Pawan Kataria & Ors. vs Ardeep Kumar Batta & Anr.
2018 Latest Caselaw 4122 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+            RFA No.543/2017 and C.M. No.20511/2017(stay)

%                                                   19th July, 2018

PAWAN KATARIA & ORS.                                 ..... Appellants
                 Through:                Ms. Neha Jain, Advocate with
                                         Ms. Divya Gupta, Advocate,
                                         Mr. Luv Menon, Advocate and
                                         Mr.     Dishank       Dhawan,
                                         Advocate.
                          versus

ARDEEP KUMAR BATTA & ANR.           ..... Respondents

Through: Mr. Rajeev Sharma, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

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

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

impugning the Judgment of the Trial Court dated 1.5.2017 by which

trial court has dismissed the suit for specific performance filed by the

appellants/plaintiffs pertaining to a Contract dated 5.3.1997. The

subject suit though is a suit for specific performance, it is not a

classical suit for specific performance as will be seen from the facts

narrated below, because the Contract dated 5.3.1997 is stated to be a

contract of re-transfer of the suit property by the respondent

no.1/defendant no.1 in favour of Ms. Poonam, wife of the appellant

no.1/plaintiff no.1.

2. Before I proceed further, I would like to note that no

evidence was led on behalf of the appellants/plaintiffs in the trial

court, and ultimately evidence was closed. The appellants/plaintiffs

had filed an application for leading secondary evidence on account of

the allegation that it was the respondent no.1/defendant no.1 who had

in his possession the original documents dated 5.3.1997, and

appellants/plaintiffs be therefore allowed to lead secondary evidence,

but in spite of granting of one opportunity by the High Court to lead

evidence, evidence was not led by the appellants/plaintiffs on the date

fixed being 1.5.2017, hence the same led to the closure of the evidence

of the appellants/plaintiffs, and resultantly the dismissal of the suit.

3. The facts of the case are that the appellants/plaintiffs

pleaded that the suit property bearing no.42, 1st floor, Rajya Sabha

Secretariat Employees Cooperative Society, Perijat Apartments, West

Enclave, Pitampura, Delhi was purchased from the erstwhile owner

Sh. H.K. Saxena on 1.3.1995. It was the case of the

appellants/plaintiffs that the original owner Sh. H.K. Saxena had sold

the suit property to the appellant no.1/plaintiff no.1/Sh. Pawan Kataria

but the transfer documents were executed in the name of the

respondent no.1/defendant no.1 as the parties are related as real

brothers-in-law. It is the case of the appellants/plaintiffs that the

respondent no.1/defendant no.1 had undertaken to re-transfer the suit

property in the name of the appellant no.1's/plaintiff no.1's wife Smt.

Poonam, and that for this purpose the documents dated 5.3.1997 were

executed, and with respect to this Contract dated 5.3.1997 specific

performance was sought. These documents dated 5.3.1997 were

Affidavit, Agreement to Sell, Power of Attorney etc. The original

documents dated 5.3.1997 as per the appellants/plaintiffs were taken

away by the respondent no.1/defendant no.1 from the house of the

appellant no.1/plaintiff no.1 and appellant no.1/plaintiff no.1 therefore

only had photocopies of these documents dated 5.3.1997 with him.

Accordingly, as per the suit plaint it was pleaded that the suit be

decreed and the suit property be transferred in the name of the

appellant no.1/plaintiff no.1 in terms of the documentation dated

5.3.1997.

4. Suit was contested by the defendants and it was pleaded

that the suit property was not purchased by the appellant no.1/plaintiff

no.1, but that the suit property was purchased by the respondent

no.1/defendant no.1. The total sale consideration was Rs.3 lacs and

this amount was paid to erstwhile owner Sh. H.K. Saxena by banking

instruments. Out of the sum of Rs.3 lacs, a sum of Rs.1.50 lacs was

paid by the defendant no.1 by means of account payee Cheque

no.1109808 from his Saving Bank Account in Union Bank of India,

Shahdra Branch, New Delhi and the balance amount of Rs.1.50 lacs

was paid by making of a Bank Draft no.06290 dated 6.1.1995 from

Oriental Bank of Commerce, Ferozepur Cantt. Both these banking

instruments were in the name of the seller Sh. H.K. Saxena and

consequently by transfer documents dated 1.3.1995 being the

Agreement to Sell etc the suit property came to be purchased by the

respondent no.1/defendant no.1. It was denied that the respondent

no.1/defendant no.1 had ever executed the re-transfer documents dated

5.3.1997 in favour of Smt. Poonam, the wife of the appellant

no.1/plaintiff no.1. It was also denied that the original documents of

the suit property were taken away by the respondent no.1/defendant

no.1 from the house of the appellant no.1/plaintiff no.1.

5. Issues were framed in the suit on 25.4.2011, and these

issues read as under:-

"1. Whether the suit has not been properly valued? OPD

2. Whether the suit is barred under Order 2 Rule 2 CPC? OPD

3. Whether the plaintiff has no locus standi to file the present suit, in his personal capacity? OPD

4. Whether the suit is barred by time? OPD

5. Whether the plaintiff is entitled to a decree for specific performance of agreement dated 05.03.1997, as prayed? OPD

6. Whether the plaintiff is entitled to a decree of mandatory injunction against the defendants, as prayed? OPP

7. Whether the plaintiff is entitled to a decree against defendant No.3 for mutation of impugned flat in the name of the plaintiff, as prayed? OPP

8. Whether the plaintiff is entitled to a decree of permanent injunction against defendant No.1 & 2, as prayed? OPP

9. Relief.

Additional issue framed on 2.3.2013 Whether suit filed by the plaintiff is based on forged and fabricated documents? OPD"

6. Right from 2.3.2013, and when the additional issue was

framed, and till 27.5.2016, adjournments were granted in the suit

either because the appellants/plaintiffs did not lead evidence or the

appellants'/plaintiffs' application to lead secondary evidence was

pending. It is seen that a total of three opportunities were

granted/dates fixed for the appellants/plaintiffs evidence, and rest of

the dates were fixed from 2.3.2013 till 27.5.2016 either for disposal of

the application of the appellants/plaintiffs to lead secondary evidence

or disposal of a formal amendment application to change of address,

which was filed by the appellants/plaintiffs. The application to lead

secondary evidence was dismissed by the Trial Court as per its

Judgment dated 27.5.2016. By an Order dated 24.8.2016 passed by a

learned Single Judge of this Court in CM(M) No.789/2016, the

appellants/plaintiffs were given opportunity to lead secondary

evidence, and therefore, taking note of this fact the trial court on

31.1.2017 fixed the long date of 1.5.2017 for the appellants/plaintiffs

to lead secondary evidence, but on 1.5.2017 since no evidence was

led, trial court therefore closed the right of the appellants/plaintiffs to

lead additional evidence and consequently dismissed the suit inasmuch

as since appellants/plaintiffs led no evidence, the

respondents/defendants also did not feel any necessity to lead the

additional evidence.

7(i) Learned counsel for the appellants/plaintiffs argued

before this Court that appellants/plaintiffs be given one opportunity to

lead evidence and the matter be remanded.

(ii) Ordinarily Courts are liberal in granting opportunity to

lead evidence but in the facts of the present case it is seen that really

the issue is not of one opportunity but the fact that issues were framed

way back on 25.4.2011 and there was really no need for filing an

application to lead secondary evidence because secondary evidence is

automatically taken on record provided in the examination-in-chief of

a witness basis is laid as to non-availability of originals and on that

basis secondary evidence is thereafter led. Also, in order to examine

the bonafides of the appellants/plaintiffs in case such as the present, I

have in a prima facie manner sought to understand the merits of the

disputes as to whether injustice will be caused to the

appellants/plaintiffs by not allowing the appellants/plaintiffs to lead

evidence, and which should be allowed as per the appellants/plaintiffs

by recalling the order dated 1.5.2017 passed by the trial court closing

the right of the appellants/plaintiffs to lead the evidence.

8. In my opinion, the following aspects/reasons show that

the suit filed by the appellants/plaintiffs prima facie is a malafide suit,

and therefore, this Court in the peculiar facts of the present case would

not like to exercise discretion to allow the appellants/plaintiffs to lead

evidence. The reasons are:-

(i) If the appellants/plaintiffs claim that it is the appellant

no.1/plaintiff no.1 who had purchased the property from the erstwhile

owner Sh. H.K.Saxena, and that the payments were made by the

respondent no.1/defendant no.1 on behalf of appellant no.1/plaintiff

no.1, then, surely the original title documents executed by Sh.

H.K.Saxena ought to have been in possession of the appellant

no.1/plaintiff no.1, but it is not even the case of the appellant

no.1/plainitff no.1 that original documents executed by Sh.

H.K.Saxena of the suit property are in possession of the appellant

no.1/plaintiff no.1. The original documents with respect to the suit

property are in possession of the respondent no.1/defendant no.1.

(ii) The stands of the appellants/plaintiffs of ownership of the suit

property are contradictory. This is because on the one hand it is

claimed that the suit property was purchased by i.e owned by the

appellant no.1/plaintiff no.1, though in the name of the respondent

no.1/defendant no.1, yet the subject suit is a suit for specific

performance of the documentation dated 5.3.1997, and as per the case

of the appellants/plaintiffs by these documents dated 5.3.1997, the

respondent no.1/defendant no.1 agreed on payment of consideration to

re-transfer the suit property to the appellant no.1's/plaintiff no.1's wife

Smt. Poonam. Re-transfer necessarily therefore means that firstly it is

the respondent no.1/defendant no.1 who is the owner of the suit

property and not the appellant no.1/plaintiff no.1, and therefore this

stand of the appellants/plaintiffs is mutually destructive of the stand of

the appellants/plaintiffs that the suit property was owned by the

appellant no.1/plaintiff no.1 though the documentation were executed

by Sh. H.K.Saxena in favour of the respondent no.1/defendant no.1.

(iii) Also it is seen that as per the alleged re-transfer documentation

dated 5.3.1997, it is shown that a consideration of Rs.4,20,000/- has in

terms of these documents dated 5.3.1997 already been paid in cash to

the respondent no.1/defendant no.1, and therefore really there did not

arise any issue of execution of any re-transfer documents because the

set of documents dated 5.3.1997 themselves being prior to the

amendment of Section 53A of Transfer of Property Act, 1882 with

effect from 24.9.2001 by Act 48 of 2001, the appellant

no.1's/plaintiff's no.1 wife Ms. Poonam always (by these documents

dated 5.3.1997) had rights equal to ownership rights under Section

53A of the Transfer of Property Act and hence there was really no

need for seeking of execution of re-transfer documents by the

respondent no.1/defendant no.1 in favour of the wife of the appellant

no.1/defendant no.1.

(iv) It is also required to be noted that the payment of consideration

of Rs.4,20,000/- by Smt. Poonam to defendant no.1/respondent no.1 is

conveniently said to have been paid in cash and not through any

banking instrument, with the fact that there is nothing on record

whatsoever or even so pleaded by the appellants/plaintiffs as to how

the sum of Rs.4,20,000/- existed with Ms. Poonam for being paid to

respondent no.1/defendant no.1.

(v)(A)In fact, even taking it in one way or the other, that re-transfer

was or was not required, the fact of the matter is that on the execution

of the Agreement to Sell dated 5.3.1997, allegedly executed by the

respondent no.1/defendant no.1 in favour of Ms. Poonam, the wife of

the appellant no.1/plaintiff no.1 being more or less a complete as per

Section 53A of the Transfer of Property Act as then existing, the wife

of the appellant no.1/plaintiff no.1 Smt. Poonam from 5.3.1997 hence

could have applied for mutation of this property in the necessary

public records, but admittedly from 5.3.1997 till the suit was filed

around 13 years later on 18.9.2010 not a single step was taken by the

appellant no.1/plaintiff no.1 or his wife Smt. Poonam for getting the

alleged documents dated 5.3.1997 recorded in any public record

whatsoever. Thirteen years is indeed a long period, and that if really

there did exist the documentation dated 5.3.1997, there is no reason

why such documents would not have been acted upon and come in the

public domain in the long period of 13 years from 5.3.1997 till filing

of the suit in September ,2010.

(B) Also, Ms. Poonam, the wife of the appellant no.1/plaintiff no.1,

was alive for around 10 years after the documents were executed

because she is said to have been died in the year of 2007 and from

1997 till 2007, the wife of the appellant no.1/plaintiff no.1 took no open

and declared steps to claim rights in the suit property on the basis of the

documentation dated 5.3.1997.

9. Learned counsel for the appellants/ plaintiffs argued that on

1.5.2017 no evidence was led because compromise talks were going on,

however, I do not agree with this argument not only because this is not

recorded in the order dated 1.5.2017, and which is to be taken with the

fact that in the peculiar facts of this case where over 4 years had already

gone for plaintiffs to lead evidence, the appellants/plaintiffs could not

have presumed that the Court would automatically give them an

adjournment on account of alleged compromise talks. I therefore reject

the argument that the appellants/plaintiffs should now be given one more

opportunity to complete their evidence.

10. In view of the aforesaid discussion, and rejection of the

contention of the counsel for the appellants/plaintiffs that they should be

allowed one more opportunity to lead evidence, the impugned judgment

of the trial court dated 1.5.2017 does not call for any interference.

Dismissed.

JULY 19, 2018/ Ne                             VALMIKI J. MEHTA, J