* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO.No.253-57/2005
% Reserved On: 11.11.2010
Decided On: 23.11.2010
O.P. BHALLA & ANR. .... Appellants
Through: Mr.Atul Nigam, Adv.
Versus
JAGAT SINGH ARYA & ORS. .... Respondents
Through: Mr. Astender Kumar, Adv.
CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether reporters of Local papers may be Yes
allowed to see the judgment?
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported in Yes
the Digest?
: MOOL CHAND GARG,J.
1. This appeal arises out of an order passed by the learned ADJ in
an application filed by respondent No.1 under Order 39 Rule 1 and 2
CPC in a Suit bearing No.494/2004 which is the suit for declaration
and permanent injunction against the appellants, Sh. O.P. Bhalla & Sh.
J.R. Bhalla whereby the learned ADJ restrained the appellants from
dispossessing respondent No.1 from the suit property.
2. Vide impugned order, the learned ADJ has passed the following
Orders:
“16. The plaintiff is in settled possession of the suit
property since 1988. He has made two and half storey
building by spending a lot of money on it. No case was filed
during lifetime of Smt. Ishwari Devi and only after her death
the case was filed. There is strong prima facie case in favour
of the plaintiff and the balance of convenience is also in
favour of the plaintiff and if the plaintiff is dispossessed of
the suit property he is going to suffer irreparable loss.
Dispossession of the plaintiff is stayed till the dispose of the
suit.
17. Nothing herein contained shall testamount to any
opinion on the merits of the facts of the case.”
FAO No.253-57 /2005 Page 1 of 11
3. According to the appellants, the impugned order is not
sustainable as the said order is directly in conflict with rights and
interest of the appellants as determined and decided vide judgment and
decree granted in their favour in a Suit No.973/2002 titled as „Sh. O.P.
Bhalla & Anr. Vs. Ms. Sudesh Sharma & Ors. with respect to property
bearing No.RZ-273, Gali No.17, Tughlakabad Extension, New Delhi
(hereinafter referred to as the Suit Property). By way of interim order,
the lower Court has not only gone contrary to law but has also
adversely denied the facts of the judgment and decree in the aforesaid
Suit which was instituted as back as in the year 1988.
4. Briefly stating the facts giving rise to the filing of the Suit in
question by the respondent No.1 against the appellants are, that the
suit property belongs to their deceased mother Smt. Ishwari Devi who
expired while being in hospital in May, 1988. After her death, they
became her legal heir and came into possession of the aforesaid
property. Sh. S.K.Sharma and Sh. K.K. Khanna conspired to dispossess
the deceased Ishwari Devi in May, 1988 and took possession of the suit
property without the consent of Smt. Ishwari Devi or the appellants in
collusion with one of the brothers of the appellants, Sh. P.P. Bhalla and
failed to restore the same to the appellants despite the request made by
them. Thus, the appellants filed Suit No.973/2002 under Section 6 of
the Specific Relief Act challenging their illegal dispossession. Initially
the said suit was contested by Sh. S.K. Sharma while Sh. K.K. Khanna
and Sh. P.P. Bhalla were proceeded ex parte. A written statement was
filed by Sh. S.K. Sharma where incoherent defences were taken. In
para 9 of the written statement Sh. S.K. Sharma had pleaded that:
“The defendant No.1 has already raised as single storey
construction and this construction continued for about two
months immediately after defendant No.1 was put in
possession of the western site of the property in suit
No.1988. Similarly, the said Shri J.S. Arya who in
occupation of the eastern side of the property in suit has
already raised single storeyed construction soon after he was
put in possession in May, 1988 by defendant No.1”
5. During the pendency of the suit, Sh. J.S. Arya moved an
application under Order 1 Rule 10 in the Suit No.973/2002 which was
dismissed on 10.08.1993 by Sh.J.B. Goel, ADJ, Delhi. After the
FAO No.253-57 /2005 Page 2 of 11
dismissal of the application Sh. J.S. Arya, respondent No.1 did not take
any subsequent legal action by challenging the dismissal order. And as
such, the said order became final. As per law, it is on 10.08.1993 that
with the dismissal of the application under Order 1 Rule 10, the first
time that right to sue had first accrued in favour of respondent No.1.
The said respondent with the dismissal of its application under Order I
Rule 10 has lost the remedy to challenge, after expiry of three years by
a declaratory from the date of dismissal of the application under Order I
rule 10 CPC.
6. It has also been pleaded by the appellants that even though
Sh.J.S. Arya was not made a party to the aforesaid suit but he was
solely prosecuting and conducting the matter. In Suit No.973/2002, it
is the respondent, J.S. Arya who has solely examined himself as a
witness. The important aspect which is to be seen is from the fact that
the entire case as what is being pleaded in the present suit has already
been narrated and put forward in the Suit No.973/2002. Thus, the
documents on the basis of which Sh. J.S. Arya is relying in the present
Suit has already been discussed and taken care of in the previous suit,
which has not found favour with the Court and the suit filed by the
appellant has been accepted whereby the defendants in Suit
No.973/2002 have been directed to restore the possession of the suit
property and the interest of respondent No.1 is affected by the principle
of lis-pendens as discussed in the judgment. Rather in para 29 of the
judgment in Suit No.973/2002, the Court has held that the documents
produced by the witness (J.S. Arya) contradicts the oral testament of
the witness and as such the same were not trustworthy. It is a matter
on record that appellant neither challenged the order dismissing his
application under Order I Rule 10 CPC nor filed a suit for specific
performance or a declaration within a period of 3 years despite denial of
execution of the documents now relied upon by respondent No.1 in the
Suit in question asserting his title in the property and, therefore, the
right, if any, in favour of respondent No.1 stood extinguished on
account of the law of limitation considering provisions contained under
Order XXI Rule 58 of the CPC.
FAO No.253-57 /2005 Page 3 of 11
7. In order to enforce the judgment/decree passed in Suit
No.973/2002, the appellant field execution proceedings. To thwart the
fruits of the judgment/decree in Suit No.973/2002 after a span of over
13 years from the date of dismissal of the application under Order I
Rule 10 CPC, the respondent by means of the present suit which is
instituted as in November, 2004 is trying to upset the judgment passed
in suit referred above by seeking the following reliefs:-
“To pass a decree declaring the plaintiffs (respondent) as an
absolute owner of the suit property. This Hon‟ble Court may
further be pleased to pass permanent injunction restraining the
defendants, its agents, representatives, servants from interfering
and dispossessing the plaintiff from the suit property.”
8. It has been pleaded by the appellants that the present suit is not
maintainable on facts and law. The suit seeking declaratory relief,
having filed beyond a period of three years from the day the right to sue
first accrued, is barred by Article 58 of the Limitation Act, 1963.
Besides, the plaint is filled with incongruities and substantively no relief
can be granted to the respondent/plaintiff. There cannot be any
reliance upon the documents by itself as their genuineness is in doubt,
besides, a clear finding having come on record of their not coming from
the genuine source in Suit No.973/2002. But, the ld. Court has
completely disregarded the aspect of the Law of limitation by giving it a
new twist to its application and has ignored the fact that no reliance
could be placed upon the documents as filed in the present suit as the
finding has already come of their affect in Suit No.973/2002. As the
suit is factually and legally bad, no prima facie case is made out and it
is the appellant who after spending nearly 15 years in litigation over
their rights and having succeeded in now being scuttled by a false and
frivolous suit. The irreparable loss, injury and balance of convenience
lies in favour of the appellant.
9. I have heard the submissions from both the sides. I have also
seen the averments made by the respondent in his application filed
under Order 1 Rule 10 CPC, certified copy whereof has been placed on
record by the appellant and is available at the case file on page 129.
The said application reads as under:-
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“1. That the applicant J.S. Arya S/o late Sh. Fateh Singh
occupied half portion of premises bearing No.RZ-273, Gali
No.17, Tuglakabad Ext. Kalkaji, New Delhi measuring 100
sq. yds. As he purchased the land in dispute from Smt.
Ishwari Devi w/o Sh. C.L. Bhalla on 16.05.1988 for which
she had already executed Will, General Power of attorney,
Agreement to Sell signed by the witnesses on the same day
as the payment was made for consideration of sale of the plot
through bank draft amounting to `30,000/- in the name of
Smt. Ishwari Devi in Bank of Timarpur on 26.5.88. The
cheque was issued from Bank of Maharashtra, Alakhnanda
Branch, Delhi to her and remaining amount was paid in
cash to her and plaintiffs in the presence of witnesses on the
same day.
2. That the applicant took the possession of the plot on
16.5.88 and raised construction upto 3 storeyed and has
been residing with his family members and has sufficient
documents including ration card, house tax bill, electricity
bills, personal letters etc.
3. That the applicant has come to know about pendency
of the present case only on 11.02.1992 through Sh. S.K.
Sharma who visited the premises alongwith the persons to
whom he sold the remaining portion of the premises in
dispute recently who visited the premises in dispute on
11.02.1992 alongwith Smt. Sudesh Sharma and told about
pendency of the case. Hence, applicant is the necessary
party to contest the case.
It is, therefore, respectfully prayed that the applicant
may be added as defendant in the abovesaid proceedings in
the interest of justice.”
10. This application was replied to by the appellants, the reply is
available at page No.131. In this reply while referring to the case of
respondent No.1, it was specifically denied that he was ever in
occupation of any portion or part of the suit property on the date of
filing of the suit. It was pleaded that the deceased mother of the
appellants was dispossessed by Sh. S.K. Sharma and Sh. K.K. Khanna
without her consent and otherwise without following due course of law
in the concluding week of May, 1988 when she was struggling for life.
It was specifically denied that respondent purchased a portion of the
land from their deceased mother on 16.05.1988. Admittedly, she was
admitted in the AIIMS on 09.05.1988 as a seriously ill patient and was
kept in ICU, in such a situation the question of executing any Will,
FAO No.253-57 /2005 Page 5 of 11
GPA, agreement to sell relied upon by the respondent cannot be even
thought of or imagined. It was specifically stated that the alleged
documents were patently fake, fabricated and forged.
11. Some other averments made in the reply also shows that insofar
as the case set up by the respondent in the suit for declaration which
has been filed by him subsequent to the decision in the Suit filed by the
appellants were specifically denied. These averments are:
“The application who claims title on the basis of the said
documents has incurred penalty for fabricating false
documents for the purpose of being used in judicial
proceedings. It is false to allege that any amount of
`30,000/- was paid to the deceased mother on 26.5.1988
when she never came out of the Hospital after being
admitted on 9-5-88. The deceased died at the Hospital on
30.05.1988. The witness who may have signed the
documents are fake.
2. Para 2 of the application is denied. The question of
the applicant taking possession of the portion of the plot on
16.5.1988 from the deceased mother does not arise when
she was admitted to the hospital on 9.5.1988 and died on
30.5.1988. It is also false to allege that the applicant raised
a three-storeyed construction on the plot. It appears that
the applicant in connivance with the defendant and in utter
violation of the injunction order issued by the learned Court
dated 23.9.1988 has raised the said construction. The
defendants and the applicant through whom he claims has
incurred the penalty of contempt for which the plaintiffs are
moving a separate application. It appears that the applicant
in connivance with the defendants, in order to confuse and
disgress the issues involved in the suit has mentioned
himself to be interested in the property on the basis of false
and fake documents.
3. Para 3 of the application is false and is denied. The
applicant, knew about the suit and is simply acting for and
on behalf of the defendants in order to somehow defeat the
claim of the plaintiff. It is submitted that if ever, the
applicant is in possession of the property he is there as a
trespasser and is bound to surrender possession of the
property alongwith the construction thereon in execution of
the decree that shall be passed, and will be bound by the
principles of lis-pendence, which is without prejudice to
such contempt proceedings which the plaintiffs may take
against the applicants and the defendant. The applicant has
further mentioned Smt.Sudesh Sharma who has got nothing
to do with the suit property. She is none else but the wife of
defendant No.1 who is in possession. The applicant isFAO No.253-57 /2005 Page 6 of 11
neither necessary nor a proper party and the application is
designed to delay and digress the suit.
12. A bare reading of the reply filed by the appellants to the
application under Order I Rule 10 of the CPC which was filed on
17.11.1992 coupled with the order dated 12.02.1992 passed on the
application filed by the respondent extinguished the rights, if any, of
respondent No.1 to seek declaration of his title commenced. Before I go
further, I may simply take note of the order which has been passed by
the learned ADJ in Suit No.97/1990 while disposing of the application
filed by respondent No.1 under Order I Rule 10 CPC:-
“7. On the pleadings of the parties as manay as 8 issues
were framed on 13-9-1989 and therafter the plaintiffs has
examined PW-1, PW-2 and PW-3(partly) and this application
was moved on 12-2-1992, i.e. after about 3 ½ years of the
institution of the suit and the only explanation is that he
was not aware of this suit till 11-2-1992, when Sh. S.K.
Sharma (who is defendant No.1) visited the premises
alongwith his wife and told about the pendency of the case.
The question is, whether the deceased had executed any
agreement to sell and other documents for consideration on
16-5-1988 and had delivered possession of any portion of
the property to the applicant? Neither the applicant, nor the
defendant No.1 have placed on record any such documents
and as such in the absence of any such documents, there is
no material prima facie to be satisfied about the bona fides of
the case of the applicant, the plausibility of his claim and the
genuineness of his interest in the litigation. The applicant
has come at a very late stage of the case and this also is
indicative of lack of bona fides on his part. The plaintiffs
have opposed the application of the applicant. It was held in
AIR 1969 Punjab & Haryana 57 that as a rule the Court
should not add a person as a defendant in a suit when the
plaintiff is opposed to such addition. The reason is that the
plaintiff is the „dominus litis‟. He is the master of the suit.
He cannot be compelled to fight against a person against
whom he does not wish to fight and against whom he does
not claim any relief. This principle has also been followed in
AIR 1977 Oriss 138, Meghraja Aggarwala Vs. Radhey Shyam
Aggarwal, where it has been further held that the plaintiff
must be allowed full discretion to put his case in the manner
he likes and should not be forcibly involved into
controversies with persons against whom he does not claim
any relief. The plaintiffs specifically alleged that it was the
defendants No.1 to 3 who had taken wrongful possession of
the premises and the applicant is in collusion with them and
would be bound by the decree that may be passed against
them by the rule of lis pendecis. They deny the possession
FAO No.253-57 /2005 Page 7 of 11
of the application when suit was filed. In these
circumstances, it cannot be said that the applicant is
necessary or a proper party and he cannot be forced upon
the plaintiffs with whom they do not want to fight. This
application thus has no merit and is dismissed with costs of
`100/- ”
13. In these circumstances, the order of the learned ADJ impugned
before me in this case needs to be scrutinized. Before doing that, I may
take note of the issues which has been framed in this case by the
learned ADJ and which are as follows:
1. Whether the Suit is bad for limitation? OPD
2. Whether the documents such as agreement to sell,
affidavit, Will and GPA are forged and fabricated
documents? OPD
3. Whether the plaintiff is entitled to the decree of
declaration and permanent injunction as prayed for? OPP
4. Relief.
14. The basis of granting injunction to respondent No.1 by the
impugned order have been narrated by the learned ADJ in paragraphs
2 to 8 of the impugned order which are incorporated hereunder for the
sake of reference:
“2. In brief the case of the plaintiff is that he is owner of
the property bearing No.RZ-273/17, Tughlakabad Extn.,
New Delhi measuring 100 Sq. yds. Having purchased the
same from Smt. Ishwari Devi wife of late Sh. Chuni Lal on
16.5.1988. The documents GPA, agreement to sell, Will,
receipt and affidavit etc. were duly executed.
3. It is further averred that deceased Smt. Ishwari Devi
was the mother of defendants No.1 and 2 and late Sh. Puran
Parkash Bhalla who died in 2001. The defendant No.3 is
widow of Sh.P.P. Bhalla and daughter in law of deceased
Smt. Ishwari Devi. The defendants No.4 and 5 are the sons
of Late Sh. P.P. Bhalla and grand sons of deceased Smt.
Ishwari Devi.
3. It is further averred that late Smt. Ishwari Devi was
the owner of plot measuring 200 sq. yds. having purchased
the same for `6,800/- from Sh. Som Nath son of Sh. Boota
Ram R/o 444, Rampura, Delhi as General Attorney of Har
Lal s/o Sh. Kure, R/o Tughlakabad, New Delhi vide
agreement to sell, receipt, affidavit etc. dated 28.10.1977.
Two temporary rooms latrine and bath room with boundary
wall were constructed on the said plot.
FAO No.253-57 /2005 Page 8 of 11
4. It is further averred that in the year 1988 plaintiff had
been living with his family in 50 sq. yds. bearing No.RZ-
228/19, Tughlakabad Extn., New Delhi. In the month of
April, 1988, the plaintiff came to know through Bajrank
Property Dealter that plot No.273/17, Tughlakabad Extn.,
New Delhi measuring 200 sq. yds. was available for sale. On
further enquiry from the said dealer the plaintiff came to
know that plot was owned by one Smt. Ishwari Devi and her
son Sh. O.P. Bhalla and Sh. P.P. Bhalla neede money for her
mother‟s treatment. As there was no customer available for
big plot of 200 sq. yds. The said plot was divided into two
plots of 100 sq. yds. each.
5. It is further averred that a plot of 100 sq. yds on the
eastern side with temporary structure of two rooms was sold
to the plaintiff by Smt. Ishwari Devi through her sons
involving the said property dealer to the plaintiff for a
consideration of `30,000/- and the remaining half plot
measuring 100 sq. yds on western side with bath and latrine
was sold in favour of Smt. Sudesh Sharma, w/o Sh. S.K.
Sharma, R/o RZ-274/17, Tughlakabad Extn., New Delhi for
a sum of `30,000/-
6. It is further averred that the payment was made by
way of two bank drafts bearing No.155358 and 155359
which were got encashed by Smt. Ishwari Devi.
7. The document such as GPA, Will, agreement to sell
etc. were delivered to the plaintiff and the possession was
also handed over to the plaintiff. The plaintiff got the old
structure demolished and constructed two rooms on the
ground floor in August, 1988 and started residing therein.
He got a ration card and is paying House Tax in respect of
the suit property since 1988-1989. The name of the plaintiff
and his family members is also got incorporated in the voter
list and a telephone connection is also installed there since
1990 in the name of his wife. The plaintiff thereafter made
constructions from time to time and has constructed two
and half storeyed building there and let out first and second
floor to different tenants.
8. It is further averred that on 1.2.1992 plaintiff came to
know from late Sh. S.K. Sharma husband of Smt. Sudehs
Sharma that the legal heirs of late Smt. Ishwari Devi have
filed a false suit though Smt. Sudesh Sharma has already
sold the portion purchased by her from Smt. Ishwari Devi.
Thereafter, plaintiff moved an application U/o 1 Rule 10 CPC
for being impleaded as party in that case. However, the
same was dismissed. Ultimately the suit filed by the legal
heirs of Smt. Ishwari Devi was decreed by Ld. Civil Judge on
19.08.2004 and the plaintiff apprehended that he might beFAO No.253-57 /2005 Page 9 of 11
dispossessed from the suit property of which he was lawful
owner and the suit for declaration and injunction was filed.”.
15. The appellants have contested the suit. They raised an issue of
limitation and also brought to the notice of the learned ADJ the factum
of moving an application under Order I Rule 10 CPC by respondent
No.1 for being impleaded as party as also the order of dismissal of the
said application dated 10.08.1993.
16. A bare perusal of the application, reply and order as quoted above
goes to show that all the documents which have been sought to be
relied upon by the appellants in this case were very much before the
learned ADJ to decide the application in Suit No.97/1990. The right of
respondent No.1 to base his claims on these documents was contested
by the appellants in their reply which was filed on 17.11.1992.
17. Thus, the right, if any, to assail the stand of the appellants for
deciding the genuineness of the documents relied upon by respondent
No.1 which are the basis of his claim in the present suit, commenced
from that date and the limitation in accordance with Article 58 expired
on 16.11.1995. The suit in question has been filed much beyond the
period of limitation. It is also not a case where the respondent No.1
filed objections to the execution of the decree by invoking Order XXI
Rule 58 of the CPC or filed an appeal against the final judgment in Suit
No.97/1990 within limitation. All these aspects have simply been
overlooked by the learned ADJ. He has blindly accepted the case set up
by respondent No.1 in allegedly having purchased the property from
Smt. Sudesh Sharma which fact has been denied by the appellants as
far as back as in 1992. He has then said that respondent No.1 being
not a party in the suit filed under Section 6 of the Specific Relief Act
would not be bound by the decree passed in favour of the appellants
without referring to the order passed by the learned Civil Judge in
having dismissed the said application and the stand of the appellants
that the documents on the basis of which respondent No.1 wanted to
put up his title as a defense to the suit filed by the appellant was
without any basis.
18. Now coming to the observations made by the ADJ regarding the
plea of limitation, I may simply observe that the order passed by the
FAO No.253-57 /2005 Page 10 of 11
ADJ is contrary to law and is not sustainable. It is not in accordance
with the provisions contained under Article 58 of the Limitation Act,
despite denial of the claim of respondent No.1 by the appellants in 1992
itself. The limitation to claim declaration as is sought to be done by the
present suit expired on 09.08.1996, even if we take the date of
dismissal of the application under Order I Rule 10 CPC as the date to
start the period of limitation wherein a final view regarding rejection of
the claim of respondent No.1 that he had purchased a portion of the
property as pleaded.
19. In view of that, observations made in para 13 of the impugned
order that the Suit was not barred by limitation is not sustainable. In
these circumstances, the order passed by the learned ADJ under Order
39 Rule 1 and 2 CPC in favour of the respondent cannot be sustained.
The same is accordingly set aside.
20. Accordingly, the appeal is allowed. A costs of `25,000/- is
imposed upon respondent No.1 to be paid within one month from today.
21. A copy of this order be sent to the trial Court for information.
C.M.12669/2005
Disposed of as infructous.
MOOL CHAND GARG,J
NOVEMBER 23, 2010
‘anb’
FAO No.253-57 /2005 Page 11 of 11