Suresh Kumar vs Kavita Gurnani & Ors.
2019 Latest Caselaw 583 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       RFA No. 78/2019

%                                                   30th January, 2019


SURESH KUMAR                                              ..... Appellant
                          Through:       Mr. Dinesh Kumar and Mr.
                                         K.S.    Kashyap,     Advocates
                                         (Mobile No. 9811197419) with
                                         appellant in person.

                          versus

KAVITA GURNANI & ORS.                                  ..... 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. 4381/2019 (for exemption)

1. Exemption allowed, subject to just exceptions.

C.M. stands disposed of.

C.M. Appl. Nos. 4380/2019 and 4383/2019 (for delays)

2. For the reasons stated in the applications the delays of 36

days in filing the appeal and 5 days in re-filing the appeal stand

condoned, subject to just exceptions.

C.Ms. stand disposed of.

RFA No. 78/2019 and C.M. Appl. Nos. 4379/2019 (for stay), 4382/2019 (under Order 41 Rule 27 CPC)

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

of Civil Procedure, 1908 (CPC) is filed by Sh. Suresh Kumar,

impugning the Judgment of the trial court dated 14.08.2018, by which

the trial court has decided two cross-suits. One suit was the suit for

possession and mesne profits filed by the respondents herein, and who

are owners of the suit property being Flat No. 2A/9, Khasra No. 1668,

Village Kishan Garh, Vasant Kunj, New Delhi-110070. This flat ad

measures 900 sq. ft. This suit for possession and mesne profits which

was filed by the respondents, being Suit No. 446/2017 was decreed for

possession and mesne profits at Rs. 10,000/- per month from

01.01.2002 till recovery of possession. By the self-same impugned

judgment, the suit filed by the present appellant Sh. Suresh Kumar,

and who was the defendant in the suit filed by the respondents being

Suit No. 445/2017, was dismissed and this Suit No. 445/2017 the

present appellant Sh. Suresh Kumar had claimed ownership of the suit

property on the ground that he was engaged as a labour contractor by

the respondent/plaintiff and in token of his services he was granted

ownership of the suit flat.

4. At the very outset, this Court would like to note that the

present appellant, Sh. Suresh Kumar, had filed an earlier appeal being

RFA No. 884/2018 against the self-same impugned judgment. The

said RFA No. 884/2018 challenged the self-same impugned judgment

dated 14.08.2018, but RFA No. 884/2018 challenged the Impugned

Judgment dated 14.08.2018 to the extent that the impugned judgment

dismissed the Suit No. 445/2017 filed by the present appellant for

declaration and injunction as regards claiming ownership of the suit

property. Though the said earlier RFA did not challenge the judgment

passed in the Cross-Suit No. 445/2017 filed by the appellants,

however, it is noted that the issues in both the suits were common and

identical i.e. whether the present appellant is the owner of the suit flat

or it is the respondents who were the owners of the suit flat of which

the appellant was in illegal possession and therefore was bound to

deliver the possession of the suit flat to the respondents and also pay

mesne profits for the period of illegal possession. Putting it in other

words, the defence of the appellant in the suit filed by the respondents

being Suit No. 446/2017 was the cause of action in the suit filed by

the appellant in his Suit No. 445/2017 being the claim of the present

appellant Sh. Suresh Kumar to ownership of the suit flat on account of

having provided labour contractor services for construction of the

entire property in which one flat was the suit flat/property.

5. The earlier RFA No. 884/2018 was filed on behalf of the

appellant by a different set of lawyers being Mr. Dhiraj Yadav,

Advocate and Mr. Rakesh Kansal, Advocate. After detailed

arguments the earlier RFA No. 884/2018 was not pressed, and the

present appellant, (and who was also the appellant in RFA No.

884/2018), only took time to vacate the suit premises upto 31.03.2019

and RFA No. 884/2018 was accordingly disposed of vide Order dated

31.10.2018. This Order dated 31.10.2018 reads as under:-

"1. After arguments, this appeal is disposed of as not pressed but the appellant as prayed for is granted time upto 31.3.2019 to handover vacant peaceful possession of the suit premises to plaintiff No.2 to whom the suit property is said to have been sold by the plaintiff No.1. In case, the possession is not received by plaintiff No.2, the appellant is entitled to deposit keys of the suit property in Court.

2. The appeal is accordingly disposed of in terms of the aforesaid order."

6. Now a different set of Advocates, being Sh. Dinesh

Kumar, Advocate and Sh. K.S. Kashyap, Advocate have filed the

present appeal, and the said advocates have also argued this present

appeal today, and it is stated that the present appeal was filed because

the earlier RFA No. 884/2018 had only challenged the self-same

impugned judgment limited to the extent of decreeing of the Suit No.

446/2017 filed by the respondents and that the earlier RFA did not

challenge the self-same impugned judgment so far as dismissal of the

Suit No. 445/2017 filed by the appellant, and dismissal of this Suit

No. 445/2017 is challenged by means of the present appeal.

7. In my opinion, this is a fit case for sending of the present

judgment passed today to the Bar Council of Delhi as also for

initiating criminal complaint case against the appellant inasmuch as

the order passed in the earlier RFA No. 884/2018, resulting in

affirming the Impugned Judgment dated 14.08.2018, operates as res

judicata against the appellant and bars the appellant from filing the

present appeal inasmuch as the issues in the present appeal were

identical to the issues in Suit No. 446/2017 and RFA No. 884/2018,

and as already stated above decides as to whether the appellant was or

was not the owner of the suit flat as contended by him on account of

providing labour contractor services to the respondent. I may note that

the claim of the appellant to the suit property was/is not based on any

documentation be it an agreement to sell (much less registered), or

even a sale deed or any other document (much less registered)

showing transfer of the suit property to the appellant. It need not be

gainsaid that ownership of an immovable property can only be taken

by means of a registered document by virtue of Section 17(1)(b) of the

Registration Act, 1908, and if rights are claimed under an agreement

to sell encompassing the doctrine of part performance, then such an

agreement to sell had to be a registered agreement to sell bearing

proportionate stamp duty as is clear from Amendment of Section 53A

of the Transfer of Property Act, 1882 by Act 48 of 2001 with effect

from 24.09.2001 read with the provisions of Section 17(1A) of the

Registration Act which was brought in and which prevented any

document in the nature of an agreement to sell from being looked into

under Section 53A of the Transfer of Property Act, unless such a

document was registered and stamped with stamp duty of 90% of the

consideration of the sale value of the property.

8. The Ld. counsel for the appellant argued that the

appellant has disclosed the factum with respect to filing of the earlier

appeal at para „E‟ in this appeal, and therefore there is no

misdemeanor or illegality by the appellant and his counsel. I cannot

agree. It is an abuse of the process of law that an issue which is heard

and finally decided is sought to be re-agitated on technical grounds,

inasmuch as, by not pressing of earlier RFA No. 884/2018 the issue

with respect to ownership of the suit flat vesting in the respondents

achieved finality with the consequential effect of appellant not being

the owner of the suit property. Also, the issue which is argued before

this Court today that the suit of the present appellant should be

decreed because respondents were not the owners of the suit property

as the land on which the property is constructed had vested in the

Government is a palpably frivolous and illegal stand for many reasons.

Firstly, the appellant in his suit claiming ownership of the suit flat

from the respondents cannot claim by a self-destructive plea that he

has become owner of the suit flat from respondents but that the

respondents are not the owners of the flat because plot on which these

flats were constructed, including the suit flat, vested in the

Government. Secondly, this defence of the respondents not being the

owners and the plot of the land vesting in the Government would be

an issue not in the suit filed by the appellant but a defence in the suit

which was filed by the respondent for possession because by this

defence appellant could have prayed for dismissal of the suit filed by

the respondents, i.e. in a suit filed by the appellant claiming ownership

of the suit flat and that too from the respondents, there cannot be any

claim that the respondents are not the owners. It is also already noted

above, that the issue of ownership of the suit flat vested in the

respondent has achieved finality in terms of order dated 31.10.2018

passed in RFA No. 884/2018.

9. In this view of the matter, the present appeal is dismissed

firstly on the ground of res judicata on account of the impugned

judgment achieving finality as regards the issue pressed in this appeal

being identical in the earlier RFA No. 884/2018 which was

withdrawn. The present appeal is secondly also barred by the

principle of estoppel inasmuch as the present appellant, who was the

appellant in RFA 884/2018, took time to vacate the premises upto

31.03.2019 and this undertaking to the Court is on the basis that the

appellant has no right in the suit property which is now once again

claimed through the present appeal.

10. This appeal is therefore dismissed with costs of Rs.

1,00,000/- which shall be paid by the appellant with the website

www.bharatkeveer.gov.in within a period of four weeks from today

and receipt thereof be filed within one week thereafter, failing which

Registry will list the matter in Court for taking appropriate action

against the appellant.

11. I also find the present to be a fit case where copy of this

judgment be sent to the Bar Council of Delhi treating the present

judgment as complaint against the present Advocates who are present

in person today, and who have argued this appeal that such Advocates

who abuse the process of law ought to be proceeded against

accordingly by the statutory body being the Bar Council of Delhi

inasmuch as it is unacceptable that the Advocates knowing the finality

of an earlier litigation in RFA No. 884/2018 which concluded the

issues which were re-agitated in this appeal, yet have chosen to file

this appeal in spite of the Order dated 31.10.2018 disposing of the

appeal RFA No. 884/2018 as not pressed and appellant being granted

time to vacate upto 31.03.2019.

12. The appeal is accordingly dismissed and disposed of with

the aforesaid observations.

13. At this stage, it is prayed that the appeal be allowed to be

withdrawn. The appeal is therefore allowed to be withdrawn, but as

agreed, appellant will deposit costs of Rs. 25,000/- with the website

www.bharatkeveer.gov.in within four weeks from today.

14. In view of the withdrawal of the appeal, the directions

given hereinabove with respect to imposition of costs of Rs. 1,00,000/-

and sending of copy of this judgment to the Bar Council of Delhi will

not come into operation.

JANUARY 29, 2019                            VALMIKI J. MEHTA, J
AK