Delhi High Court
Firoz Ahmed vs Rustam And Anr. on 13 November, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No. 255/2017
% 13th November, 2017
FIROZ AHMED ..... Appellant
Through: Mr. R.R. Jangu, Advocate.
versus
RUSTAM AND ANR. ..... Respondents
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. Appl. No. 39034/2017 (for delay)
1. Though there is no reason to grant condonation of delay
of 220 days in filing the appeal, since however I have heard counsel
for the appellant on merits, this application is therefore allowed for
that reason only.
The application stands disposed of.
RSA No. 255/2017 and C.M. Appl. No. 39035/2017 (for stay)
2. This Regular Second Appeal is filed under Section 100 of
the Code of Civil Procedure, 1908 (CPC) by the appellant/plaintiff no.
2 impugning the concurrent judgments of the courts below; of the trial
court dated 5.6.2012 and the first appellate court dated 5.11.2016; by
which the suit filed for cancellation of the sale deed dated 12.11.1999
and the consequent mutation letter dated 16.12.1999 have been
dismissed by the courts below.
3. Though a reading the plaint did not make it very clear
that the appellant/plaintiff no.2 impugns the sale deed dated
12.11.1999 whether because the sale deed dated 12.11.1999 is of 52
sq. yards whereas it should be only for 35½ sq. yards under the
agreement to sell dated 22.1.1999 pursuant to which the sale deed
dated 12.11.1999 was executed or whether the sale deed dated
12.11.1999 is sought to be cancelled as a whole for the entire area
mentioned therein, and which confusion had arisen because the
appellant/plaintiff no.2 has made averments in the plaint with respect
to the sale deed being executed for 52 sq. yards instead only for 35½
sq. yards in terms of an agreement to sell dated 22.1.1999, however
counsel for the appellant/plaintiff no.2 clarifies and states that the suit
is for cancellation of the entire area under the sale deed dated
12.11.1999.
4. At this stage itself, I may note that two plaintiffs, namely
Sh. Rustam and Sh. Khalil Ahmed, had filed an earlier suit for specific
performance against two defendants Md. Sayeed Ahmed and Sh.
Feroz Ahmed (appellant herein) and in this suit for specific
performance the two plaintiffs, Sh. Rustam and Sh. Khalil Ahmed had
pleaded that they had entered into an agreement to sell with Md.
Sayeed Ahmed/owner as regards of the suit property of 35 ½ sq. yards
bearing nos. 2331-2332 consisting of four shops, one basement and
one varandah on the ground floor, one room on the first floor with roof
rights, in the property situated at Gali Dugdugi, Shah Kalan, Bazar
Chitli Wabar, Turkman Gate, Delhi. This agreement to sell dated
22.1.1999 was entered into by the two plaintiffs Sh. Rustam and Sh.
Khalil Ahmed with the defendant no. 1 in the said earlier suit for
specific performance, namely, Md. Sayeed Ahmed. It was pleaded in
the suit for specific performance that inspite of having entered into an
agreement to sell on 22.1.1999, yet Md. Sayeed Ahmed thereafter
executed a false sale deed dated 26.3.1999 in favour of defendant no.
2 in the said suit Sh. Feroz Ahmed (appellant herein). The sale deed
dated 26.3.1999 was pleaded in the suit for specific performance of
the agreement to sell dated 22.1.1999, to be illegal and not binding
upon the two plaintiffs Sh. Rustam and Sh. Khalil Ahmed of the said
suit for specific performance. In this suit for specific performance an
ex-parte decree was passed in favour of the two plaintiffs Sh. Rustam
and Sh. Khalil Ahmed vide judgment dated 17.7.1999 as the two
defendants in the said suit (including the appellant herein being the
defendant no. 2 in the said earlier suit) failed to appear. Suit was
decreed by the judgment and decree dated 17.7.1999, however,
subsequently an application was filed by the defendant no. 1 Md.
Sayeed Ahmed in the said suit under Order IX Rule 13 and that
application was allowed by an order dated 30.5.2001. What is the
present status of that suit for specific performance filed by Sh. Rustam
and Sh. Khalil Ahmed against Md. Sayeed Ahmed and the present
appellant Sh. Feroz Ahmed, is not found on the record of this case, but
counsel for the appellant says that this suit has again thereafter been
decreed and the appellant proposes to file an appeal against the
judgment and decree dated 6.5.2012 passed decreeing the suit for
specific performance.
5. In my opinion de hors the findings of the courts below,
the present suit was not maintainable at all because appellant is very
much a defendant in the earlier suit. In the earlier suit for specific
performance there is challenge to the sale deed dated 26.3.1999 which
the appellant claims is executed in his favour by Md. Sayeed Ahmed.
That sale deed dated 26.3.1999 stands challenged on the ground that in
favour of the plaintiffs in the said suit Sh. Rustam and Sh. Khalil
Ahmed there exists a prior agreement to sell dated 22.1.1999. A prior
agreement to sell prevails over a subsequent sale deed as per Section
19 of the Specific Relief Act, 1963. Therefore the entitlement under
the agreement to sell dated 22.1.1999 whether it exists in favour of Sh.
Rustam and Sh. Khalil Ahmed, and who are the two main contesting
defendants in the present suit being defendant nos. 1 and 2, will be
decided in the earlier suit for specific performance and simultaneously
it will also be decided as to whether there exists any valid sale deed
dated 26.3.1999 as claimed by the appellant herein in his favour.
There cannot take place two simultaneous legal proceedings with
respect to determination of same issues and it is noted that in law the
decision in the earlier suit in fact will operate as res judicata against
the parties therein, including the appellant and who is a defendant in
the earlier suit. In case it is held in the earlier suit that the appellant
does not have in his favour a valid sale deed dated 26.3.1999,
including for the reason that there exists a prior agreement to sell
dated 22.1.1999 in favour of the two persons Sh. Rustam and Sh.
Khalil Ahmed, the issues so in the earlier suit will operate as res
judicata, and the same will bind the parties including the present
appellant. Therefore a suit to question issues which will become res
judicata in an earlier judicial proceedings will not lie by filing of the
present suit.
6. When this appeal had first come up for hearing on
31.10.2017 appellant had not filed various documents, including plaint
in the earlier suit for specific performance, the ex-parte judgment
passed therein, etc and therefore the appellant was called to file all the
relevant documents and pursuant to which appellant did file certain
documents in terms of the list dated 6.11.2017 but the appellant
deliberately did not file other documents as to the status of the suit for
specific performance after setting aside of the ex-parte decree by the
order dated 30.5.2001 allowing the application under Order IX Rule
13 CPC of the defendant no. 1 in the said suit namely Md. Sayeed
Ahmed. It is only on a pointed query to counsel for the appellant that
it has come out during the hearing in this Court that once again the
earlier suit for specific performance has been decreed on 6.5.2012,
wherein in that earlier suit the issue with respect to entitlement of the
appellant with respect to the suit property on the basis of the sale deed
relied upon by the appellant dated 26.3.1999 was/is already in
question. Appellant, however has deliberately not filed the judgment
and decree dated 6.5.2012 passed in that earlier suit, and it is only
stated across the bar that today in November, 2017 an appeal is going
to be filed against the judgment and decree passed way back on
6.5.2012. I fail to understand as to how a person who is well aware of
an earlier suit for specific performance being decreed, and in which
the issue already stands decided which is prayed for being decided in
the present suit, did not file till now an appeal against the judgment
and decree dated 6.5.2012.
7. In view of the aforesaid discussion obviously the present
second appeal is completely misconceived, because the suit itself was
completely misconceived.
8. No substantial question of law arises for entertaining this
Regular Second Appeal and the same is hereby dismissed.
NOVEMBER 13, 2017 VALMIKI J. MEHTA, J
AK
