Delhi High Court
Preeti Pratap Singh vs Kiran Raj Bisaria on 31 May, 2022
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: May 31, 2022
+ RFA 554/2018 & CM Nos. 12684/2019, 12686/2019, 31554/2021,
41489/2021 and 43389/2021
PREETI PRATAP SINGH ..... Appellant
Through: Mr. Kirtiman Singh, Mr. Taha Yasin
and Mr. Waize Ali Noor, Advs.
versus
KIRAN RAJ BISARIA ..... Respondent
Through: Mr. Vivek Raj Singh, Sr. Adv. with
Mr. Shantanu Verma and
Ms. Avantika Singh, Advs.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
JUDGMENT
V. KAMESWAR RAO, J
CM Nos. 12684/2019, 12686/2019, 31554/2021, 41489/2021 &
43389/2021
PREFACE:
1. The background leading to the filing of the above applications
is as follows:
i. The RFA 554/2018 stems out of the judgment dated
March 12, 2018 of the Addl. District Judge-8 (Central), Tis
Hazari Courts, Delhi in the inter-connected suits bearing nos.
12608/2016 and 16909/2016 („impugned judgment‟,
hereinafter). Suit bearing no. 12608/2016 was a suit for
partition, permanent injunction and rendition of accounts
filed by Preeti Pratap Singh (appellant). The suit bearing no.
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16909/2016 had been filed by Kiran Raj Bisaria (respondent)
seeking reliefs of possession and permanent injunction. The
appellant and the respondent are sisters, i.e., they are both
daughters of Rani Prem Kumari and Raja Pratap Singh.
i. The Trial Court decreed the Suit no. 16909/2016 on
March 12, 2018 in favour of the respondent granting
possession, mesne profits and permanent injunction of the
suit premises being second floor (barsati floor) of the
property bearing no. 113, Sunder Nagar, New Delhi („suit
property‟, hereinafter).
ii. The appellant filed the above appeal seeking setting aside
of judgment and decree dated March 12, 2018. However,
while this Court was in the process of adjudicating this
appeal, the parties agreed to settle the matter. This Court
while hearing the appeal on August 30, 2018 had by
recording the terms of the settlement passed a consent order
and disposed of the appeal. The relevant part of the order is
reproduced as under:
"2. The subject suit which was decided by the
impugned judgment dated 12.3.2018 was a suit filed
by the respondent/plaintiff seeking possession of the
suit property in terms of the Will dated 16.11.1992 of
the father late Raja Partap Singh. The suit property is
the barsati floor/second floor of the property bearing
no. 113, Sunder Nagar, New Delhi. This suit for
possession and mesne profits filed by the
respondent/plaintiff has been decreed in favour of the
respondent/plaintiff and against the
appellant/defendant in terms of the impugned
judgment, and which impugned judgment also decides
a connected suit filed by the appellant herein (as
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plaintiff) seeking partition of the properties of her
father including the property no.113, Sunder Nagar,
New Delhi.
3. In the suit filed by the present appellant seeking
partition of the properties of the father, there are
various other properties and issues involved, besides
the property no.113, Sunder Nagar, New Delhi, and
with respect to which other properties a judgment is
being passed today. By this order that part of the suit
filed by the appellant/plaintiff with respect to
partition of the properties of her father being Suit No.
2414/1994 (new number 12608/2016) as regards the
property 113, Sunder Nagar, New Delhi, and the suit
filed by the respondent/plaintiff for possession of the
suit property being the second floor/barsati floor of
the property no.113, Sunder Nagar, New Delhi being
Suit No. 126/2004 (new number 16909/2016), are as
per an agreement/compromise between the
appellant/Smt. Preeti Pratap Singh and the
respondent/plaintiff Smt. Kiran Raj Bisaria, being
disposed in terms of the below stated consent order:-
(i) It is agreed that the respondent/plaintiff Smt.
Kiran Raj Bisaria is the owner of the suit
property being the barsati floor/second floor of
the property bearing No.113, Sunder Nagar,
New Delhi.
(ii) Appellant/defendant does not dispute the
ownership of the suit property being the barsati
floor/second floor of the property bearing
No.113, Sunder Nagar, New Delhi being of the
respondent/plaintiff Smt. Kiran Raj Bisaria, and
consequently the appellant/defendant will
handover actual physical vacant possession of
the suit property being the barsati floor/second
floor of the property no.113, Sunder Nagar, New
Delhi to Smt. Kiran Raj Bisaria on or before
28.2.2019.
(iii) On the appellant/defendant handing over
actual physical vacant possession of the suit
property being barsati floor/second floor of the
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property no.113, Sunder Nagar, New Delhi
positively on or before 28.2.2019 to Smt. Kiran
Raj Bisaria, the respondent/plaintiff Smt. Kiran
Raj Bisaria has very graciously and
magnanimously agreed that the decree for mesne
profits passed in her favour in terms of the
impugned judgment dated 12.3.2018 is not
pressed with the condition that in case
possession of the suit property being the barsati
floor/second floor of the property bearing
no.113, Sunder Nagar, New Delhi is not handed
over to Smt. Kiran Raj Bisaria on or before
28.2.2019 then the impugned money decree will
stand in favour of the respondent/plaintiff and
against the appellant/defendant.
(iv) This settlement between the parties is in a
way in enforcement of the Will dated 16.11.1992
as regards the property no.113, Sunder Nagar,
New Delhi, of the father late Raja Pratap Singh,
however this settlement in this suit is only with
regard to property no.113, Sunder Nagar, New
Delhi and is without prejudice to the rights of
Smt. Preeti Pratap Singh, (appellant/defendant
in the subject suit), as the appellant/plaintiff in
the connected RFA 555/2018, to question her
entitlement to the rights in the other properties;
except 113, Sunder Nagar, New Delhi; of the
father late Raja Pratap Singh, and also without
prejudice to the respondents/defendants in RFA
555/2018 to contend otherwise.
(v) It is also agreed that Smt. Preeti Pratap
Singh, has not disturbed, and does not intend to
disturb Smt. Kiran Raj Bisaria or her nominees
etc. from in any manner from accessing or using
etc of the second floor/barsati floor of the
property bearing no.113,Sunder Nagar, New
Delhi. It is however clarified that with respect to
any amenities of water tank and related
connections, Smt. Preeti Pratap Singh will have
necessary access to the second floor/barsati
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floor.
4. The suit and the present appeal are accordingly
disposed of in terms of the present consent order,
leaving the parties to bear their own costs."
2. After the appeal was disposed of through the consent order
dated August 30, 2018, the following transpired:
I. Two applications have been filed on behalf of the respondent,
being CM Nos. 12684/2019 and 12686/2019.
II. CM No. 12684/2019 has been filed with the following prayers:
"In view of the facts and circumstances stated above, it is
most respectfully prayed that this Hon'ble Court may
kindly be pleased to:
1. Appellant (Smt. Priti Pratap Singh) to pay the
compounding charges on the Second floor of 113
Sunder Nagar to the L&DO.
2. Appellant (Smt. Priti Pratap Singh) to sign the
mutation and freehold Application to be moved
before L&DO.
3. Appellant (Smt. Priti Pratap Singh) to pay her
share of the mutation and freehold conversion
charges for 113 Sunder Nagar.
4. Appellant (Ms. Priti Pratap Singh) to remit
the rental received by her from Mr. Vitorica
Hamilton Ignacio from 01.10.2017 till
28.02.2019, i.e. 17 months @ Rs.1,60,000 per
month totaling to Rs.27,20,000 along with
interest thereon @ 18% p.a.;
5. Appellant that notice given by Mr. Vitorica
Hamilton Ignacio dated 22.02.2019 amounts to
not handing over the possession of 2nd floor of
house No. 113, Sunder Nagar, New Delhi and
her concealment of Tenancy from this Hon'ble
Court and her conduct has revived the mesne
profits awarded by the Trial Court in its
judgment dated 12.03.2018.
6. Appellant (Smt. Priti Pratap Singh) to disclose
on affidavit the details of all letting out done by
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her of Second Floor of 113 Sunder Nagar during
the pendency of the suit when she was availing
the benefit of the injunction order against the
Respondent-applicant.
To pass any other such order as this Hon'ble
Court deems fit and proper in the circumstances
of the case."
III. CM. No. 12686/2019 seeks the following prayers:
"It is humbly prayed that this Hon'ble Court
may be pleased to
1. Allow the respondent-applicant to bring on
record the lease deed dated: 16.09.2017, to legal
notices dated: 23.10.2018, 01.11.2018, e-mails
dated: 18.02.2019, 20.02.2019, 22.02.2019 and
message dated: 20.02.2019.
2. Pass such other orders which this Hon'ble
Court may deemed fit in the circumstances of the
case."
IV. Thereafter, application being CM. No. 31554/2021 has been
filed by the appellant praying for recall of the consent order
dated August 30, 2018 with the following prayers:
"In view of the submissions made herein above,
it is respectfully prayed that this Hon'ble Court
may be pleased to:
a) recall the order dated 30. 08.2018 and restore
the Regular First Appeal (RFA) to its original
number;
b) restrain the Respondent/ Non-Applicant
herein from taking any steps whatsoever towards
sale, alienation, or creation of any right, title or
interest in 113 Sunder Nagar, New Delhi, in
favour of any third party;
c) pass any other order/ orders as this Hon'ble
Court may deem fit and proper in the facts and
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circumstances of the present case."
V. CM. No. 41489/2021 has been filed by the appellant for
placing on record additional documents. The prayer in the
said application is as follows:
"In view of the submissions made herein above, it is
respectfully prayed that this Hon'ble Court may be
pleased to:
a) Pass appropriate order(s) allowing to place on
record settlement dated 20.12.2019, orders dated
28.08.2008 and 11.10.2006,
b) Pass any other order/ orders as this Hon'ble
Court may deem fit and proper in the facts and
circumstances of the present case."
VI. This Court on November 24, 2021 after hearing arguments
reserved orders in CM. Nos. 12684/2019, 12686/2019,
31554/2021 and 41489/2021.
VII. Subsequently another application being CM. No. 43389/2021
was filed by the respondent seeking initiation of proceedings
under Section 340 of the Code of Criminal Procedure, 1973
(„Cr.PC‟, for short) with the following prayers:
"In view of the submissions made herein above, it is
respectfully prayed that this Hon'ble Court may be pleased
to:
a) Initiate proceedings against the appellant under
section 340 read with section 195 off the Code of
Criminal Procedure,
b) Pass any other order/orders as this Hon'ble
Court may deem fit and proper, in the facts and
circumstances of the present case."
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VIII. After hearing the arguments this Court reserved its orders in
the above application as well. I deem it appropriate to decide
all the above-mentioned applications vide this composite
order.
SUBMISSIONS:
3. Mr. Vivek Raj Singh learned senior Counsel (V.R. Singh for
short) appearing for the respondent had argued that the father of the
appellant and the respondent had left behind a registered Will whereby
the ground floor of the property being 113 Sunder Nagar, New Delhi
was given to the appellant and the first floor and the suit property
(barsati floor) was given to the respondent. After the demise of her
father, ignoring the fact that the father had left behind a registered will
with specific directions; the appellant filed a suit for partition bearing,
number 2414 of 1994 (New No. 12608 of 2016). It is the case of the
respondent that the appellant had been in unauthorised occupation of
the suit property after the tenant of the first floor (M/s. Alcatel) vacated
the accommodation and it was for this reason that the respondent was
forced to file a suit for eviction in the year 1998 which was numbered
as 16909/2016. These suits were clubbed together and the appellant had
made a statement during the suit proceedings that no alienation or third
party rights would be created in the suit property (barsati floor). Both
these suits were disposed of vide a common judgement of the Trial
Court dated March 12, 2018 whereby the appellant‟s suit for partition
was dismissed and the respondent‟s suit for possession was allowed
with mesne profits to the tune of ₹28 Lacs. The mesne profits were
granted for the period starting from May 21, 1998 till December 31,
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2017. The appellant approached this Court by filing RFA No. 554 of
2018 and RFA 555 of 2018 against the impugned judgment/decree
dated March 12, 2018. The RFA No.554/2018 was disposed of vide
Consent Order dated August 30, 2018 wherein the appellant was
granted six months‟ time i.e., until February 28, 2019 to handover the
vacant possession of the suit property or else the mesne profits granted
by the Trial Court would stand revived. The RFA No.555/2018 was
dismissed by this Court.
4. Mr. V.R. Singh stated that the appellant had given an
undertaking which was recorded in order dated May 25, 1998 by this
Court, where the suits were initially instituted, that she would not
alienate and/or create third party rights in the suit property. However, in
contravention to her own undertaking given to this Court the appellant
created third party interests in the suit property and this alone would
amount to contempt of Court. He referred to a judgment in the case of
Noorali Babul Thanewala vs. K.M.M. Shetty (1990) 1 SCC 259 to
state that an undertaking given to the Court which is later breached
would tantamount to disobedience of an order of injunction. It is the
case of Mr. V.R. Singh that after the consent order dated August 30,
2018 was passed the respondent found out that the appellant had leased
out the suit property by means of a lease deed dated September 16,
2017 to a Spanish Diplomat namely Ignacio Victoria Hamilton for a
period of two years and ten months (from October 01, 2017 till July 31,
2020) at a monthly rent of ₹ 1,60,000/- along with a security deposit of
₹3,20,000/- and the appellant collected a total amount of ₹27,20,000/-
plus interest on the deposit from October 01, 2017 till February 28,
2019 and even thereafter. It is for this reason Mr. V.R.Singh stated that
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the undertaking given by the Appellant on May 25, 1998 was violated
and the appellant committed ex facie contempt. He stated that these
facts were in the knowledge of the appellant which she chose to
wilfully conceal from this Court when the compromise was recorded as
on August 30, 2018.
5. As per Mr. V.R. Singh, one of the terms of settlement in the
consent order was that the appellant was directed to hand over
possession of the suit property on or before February 28, 2019, due to
which the appellant asked Ignacio Victoria Hamilton to vacate the
premises. Ignacio Victoria Hamilton refused to vacate the premises in
terms of clause 14 of the lease deed, as the same was valid till July 31,
2020. He submitted that when the Spanish Diplomat did not vacate the
premises the appellant started using extra judicial methods like cutting
off the electricity and water supply to the suit property so as to ensure
that Ignacio Victoria Hamilton leaves, who was the tenant in the suit
property. The tenant wrote an email to the respondent stating that, he
knew that the appellant is not the actual owner of the suit property and
that the respondent should not enter the suit property as long as the
lease deed is in force and also because his belongings were lying at the
suit property. He stated that he was in Spain as on February 22, 2019
and would be coming back on February 27, 2019 and if the respondent
were to enter the suit property, she would be liable for trespassing. It is
the case of Mr. V.R. Singh that cutting off the electricity and water
connections to the suit property does not amount to handing over of
possession and since the appellant failed to hand over the vacant
possession of the suit property by February 28, 2019, therefore, the
claim of mesne profits stood revived as the appellant did not act in
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terms of the consent order August 30, 2018.
6. The respondent thereafter had on March 15, 2019 filed two
applications under Section 151 CPC bearing CM Nos. 12684 of 2019
and 12686 of 2019 pleading fraud that has been committed by the
appellant by placing on record the documents including the lease deed
that was entered into between the Spanish Diplomat and the appellant
including the emails as well as various correspondences exchanged
between the parties. Mr. V. R. Singh stated, in the case of State of U.P.
v. Maharaj Dharmender Prasad Singh, (1989) 2 SCC 505, the
Supreme Court had held that a lessor even with the best of titles has no
right to resume extra judicial possession by use of force claiming right
from a lease even after the same has expired or terminated by forfeiture
or otherwise. The use of the term re-entry in the lease deed does not
authorise extra judicial methods to resume possession. Mr. V. R. Singh
argued that possession of a lease even after its expiry or earlier
termination is lawful possession and forcible dispossession is
prohibited, a lessee cannot be dispossessed through means that do not
follow the due process of law; he stated that possession can only be
resumed/taken over through means that are recognised by law and done
in accordance with law. Mr. V.R. Singh cited the judgment in the case
of Satish Verma v. D.V.B., 2002 (64) DRJ 666, which in turn had
relied on the findings in the judgment of Maharaja Dharmender
(supra) to state that cutting of the electricity supply is nothing more
than a shortcut for gaining re-entry and the same tantamounts to
validating the action of termination of lease and resumption of
possession by adopting extra judicial means. Therefore, it was held that
the action of disconnecting electricity supply merely on account of
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termination of lease by lessor was illegal, unjust and unwarranted and
also a mere determination of lease by lessor does not render the lessee
as an unauthorised occupant and his possession would continue to be
lawful. The appellant cannot be allowed to benefit from the fraud she
has committed and concealment of facts which she has sought to take
benefit of, before this Court and also creating third party interests in the
suit property. The Supreme Court in the case of Motilal Songara Prem
Prakash alias Pappu & Anr., (2013) 9 SCC 190 has held that
suppression of material facts before the Court amounts to playing fraud
on the Court. It is the case of Mr. V. R. Singh that the amount which
has been received by the appellant as rent at ₹1,60,000/- from Ignacio
Victoria Hamilton during the period of October 01, 2017 to February
28, 2019 i.e., 17 months, computed as ₹27,20,000/-, should be directed
to be paid back to the owner of the leased-out property which is the
respondent, along with interest.
7. Mr. V. R. Singh has also argued that handing over of the
possession by the appellant by putting a lock on the suit property and
handing over the keys without proper termination of the lease that has
been entered into between the appellant and the Spanish Diplomat
would amount to not handing over of vacant possession. In this
background, Mr. V.R. Singh argued that the only eventuality which
exist, is for the revival of mesne profits as awarded by the Trial Court
vide its impugned judgment dated March 12, 2018. It is the case of the
respondent that as per the order dated August 20, 2019, the appellant
gave an undertaking to this Court by stating that she has never refused
to cooperate with the respondent in completing the various formalities
related to getting the various entries made in favour of the respondent
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in the L&DO records. The appellant again in clear violation of her
undertaking refused to sign the freehold papers which have to be signed
jointly by the owners of the property. He has stated that the appellant
time and again has violated the undertakings given to Court, which is
why the prayer has been made that the appellant should be directed to
sign the freehold papers jointly with the respondent and the appellant
should also pay her share of the freehold charges.
8. Mr. V.R. Singh argued that the sum and substance of the
applications moved by the respondent is to seek a declaration affirming
that the handing over of possession by the appellant to the respondent
without first following the due process of termination of the lease deed
would amount to not handing over of vacant possession at all. As
consequence, a declaration be given by this Court, so that as and when
the respondent approaches the Executing Court, seeking the execution
of the decree, the respondent would be able to seek execution with
regard to the amount of mesne profits.
9. As far as the application bearing the CM No. 31554/2021 filed
by the appellants seeking recall of Consent Order dated August 30,
2018 is concerned, Mr. V.R. Singh stated the same has been filed after
a delay of three years without any application seeking condonation of
delay that too on an assumption that Sunder Nagar is going to be
excluded from the Luytens Bungalow Zone („LBZ‟, for short) which
would then entail in an increase in the Floor Area Ratio („FAR‟ for
short) which would ultimately result in the respondent getting more
rights of construction. It is the case of Mr. V.R. Singh that as per
Section 96(3) of the CPC, no appeal shall lie from a decree that has
been passed by the Court with the consent of parties. He has referred to
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the judgment Kartikara Chintamani Dora vs. Guntreddi
Annamainaidu, (1974) 1 SCC 567, to emphasise that the parties can
expressly or by implication waive / forgo their right of appeal by any
lawful agreement or compromise and, therefore, the principle of
estoppel underlying Section 96(3) CPC would come into force and the
decree in terms of the agreement would become final and binding on
the parties. He stated that the application moved by the appellant
against the consent order dated August 30, 2018 is barred as the said
order was passed with the consent of both parties, who at that time did
not object to any of the terms and agreed to the said settlement through
their own volition.
10. Additionally, Mr. V.R. Singh argued that there exists a bar
under Order XXIII Rule 3A CPC against filing a suit challenging a
compromise decree on the ground the compromise on which the decree
is based was not lawful. According to him, this is not the case of the
appellant. However, if this were the case of the appellant, even then, the
compromise decree cannot be recalled. He has drawn my attention to
the judgment of the Supreme Court in Pushpa Devi Bhagat v. Rajinder
Singh, (2006) 5 SCC 566, to state that there is no provision for filing an
appeal against a consent decree and that the only recourse a party has is
to approach the Court which recorded the compromise and establish
that there was no compromise, which is not the case here.
11. Another plea advanced by Mr. V.R. Singh is that the
application of the appellant is not maintainable since it is barred by the
principles of res judicata as such a plea was not taken in the original
suit and before this Court in the RFA, therefore, it cannot be taken in
this application. Reliance was placed on the case of Alka Gupta v.
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Narendra Kumar Gupta, (2010) 10 SCC 141, to state that the current
plea of the appellant ought to be barred under the principle of
constructive res judicata i.e., the grounds of attack/defence which
ought to have been raised but were not, whereas Order II Rule 2 CPC
deals with the relief which could have been claimed but were not. He
stated that the appellant through this application is trying to reagitate
issues which were capable of being taken up at the time of the disposal
of the appeal which was disposed of through the Consent Order dated
August 30, 2018.
12. It is the submission of Mr. V.R. Singh that the inherent powers
of the Court as provided for in the CPC cannot override the express
provisions of the CPC, in this regard he referred to the judgment of
Arjun Singh v. Mohindra Kumar & Ors., AIR 1964 SC 993. He stated
that as per Section 96(3) of the CPC which expressly provides that no
appeal shall lie from a decree which has been passed by the consent of
both parties along with a bar under Order XXIII Rule 3A CPC, the
appellant cannot invoke the inherent powers of Court under Section 151
of the CPC to nullify the express provisions of law.
13. The latent reason behind the appellant filing the present
application is, that Sunder Nagar would, in future, be excluded from the
LBZ thereby increasing the FAR. Reference has been made to Mirabai
Films Pvt. Ltd. v. Hathway Cable and Datacom Pvt. Ltd., 2002 SCC
OnLine Del 228, to state that in order to get a relief under the aforesaid
provisions the person approaching the Court must prove that he has a
strong case on merits. He argued that the Courts ought to not proceed to
restrain a party on vague allegations.
14. Mr. V.R. Singh stated, the appellant was given a last
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opportunity to file a response to the applications filed by the
respondent, but the appellant failed to do so. Therefore, Mr. Singh
stated that the inaction of the appellant would in the absence of a
specific denial in fact tantamount to an admission of the factual
situation as stated by the respondent.
15. He stated, the alleged settlement between the appellant and the
Spanish Diplomat dated December 20, 2019 at such a delayed stage
shows the intent of the appellant to misguide the Court. This settlement
too is a forged document which has been verified by International
Forensic Sciences Pvt. Ltd. which is a government recognised body
and, therefore, their expert opinion regarding the said settlement can be
read under the provisions of Section 45 of the Indian Evidence Act,
1872. The report reveals that the signatures of the Spanish Diplomat do
not match the signatures in the different documents as filed before this
Court. It is for this reason that the respondent has filed the application
for initiation of proceedings against the appellant under Section 340 of
the Cr.P.C. being CM. No.43389/2021.
16. He argued that even the handwriting experts have opined that
the signatures of Ignacio Victoria Hamilton on the lease deed dated
September 16, 2017 and settlement agreement dated December 20,
2019, appeared to be dissimilar along with their own detailed
reasoning. This factum, Mr. V.R. Singh has argued renders the
appellant liable for prosecution for the offence of perjury by submitting
false and forged document before this Court. He has taken a stand that
the actions of the appellant show their mala fide as on the lease deed
dated September 16, 2017, the name of the appellant finds mention as
Priti Kuchaman, whereas in the settlement agreement dated December
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20, 2019, her name has been mentioned as Priti Pratap Singh.
17. On the other hand, Mr. Kirtiman Singh, learned counsel for the
appellant (Mr. Singh) has at the very outset taken a stand that in terms
of the admitted settled position, the applications of the respondent need
to be dismissed as the same are not maintainable as after the consent
order was passed, the appellant approached the respondent for the
purpose of handing over possession of the suit property well before the
due date, i.e., February 28, 2019. He relied upon the various letters
written by the appellant dated February 18, 2019, February 20, 2019
and February 21, 2019, wherein the appellant had been calling upon the
respondent to take possession of the suit property. According to Mr.
Singh, the respondent was not ready and willing to take possession and
kept avoiding the same on one pretext or the other. It is for this reason,
the appellant being left with no other option deposited the keys of the
suit property with the Trial Court. He placed reliance on the order
dated February 26, 2019 of the Trial Court. Mr. Singh argued that
when the matter was listed before this Court on August 20, 2019, the
respondent had categorically submitted that she did not wish, the order
dated August 30, 2018 be recalled and she would approach the Trial
Court for obtaining the keys of the suit property, which she later did. In
this regard, he has drawn my attention to the order dated September 09,
2019 and November 15, 2019 of the Trial Court.
18. According to him, the appellant has fully discharged her
obligations as per the consent order dated August 30, 2018 and the
respondent is admittedly a beneficiary of the same, as the appellant has
already given up her claim to the suit property and handed over the
possession. Whereas the respondent had given up her claim for mesne
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profits which has been recorded in the consent order. As per
Mr. Singh, even though there has been a specific and categorical
renunciation of the same as a part of the mutual obligations recorded in
the consent order, the respondent through her current actions is trying
to wriggle out of her obligations on the basis of the misconceived
applications.
19. Mr. Singh has argued that irrespective of the respondent‟s
submissions, the gravamen of the respondent‟s case is that she is not
bound by the consent order dated August 30, 2018 and that she is
entitled to enforce her claim for mesne profits against the appellant in
terms of the impugned judgment dated March 12, 2018 even for a sum
that has not been awarded to her in the said decree. According to him,
the respondent cannot be permitted to shift her stand with regard to the
consent order especially when the respondent seeks to benefit from the
order having taken possession, she must accept all the conditions and
perform reciprocal obligations and should not be allowed to approbate
and reprobate. In this regard, Mr. Singh has relied upon the judgment
in the case of R.N. Gosain v. Yashpal Dhir (1992) 4 SCC 683 to state
that a party cannot be allowed to accept and reject the same instrument
so as to draw some advantage from it and then to turn around and take a
stand that the said instrument is void in order to gain some other
advantage. He also relied on the judgment of Deepa Bhargava v.
Mahesh Bhargava, (2009) 2 SCC 294 to state that once a party has
acted upon / taken advantage from a consent decree which remains
valid and has not been set aside, the said parties should not be then
allowed to resile from the consent once given.
20. Mr. Singh has argued that de hors the other submissions, the
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claim for mesne profits that has been set up by the respondent is for the
same period for which the respondent has already been awarded mesne
profits through the impugned decree dated March 12, 2018, which
claim has been specifically and unequivocally given up in terms of the
consent order dated August 30, 2018. He placed reliance on Raptakos
Brett & Co. Ltd. v. Ganesh Property, (2017) 10 SCC 643. It is the case
of Mr. Singh that possession would deemed to have been handed over
on the same day when it was offered. It was the respondent who
refused to take possession and it was the appellant who ultimately
approached the Trial Court for the purpose of depositing the keys of the
suit property.
21. On this limited proposition Mr. Singh relied upon the judgment
of H.S. Bedi v. National Highway Authority of India, 2015 SCC
OnLine Del 9524. In this regard, Mr. Singh argued that the
observations of the Court in the aforementioned judgment may be noted
in the facts of this case as well wherein despite repeated and persistent
requests of the appellant the respondent did not take possession. The
appellant submitted that since the possession was handed over to the
respondent well before February 28, 2019 as per the consent order
dated August 30, 2018, therefore, any submission to the contrary is
misconceived and is denied by the appellant.
22. Mr. Singh has denied the allegation of fraud / misrepresentation
/ concealment. He states, such allegation indicate lack of bona fide of
the respondent in settling inter se dispute between the parties. Mr.
Singh argued cases of fraud or misrepresentation presuppose an
existence of a fact that was previously unknown to a party. However,
in this case the respondent has based her case on facts and
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circumstances that were fully known to her before taking possession of
the suit property. As per Mr. Singh since the appellant acted upon the
consent order dated August 30, 2018, the appellant should refrain from
raising allegation of fraud. Mr. Singh relied on the judgment of
Ningawwa v. Byrappa Shlddappa Hireknrabar & Ors. (1968) 2 SCR
797 to state that it is an established fact that a transaction induced by a
fraud is not void but only voidable at the instance of the party that has
been defrauded. Until such instance takes place, the transaction
remains valid so that third parties who without notice of fraud may
have acquired rights and interests in the matter, may enforce against the
defrauded party. This plea has been made by Mr. Singh to state that
although there has been no fraud whatsoever on the part of the
appellant, however, even if it were to be assumed so though not
admitted the respondent even otherwise is estopped from raising such
an allegation.
23. It is the case of Mr. Singh that the respondent has argued that
nature of the possession that has been handed over is not contemplated
in the consent order dated August 30, 2018, is predicated on a
purported email dated February 22, 2019 from one Ignacio Victoria
Hamilton whom the respondent has sought to invoke from time to time
to plead that the interest on the suit property is somehow jeopardized
when admittedly there has been no act whatsoever from anyone/any
party that could be dubbed as an impediment to possession which has
already been taken by the respondent. Mr. Singh has pointed out to the
settlement dated December 20, 2019 signed by the aforesaid party,
wherein it has been clearly stated that possession was handed over to
the appellant in the third week of January, 2019 which possession was
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then in turn handed over to the respondent prior to February 28, 2019.
The stand taken by the respondent before this Court is that the appellant
had acted illegally in terminating the lease arrangement with Ignacio
Victoria Hamilton. However, the said contention ought to be rejected
as there is no dispute with Ignacio Victoria Hamilton. He argued that it
is an admitted position that the possession was handed over prior to
February 28, 2019 and there has been no hindrance or impediment in
the respondent‟s possession of the suit property. Mr. Singh has also
placed reliance on Kandla Port v. Hargovind Jasraj, (2013) 3 SCC
24. Another argument that has been taken by Mr. Singh is that if
the respondent believed that her interest in the property was somehow
jeopardized, she ought not to have taken possession and worked out the
anomalies accordingly. He argued that if this is the belief of the
respondent under which she is operating she must handover the
possession back to the appellant. On the submission advanced by
Mr. V.R. Singh that as per the order dated May 25, 1998 the suit
property could not be let out by the appellant, Mr. Singh has argued,
the respondent is guilty of suppression, since it was the respondent who
had subsequently moved an application seeking to restrain the appellant
from letting out the property. The application was dismissed vide order
dated October 11, 2006 and the appeal therefrom was withdrawn vide
order dated August 28, 2008. Mr. Singh has pointed out to the relevant
portions of the orders which have been reproduced in the CM
No.41489/2021 in that regard. Mr. Singh submitted that as per the order
dated May 25, 1998 no third party interest has ever been created in the
suit property. Mr. Singh stated that even for the sake of argument,
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letting out a property does not lead to creation of third party interests or
alienation as has been held in the judgment of Chander Parkash Soni
v. Dr. R. S. Grewal, 2016 SCC OnLine P&H 3981. He also placed
reliance on the judgment of Anil K. Surana v. State Bank of
Hyderabad, (2007) 10 SCC 257 to state that the appellant has not
violated any recorded undertaking in terms of the order dated May 25,
1998.
25. As per Mr. Singh, the violation of the undertaking which is
sought to be pinned upon the appellant cannot be a subject of the
present application which in turn has been filed for the implementation
of the consent order dated August 30, 2018. He argued that even
otherwise such a scenario would not be permissible since as per the
settled position that any interim order would merge with the final order
and has referred to Kanwar Singh Saini v. High Court of Delhi, (2012)
4 SCC 307.
26. He stated, the correctness of the averments of the respondent
can only be considered after the consent order dated August 30, 2018 is
recalled and the appeal is restored to its original number after which the
appellant would also be able to establish on merits / on facts that no
claim towards mesne profits would be maintainable in the suit for
partition. He has also argued that it is apparent that the claim which the
respondent is making is clearly beyond, what has been awarded vide
judgment dated March 12, 2018, which in any case, the respondent has
admitted since there has been no challenge in that regard. With this
background, Mr. Singh has argued that the claim of the respondent in
the present application being CM 12684/2019 is clearly beyond the
scope of Order XXI Code of Civil Procedure, 1908 („CPC‟, for short)
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in absence, of any challenge to the judgment and decree dated March
12, 2018. Mr. Singh has relied on the judgments in the cases of
Babburu Basavayya v. Babburu Guravayya, 1951 SCC Online Mad
49, Gnanaprakasa Mudaliar v. B. Anandathanadavan, 1998 SCC
Online Mad 229 and Bansraj Ramesh Chobe v. Taraben, 1998 SCC
Online Guj 749. On the issue of non-filing of any reply to the
applications filed by the respondent, Mr. Singh has stated that this issue
need not be gone into since as per order dated September 16, 2021
leave was taken to refer to the pleadings in the application CM No.
31554/2021. Additionally, the appellant has also placed on record the
settlement (between the appellant and Ignacio Victoria Hamilton) dated
December 20, 2019 through an application numbered as CM
No.41489/2021.
27. A further prayer that has been sought by the appellant for the
recall of the consent order dated August 30, 2018, is, as per Mr. Singh
maintainable and deserves to be allowed. Mr. Singh has relied upon the
judgments in the cases of R. Rajanna v. S. R. Venkataswamy, (2014)
15 SCC 471 and Banwari Lal v. Chando Devi, (1993) 1 SCC 581.
28. According to Mr. Singh, the Courts have time and again
emphasized that a compromise is nothing but a contract on the basis of
which parties have agreed to settle a dispute. Any such compromise
must meet the requirements under Order XXIII Rule 3 CPC. The
consent order dated August 30, 2018 would also fall within the purview
of Order XXIII Rule 3 CPC. The respondent has accepted this position
in its own pleadings and written submissions as well. It is the case of
the appellant that although the consent order dated August 30, 2018
was passed on the basis of consent of the parties but for the fact that the
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appellant on her own volition discharged the obligations under the said
order including handing over of possession before February 28, 2019
and thereby there was no executable decree under Order XXIII in
favour of the respondent. Mr. Singh has relied on the judgment of
Pushpa Devi Bhagat v. Rajinder Singh & Ors., (2006) 5 SCC 566 and
Gurpreet Singh v. Chatur Bhuj Goel, (1988) 1 SCC 270.
29. On the argument taken by the respondent that the consent order
dated August 30, 2018 is not a consent order/decree under Order XXIII
CPC but rather an order under Order XII Rule 6 CPC, it was contended
by Mr. Singh that even otherwise the consent order dated August 30,
2018 would need to be recalled since it is the respondent who does not
consider herself bound by the obligation undertaken by her in terms of
the consent order. The allegations made against the appellant are
incorrect and if the respondent considers herself discharged she would
also be required to be divested of the benefits that accrued to her in
terms of the consent order dated August 30, 2018. The stand taken by
Mr. Singh is that one of the fundamental requirements of a lawful
agreement is consensus ad idem between the parties and as
contemplated under Order XXIII Rule 3 CPC and the accompanying
explanation read with Sections 10, 13 and 14 of the Indian Contract
Act, 1872. This, Mr. Singh has stated is absent between the parties in as
much as according to the respondent the claim for mesne profits which
as per the appellant was never included in the consent order dated
August 30, 2018. The fact that the respondent believes that she is
entitled to mesne profits shows lack of consensus ad idem.
30. Another argument advanced by Mr. Singh is that since there are
concerted efforts made to change the building bye-laws that are
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applicable to the LBZ, so that the current limitations on construction
are done away with and it is only a matter of time before such changes
take place, which would effect in the increase of the constructed area,
the appellant being the owner of 50% of the land at 113 Sunder Nagar,
New Delhi, she would also be entitled to an equal amount in the FAR
as and when the same takes place. Unfortunately, the respondent has
however refused to put any quietus to the issue and failed to
acknowledge the title of the appellant and additional FAR that may
become available, which would then need to be agitated in an
independent proceeding. He relied on the judgment of the Full Bench of
this Court in the case of Indu Singh & Anr. v. Premchaudhary & Ors.
(2018) 170 DRJ 1 to state that a partition in the current day and age
must include the equitable division of FAR. He also referred to
Sardamani Kandappan v. S. Rajalakshmi (2011) 12 SCC 18 to state
that given the exponential rise in the prices of immovable property
there is a need to balance equities in this regard. Since the appellant is
also the co-owner of the suit property she would be entitled to roof
rights, which rights have been clearly enunciated in the judgment of
Kanwal Krishan v. Raj Kumar Gupta & Ors. MANU/DE/8634/2007
and it is these rights that the respondent wants to deny to the appellant.
He also stated that the respondent‟s case is, she is entitled to dispose of
the property in a manner, she deems fit, even though it is an admitted
case that the property being a leasehold property and thereby no such
sale would be permissible and would also attract an unearned increase.
He stated that the appellant has not consented for the same.
31. Mr. Singh is of the view that the respondent owes to the
appellant substantial amounts of money, i.e., the money that she has
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spent towards the upkeep and maintenance of the property amounting
to ₹34,28,794/-. He stated that the respondent does not intend to pay
back the said amount and on the contrary has demanded that the
appellant must bear the expenses for converting the property from
leasehold to freehold. Thus instead of trying to resolve the issue by
discharging her liability the Respondent under the garb of the order
dated August 21, 2019 has further compounded the issue by trying to
force the appellant to bear even more expenses. The co-operation and
support that the respondent seeks from the appellant ought to be
reciprocated by the respondent as well.
32. Mr. Singh has rebutted the submission of the respondent as
contended by Mr. V.R. Singh that the settlement dated December 20,
2019 is fabricated on the premise that the signatures of Ignacio Victoria
Hamilton in the lease deed dated September 16, 2017 and the
settlement deed of December 20, 2019 are not the same, and thereby
the appellant has filed a forged document before this Court.
33. Mr. Singh has argued that the application of the respondent
being CM 43389/2021 under Section 340 and 195 Cr.PC is motivated,
and rife with mala fides. He has at the outset, argued that the same is
not maintainable and stated that the appellant would like to initiate
appropriate proceedings against the respondent on this account; by
referring to the judgment of the Supreme Court in Iqbal Singh Marwah
v. Meenakshi Marwah, (2005) 4 SCC 370. According to Mr. Singh,
there is no allegation of forgery of a document that is in custodia legis.
He has argued the alleged expert opinion dated November 18, 2021
casts a shadow as no definitive opinion has been given with regard to
the fact that the samples marked as S1 and Q1 have been written by the
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same person or not. Mr. Singh has pointed to the report of the
handwriting expert specifically to the analysis and specimen findings to
refer to the statement "Definite Opinion is not possible". He also
referred to the opinion of the handwriting expert to state that a definite
opinion has not been provided because of insufficient sample size,
length and quality of signature. He further went on to state that
complete stability and disguised characteristics could have been proved
if more admitted signature sample from different sources are provided
along with original documents of the same period. Mr. Singh has stated
that the respondent who is relying heavily on the report, at best can be
said to be inconclusive. He has argued that the entire foundation of the
respondent‟s application cannot be an inconclusive report. In this
regard, he has relied on the judgment of the Supreme Court in S. Gopal
Reddy v. State of A.P., (1996) 4 SCC 596, to state that the relevance of
the opinion of the handwriting expert as evidence is rather weak and the
Courts do not generally consider the same as offering conclusive proof
and the same is received with caution.
34. It is the case of the appellant that by way of reply dated
December 24, 2021 she has placed on record irrefutable and
incontrovertible facts and circumstances to establish that the allegations
of forgery are clearly false. The appellant has submitted an email dated
October 10, 2019 which was sent by the counsel of the appellant to
Ignacio Victoria Hamilton regarding the settlement of the dispute
between him and the appellant. This email was responded to by
Ignacio Victoria Hamilton through his email dated October 17, 2019
with a request for a meeting. Subsequently, telephonic messages were
exchanged between Ignacio Victoria Hamilton and the counsel for the
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appellant discussing a possible settlement. Mr. Singh has referred to
the messages exchanged between the parties from November 11, 2019
to December 20, 2019 i.e., till the date of signing of the settlement
agreement and even thereafter upto January 19, 2020 confirming the
receipt of payment by Ignacio Victoria Hamilton. The appellant has
also placed on record a copy of the corrections that were made by hand
by Ignacio Victoria Hamilton in the draft settlement deed. Mr. Singh
has stated that since these corrections were incorporated in the final
settlement deed therefore, it cannot be denied that the same were not
done by Ignacio Victoria Hamilton. Additionally, the appellant vide her
reply dated December 24, 2021 has placed on record two videos
recorded at the time of signing of the settlement deed dated December
20, 2019. He has argued that if one were to see the video recordings it
would become amply clear that it was the parties who in the presence of
their Advocates and witnesses signed the settlement agreement.
Similarly, photographs of the said event have also been placed on
record along with the copy of the manager‟s cheque bearing DD
No.018297 dated December 20, 2019 issued in favour of Ignacio
Victoria Hamilton, the encashment of which has also been placed on
record.
35. It is the case of the appellant and contended by Mr. Singh that
upon taking note of the above mentioned documents it is clear that the
allegations made by the respondent in her application are unmerited.
The entire case of the respondent is bulwarked on the expert opinion
which in itself is neither definite nor accurate. He submitted that the
application filed by the respondent is only a mean to harass the
appellant. He has referred to the judgment of Jaswinder Singh v.
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Paramjeet Kaur, 1985 SCC Online P&H 369 in that regard. He seeks
the dismissal of the application.
ANALYIS / FINDINGS:
CM Nos. 12686/2019 and 41489/2021
36. Having heard the learned counsel for the parties, at the outset I
intend to deal with the two applications being CM 12686/2019 (filed by
the respondent) and CM 41489/2021 (filed by the appellant) for
additional documents. The CM 12686/2019 filed by the respondent is
for bringing on record the additional documents like, lease deed dated
September 16, 2017 executed between the appellants and Ignacio
Victoria Hamilton; legal notices dated October 23, 2018, November 01,
2018; emails dated February 18, 2019, February 21, 2019, February 22,
2019 and messages dated February 20, 2019 exchanged between the
parties and also between the appellant and counsel for the respondent.
The documents that the respondent seeks to bring on record have been
mentioned in her application in paragraphs 1 to 3 which I produce as
below:-
"1. It is respectfully submitted that the present
application is being filed seeking for placing in
record additional documents i.e., the lease deed
dated: 16.09.2017, to legal notices dated:
23.10.2018, 01.11.2018, emails dated: 18.02.2019,
20.02.2019, 21.02.2019, 22.02.2019 and message
dated: 20.02.2019.
2. That the lease deed dated: 16.09.2017 was not in the
knowledge of respondent-applicant during the course
of hearing of present RFA No.554 of 2018 and the
appellant had concealed the same from being placed
on record before this Hon'ble Court as she was one
of the parties executing the lease deed. A true copy of
the Lease Deed dated 16.09.2017 is annexed as
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Annexure A.
3. The other correspondences whether in form of legal
notices dated 23.10.2018, 01.11.2018, e-mails dated:
18.02.2019, 20.02.2019, 21.02.2019, 22.02.2019,
message dated 20.02.2019 were originated after the
decision of present RFA on 30.08.2018 and are
thereto subsequent facts. A true copy of the above
mentioned documents are annexed herein from
ANNEXURE NO. B TO H."
37. The CM 41489/2021 filed by the appellant is for bringing on
record three additional documents; (i) Settlement deed dated December
20, 2019 between the appellant and Ignacio Victoria Hamilton; (ii)
order dated August 28, 2008 passed by the Coordinate Bench of this
Court in FAO 16/2007 filed by the respondent herein wherein the
appellant was the respondent; (iii) the order dated October 11, 2006
passed by the Additional District Judge, Trial Court in the suit between
the parties. With regard to CM 12686/2019, it was the submission of
Mr. V.R. Singh, learned Senior Counsel appearing for the respondent /
applicant that these documents are necessary for the adjudication of
CM 12684/2019 wherein the respondent / applicant has sought certain
directions (reproduced in paragraph 2) including the prayer for mesne
profits awarded by the Trial Court because of the concealment of
tenancy by the appellant and also the fact that the suit property was not
handed over on or before February 28, 2019.
38. Though, no reply to this application has been filed by the non-
applicant / appellant, as recorded in the order dated September 16,
2021, Mr. Singh has stated, he would rely on the averments made in the
application being CM 31544/2021 as a response. This Court is of the
view, noting the contents of the application, and the fact the documents
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are relevant for a decision on CM. No. 12684/2019, the same need to be
allowed. Accordingly, the additional documents are taken on record,
and the application is disposed of.
39. Similarly, CM 41489/2021 filed by the appellant for bringing
on record, three documents as noted above. The plea of Mr. V.R. Singh
was that the documents to oppose the application of the respondent and
for recall which has been filed after two years, shall cause prejudice to
the respondent. I see no merit in this plea. As I have allowed the
documents of the respondent to be taken on record, this Court is of the
view, given the nature of prayers / allegations made, the documents
filed by the appellant need to be considered while deciding the
applications, filed by both the appellant / respondent. The additional
documents filed by the appellant are also taken on record and this
application is disposed of.
CM. Nos. 12684/2019 and 31554/2021
40. The two applications, which I shall now decide are CM
12684/2019 and CM 31554/2021 filed by the respondent and the
appellant respectively, primarily for the reliefs as produced in
paragraph 2 above.
41. Before I deal with the submissions of the counsel for the
parties, some brief facts to understand the issue which arose in the
appeal resulting in the consent order dated August 30, 2018 and the
applications now filed by the parties. The father of the parties namely
Raja Pratap Singh had left behind a registered will dated November 16,
1992. The major asset that he owned is property No.113 Sunder Nagar,
New Delhi. The said property is a leasehold property of the L&DO. It
comprises of 2½ storey residential house constructed on a plot of land
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measuring 866.66 sq.yards.
42. He bequeathed the said property and gave the ground floor flat,
one Garage and two servant quarters to the appellant namely Priti
Pratap Singh and the first floor flat, terrace with one room and
bathroom (barsati floor / second floor) to respondent Kiran Raj Bisaria.
In 1994, appellant filed a suit for partition. In 1998, respondent filed a
suit for possession of the Second Floor of 113 Sunder Nagar, New
Delhi and mesne profits. The two suits were decided by common
judgment dated March 12, 2018 upholding the Will dated November
16, 1992. The appellant‟s suit of partition was dismissed. The
respondent‟s suit for possession was decreed with mesne profits
quantified at ₹28 Lacs (approx).
43. The submissions of Mr. Vivek Raj Singh and Mr. Kirtiman
Singh in their respective applications are reproduced as under:
Issues Submissions of the Mr. V.R. Submissions of Mr. Kirtiman Singh in CM
Singh in CM 12684/2021 31554/2019
Cause of The respondent only came to The respondent themselves moved an
Action know after the consent order application seeking to restrain the appellant
dated 30.08.2018 that the from letting out the property. The application
appellant had leased out the suit was dismissed by an order dt. 11.10.2006 and
property to Ignacio Victoria the appeal against it was withdrawn by the
Hamilton for the period vide order dt. 28.08.2008. Creation of
between 01.10.2016 till tenancy is not akin to alienation.
31.07.2020 at a monthly rent of
₹1,60,000 along with security The interim order would merge with the final
and increments. order. The contentions of the respondents can
be considered once the order dt. 30.08.2018
is recalled.
Mesne Profits The appellant for the period Appellant has discharged her obligations as
01.10.2017 - 30.08.2018 per the consent decree. Although she stands
collected a sum of ₹27,20,000 to benefit from the consent decree by taking
plus interest and security possession, the respondent has also sought
deposit from the tenant. mesne profits,a claim that she had waived off
as per the consent order, that too for an
amount which has not been awarded by the
Trial Court.
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The respondent should not have taken
possession if she felt that her interests were
jeopardised.
The appellant has herself spent ₹34, 28,784/-
towards the maintenance and upkeep of the
property.
Concealment/ The factum of tenancy was in The facts and circumstances on the basis of
Perjury the knowledge of the appellant which the allegation of Fraud is made were
and the same was hidden from previously known to the to the respondent
the Court as well as the before taking possession and the respondent
respondent and this amounts to continued to act on the consent order and
fraud. hence now stands estopped from raising such
allegations.
Construction The second-floor room has The respondent doesn‟t consider herself
/ Alterations been converted by the appellant bound by the consent order and hence the
into a three-bedroom flat with same needs to be recalled as there was no
three bathrooms, kitchen, living consensus ad idem.
room, lobby area, etc. This
L&DO The respondent has also not mentioned
construction has been done
without the permission of the anything about the imminent changes in the
L&DO. building bye-laws, which would be come
significant as the appellant being a 50%
The property being leasehold is owner of the property would be entitled to an
also sought to be converted to equal increase in the FAR.
freehold.
The respondent wishes to dispose of the
property but since the property is a leasehold
property, therefore such a sale would not be
permitted.
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Handing As per the consent order the The appellant approached the respondent to
Over of appellant hand to hand over the hand over the possession to the respondent
Possession possession of the second floor well before the due date however it was the
to the respondent by respondent who did not take the possession
28.02.2019. The respondent despite various letters sent by the appellant.
received a message that the It is for this reason that the appellant then
appellant was depositing the approached the Trial Court and handed over
keys in the Tis Hazari Court on the possession on 26.02.2019.
26.02.2019.
Further the issue of tenancy of Mr. Ignacio
Whereas the respondent got a Victoria Hamilton has not caused any
notice sent by Mr. Ignacio impediment to the respondent‟s right of
Victoria Hamilton wherein it possession. As the settlement between the
was stated that his belongings appellant and Ignacio Victoria Hamilton took
were still in the suit property place much before the handing over of
and the respondent taking possession to the respondent.
possession would amount to
trespass.
Hence vacant possession was
not handed over to the
respondent and the statement of
the appellant made before the
Court is false.
44. The issues, which arise for consideration in both these
applications, are (1) whether the respondent is entitled to revive her
claim of mesne profits which has been awarded by the Trial Court in
the judgment / decree dated March 12, 2018 because of the fact that the
appellant has concealed the aspect that the suit property in question was
under the tenancy; (2) the suit property was not handed over on or
before February 28, 2019; and (3) the consent order dated August 30,
2018 required to be recalled.
45. At the outset, I may state the prayers made in CM
No.12684/2019 by respondent with regard to payment of conversion
charges, signing of the mutation and free-hold application are
concerned, the same do not flow from the consent order passed on
August 30, 2018, whereby the appeal itself has been disposed of. I only
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note that during the hearing on August 20, 2019, the learned Sr.
Counsel appearing for the appellant has with regard to the entries to be
made in the favour of the respondent in the L&DO records had assured
the Court that the appellant will render all assistance sought from her
for that purpose. If that be so, to the extent of the assurance given, the
respondent can seek such remedy as available in law, if there is a
violation in that regard. But the prayers as made by the respondent
over and above the Consent Order cannot be granted in an application
that too in a disposed of appeal on the basis of the consent given by the
parties. It is for the respondent to seek such remedy as available in law
with regard to the said prayers.
46. Now coming to the prayers made in the application (by the
respondent); (1) for remitting the rental from Ignacio Victoria Hamilton
which fact according to Mr. V.R. Singh has been concealed by the
appellant at the time of consent order on August 30, 2018 and; (2) the
fact the property was not handed over before the due date has revived
the mesne profits as awarded by the Trial Court. The prayer (1) has
been made in the application on the premise that the appellant has
surreptitiously leased out the suit property to Ignacio Victoria
Hamilton, a Spanish diplomat for a period of two years. This fact was
in the knowledge of the appellant but the appellant has not disclosed the
same during the hearing on August 30, 2018 and has played fraud on
the Court and induced the respondent to make a concession for giving
up mesne profits as awarded by the trial Court, which she would not
have made had the facts which were in the knowledge of the appellant
been provided to the Court.
47. It is the case of the respondent that she came to know about the
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fact that the property has been rented out to Ignacio Victoria Hamilton
after the order dated August 30, 2018 was passed. I find that the source
of knowledge is primarily an email dated February 22, 2019 received
from Ignacio Victoria Hamilton wherein Ignacio Victoria Hamilton has
requested the respondent not to take over the possession of the property
as some of his belongings were in the suit property.
48. The real issue is whether the respondent is entitled to a
direction from the Court to the appellant that she should remit to the
respondent the rent received from the Ignacio Victoria Hamilton for the
period October 01, 2017 to February 28, 2019 at the rate of ₹1,60,000/-.
According to Mr. V.R. Singh, the appellant could not have rented out
the suit property and appropriate the benefits, in view of order dated
May 25, 1998 in this suit wherein an undertaking was given by the
appellant not to alienate, transfer in any manner, create third party
rights with respect to the suit property.
49. On the other hand, Mr. Kirtiman Singh, has stated that the
respondent had subsequently moved an application in Suit No.48/2006
(of the appellant) seeking restraint order against the appellant from
letting out the suit property, which application was dismissed vide order
dated October 11, 2006 and the appeal therefrom was withdrawn vide
order dated August 28, 2008. I have seen the order dated October 11,
2006. It is seen that the Suit No. 48/2006 was filed by the appellant and
it is connected to the suit from which the impugned order in the appeal
had arisen. In fact the prayer made in the application is for a direction
to the appellant to remit to the respondent rent received from Ignacio
Victoria Hamilton is beyond the terms of the Consent Order dated
August 30, 2018. By praying so, the respondent is seeking modification
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of the Consent Order dated August 30, 2018 which is clearly
impermissible. More so, the respondent had not sought before the Trial
Court, mesne profits on the basis that the suit property was rented to
Ignacio Victoria Hamilton. So a ground which was not urged before
the Trial Court cannot be the basis to seek modification of a Consent
Order. The submission of Mr. Singh that the respondent has not
challenged the Judgment of the Trial Court dated March 12, 2018 rather
she has accepted the conclusion of the Trial Court with regard to the
mesne profits as granted by the Trial Court is appealing. If that be so,
the prayer if granted shall mean the prayer beyond case pleaded and the
relief granted by the Trial Court in favour of the respondent shall stand
allowed. So, the prayer made by the respondent to the extent referred
to above is not maintainable in an appeal, which has been disposed of
by a consent order.
50. Now coming to the other prayer of the respondent in the
application that as the appellant had not handed over the property on or
before February 28, 2019, the mesne profits as granted by the Trial
Court gets revived. The plea of Mr. V.R. Singh in support of this
prayer are the following:
(i) Ignacio Victoria Hamilton refused to vacate the premises in
terms of Clause 14 of the Lease Deed as the same was valid
till July, 2020.
(ii) When Ignacio Victoria Hamilton did not vacate the
premises, the appellant started using extra-judicial methods
like cutting of electricity and water supply to the suit
property so as to ensure Ignacio Victoria Hamilton leaves
the suit property.
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(iii) Ignacio Victoria Hamilton who was a tenant in the suit
property wrote an e-mail to the respondent stating that he
knew that the appellant is not the actual owner of the suit
property and that the respondent should not enter the suit
property as long as the lease deed is in force and also
because his belongings were lying in the suit property.
(iv) Ignacio Victoria Hamilton was in Spain as on February 22,
2019 and would be coming back on February 27, 2019.
(v) If the respondent was to enter suit property, she would be
liable for trespassing.
(vi) That the cutting of electricity and water connections to the
suit property does not amount to handing over of the
possession.
(vii) The Supreme Court held that, it is a settled law that the
lessor even with the best of titles has no right to resume
extra judicial possession by use of force, claiming right from
a lease even after the same has expired or terminated by
forfeiture or otherwise.
(viii) That possession of a lease even after its expiry or earlier
termination is lawful possession and forcible dispossession
is prohibited.
(ix) A lessee cannot be dispossessed through means that do not
follow the due process of law.
(x) That the possession can only be resumed / taken over
through means that are recognised by law and done in
accordance with law.
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(xi) That handing over of the possession by the appellant by
putting a lock on the suit property and handing over the keys
without proper termination of the lease that has been entered
into between the appellant and Ignacio Victoria Hamilton
shall amount to not handing over the vacant possession of
the suit property.
51. On the other hand, the submissions of Mr. Kirtiman Singh on
this prayer are the following:
(i) That the appellant had written various letters on February
18, 2019, February 20, 2019 and February 21, 2019 to the
respondent calling upon her to take possession of the suit
property.
(ii) The respondent was not ready and willing to take
possession and kept avoiding the same on one pretext or the
other.
(iii) The appellant left with no other option deposited the keys
of the suit property with the Trial Court.
(iv) When the matter was listed before this Court on August
20, 2019, respondent had categorically submitted that she did
not wish for the order dated August 30, 2018 to be recalled and
she would approach the Trial Court for obtaining the keys of the
suit property, which she did later.
(v) He says there is no case of fraud made out by the
respondent against the appellant. The case of fraud or
misrepresentation pre-supposes the existence of a fact that was
previously unknown to a party. However, in this case, the
respondent has based her case on the facts and circumstances
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that were fully known to her before taking possession of the suit
property.
(vi) The appellant acted upon the consent order dated August
30, 2018 and as such the allegation of fact as unsustainable.
(vii) The settlement dated December 20, 2019 with Ignacio
Victoria Hamilton, wherein it is clearly stated that the possession
was handed over to the appellant in the third week of January,
2019 which possession was then in turn handed over to the
respondent prior to February 28, 2019.
(viii) If the respondent believed that her interest in the property
was somehow jeopardised she ought not to have taken the
possession and should have worked out the anomalies
accordingly.
(ix) If it is the belief of the respondent under which he is
operating, she must hand over the possession back to the
appellant.
(x) It is the respondent who is guilty of suppression, since it
was the respondent who had subsequently moved an application
seeking to restrain the appellant from letting out the property.
52. Having considered the above submissions made by the counsel
for the parties, I am not in agreement with the submission of Mr. V.R.
Singh for the reason that the order dated August 30, 2018 is very clear.
The paragraph 3(iii) thereof states as follows, "in case the possession of
the suit property is not handed over" the impugned decree of the Trial
Court shall stand in favour of the respondent and against the appellant.
If it is the case of the respondent, that the suit property has not been
handed over to her on or before February 28, 2019, the order being
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clear, surely the remedy for the respondent is to file an execution before
the Trial Court, if so advised.
53. Surely, if such a remedy is invoked, the Court shall consider the
pleas advanced by the parties and decide the proceedings in accordance
with law. But for that purpose, respondent do not require any
declaration from this Court that the property was not handed over to her
on or before February 28, 2019. So, it follows, the prayer in the
application is not maintainable.
54. Now coming to the prayer made by the appellant in her
application being CM. No. 31554/2021 is primarily for seeking recall of
order dated August 30, 2018 and for restoration of the Regular First
Appeal to its original number. This application has primarily been filed
by the appellant on an assumption that Sunder Nagar is going to be
excluded from the Luytens Bungalow Zone („LBZ‟, for short) which
would then entail increase in the Floor Area Ratio („FAR‟ for short)
which would ultimately result in the respondent getting more rights of
construction.
55. The other submissions of Mr. Kirtiman Singh are the following:
i. as the respondent does not consider herself bound by the
consent given by her in the consent order dated August 30,
2018, the same need to be recalled;
ii. if the respondent consider herself disinvested she would
also be required to be disinvested of the benefit that accrued to
her in terms of the consent order dated August 30, 2018;
iii. one of the fundamental requirement of lawful agreement
is consensus ad idem between the parties and the same is absent
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between the parties because the respondent believe, she is
entitled to mesne profits;
iv. since there are concerted efforts made to change the
building bye-laws that are applicable albeit so that the current
limitation of construction are done away with; and it is only a
matter of time when such changes take place, which in effect
lead to the increase in the constructed area therefore the
appellant should be entitled to equal amount in the FAR as and
when the same takes place;
v. that given the exponential rise in the prices of immovable
property, there is need to balance equity;
vi. the appellant being a co-owner of the suit property, she
would be entitled to the roof rights and it is these rights which
the respondent wants to deny the appellant.
56. On the other hand, Mr. V.R. Singh had contested the
application filed by the appellant by relying upon Section 96(3) and
Order XXIII Rule 3A CPC there exists a bar from filing an appeal and a
suit under the said provisions respectively, as it is not the case of the
appellant that the consent order is not lawful. The only recourse to a
party is to approach the Court which recorded the compromise and
establish that there was no compromise. It is not such a case here.
Further, the application is barred by the principle of constructive res
judicata as the plea was not taken in the original suit and before this
Court in the Regular First Appeal.
57. I am not impressed by the submission made by Mr. Kirtiman
Singh for the reason that it is not the case of the appellant that the
consent order was passed by playing fraud on her. The consent order
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was passed after recording the submissions made by the learned counsel
for the parties in that regard. The application has been filed only in the
year 2021, i.e., after almost three years from the date of the passing of
the Consent Order that too after the application being CM No.
12684/2019 had been filed by the respondent. In any case, it is a settled
law if the parties are allowed to resile from the consent without there
being a plea of fraud, the sanctity of Court proceedings would be lost.
58. Mr. V.R. Singh is right in contending that a case as urged by
Mr. Kirtiman Singh in support of the application was neither put before
the Trial Court nor before Appellate Court. Rather, there is a positive
statement where the appellant has accepted the ownership of the
respondent with regard to the suit property. The application being CM
31554/2021 is dismissed.
59. At this stage, I must state, the learned Counsel for the parties
have relied upon the Judgments for the propositions as referred above.
In view of my above conclusion need is not felt to deal with the above
Judgments.
60. From the above, I hold that the application being CM. NO
12684/2019 is dismissed being not maintainable, save for the fact that
the learned Sr. Counsel on behalf of the appellant on August 20, 2019
had given an undertaking to this Court which reads as under, and as
such the respondent is at liberty to seek such remedy as available in
law, if there is a breach.
"...............Mr. Krishnan submits that the issues
sought to be raised in the present application are
beyond the scope of the appeal and, therefore,
contends that the application is not maintainable.
He further submits that the appellant has never
refused to cooperate with the respondent in
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getting the requisite entries made in favour of the
respondent in the L&DO records and assures the
Court that the appellant will render all assistance
sought from him for this purpose.
xxx xxx xxx"
61. The applications CM. Nos. 31554/2021 and 12684/2019 are
dismissed.
CM. No. 43389/2021
62. Now, coming to the application filed under Section 340 Cr.P.C.
the prime allegation of the respondent for filing such an application is
that the settlement agreement dated December 20, 2019 purportedly to
have been executed by the appellant and Ignacio Victoria Hamilton is a
fabricated one, amounting the appellant playing fraud. In support of
this submission, the respondent had relied upon the report of
International Forensic Sciences (P) Limited an organisation certified by
the Government of India, which has given an expert opinion dated
November 18, 2021 stating that the signatures of Ignacio Victoria
Hamilton on the lease deed dated September 16, 2017 and the
settlement agreement dated December 20, 2019 appears to be
dissimilar.
63. That apart, it is stated that the lease deed dated September 16,
2017 was signed in the name of Priti Kuchaman and settlement
agreement dated December 20, 2019 was signed in the name of Priti
Pratap Singh, which reflects that such a document has not been signed.
Suffice to state that the reliance placed on the expert opinion by Mr.
V.R. Singh does not support the case of the respondent that the
appellant had filed a fabricated settlement agreement dated December
20, 2019 inasmuch as the opinion of the handwriting expert is as
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follows:
"On the cumulative effect of all the above reasons
and observations taken together, we are of the
opinion that, The signature sample marked as (Q-1)
seems to have not been written by the same writer
who has written the signature sample marked as (S-
1) or Vice versa (Signature are short). More
accurate / definite opinion cannot be provided due
to insufficient sample size, length and quality of
signatures. Complete stability and Disguised
Characteristics should be proven if more admitted
signature samples are provided from different
sources, along with original documents, having
similar writing period. As discussed, Accuracy of
opinion depends on the accuracy of known writing
samples, sufficient quantity and quality of
documents. These results may be affected by the
certain factors as stated in report. (Not examined
for digital Forgery)"
64. Though, Mr. Kirtiman Singh had made other submissions
seeking rejection of the application under Section 340 Cr.PC, since
reliance has been placed primarily on the expert opinion, the relevant
portion has been reproduced above, from which it is clear that there is
no conclusive finding against the appellant. I do not see any reason to
continue with this application under Order 340 Cr.PC. I accordingly,
dismiss this application as well.
V. KAMESWAR RAO, J
MAY 31, 2022/jg
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