Smt. Indu Gulani @ Indu Pahuja & ... vs Sh. Sant Pal Singh
2014 Latest Caselaw 4786 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+
C.R.P No.145/2014 & C.M.Nos.16106/2014 (Exemption), 16107/2014
(Stay)

%                                                   24th September, 2014

SMT. INDU GULANI @ INDU PAHUJA & ANR.           ......Petitioners
                  Through: Mr.S.C.Singhal, Advocate.

                          VERSUS

SH. SANT PAL SINGH                                           ...... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not? Yes

VALMIKI J. MEHTA, J (ORAL)

1. Challenge by means of this petition under Section 115 of the Code of

Civil Procedure, 1908 (CPC) is to the impugned order of the trial court dated

21.8.2014 by which the trial court rejected an application filed by the

petitioners/defendant nos. 2 & 3 for rejecting the plaint under Order VII

Rule 11 CPC on the ground that the suit is barred by time. Before this

Court, it is additionally argued that along with the suit, an application under

Section 5 of the Limitation Act, 1963 was filed, and since there can be no

condonation of delay for filing of a suit, the suit/plaint had to be rejected as

being barred by law of limitation.

2. The facts of the present case are that both the petitioners are

Advocates. The petitioners were representing the father of the respondent/

plaintiff, late Sh.Giri Lal @ Girwar Singh in a suit against a tenant in the

property bearing no.WZ-1646 (previous address WZ-233), Gali Tara

Chand/Gher, Nangal Raya, New Delhi, being part of khasra no.632/462/176

admeasuring 775 sq. yds. The case of the respondent/plaintiff was that on

one date of hearing in the suit filed against the tenant, the

petitioners/advocates suddenly came up with the plea that the father of the

respondent/plaintiff, who had filed the earlier suit against the tenant, had

sold the portion of the suit property to the petitioners/advocates through a

general power of attorney and a Sale Deed dated 28.10.1998. The general

power of attorney holder is the defendant no.3 in the present suit, and the

petitioner no.2 herein. The application under Order XXII Rule 10 CPC

which was filed by the petitioners/advocates in the earlier suit seeking their

substitution in place of the father of the plaintiff/respondent was dismissed

by the court. The father of the respondent/plaintiff took up a specific stand

that the alleged sale deed was bogus, forged and fabricated. The father of

the respondent/plaintiff however subsequently expired on 14.10.2004, and

therefore no further action was taken as regards the forged and fabricated

sale deed.

3. The subject suit was thereafter filed by the respondent/plaintiff, the

son of Sh. Giri Lal, for cancellation, declaration, permanent injunction and

mandatory injunction seeking reliefs with respect to cancellation of the

registered sale deed dated 28.10.1998 executed in favour of petitioner

no.1/defendant no.2 pleading that no general power of attorney was executed

by the father of the plaintiff/respondent in favour of petitioner

no.2/defendant no.3 and on the basis of which petitioner no.2 executed the

sale deed in favour of the petitioner no.1. The petitioner no.1 is the daughter

of petitioner no.2, and as stated above both are Advocates. In the suit further

reliefs have been sought that the petitioners have no rights with respect to

130 sq. yds. of land, which is the subject matter of the sale deed dated

28.10.1998.

4. In my opinion, the impugned order of the trial court has to be

sustained not only because of the reasons which have been given in the

impugned order, but also for the reasons which I am stating in the present

judgment and which reasons I can give in exercise of powers under Order

XLI Rule 24 CPC. Firstly I would like to note that the Supreme Court

recently in the judgment in the case of Suhrid Singh @ Sardool Singh Vs.

Randhir Singh & Ors. (2010) 12 SCC 112 has held that if a person is not a

party to a document i.e document is not admitted to be signed by him, then

in such a case there is no need of seeking relief of cancellation of the

document and it is enough if declaration is sought for. The difference

between seeking relief of cancellation of the document and for declaration as

regards the invalidity of the document has the affect as held by the Supreme

Court on the court fees to be payable in the suit because if the suit is for

cancellation of the sale deed, court fees will have to be paid as per the value

of the sale deed, but in a suit for declaration that the sale deed is void, court

fees has to be paid only on the amount at which relief sought is valued in the

plaint. Besides the aspect of difference in court fees, there is also an aspect

of difference in the period of limitation in a suit for declaration qua

invalidity of the sale deed and in a suit filed for cancellation of the sale deed.

In my opinion, there can be separate periods of limitation which may arise

on different occasions with respect to seeking declaration with respect to the

pleaded invalidity of a sale deed, and cause of action arises qua the plaintiff

when the disputed sale deed/document is sought to be got declared null and

void in the eyes of law.

5. A reading of the plaint shows that there are repeated averments that

the sale deed is a forged and fabricated document i.e the respondent/plaintiff

pleads that the signatures appearing on the sale deed are not the signatures of

his father or on the general power of attorney allegedly executed by the

father in favour of the petitioner no.2/defendant no.3. Once the signatures

on the sale deed/document and the general power of attorney are not

admitted to be of the father of the respondent/plaintiff by pleading that the

deeds/documents are bogus, forged and fabricated, the father is therefore not

admitted to be a party to the document and no suit is required to be filed for

cancellation of the sale deed and the subject suit can therefore be taken as a

suit for declaration claiming invalidity of the sale deed. Consequently, with

respect to the subject suit, and which includes a relief of declaration, as also

the reliefs of injunctions, cause of action will arise as stated in the plaint

when the petitioners/defendant nos. 2 & 3/Advocates sought to assert their

rights qua the respondent/plaintiff in the suit with respect to the suit property

admeasuring 130 sq. yds. Therefore, really the application which was filed

under Section 5 of the Limitation Act, in my opinion was not at all necessary

and was superfluous. No doubt, there can be no condonation of delay for

filing of the suit, but in the facts of the present case, it is clear that the suit

filed appears to be very much within limitation, and in any case, limitation in

the facts of the present case is a mixed question of fact and law i.e as to

when the cause of action arises with respect to the rights which are sought in

the suit and the reliefs claimed in the suit, and as so held by the trial court in

the impugned judgment.

6. There is an important aspect which I would like to note that in this

petition the petitioners have very conveniently not filed a copy of the general

power of attorney allegedly executed by the father of the respondent/plaintiff

in favour of the petitioner no.2/defendant no.3. Also, the sale deed dated

28.10.1998 which is sought to be relied upon by the petitioners has not been

filed. In my opinion, this deliberate concealment is because obviously in the

general power of attorney, no consideration would have been shown to have

been received by means of a cheque by the father of the respondent/plaintiff,

also on the basis of an unregistered power of attorney a sale deed cannot be

legal vide Sections 32 & 33 of the Registration Act, 1908 and if the General

Power of Attorney in favour of the petitioner no.2, allegedly executed by Sh.

Giri Lal is unregistered then the sale deed registered in favour of the

petitioner no.1 is illegal and void. Clearly therefore, the entire set of

documents, prima facie, appear to have been created to defraud the father of

the respondent/plaintiff by the persons who were holding a position of trust

qua the father of the respondent/plaintiff because the petitioners were

Advocates and representing the father of the respondent/plaintiff in a suit

filed by the father of the respondent/plaintiff against a tenant in part of the

suit property. All these aspects require trial and the plaint hence cannot be

rejected under Order VII Rule 11 CPC.

7. In view of the above, there is no merit in this petition, and the same is

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

8. Copy of this judgment be sent to the trial court by special messenger.

VALMIKI J. MEHTA, J SEPTEMBER 24, 2014 KA