Rakesh Jain vs Mithilesh Mishra & Ors
2016 Latest Caselaw 3672 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of decision: 17th May, 2016

+                            RFA No. 249/2016
       RAKESH JAIN                                         ..... Appellant
                          Through:     Mr. Himal Akhtar, Adv.
                                Versus
       MITHILESH MISHRA & ORS                               ..... Respondents

Through: None.

CORAM:-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. The appeal impugns a judgment and decree of the Court of the

Additional District Judge (ADJ)-02 (East), Karkardooma Courts, Delhi of

dismissal of CS No.2067/16 filed by the appellant (i) for declaration that the

irrevocable General Power of Attorney (GPA) dated 24th June, 2004 allegedly

executed by the respondent/defendant no.3 Smt. Jaspal Kaur in favour of

respondent/defendant no.1 Smt. Mithilesh Mishra regarding property

no.X/3458A/2, Gali No.2, Raghuvar Pura No.2, Gandhi Nagar, Delhi - 110

031 is illegal, null and void; and, (ii) for permanent injunction restraining the

respondent/defendant no.1 from dealing with the property, consequent to

rejection under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (CPC) of

the plaint on the ground of the relief claimed therein on the basis of averments

in the plaint itself not disclosing a cause of action in favour of the

appellant/plaintiff and being barred by time.

2. Having gone through the paper book and being prima facie of the view

that there is no merit in the appeal, the counsel for the appellant/plaintiff has

been given ample opportunity to address on the appeal.

3. The appellant/plaintiff instituted the suit from which this appeal arises

pleading (i) that the appellant/plaintiff is an old tenant in the aforesaid property

under the respondent/defendant no.3 who is the owner/landlord of the

appellant/plaintiff and some other tenants in the property; (ii) that the

appellant/plaintiff had paid up-to-date rent to the respondent/defendant no.3;

(iii) however the respondent/defendant no.3 started refusing to accept the rent

compelling the appellant/plaintiff to deposit the rent under Section 27 of the

Delhi Rent Control Act, 1958; (iv) that the respondent/defendant no.1 served

notices dated 25th September, 2004 on some of the other tenants in the property

claiming herself to be the owner of the property and asking for rent thereof; (v)

however upon the other tenants asking the respondent/defendant no.1 to furnish

proof of her ownership, she failed to do so; (vi) that the appellant/plaintiff

came to know that the respondent/defendant no.1 has purchased the property

from the respondent/defendant no.3 in the sum of Rs.6 lacs when the market

value of the property was not less than Rs.10 lacs and the appellant/plaintiff

was also ready to purchase the property in the said amount; (vii) complaint

dated 5th August, 2004 was made to the respondent / defendant no.2 Sub

Registrar (East) of undervaluation of the property but no action was taken;

(viii) that on 2nd August, 2009 the respondent/defendant no.1 along with the

notice to one of the tenants in the property annexed a copy of irrevocable GPA

mentioning the sale consideration at Rs.6,50,000/- and wherefrom the

appellant/plaintiff learnt of the said undervaluation; (ix) that the

respondent/defendant no.1 on the basis of the said documents had been dealing

with the property; and, (x)"that the cause of action to file the present suit firstly

arose in favour of the plaintiff and against the defendant on 24.06.2004 when

the illegal sale transaction has taken place between the defendant no.1 and 3

and on 05.08.2004 when the matter was reported by the plaintiff to the

Revenue Collector/SDM. The cause of action further arose on 02.08.2009

when the plaintiff saw the irrevocable General Power of Attorney dated

24.06.2004. The cause of action further arose when the plaintiff approached the

defendant no.2 with the request to cancel the GPA in question. The cause of

action is still subsisting and continuing".

4. The learned ADJ has rejected the plaint, finding/observing/holding (i)

that the appellant/plaintiff has no right to ask for declaration as he has no

personal interest whatsoever; (ii) the appellant/plaintiff as a tenant in the

property cannot compel the owner/landlord to sell the property to him or on

any particular terms; (iii) that the suit had been filed to pressurise the

respondent/defendant no.3; (iv) that the claim in the suit was otherwise barred

by time; (v) that according to the appellant/plaintiff he came to know on 24 th

June, 2004 when the respondent/defendant no.3 sold the property to the

respondent/defendant no.1 and the appellant/plaintiff complained to the

respondent no.2 on 5th August, 2004; and, (vi) Article 58 of the Schedule to the

Limitation Act, 1963 prescribes the period of limitation for filing the suit for

declaration as of three years only and the suit filed on 7 th October, 2009 was

much beyond the said period of three years from 24th June, 2004 and/or 5th

August, 2004.

5. The counsel for the appellant/plaintiff has argued that the learned ADJ

erred in computing the period of limitation from 5 th August, 2004 when the

appellant/plaintiff claimed to have complained. It is argued that the said

complaint was on the basis of suspicion only and the appellant/plaintiff got the

copy of the General Power of Attorney dated 24th June, 2004 only on 2nd

August, 2009 when the respondent/defendant no.1 along with legal notice to

another tenant annexed a copy thereof in her favour. It is further argued that

limitation is a mixed question of law and fact and could not have been decided

under Order 7 Rule 11 of the CPC. Reliance in this regard is placed on Popat

and Kotecha Property Vs. State Bank of India Staff Association JT 2005 (12)

SC 302 and on Vaish Aggarwal Panchayat Vs. Inder Kumar JT 2015 (8) SC

248.

6. I have considered the contentions of the counsel for the appellant.

Though this is a first appeal under Section 96 of the CPC but need to

requisition the trial court record is not felt as the order impugned is of rejection

of plaint and the appellant alongwith memorandum of appeal has annexed a

copy of plaint and other documents.

7. As far as the legal contention of the counsel for the appellant is

concerned, question of limitation is not always a mixed question of law and

facts and the same depends upon the facts of each case. Reference in this

regard can be made to Minu Chibber Vs. S.S. Chibber MANU/DE/2437/2014

(DB) and SLP(C) No.2068/2015 whereagainst was dismissed on 30th January,

2015.

8. The appellant/plaintiff has not filed the copy of the complaint made by

him on 5th August, 2004 to the respondent/defendant no.2. The counsel for the

appellant/plaintiff states that the appellant/plaintiff is not in possession of any

copy thereof and only has a postal receipt of having dispatched the said

complaint by Registered Post -AD. Thus the contents of the complaint cannot

be deciphered. All that can be said is that the appellant/plaintiff in para 6 of the

plaint admits having complained to the respondent/defendant no.2 of

undervaluation.

9. Even if the benefit of principle of, mofussil pleadings being required to

be construed liberally (see order dated 10th May, 2016 in RFA No.450/2015

titled Rajesh Kumar @ Ramu Vs. Sunil Kumar), were to be given to the

counsel for the appellant/plaintiff, and it were to be held that the

appellant/plaintiff ought to be given an opportunity to go to trial on the aspect

of limitation, I have enquired from the appellant/plaintiff as to what is the locus

or the cause of action for the appellant/plaintiff to seek the reliefs claimed.

10. A civil suit can be filed only for a personal injury or for purpose of

enforcing individual civil rights and not for the mere purpose of enforcing a

penal law or for restraining public wrongs (see Section 4 of Specific Relief

Act, 1963) as a case of undervaluation would be.

11. It may be noted that the appellant/plaintiff is a tenant in the property has

no right of pre-emption for purchase of property.

12. The counsel for the appellant/plaintiff states that since the document is

likely to be used by the respondent/defendant no.1 to claim to be

owner/landlord vis-a-vis the appellant/plaintiff, the appellant/plaintiff has a

cause of action.

13. I do not agree. The appellant/plaintiff as a tenant in the property cannot

have any grievance as to how owner/landlord deals with the ownership rights

of/in the property and merely because respondent/defendant no.3 claims to

have dealt with her ownership rights, would not give a locus or a cause of

action to the appellant/plaintiff to challenge the same.

14. The counsel for the appellant/plaintiff then states that the documents on

the basis of which the respondent/defendant no.1 is claiming title are not even

executed by the respondent/defendant no.3.

15. However the counsel is unable to show any plea to the said effect.

16. Moreover, as and when the respondent/defendant no.3 uses the

documents to make any claim against the appellant/plaintiff, the

appellant/plaintiff in such proceeding would have full opportunity to take all

pleas.

17. The counsel for the appellant/plaintiff at this stage invites attention to

para 11 of the plaint where it is generally pleaded that the appellant/plaintiff

being a tenant in the property would be directly affected by the defect in the

title of the person claiming to be the owner.

18. All that can be observed is that it is not for the appellant/plaintiff as a

tenant to perfect the title of the respondent/defendant no.1 who is claiming to

be the owner/landlord by virtue of transfer effected by the

respondent/defendant no.3 whom the appellant/plaintiff also admits to be the

owner/landlord.

19. The suit as well as this appeal, I am constrained to observe, is in abuse of

the process of this Court and resultantly the appeal is dismissed.

I refrain from imposing any cost on the appellant/plaintiff.

RAJIV SAHAI ENDLAW, J MAY 17, 2016 „pp‟..