Delhi High Court
Shiv Gandhi vs Trust Hafiz Nazir Ahmed & Anr. on 28 November, 2018
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Order: 28.11.2018
+ C.R.P. 134/2018 & CM No. 26909/2018
SHIV GANDHI ..... Petitioner
Through: Mr.P.D. Gupta, Sr. Advocate with
Mr.Abhishek Gupta, Advocate along
with petitioner in person.
Versus
TRUST HAFIZ NAZIR AHMED & ANR. ....Respondents
Through: Ms.Shashi Saxena, Advocate.
CORAM:
HON'BLE MR. JUSTICE VINOD GOEL
1. The impugned order dated 17.04.2018 passed by the court of
learned Additional District Judge-14, Central District, Tis Hazari
Courts, Delhi ('ADJ') in CS DJ No.610539 of 2016, is the subject
matter of challenge in this Civil Revision Petition.
2. The petitioner/plaintiff has been a tenant in occupation of a
shop admeasuring 7.9' x 7.3' x 44.6' situated on the ground floor of
property bearing no. 5772/1, Ward No.13, Main Road, Sadar Bazar,
Delhi-110006 ('suit premises'), as shown in red colour in the site plan
annexed with the plaint and bounded as under: -
North-Other's property.
South-Main Road, Sadar Bazar.
West-Shop No.5772 in occupation of Mohan Lal.
East-Other's Property.
The property was initially let out in the name of Laxmi Narain
& Sons by one Mst. Noor Jahan Begum (mother of respondent no.2) at
a rent of Rs.230/- per month. On the death of Sh. Laxmi Narain on
31.01.1997, the petitioner became the sole tenant in respect of the suit
premises. After the death of Mst. Noor Jahan Begum in the year 1991,
her elder son Naseem Ahmed, claiming to be the trustee of respondent
no.1 i.e. the Trust, started collecting rent from the petitioner.
Mr.Naseem Ahmed died in the year 2002 and thereafter respondent
no.2 claiming himself to be the sole trustee of respondent no.1, started
collecting the rent from the petitioner.
3. An application filed by the respondent no. 2 on 07.01.2002
under Section 19 of the Slum Areas (Improvement & Clearances) Act,
1956 seeking permission to initiate eviction proceedings against the
petitioner in respect of the suit premises is pending adjudication.
During the pendency of the petition, the parties entered into an
Agreement to Sell dated 02.08.2008 in respect of the suit premises by
which the petitioner had agreed to purchase the suit premises for a
total sale consideration of Rs.24,00,000/-.
4. The petitioner filed a suit for specific performance of the
contract against the respondents/defendants in respect of the said
Agreement to Sell in this Court in exercise of its original jurisdiction.
This suit, being CS(OS) 1757/2010, was later transferred to the court
of learned ADJ having suit no. 610539/2016 due to enhancement in
the pecuniary jurisdiction of the District Courts in Delhi.
5. During the pendency of the above said suit, the parties have
settled their dispute forming the subject matter of the civil suit and
filed a joint application (Ex.C1) under Order XXIII Rule 3 read with
Section 151 of the Code of Civil Procedure, 1908 ('CPC') for
recording of compromise and disposal of suit in terms thereof. The
terms of the settlement are contained in Para 2 of their application
Ex.C1, which reads as under: -
"2. That during the pendency of the present
case the parties have amicably resolved all their
disputes and have arrived at an amicable
settlement.
3. That the defendant has agreed to execute
sale deed in favour of the plaintiff on the terms and
conditions mentioned below, however
permission/no objection is required from the Court
of Delhi Waqf Board to execute the sale deed of the
suit property in favour of the plaintiff. The
defendant has already filed petition for seeking the
permission from court of Delhi Waqf Board and the
same is pending and it is agreed between the
parties that as and when the said permission is
obtained/granted the defendant shall execute the
sale deed qua suit property in favour of the plaintiff
on the following terms and conditions;
i) That the defendants shall transfer by way of
absolute sale of the suit property to the plaintiff for
a total sale consideration of Rs.71,50,000/-
(Rupees Seventy One Lac Fifty Thousand only) as
and when the permission/no objection is granted by
the court of Delhi Waqf Board to the defendant to
sell the suit property to the plaintiff.
ii) That the defendant acknowledges that it
has already received a sum of Rs.6,00,000/- from
the plaintiff on 02.08.2008 as part payment and
plaintiff shall deposit further sum of Rs.10,00,000/-
(rupees ten lakh only) in the Hon‟ble court towards
the sale consideration.
(iii) That it is agreed between the parties that
the defendant shall only be entitled to get the said
sum of Rs.10 lakh with interest on FDR released
from the court after the execution of sale deed in
favour of the plaintiff qua the suit property and the
remaining amount of Rs.55,50,000/- (after
deducting applicable Income Tax at Source) shall
be paid by the plaintiff to the defendants at the time
of execution and registration of the sale deed.
(iv) The necessary permission from the court of
Delhi Wakf Board, required shall be obtained by
the defendant in their own costs. However, the
stamp duty, registration charges for the execution
of the sale deed will be paid by the plaintiff.
(v) That the plaintiff was already in
occupation/possession of the suit premises as a
tenant and shall continue to occupy the same and
as and when required permission is obtained from
the court of Delhi Waqf board by the defendant to
sell the suit property or the same is not required
due to any change in the circumstances/rules and
defendant is in position to execute the sale deed in
favour of the plaintiff qua suit property, the
defendant shall intimate the same to the plaintiff in
writing and within 90 days thereof the plaintiff
shall arrange the balance sale consideration of
Rs.55,50,000/- (after deducting applicable Income
Tax at Source) and which shall be paid by the
plaintiff to the defendant at the time of execution
and registration of sale deed.
(vi) That defendant shall withdraw the eviction
petition E.No.10/2015 filed by the defendant
against the plaintiff in respect of the suit property
under section 14(1)(e) of Delhi Rent Control Act
pending adjudication in the court of Sh.Gajender
Singh Nagar, ARC, Delhi with liberty to file fresh if
need arises and shall also withdraw suit
No.06/2014 pending in the court of Ms.Harshita
Vatsyan, Ld. C.J., Delhi.
(vii) That in case permission is finally refused
the defendant may refund the entire amount
received by him without interest and thereafter
claim rent from the plaintiff.
(vii) That it is agreed between the parties that
defendant shall not be entitled to claim/adjust any
amount towards rent/occupation charges from the
plaintiff for the period after 2.8.2008.
(x) That both the parties and/or their legal
heirs including beneficiary, as the case may be,
shall remain bound by the terms of the aforesaid
compromise.
4. That the above said compromise has been
entered into between the parties voluntarily, out of
their own free will without any pressure or
coercion from anybody. Both the parties have
assured each other that they are duly authorized
and competent to enter into the above compromise
in respect of the suit property and shall keep each
other indemnified, in case, any of their
representation turns out to be false."
6. Pursuant to this application, statements of the parties were
recorded by the learned ADJ separately on 02.04.2018. However, by
the impugned order dated 17.04.2018, the learned ADJ did not allow
the application Ex.C1 for recording of compromise for the reason that
„Keeping in view the fact that the parties to the suit have deliberately
concealed in the application the fact of execution of sale-deed already
in favour of the plaintiff and that the defendant no.2 shall only be
entitled to execute the sale-deed after obtaining permission to sell the
shop in question from the Ld. District Judge or to the court
empowered in this behalf, the sale-deed already executed by the
defendant no.2 on behalf of defendant no.1 (Wakf) in favour of the
plaintiff is invalid. Hence, the joint application (Ex.C-1) for recording
of compromise can not be allowed.‟
7. Learned counsel for the parties contend that the factum of the
execution of the sale deed is already on record. Both of them pointed
out towards the order sheet dated 23.03.2015 to the effect that „It is
submitted that the matter has been amicably settled between the
parties and defendant has executed sale deed also but certain
formalities are yet to be completed and request for an adjournment.
At request, adjourned for 8th May, 2015 for report of
settlement/plaintiff evidence‟. It was also brought to the notice of the
learned ADJ by the learned senior counsel on 23.09.2017 that „it is
stated by ld. counsel for the plaintiff that Wakf Board has refused to
give the permission for selling the property and an Appeal against that
order is pending before the Ld. Applet (sic) Tribunal Wakf Board and
it will take some time for decision of that Appeal and a long date may
be given. He has also placed on record photocopy of sale deed
executed in favour of the plaintiff. In facts, put up for further
proceedings on 06.02.2018.‟
8. They contend that thus the fact of execution of the sale deed
dated 19.02.2015 by the respondent no.2 on behalf of the respondent
no.1 in favour of the petitioner was never concealed from the court.
They submit that the sale deed, which was executed after paying a
stamp duty worth Rs.4,29,000/- has become infructuous as more than
three years have elapsed. Therefore, a fresh sale deed is required to be
executed. They also submit that the transaction shall be complete only
if the required permission is granted by the Delhi Waqf Tribunal
('Tribunal'). Para 3 of the application Ex.C1 records that 'That the
defendant has agreed to execute sale deed in favour of the plaintiff on
the terms and conditions mentioned below, however permission/no
objection is required from the Court of Delhi Waqf Board to execute
the sale deed of the suit property in favour of the plaintiff. The
defendant has already filed petition for seeking the permission from
court of Delhi Waqf Board and the same is pending and it is agreed
between the parties that as and when the said permission is
obtained/granted the defendant shall execute the sale deed qua suit
property in favour of the plaintiff on the following terms and
conditions.‟
9. The factum of the execution of the sale deed dated 19.02.2015
executed by the respondent no. 2 on behalf of respondent no.1 in
favour of the petitioner, is already on record as reflected in the order
sheets dated 23.03.2015 and 23.09.2017. As admitted by learned
counsel for both the parties that the sale deed has become redundant
since the unregistered sale deed dated 19.02.2015 is more than three
years old which could not be registered for want of permission from
the Delhi Waqf Board. Both the learned counsel submit that the
application for permission to execute and register the sale deed has
been rejected by the Delhi Waqf Board and the matter is still pending
before the 'Tribunal'. In these circumstances, subject to the 'Tribunal'
granting permission to execute and register the fresh sale deed by the
respondent no.2 on behalf of respondent no.1, the compromise Ex.C1
dated 27.03.2018 is taken on the record and the suit stands disposed of
in terms of the compromise Ex.C1 accordingly. It is made clear that a
fresh sale deed shall be executed and registered in favour of the
petitioner only after the 'Tribunal' has granted the permission to sell.
Unless and until the terms and conditions of compromise are complied
with by the parties and permission is granted by the 'Tribunal', the
petitioner shall not have any title of ownership in the property in
question.
10. The petition along with application being CM No.26909/2018 is
disposed of accordingly.
(VINOD GOEL)
JUDGE
NOVEMBER 28, 2018
"shailendra"
