Delhi High Court
Smt.Santosh Kumari vs Smt. Sumitra Devi & Ors. on 17 November, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.M.(M) No.540/2011 & C.M.No.9060/2011 (Stay)
% 17th November, 2014
SMT.SANTOSH KUMARI ......Petitioner
Through: Son of the petitioner in person.
VERSUS
SMT. SUMITRA DEVI & ORS. ...... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. The son of the petitioner appears in person and seeks adjournment. I
refuse to grant an adjournment in the facts of the present case, and more so
because this case has already come up for hearing since 06.5.2011 on over a
dozen of hearings.
2. The impugned order which is challenged in the present case is order
dated 11.11.2010 which has dismissed an application seeking review of the
order dated 11.5.2010. By the order dated 11.5.2010, the application filed
by the petitioner/plaintiff for framing additional issues was dismissed.
3. A reading of the impugned order dated 11.11.2010 shows that the
petitioner/plaintiff is deliberately delaying her own case by filing one
application after another. More importantly, the court has already observed
that the existing issues will cover the additional issues which are sought to
be framed by the petitioner/plaintiff.
4. I have prima facie looked at the plaint which is filed by the
petitioner/plaintiff and I feel that the same lets the cat out of the bag as to
why the petitioner/plaintiff is deliberately delaying the suit as also the
present petition.
5. The subject suit has been filed by the petitioner/plaintiff claiming the
following reliefs:-
" (i) the plaintiff is the lawful tenant under the previous owner Shri Des
Raj in respect of the portion of the first floor in property No.1240, Gali
Kaitwali, Mohalla Sangtarashan, Paharganj, New Delhi as duly shown in
red colour in the site plan and duly protected under the Delhi Rent
Control Act.
(ii) a decree for possession passed by the court of Shri D.S.Pawariya,
ADJ, Delhi in R.C.A. No.27/2002, titled Smt.Jasvinder Kaur,..vs..
Smt.Santosh Kumari on 26.4.2003 is nullity, void, unenforceable qua the
tenanted premises of the plaintiff, as the same is without jurisdiction and
not binding upon her in any manner whatsoever and the defendants no.3
has no right or locus standi to execute the said decree.
(iii) the sale deed dated 19.7.1983 executed by Shri Kharaiti Lal in
favour of the defendant No.3 Smt. Jaswinder Kaur in respect of the
portion of the first floor of the property bearing No.1240, Gali Kaitwali,
Mohalla Sangtarashan, Paharganj, New Delhi is a forged, fabricated, null
and void document and it does not confer any right to the defendant No.3
qua the tenanted premises of the plaintiff.
(iv) the sale of the suit property No.1240, Gali Kaitwali, Mohalla
Sangtarashan, Paharganj, New Delhi by said Shri Kharaiti Lal and
others, to the defendant No.3 Smt.Jasvinder Kaur cannot be enforceable
as neither he was having any title in the suit property nor he was
competent to enter into contract of sale of the suit property or let out the
property to any one else.
(v) the defendant No.3 was having no locus standi to file the suit for
possession on the basis of the sale deed dated 19.7.1983 alleged to have
been executed by Shri Kharaiti Lal who was neither competent nor
having any right to sell the suit property or execute the said sale deed in
her favour.
(b) a decree for permanent injunction be passed in favour of the plaintiff
and against the defendants 2 & 3, their agents, family members,
associates, employees and representatives:
(i) from executing the said decree for possession dated 26.4.2003
passed by the learned ADJ, Delhi in respect of the portion of the first
floor of the suit property against the plaintiff in any manner whatsoever.
(ii) thereby also restraining them from taking forcible possession or
interfering in the peaceful possession of the tenanted premises of the
plaintiff as duly shown in red colour in the plan attached without any due
process of law.
(c) costs of suit and
(d) Such other and further relief deemed fit and proper in the
circumstances of the case may also be passed in favour of the plaintiff
and against the defendants."
6. Obviously, the suit seeks setting aside of a decree passed against the
petitioner/plaintiff by the Court of Sh.D.S.Pawariya, ADJ, Delhi in RCA
No.27/2002 titled as Smt.Jasvinder Kaur Vs. Smt.Santosh Kumari with
respect to property no.1240, Gali Kaitwali, Mohalla Sangtarashan,
Paharganj, New Delhi.
7. It is seen that the petitioner/plaintiff was very much a party to the
earlier civil proceedings which culminated in favour of the defendant no.3 in
the suit, but, the petitioner/plaintiff only by uttering the mantra of fraud and
the decree being without jurisdiction has filed the present suit, and only
because of which the petitioner/plaintiff continues to stay illegally in the suit
property although the earlier civil proceeding was decided against the
petitioner/plaintiff and, the first appeal was dismissed and thereafter the
second appeal filed by the petitioner/plaintiff was also dismissed vide order
dated 14.7.2003 by a learned Single Judge of this Court in RSA
No.115/2003 titled as Smt.Santosh Kumari Vs. Jasvinder Kaur. Obviously,
the suit in my opinion prima facie is quite clearly misconceived because if
the suit is allowed to be continued, then it will hit at the basic principles of
res judicata, inasmuch the only averment of cause of action for setting aside
of the decree passed in the earlier civil proceedings is para-17 of the plaint
which is inadequate pleading of existence of a cause of action, and which
reads as under:-
" 17. That the alleged decree of possession passed by the court of Shri
D.S. Pawariya, ADJ Delhi on 26.4.2003 is null and void and cannot be
enforceable qua the tenanted premises occupied by the plaintiff. The
said decree is without jurisdiction. The plaintiff is a lawful tenant in
respect of the portion of the first floor of Property no.1240 since
January, 1971. She cannot be evicted from the said premises on the
basis of the alleged decree for possession, which is no decree in the eyes
of law. The plaintiff has every right to challenge the said decree which
is illegal and without jurisdiction in the present suit."
8. The learned Single Judge of this Court while issuing notice in this
petition on 30.8.2011 i.e about 3½ years back, directed the trial court to
proceed with the matter but judgment was not to be pronounced, and
therefore the petitioner/plaintiff who has filed a suit which is prima facie not
maintainable, is taking advantage of the interim order and continuing to be
in possession of the suit premises in spite of finality of the earlier civil
proceedings.
9. In view of the above, there is no merit in this petition, and the same is
therefore dismissed with costs of Rs.20,000/-, which shall be deposited with
the Delhi High Court Legal Aid Services Committee within a period of one
month from today. Parties are left to bear their own costs.
10. Copy of this order be sent to the concerned trial court.
VALMIKI J. MEHTA, J
NOVEMBER 17, 2014/KA
