Pushpa Rani & Ors. vs Dda
2014 Latest Caselaw 344 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  RSA No. 80/2009
%                                  20th January, 2014
PUSHPA RANI & ORS.                       .....Appellants.
                   Through: Mr. Subhash Chand, Advocate


                          VERSUS

DDA                                                 ...... Respondent.

                          Through:       Mr. Rakesh Mittal and Mr. Kamlesh
                                         Anand, Advocate.

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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This regular second appeal is filed impugning the judgment of the

appellate court dated 11.12.2008 by which the appellate court dismissed the

appeal against the judgment of the trial court dated 29.11.1997. Trial court

had partly decreed the suit by decreeing the relief of injunction but the

prayer of the plaintiff for quashing of the demand was rejected. The effect of

both the judgments is that the suit of the plaintiffs filed for declaration

before the trial court to question the demand raised by the respondent-DDA

for shop no. C-500, Sabzi Mandi, New Delhi upon Sh. Hund Raj,

predecessor-in-interest of the appellants-plaintiffs, stands dismissed but is

decreed so far as the relief of injunction is concerned. The appellate court

has confirmed the judgment of the trial court by making the following

relevant observations in para-18, and which reads as under:

"18. In respect of issue no.1, Ld. Civil Judge has observed that suo-motto revision of the cost from Rs.25,200/- to Rs. 45,034/- appears to be untenable. Apparently, the cost of the alternative plot was not enhanced apart from the cost of Rs.25,200/-, but the interest portion was added and then a consolidation demand of Rs.45,034 was raised. The main case of the appellants before the Ld. Trial Court was that consent of late Sh. Hund Raj should not be considered as free consent as he was forced to withdraw the suit and to accept the enhanced demand by the DDA. It was alleged that Sh. Hund Raj accepted the demand of the DDA with the view to get possession of the shop. In evidence, the plaintiff has examined two witnesses. None of the witness has stated anything material to establish the case that Ld. Hund Raj was forced by the DDA to accept their demand of enhanced price or to withdraw his suit. Merely by a bald statement in this regard, it cannot be accepted that late Sh. Hund Raj was forced or pressurized. After careful consideration of testimony of witnesses, I am convinced that in balance of probabilities, it could not be proved that in fact late Sh .Hund Raj was forced or pressurized. If it would not have been a genuine case as stated by the plaintiffs, late Sh. Hund Raj who was involved in long litigation, could have take steps to challenge the action of DDA and it would have been taken five years to file the present suit. In fact, it could not be proved to convince that late Sh. Hund Raj was in fact forced to pressurized. Moreover, Ld. Trial Judge, while giving his findings on issue no.1, has observed that late Sh. Hund Raj has himself accepted the revised payment as indicated in para 20 of the plaint vide letter dt. 22.3.84 and no steps were taken by him during his lifetime to challenge the same. The process of Law requires finality at some stage or the other. Therefore, the concept of principals of res-judicata and estoppal has been

incorporated in law. Late Sh. Hund Raj not only had withdrawn the earlier suit filed by him but also accepted the enhanced demand made by DDA and still no action was taken for about five years till the filing of the present suit."

(underlining added)

2. Really therefore the issue which now survives for adjudication

in this regular second appeal is the claim of the appellants-plaintiffs of

revision of the cost by the DDA from 25,200/- to Rs.45,034/-. Enhancement

of the amount really is only on account of claim of interest. The trial court

by its judgment while dealing with issue no.1 in para-11 made observations

suo moto of revision of cost being untenable, however ultimately this issue

was found against the appellants-plaintiffs. Para 11 of the judgment of the

trial court reads as under:-

"11. ISSUE NO.1 The case of the defendant in the written statement is that the plaintiff was not offered the shop on the terms and conditions as offered to the original allottees of the old Subzi Mandi but was offered on re consideration as per the terms and conditions as per letter dated 11.6.1981. However, since in the deposition of DW-1, the terms and conditions as signed and forwarded by Shri Hund Raj, have been exhibited by the witness of the defendant as agreed the terms and conditions, it has been contended by the counsel for plaintiff on the basis of the said terms and conditions on the basis of the said terms and conditions which are Ex.DW1/2. However, it may be observed that the offer of the shop, as per letter dated 11.6.1981, was not as per terms and conditions which were forwarded by Shri Hund Raj and exhibited as Ex.DW1/2, as the same has been

specific stand of the DDA in its written statement, though the same have been exhibited as Ex.DW1/2 in the deposition of the witness of the defendant. No discrimination was made to Sh. Hund Raj with reference to the cost qua the earlier allottess since the terms and conditions with regard to the present allotment were different as per letter dated 11.6.1981. It may be observed that the cost of the shop in question was initially offered at Rs.25,200/- as per letter dated 11.6.1981. However, the same was further revised to amount of Rs.45,034/-, as per letter dated 3.10.1981. Shri Hund Raj is stated to have accepted to pay the revised cost without free consent in order to take possession of the shop. The revised cost is stated to have been calculated on the basis of the table Ex.DW1/5, as per the cost arfiwed by the concerned department of the defendant. On the fact of it, the suo moto revision of the cost after offer at Rs.25,200 vide letter dated 11.6.1981 appears to be untenable. The cost could not have been revised vide subsequent letter dated 13.10.1981. The revised offer of the suit shop at a prices of Rs.45,034 could not have been made. However, it may be observed that that Shri Hund Raj himself accepted the revised demand, as indicated in para 20 of plaint vide letter dated 22.3.1984 and no steps were taken by him during his life time to challenge the same. The issue is accordingly decided."

3. Therefore, effectively, both the courts below have dismissed the

challenge led by the appellants-plaintiffs to the demand raised by the DDA

of Rs.45,034/-; by the trial court observing that the revised demand was

accepted; and the appellate court observing appropriately in para 18 as stated

above. Appellate court has however further in para 18 of its judgment

observed that no convincing evidence could be placed to show that late Sh.

Hund Raj was forced and pressurized to accept the revised demand, as no

convincing evidence was led by the appellants-plaintiffs to prove this aspect.

Late Sh. Hund Raj took benefit by taking possession of the suit shop from

the respondent-DDA and thus principle of estoppel was held to apply against

Hund Raj and the appellants-plaintiffs who are the successors-in-interest of

Hund Raj.

4. Learned Counsel for the appellant before me argued that both

the courts below have erred in arriving at the finding that the suit of the

appellants-plaintiffs was delayed because actually late Sh. Hund Raj himself

had filed a suit challenging the demand way back on 22.4.1985, and which

was withdrawn by the appellants-plaintiffs subsequently on account of

defect of not giving the notice under Section 53-B of the Delhi Development

Act, 1957 and liberty was granted to file a fresh suit after giving a notice

under Section 53-B of the said Act, and therefore, the present suit was filed.

It is argued that the present suit actually therefore can be taken as

continuation of the suit filed by late Sh. Hund Raj in April, 1985 and

consequently the courts below were not justified in making the observations

with respect to limitation against the appellants-plaintiffs of the suit being

barred by limitation or that Sh. Hund Raj never challenged the demand. It is

also further argued that before the appellate court appellants had filed an

application under Order 41 Rule 27 CPC for filing documents being the

earlier suit plaint filed by Hund Raj and orders passed therein to show that

the suit filed by Sh. Hund Raj was defective on account of lack of notice

under Section 53-B and was withdrawn with permission to file a fresh suit

vide order dated 11.10.1988 of the concerned civil court and thereafter the

subject suit was filed by the appellants-plaintiffs after giving the notice

under Section 53-B of the Delhi Development Act and hence there is no

delay nor lack of challenge to the demand by Hund Raj as held by the courts

below.

5(i) Counsel for the appellant is correct in arguing that the

application under Order 41 Rule 27 was not decided by the appellate court,

though I must simultaneously also add that if really this application was

pressed and not decided by the appellate court, appellants-plaintiffs ought to

have moved before the appellate court, but be that it may, I am exercising

powers under Order 41 Rule 24 CPC read with Order 42 Rule 1 CPC which

says that in second appeals also the procedure as prescribed under Order 41

shall apply. Therefore, I allow the application of the applicants/defendants

under Order 41 Rule 27 CPC by taking on record the document being the

plaint in the earlier suit filed in April 1985 by late Sh. Hund Raj, which was

withdrawn subsequently in the year 1988. Alongwith the plaint, I also take

on record the copies of the orders which are filed which show that the suit

was filed by late Sh. Hund Raj in April, 1985 and which was withdrawn by

the appellants-plaintiffs because of a technical defect of not serving of a

notice under Section 53-B of the Delhi Development Act.

(ii) The question which now arises is that what then follows. The issue to

be decided is that whether even if the documents which are filed by the

appellants-plaintiffs in the application under Order 41 Rule 27 CPC are

considered, will the suit of the appellants-plaintiffs succeed? I have already

noted the provision of Order 41 Rule 24 CPC above and as per which, an

appellate court can pass a judgment on merits as per the record and which is

necessary to remand the case.

6. By considering the additional documents filed on behalf of the

appellants-plaintiffs, the only result would be that there would be no issue of

limitation or delay against the appellants-plaintiffs, however, the issue will

still remain as to whether the appellants-plaintiffs are entitled to get the

demand of the respondent-defendant with respect to the subject shop

quashed and are they not estopped because Hund Raj by accepting to pay the

demand had taken benefit of taking the possession of the shop from

respondent/DDA. I put it to counsel for the appellants-plaintiffs as to what

was the evidence which was led before the trial court as to coercion being

put upon late Sh. Hund Raj, and only because of that coercion Sh. Hund Raj

is alleged to have accepted the illegal demand. I note that I have already

reproduced para 18 of the judgment of the appellate court and which rightly

holds that alleged coercion against Hund Raj is not proved. In this regard,

counsel for the appellants however argued that no evidence except the

documentary evidence which is filed by the appellants-plaintiffs is required

inasmuch as the document itself shows that the demand raised is illegal and

therefore there was coercion upon late Sh. Hund Raj.

7. I cannot agree. Firstly coercion is a factual aspect and which

can be proved only by leading factual evidence. Secondly, person cannot be

allowed to approbate and re-probate. A person cannot take benefit of a state

of fact i.e of accepting of the higher demand and thereafter taking

possession, and after having the benefit of having taken possession of the

suit shop from the defendant-respondent, thereafter refuse to pay the

enhanced demand on the ground that there was coercion upon Sh. Hund Raj.

If courts permit such an action to manipulate the public authorities, then

every person will take benefit by conceding to a demand, take possession of

the property, and thereafter challenging the demand by not paying the same

and yet continue to stay in possession of the property of which possession is

taken after accepting the demand. Therefore, in my opinion, appellants and

late Sh. Hund Raj were clearly estopped in challenging the demand by the

respondent-defendant as illegal inasmuch as the benefit was taken of taking

possession of the subject shop from DDA. I note that the appellants-

plaintiffs, and before them Late Sh. Hund Raj, have continued to be in

possession of the suit shop from the last 30 years, and which possession of

the suit shop has been with the appellants-plaintiffs without paying the

additional demand.

8. In view of the above, I do not find any merit in the appeal, and

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

JANUARY 20, 2014                              VALMIKI J. MEHTA, J.
ib