

pendency of the appeal cannot take away the factum of two earlier suits

being withdrawn/dismissed. The respondent/plaintiff had also filed two

other petitions before the Rent Controller which were also dismissed as

withdrawn at the stage of evidence.

6. In the opinion of this Court, if ever there was a litigation showing

abuse of process of law, the present suit filed by the plaintiff is one such

litigation. Respondent/plaintiff is not at all stopping in his process of

somehow or the other grab/continue to illegally occupy 10,000 sq. yards of

land situated in the heart of Delhi and in spite of being unsuccessful in

various earlier litigations. Order 23 Rule 1 CPC says that on the same cause

of action a fresh suit cannot be filed when the earlier suit stands withdrawn.

When a judgment is passed rejecting the plaint on the account of the same

lacking cause of action then the decree so passed is appealable under Section

2(2) read with Section 96 CPC and if no appeal is filed then the earlier

FAO No. 136/2013 Page 4 judgment will get the flavour of finality on principle akin to Section 11

CPC. Filing of repeated litigations by the respondent/plaintiff in the facts of

the present case amounts to overreaching the court, more so because, even if

for the sake of argument the gift deed which is relied upon by the

respondent/plaintiff with respect to the suit property in favour of

respondent's father by the original owner Sh. Tara Chand is assumed to be

correct; though the same is disputed as forged and fabricated on behalf of

the defendants; since admittedly the said gift deed is not a registered

document, therefore, no title to the respondent/plaintiff or his predecessor

can be passed in terms of the unregistered gift deed under Section 17 (1) (a)

read with Section 49 of the Registration Act.

7. In view of the above, impugned order is set aside to the extent it

grants status quo and appoints a Local Commissioner. Not only the interim

orders granted by the impugned judgment is set aside, I would have in fact

dismissed the suit itself as not maintainable in view of the fact that the

impugned order also dismisses the application which was filed by the

appellants/defendants under Order 7 Rule 11 CPC by referring to the earlier

dismissed litigations initiated by the respondent/plaintiff, however, I am not

doing so because I am informed that the impugned order rejecting the

FAO No. 136/2013 Page 5 application of the appellants/defendants under Order 7 Rule 11 CPC has

already been challenged by them by means of filing of a Civil Revision

Petition under Section 115 CPC in this Court being CRP 126/2013.

8. Accordingly, this appeal is allowed with costs of Rs.1,00,000 /-. I am

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

I also note that the Supreme Court in its judgment in the case of

Ramrameshwari Devi & Ors. Vs Nirmala Devi & Ors. (2011) 8 SCC 249

has held that it is high time that in frivolous litigations, exemplary and actual

costs be imposed. Costs be paid within a period of four weeks from today

and shall be the condition precedent for initiation of any fresh litigation with

respect to the suit property by the respondent/plaintiff.

                                               VALMIKI J. MEHTA, J

FEBRUARY 07, 2014/cl




FAO No. 136/2013                                                           Page 6