Mohd. Irshad vs Suresh Bala & Ors.
2017 Latest Caselaw 6137 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No. 427/2017

%                                                 3rd November, 2017

MOHD. IRSHAD                                            ..... Appellant
                                         Through: Ms. Deepika Raghav,
                                         Advocate.
                          versus

SURESH BALA & ORS.                                    ..... Respondents

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

CM No. 39419/2017 (Exemption)

Exemption allowed subject to just exceptions.

CM stands disposed of.

CM No. 39420/2017 (delay of 230 days in filing the appeal)

For the reasons stated in the application, delay in filing the

appeal is condoned subject to just exceptions. CM stands disposed of.

FAO No. 427/2017

1. This first appeal under Order XLIII(1)(r) of the Code of

Civil Procedure, 1908 (CPC) is filed by the plaintiff impugning the

order of the trial court dated 9.1.2017, by which the trial court has

dismissed the application under Order XXXIX Rules 1 and 2 CPC

filed by the appellant/plaintiff.

2. The facts of the case are that the appellant/plaintiff filed

the subject suit for recovery of possession, mesne profits and

permanent injunction alleging that he was the owner of the property

bearing no.1/4055, Khasra No. 413, Ram Nagar Extension, Loni

Road, Shahdara Delhi measuring 100 sq. yds. inasmuch as the

appellant/plaintiff is the grand-son of Zaffarulla and Zaffarulla had

executed a registered Will dated 11.4.1985 in his favour with respect

to the suit property. Defendants in the suit are legal heirs of late Sh.

Angad Ram and are pleaded as per the plaint to be in illegal

possession of the suit property. Hence the suit seeking relief of

possession, mesne profits, injunction etc.

3. The impugned order shows that the defendants in the suit

being the legal heirs of late Sh. Angad Ram pleaded as per their

written-statement that Sh. Angad Ram had purchased the suit property

way back on 29.9.1968 and since when the family of Sh. Angad Ram

has been residing in the suit property. The suit property was

transferred on 18.3.2009 in the name of the respondent no.1/defendant

no.1 by virtue of various documents. On 24.1.2009 one Sh. Akshem

Chand, brother-in-law of defendant no.1 requested Sh. Angad Ram to

allow him to stay in one room on the first floor for the purpose of

getting the operation of eye of his wife and which was permitted,

however, but later on Sh. Akshem Chand got documents prepared

fraudulently like ration card, telephone connection for grabbing of the

suit property. When Sh. Akshem Chand did not vacate the room in

the suit property a civil suit no. 417/2009 was filed on 30.10.2009

titled as Suresh Bala Vs. Akshem Chand and Ors. for possession,

mesne profits etc. In this suit filed by Smt. Suresh Bala against Sh.

Akshem Chand after evidence was led by both the parties a decree was

passed in favour of the plaintiff in the said suit and who is the

defendant no.1 of the present suit on 4.7.2012, and which decree and

judgment was confirmed by the first appellate court vide its judgment

dated 15.4.2014. This High Court thereafter dismissed RSA No.

147/2014 on 8.7.2014 and a review petition no. 373/2014 was also

dismissed by this High Court on 19.8.2014. Thereafter an SLP filed in

the Supreme Court being SLP No. 13636/2015 was also dismissed by

the Supreme Court on 10.8.2015.

4. The present appellant filed objections in execution and

objections of the present appellant were dismissed by the executing

court on 16.12.2015 and which order dated 16.12.2015 has admittedly

not been challenged by the present appellant/plaintiff, and which order

has therefore became final.

5. It is therefore seen that respondents/defendants after great

contest right till the Supreme Court succeeded against Sh. Akshem

Chand, in terms of judicial proceedings which commenced in the year

2009 and ended on 10.8.2015, and in which execution proceedings of

which decree the appellant/plaintiff had filed objections but was

unsuccessful as the objections were dismissed on 16.12.2015. The

appellant/plaintiff has thereafter now filed the present suit in which the

subject injunction application was filed and has been dismissed by the

impugned order.

6. In my opinion, the appeal as also the suit itself is an abuse

of the process of law because once the objections of the appellant were

dismissed by the executing court vide its judgment dated 16.12.2015,

then this order dated 16.12.2015 operates as res judicata inasmuch as

all issues as to title of a property which is the subject matter of

execution proceedings have to be decided in the execution

proceedings and not by filing of a suit. Filing of a suit is in fact barred

and this is so stated in Order XXI Rule 101 CPC which reads as

under:-

"Order XXI Rule 101. Question to be determined.- All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the court dealing with the application, and not by a separate suit and for this purpose, the court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions."

7. Therefore, clearly, trial court was justified in dismissing

the injunction application filed by the appellant/plaintiff and in fact the

suit also is liable to be dismissed in limine in view of bar contained in

Order XXI Rule 101 CPC. It was noted by the trial court that

appellant/plaintiff claims to be the owner on account of a Will of late

Zaffarulla dated 11.4.1985 but from the Will it is seen that the

description of the property is different than the suit property, however

in my opinion this issue is irrelevant once the appellant/plaintiff had

filed objections claiming title to the suit property during execution

proceedings of the judgment and decree dated 4.7.2012 (which was

confirmed till the Supreme Court dismissing the SLP on 10.8.2015),

and therefore, the present suit is barred by the general principles of res

judicata (Section 11 CPC is not exhaustive of the doctrine of res-

judicata) as also Order XXI Rule 101 CPC.

8. The present appeal therefore being a gross abuse of the

process of the law is dismissed with costs of Rs.1 lac. Out of the costs

of Rs. 1 lac a sum of Rs.50,000/- will be deposited by the

appellant/plaintiff with the website www.bharatkeveer.gov.in within

a period of four weeks from today and affidavit be filed by the

appellant/plaintiff in this Court within a period of four weeks

thereafter, failing which appropriate action will be taken against the

appellant/plaintiff for non-compliance of the present order. The

balance of Rs.50,000/- be paid to the respondents/defendants on

account of they being harassed in filing of the present false suit by the

appellant/plaintiff.

9. The appeal is accordingly dismissed with the aforesaid

observations.

NOVEMBER 03, 2017/ib                        VALMIKI J. MEHTA, J