Hariom Deceased Thr. His Lrs. vs Raj Singh & Ors.
2018 Latest Caselaw 7560 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 11/2016

%                                                20th December, 2018

HARIOM DECEASED THR. HIS LRS.              ..... Appellant
                 Through: Mr. S.C. Jain, Advocate (M.
                           No.9810064980).
                          versus

RAJ SINGH & ORS.                                     ..... Respondents

                          Through:       None.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. No one is present for the respondents despite the matter

being called out for the second time.

2. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit

impugning the Judgment of the trial court dated 23.05.2015 by which

the trial court has rejected the plaint under Order VII Rule 11 CPC.

The plaint has been rejected under Order VII Rule 11 CPC by

applying the provision of Section 34 of the Specific Relief Act, 1963

and holding that the plaintiff's suit not claiming consequential relief of

possession will not be maintainable. The trial court has also held that

the appellant/plaintiff seeks the relief of cancellation of the mutation

order by the revenue authorities in favour of defendant no. 2, and such

a relief will lie before the revenue authorities and not the civil court,

and therefore, the suit plaint was liable to be rejected under Order

41(h) of the Specific Relief Act read with Section 185 of the Delhi

Land Reforms Act, 1954. The trial court has also held that court fee

filed by the plaintiff is deficient by Rs. 40, and on this count also the

plaint has to be rejected. Surprisingly, and it is important to note that

the plaint has been rejected when the suit was at the stage of final

arguments and when all the defendants did not file the written

statement and therefore had led no evidence.

3. As per the plaint filed, the appellant/plaintiff sought the

basic relief of cancellation of the Sale Deed dated

19.01.2009/20.01.2009 executed by respondent no. 1/defendant no.1

in favour of the respondent no. 2/defendant no.2, with respondent no.

1/defendant no.1 acting as a power of attorney holder of the

appellant/plaintiff in terms of the Power of Attorney dated 23.06.1999.

This Power of Attorney dated 23.06.1999, as per the case of the

appellant/plaintiff, had not been executed by the appellant/plaintiff.

The consequential reliefs of injunction and cancellation of the

mutation order of the suit land by the revenue authorities in favour of

the respondent no. 2/defendant no. 2 were also sought. The relief

clauses of the plaint read as under:

"a. A decree for cancellation of registered sale deed dated 19th January, 2009 executed by the defendant No.1 in favour of the defendant NO. 2 be declared as null and void, in the interest of justice. b. A decree of mandatory injunction be passed in favour of the plaintiff and against the defendant No.3 thereby re-calling/cancelling the mutation in the name of the defendant NO. 2 in respect of the agricultural land bearing khasra No.11/24(4-16), 32/17(4-16), 20/1(3-

4), 22(4-16), 23(4-5) situated in the Revenue Estate of Village Singhu, Delhi-110040 in the revenue record, in the interest of justice. c. A decree of mandatory injunction be passed in favour of the plaintiff and against the defendant NO. 4 to cancel the registration of the sale deed dated 19th January, 1999, as document NO. 239, in Additional Book NO. 1, Volume NO. 1808 on page 140 to 144 dt. 22.1.2009 and General power of attorney dated 23.6.2009 registered as document NO. 38787, in additional Book NO. IV, Volume No. 2342 on page 192 to 194, in the interest of justice.

d. A Decree of permanent injunction may kindly be passed in favour of the plaintiff and against the defendants No.1 and 2 their agents, servants, employees, assignees, etc., etc. who so ever purported to be acting on behalf of the defendants No.1 and 2 thereby restraining them from selling, transferring, alienating, parting with the possession, or creating any third party interest in the agricultural land bearing khasra No. 11/24(4-16), 32/17(4-16), 20/1(3-4), 22(4-16), 23(4-5) situated in the Revenue Estate of Village Singhu, Delhi-110040, in the interest of justice.

d. Cost of the suit may also be passed in favour of the plaintiff and against the defendant"

4. Essentially, it is therefore seen that one relief is for

cancellation of the sale deed executed by the respondent no.

1/defendant no. 1 in favour of respondent no. 2/defendant no. 2. There

is also consequential relief of perpetual injunction. There is also the

relief prayed of mandatory injunction for the cancellation of the

mutation order done by local authorities in terms of the Sale Deed

dated 19.01.2009/20.01.2009 in favour of respondent no. 2/defendant

no. 2.

5(i). In such a suit, the appellant/plaintiff will first have to

value the suit for the purpose of pecuniary jurisdiction and court fee

for the relief of cancellation of the sale deed, and this has been done

by the appellant/plaintiff by valuing the same on the pecuniary amount

of the sale deed executed by the respondent no. 1/defendant no.1 in

favour of respondent no. 2/defendant no. 2 being a sum of Rs.

8,42,000/-. On this amount, ad valorem court fee has been paid by the

appellant/plaintiff.

5(ii). The appellant/plaintiff has thereafter claimed two reliefs

of mandatory and perpetual injunction as also of declaration. For

declaration, the suit is valued at Rs. 200/- and for the reliefs of

injunctions, the suit is valued at Rs. 130/-. Since the two injunctions

have been claimed, one of perpetual injunction and another of

mandatory injunction, court fee of Rs. 26/- (Rs. 13/- plus Rs. 13/-)

would be payable. On the relief of declaration, court fee of Rs. 20/-

had to be paid, but it is noted that there is no specific relief prayed for

declaration in terms of the prayer clauses of the plaint. The

appellant/plaintiff has however paid court fee only of Rs. 10,600/-

which is deficient by a sum of Rs. 40/- and as noted by the trial court

in the impugned judgment, and therefore, the Ld. counsel for the

appellant/plaintiff says that deficiency of court fees of Rs. 40/- will be

made good before the trial court on the date fixed by the trial court for

this purpose.

6. So far as the relief of cancellation of the sale deed is

concerned, the relief of declaration is very much implicit in such a

relief and such a suit which seeks cancellation of the sale deed, once it

has been valued at the consideration mentioned in the sale deed and ad

valorem court fee has been paid, it cannot be said that the subject suit

would be barred by Section 34 of the Specific Relief Act because the

appellant/plaintiff has pleaded that as per para 8 of the plaint to be in

actual physical possession of the suit land. Therefore, it was

sufficient for the appellant/plaintiff only to seek the relief of

cancellation of the sale deed executed by respondent no. 1/defendant

no. 1 in favour of respondent no. 2/defendant no. 2 and there was no

need for claiming the consequential relief of possession as the

appellant/plaintiff as per plaint para 8 pleads himself to be in

possession. The trial court has therefore erred in holding that Section

34 of the Specific Relief Act applies. This is all the more so because a

suit for cancellation of the document is the subject matter of Section

31 of the Specific Relief Act and the present suit is a suit for the

cancellation of a sale deed and would fall under Section 31 of the

Specific Relief Act and for this purpose the plaintiff has already

correctly valued the suit at the value of the sale deed of which

cancellation is sought, and has paid ad valorem court fee.

7. The Ld. counsel for the appellant/plaintiff at this stage

states that appellant/plaintiff does not seek the relief of cancellation of

the mutation order, and because of which the suit has been held to be

barred under Section 185 of the Delhi Land Reforms Act, as it is

stated that the appellant/plaintiff will have sufficient relief once the

sale deed is cancelled by the civil court, and the judgment will be

binding on the revenue authorities, and resultantly on the passing of

the final judgment by the civil court in the subject suit in favour of the

appellant/plaintiff, the appellant/plaintiff will approach the revenue

authorities for the cancellation of the mutation order made in favour of

the respondent no.2/defendant no.2.

8. One important fact I would like to note is that there were

a total of four defendants in the suit. Only the defendant nos.1 and 2

were contesting defendants as they were private defendants with

defendant no.1 being impleaded as per the plaint to be the alleged

attorney of the plaintiff and who is alleged to have illegally executed

the sale deed in favour of the defendant no.2. Defendant nos. 3 and 4

are government officials being the Deputy Commissioner and the Sub-

Registrar. All the defendants in the suit were ex parte in that the

rights of the defendants to file written statement stood closed. In fact,

after the rights of the defendant nos. 1 and 2 to file written statements

were closed, repeated applications were filed by the defendants no.1

and 2 to allow them to file the written statements, but all these

applications filed by the defendant no.1 and/or defendant no.2 were

dismissed by the trial court as per its different orders. In fact, and as

stated above, the suit was at the stage of final arguments when most

surprisingly the trial court has rejected the plaint under Order VII Rule

11 CPC and that too on an application filed on behalf of the defendant

no.1 under Order VII Rule 11 CPC. The application under Order VII

Rule 11 CPC of defendant no.1 was clearly not maintainable because

once there is no written statement which is on record of the defendant

no.1, the defendant no.1 thereafter cannot be allowed to defend the

suit by filing an application under Order VII Rule 11 CPC.

Entitlement to defend a suit, that too at the stage of final arguments, is

only by a defendant who has contested the suit and not a defendant

whose right to file the written statement was closed and repeated

applications filed by such defendant for allowing the written statement

to come on record stood dismissed.

9. In view of the aforesaid discussion, the impugned

judgment of the trial court dated 23.05.2015 is set aside. The suit of

the appellant/plaintiff will be decided in accordance with law from the

stage when the application under Order VII Rule 11 CPC was filed by

the respondent no.1/defendant no. 1. The appellant/plaintiff will also

make good the deficiency of court fee amount of Rs. 40/- on the date

which will be fixed by the trial court for the said purpose. The trial

court will decide the suit in accordance with law.

10. Parties to appear before the District and Sessions Judge,

North West, Rohini Courts, Delhi on 29th January, 2019 and the

District and Sessions Judge will now mark the suit for disposal to a

competent court in accordance with law and the observations made in

the present judgment.

11. Appeal is accordingly disposed of in terms of aforesaid

observations.

DECEMBER 20, 2018                       VALMIKI J. MEHTA, J
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