Delhi High Court
Munish Kumar vs H D Bhalla (Deceased) Thr Lrs on 16 December, 2020
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:17.12.2020
15:34:13
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 16th December, 2020
+ RSA 158/2018 & CM APPL. 45795/2018
MUNISH KUMAR ..... Appellant
Through: Mr. Bharat Malhotra, Advocate.
versus
SH. H D BHALLA (DECEASED) THR LRS ..... Respondent
Through: Mr. Vivek Bhalla, Respondent in
person.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through video conferencing.
2. The present appeal challenges the impugned order dated 13th September,
2018 passed by the JSCC-cum-Additional Senior Civil Judge, Dwarka Courts,
by which the Appellate Court has remanded the matter back to the Trial Court,
for a decision on the preliminary issue.
3. This appeal has a long and chequered history. A suit for injunction, Suit
No. 224/02, titled H.D. Bhalla v. Dr. Manish Kr., was filed in 2002 by one Sh.
H.D. Bhalla - Respondent/Plaintiff (hereinafter 'Plaintiff') against the
Appellant/Defendant No. 1 (hereinafter 'Defendant'), in respect of the land
measuring 250 sq. yards, forming part of Khasra No.121/ 9, situated at Village
Palam, Delhi, now known as Defence Enclave (hereinafter 'suit property').
4. The case of the Plaintiff, who has since passed away and is represented by
his son and other legal heirs, was that he had purchased this property initially
from Sh. Pal Singh who had in turn purchased the plot from Sh. Baljeet Singh.
The entire chain of documents in respect of the purchase by the Plaintiff, Sh.
H.D. Bhalla, has been set out in the plaint. Initially, the premises was given on
tenancy, however, the Plaintiff came to know on 20th May, 2001, when he visited
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Digitally Signed
Signing Date:16.12.2020 21:48
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:17.12.2020
15:34:13
the premises, that the Defendant -Sh. Munish Kumar, accompanied by anti-
social elements, was trying to dispossess the tenant of the Plaintiff. It is stated
that the Defendant also threatened the Plaintiff and tried to remove the name
plate of the Plaintiff from the outer gate of the suit property. A suit for injunction
against dispossession was then filed by the Plaintiff before the Trial Court. The
reliefs sought in the suit are as under:
"a) Restrain the defendants No.1 and 2, their
agents, servants, employees and friends by means of
permanent injunction from forcibly dispossessing the
plaintiff, his tenant and employees from the suit
premises bearing No.26, Defence Enclave, A Block,
Palam Village, Delhi shows red in the plan attached.
b) Any other relief the Hon'ble Court deems fit
and proper be also granted."
5. The case of the Defendant on the other hand was that a simple suit for
injunction is not maintainable. According to him, the Plaintiff ought to have
sought declaration prior to filing a suit for injunction. The Defendant claimed to
have purchased the suit property from M/s Rajnish Trust, who had in turn
purchased it from Sh. S.C. Madhok.
6. After completion of pleadings, the following issues were framed in the
matter by the trial court, vide an order dated 15th February 2005:
"1. Whether suit has not been valued properly for
the purpose of Court fees and jurisdiction? OPD
2. Whether there does not exists any privity of
contract between the parties? OPD.
3. Whether plaintiff has no locus standi to file the
present suit? OPD
4. Whether plaintiff is entitled for the decree of
Permanent Injunction as prayed for? OPP
5. Relief."
Signature Not Verified
Digitally Signed
Signing Date:16.12.2020 21:48
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:17.12.2020
15:34:13
7. Thereafter, five applications were moved by the Defendants:
(i) An Application under Order VII Rule 11 of the CPC;
(ii) An Application under Order XXVI Rule 10A of the CPC;
(iii) An Application under Order VI Rule 16 of the CPC;
(iv) An Application under Section 340 of the CrPC and
(v) An application for verification of the suit property.
These applications, surprisingly, were decided in 2013 after a gap of 12 years.
Vide order dated 18th July, 2013, the Trial Court observed that there is a cloud
over the title of the Plaintiff and hence a preliminary issue was framed to the
following effect:
"Whether the suit is maintainable in its present form? OPP."
8. The Trial Court, vide order dated 7th July, 2017 rejected the plaint under
Order VII Rule 11(d) of the CPC, on the ground that the suit for injunction is not
maintainable without seeking a prayer for declaration. The said order was then
carried in appeal by the Plaintiff, in which the impugned order remanding the
matter back to the Trial Court, has been passed by the ld. ASCJ, Dwarka Courts.
9. The submission of Mr. Malhotra, ld. counsel for the Defendant in this
appeal, is that the Plaintiff had also moved an application under Order VII Rule
17 of the CPC for adding the prayer of declaration, which was also rejected by
the Trial Court. He further submits that the order of possession has also been
passed in the favour of his client, by the SDM, which has however been stayed.
On a query from the Court, he submits that the Defendant is presently in
possession of the property.
10. On behalf of the Plaintiff, Mr. Vivek Bhalla appears in person and submits
that the trial of the suit is not proceeding due to the pendency of the present
appeal, despite the fact that there is no stay on the Trial Court proceedings.
Moreover, he submits that all the documents, by which his father had purchased
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Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:17.12.2020
15:34:13
the property, are registered documents and the documents of the Defendant are
unregistered documents. He further submits that he only prays for an expeditious
trial of the suit, as his father passed away in the year 2010, while pursuing the
present litigation.
11. A perusal of the chronology of events in the present appeal shows that the
suit was instituted in 2002 and issues were framed in 2005. However, till date,
the trial of the matter has not been proceeded with, for one reason or the other.
Trial Courts are usually inundated with applications after applications by the
parties only in order to make sure that the trial of the suit does not proceed, as is
seen in the present case. Once the issues were framed, the Trial Court ought to
have earnestly put the matter for trial, and not continue to entertain applications,
especially applications under Order VII Rule 11 CPC.
12. The first application in the suit, under Order VII Rule 11(a) of the CPC,
was dismissed in 2005. The entire order sheet is not before this Court, however,
the gap in the order sheet from 2005 to 2013, as filed in the present appeal, itself
shows that for a period of 12 years, merely applications have considered by the
Trial Court.
13. Even the order to remand the matter back to the Trial Court, passed by the
Appellate Court in the impugned order, lacks clarity and has created confusion
as to the manner in which the trial court is to proceed.
14. Adjudication of the maintainability of the suit would require the Trial
Court to go into the evidentiary value of the Plaintiff's and the Defendant's title
documents, which in effect would mean that all the issues can be decided
together. After perusing the issues on record and hearing submissions of the
parties, this Court is of the opinion that the issues which were framed on 15 th
February, 2005 and the issue in respect of maintainability of the suit, ought to be
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Digitally Signed
Signing Date:16.12.2020 21:48
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:17.12.2020
15:34:13
decided together comprehensively by the Trial Court.
15. In view of the above, the following directions are issued:
i) The evidence on all issues, including the issue as to the
maintainability of the suit, shall be recorded by the Trial Court;
ii) The Plaintiff is stated to have filed its evidence by way of affidavit
way back in 2010. However, considering the fact that the Plaintiff has
passed away, the Plaintiff's LRs may take a re-look at the matter, and file
fresh affidavits in evidence, if needed within six weeks from today;
iii) The cross-examination of Plaintiff's witnesses shall now take place
either in person or through video conferencing.
iv) Thereafter, the Defendant's evidence shall be recorded by the Trial
Court.
16. All the issues framed on 15th February 2005 and on 18th July 2013 shall
be adjudicated upon comprehensively by the Trial Court. The Trial of the suit
shall be concluded within a period of 8 months from the first date of hearing.
17. List on 22nd December, 2020 before the Trial Court, for the Court to take
note of the present order and to fix dates for recording of Plaintiff's evidence. A
copy of this order be communicated to the learned Chief Judge- 06 (Central),
Tees Hazari Courts.
18. This appeal and all pending applications are disposed of in the above
terms.
PRATHIBA M. SINGH
JUDGE
DECEMBER 16, 2020
Rahul/Ak
Signature Not Verified
Digitally Signed
Signing Date:16.12.2020 21:48
