Delhi High Court
Hardev Kaur Jando vs M/S Upper Land And Constructions ... on 7 February, 2018
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 2200/2015
HARDEV KAUR JANDO ..... Plaintiff
Through Ms.Swati Bhardwaj with
Ms.Bina Madhavan, Advocates.
versus
M/S UPPER LAND AND CONSTRUCTIONS
PVT LTD & ORS ..... Defendants
Through Mr.Avneesh Garg, Advocate
for D-1 to 3.
% Date of Decision: 7th February, 2018
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (Oral)
1. Present suit has been filed for declaration as well as for
possession and permanent injunction.
2. On 04th May, 2016, the learned predecessor of this Court had
not only framed the issues but also passed a detailed order with regard
to handing over the possession of the suit property. The relevant
paragraphs of the said order are being reproduced hereinbelow:-
"11. Learned counsel for the plaintiff is agreeable that the
plaintiff may be examined through video conferencing by the
learned Joint Registrar so as to verify the power of attorney
attributed to the plaintiff dated 26.03.2012, and to establish
the authority of the attorney to file the suit and to take
possession of the owners possession on her behalf, from the
defendant builders. The plaintiff has filed the photocopy
thereof on record. The plaintiff/ power of attorney shall file
the said document in original before the Court within two
weeks.
12. List the matter before the Joint Registrar on 22.07.2016,
when he shall fix the time for recording the solemn statement
of the plaintiff through video conferencing. The plaintiff shall
make arrangement for recording of evidence through video
conferencing at both ends. The plaintiff Hardev Kaur Jando
shall file her photographic proof of identity duly attested.
While recording the statement of the plaintiff, the learned
Joint Registrar shall ensure that:
(i) The video conferencing shall be arranged in such a
manner that the entire room in which the plaintiff is
sitting is captured on camera. The plaintiff shall be alone
in this room and there should be no table or other
obstruction in front of the chair of the plaintiff.
(ii) Considering the time difference between India and United
Kingdom, the recording of evidence through video
conferencing shall be undertaken at 03:00 p.m. IST
onwards.
(iii) The recording of evidence shall be carried out within the
precincts of the High Court.
13. After the recording has been done, the learned Joint
Registrar shall return the finding on the basis of the said
recording, whether the plaintiff has appointed Mr.Jatinder
Bir Singh as her attorney and whether he is authorised to file
the present suit and take possession of the owners portions in
the aforesaid properties from the defendant builders. In case
these finding are returned in favour of the plaintiff/ attorney,
the defendant builder shall deliver possession of the portions
falling to the shares of the owners, as aforesaid, to the
attorney holder Mr. Jatinder Bir Singh without any further
delay.
(emphasis supplied)
3. In pursuance to the said order, the plaintiff has been examined
by the learned Joint Registrar by way of video conferencing and she
has confirmed her signatures at four points on the general power of
attorney dated 26th March, 2012.
4. However, learned counsel for defendant nos.1 to 3 (the builders)
still refuses to hand over the possession of the suit property on the
ground that even though the signatures have been admitted by the
plaintiff on the Power of Attorney, the contents of the said Power of
Attorney have not been accepted by the plaintiff.
5. He further states that the property in question needs to be first
partitioned between the plaintiff and defendant nos.4 to 6 before the
possession can be handed over.
6. This Court is of the opinion that it is not an Appellate Court of
the Court that passed the order dated 04th May, 2016.
7. The order dated 04th May, 2016 makes it clear that the Joint
Registrar shall examine the plaintiff to establish the authority of the
attorney to file the suit and to take possession. The plaintiff in her
video conferencing has admitted to the execution of the power of
attorney.
8. The fact that the plaintiff has deposed by way of video
conferencing, leaves this Court in no doubt that the plaintiff was aware
of the contents of the present plaint as well as the order dated 04 th
May, 2016 and the controversy herein.
9. The plaintiff in her deposition has nowhere stated that the
possession of the property should not be handed over to the plaintiff-
attorney holder.
10. A perusal of the file also reveals that vide order dated 03 rd June,
2016, the learned Predecessor of this Court has clearly stipulated as to
which portion of the property shall fall to the share of the plaintiff and
which share shall fall to the defendant nos. 4 to 6. The relevant
portion of the order dated 03rd June, 2016 is reproduced hereinbelow:-
"It has been agreed that the plaintiff shall be entitled to the
entire second floor in the property No.B-64, NDSE Part II,
New Delhi and to the entire first floor in the property No.B-
63, NDSE Part II, New Delhi. It has also been agreed that
defendant nos.4 to 6 shall be entitled to the entire ground
floor in the property No.B-64, NDSE Part II, New Delhi and
the entire third floor in the same property.
It has been further agreed that the terrace in the property
bearing No.B-64, NDSE Part II shall be shared equally
between the plaintiff on the one hand and defendant nos.4 to
6 on the other hand, such that the plaintiff shall take the
front 50% area and defendant nos.4 to 6 shall take the rear
50% area of the said terrace.
Defendant nos.1 to 3 shall deliver possession of the portions
as agreed between the plaintiff and defendant nos.4 to 6 on
tendering the demand draft of Rs.2 lacs by the plaintiff on
the one hand and defendant nos.4 to 6 on the other hand,
and subject to verification of the power of attorney on behalf
of the plaintiff in favour of Mr. J.B. Singh as already
ordered...."
(emphasis supplied)
11. Consequently, this Court is of the view that the defences raised
by defendant nos.1 to 3-builders are only an attempt to somehow
ensure that the owners of the suit property do not get the possession of
their share.
12. Keeping in view the binding orders dated 04th May, 2016 and
03rd June, 2016, the defendant nos.1 to 3 are directed to forthwith hand
over to the plaintiff's attorney the possession of the property falling to
the shares of the plaintiff. Since the property is lying locked, the
possession shall be handed over to the attorney holder not later than
one week from today.
13. In view of the aforesaid directions, learned counsel for the
plaintiff does not wish to press for any other or further relief against
the defendants in the present suit. Even the learned counsel for
defendant nos.1 to 3, without prejudice to his rights and contentions,
states that in view of the aforesaid directions, the present suit should
be disposed of.
14. Consequently, the present suit is disposed of in terms of the
aforesaid directions. Registry is directed to prepare a decree sheet
accordingly.
MANMOHAN, J
FEBRUARY 07, 2018
KA
