* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision : 18.10.2011
WP(C) No.7547/2011
SH.RAJINDER & ORS. ... ... ... PETITIONERS
Through : Mr.Lekh Raj Rehalia, Advocate
-VERSUS-
HARSH VOHRA & ORS. ... RESPONDENTS
Through : Nemo.
CORAM :
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE RAJIV SHAKDHER
1. Whether the Reporters of local papers NO
may be allowed to see the judgment?
2. To be referred to Reporter or not? NO
3. Whether the judgment should be NO
reported in the Digest?
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WPC No.7547/2011 Page 1 of 13
SANJAY KISHAN KAUL, J. (ORAL)
CM No.17076/2011
Allowed subject to just exceptions.
+ WP (C) No.7547/2011
1. The petitioners, owners of land in question, executed a
sale deed dated 07.10.1996 in respect of the land in
question and mutation was also carried out in the
revenue records in favour of the respondents. The
petitioners, however, filed a suit alleging that they
have received only part payment under the sale deed
and balance consideration was not paid and sought
cancellation of documents of title and for them to be
declared null and void. Arising from those suit
proceedings, a Civil Revision Petition No.183/2007 and
FAO No.25/2009 were filed, which were decided by the
learned single Judge of this Court on 01.12.2009. The
learned single Judge noticed that it is the case of the
petitioners that they have agreed to sell the land for
higher consideration and understood that they were
only signing documents of mortgage and not the sale
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deed when they executed the documents. There were,
in fact, four suits which arose out of the transaction in
question as there were four sale deeds. The petitioners
also stated in the plaint that they had filed appeal
against the mutation of the land in the name of the
respondents which was dismissed, the second appeal
was dismissed by the Financial Commissioner and it is
thereafter that the petitioners instituted the suit for
declaration and injunction. The issues were framed on
18.05.2006 and all the suits were directed to be tried
together.
2. It is at the aforesaid stage that the petitioners instead
of filing affidavits by way of examination-in-chief of
their witnesses filed an application under Order 14 Rule
5 and Order 11 Rule 16 of the CPC. An application was
also filed subsequently under Section 340 of Cr.P.C.,
which was dismissed on 05.07.2007. It is against this
order that a Criminal Appeal No.460/2007 was filed
which was subsequently converted into FAO
No.25/2009, which was decided by the learned single
Judge. The petitioners also made a grievance that no
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WPC No.7547/2011 Page 3 of 13
orders were passed on their applications filed under
Order 14 Rule 5 and Order 10 of CPC.
3. The learned single Judge has found that the orders of
the Trial Court were misquoted and the revision
petition was not only signed by the petitioners, but by
their counsels. Even though certified copies of orders
were filed along with the revision petition, court found
that the orders reproduced in the body of the pleadings
filed had been misquoted; an act which was roundedly
deplored. It also found that after dismissing the
application under Section 340 of Cr.P.C., the Trial Court
had listed the matter for hearing of the applications
under Order 14 Rule 5 and Order 10 of CPC. A finding
has been arrived at by the learned single Judge that not
only was the revision petition misconceived, but it was
an attempt to browbeat the trial court and the suit
proceedings have been unnecessarily delayed. The
FAO No.25/2009 was qua the dismissal of the
application of the petitioner under Section 340 of
Cr.P.C., which has also been dealt with by the learned
single Judge on merits, finding no infirmity in the same.
The operative portion is as under:
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“From the aforesaid, it will be seen that
the petitioners having only by misquoting
the orders filed the frivolous proceedings
before this Court but during hearing also
just read judgments herein above without
reference to the facts. I am, in the
circumstances, constrained to dismiss
these proceedings with costs of
Rs.10,000/- on the petitioners.”
4. The learned single Judge did not lay the matter to rest
at that stage since in exercise of supervisory
jurisdiction, the learned single Judge found that the very
maintainability of the suits was in question and thus
directed a preliminary issue to be framed in that behalf.
The aforesaid order attained finality as it was not
challenged further and was taken into consideration by
the Trial Court in passing the order dated 20.11.2010.
The plaint was rejected holding that the only remedy
available to the petitioners as plaintiffs was to seek
recovery of the balance consideration of the suit
amount, if any, and not for cancellation of the sale
deed.
5. The petitioners aggrieved by this order filed RFA
No.104/2011 before this Court. The learned single
Judge of this Court dismissed the appeal as
misconceived by the order dated 17.02.2011. The
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learned single Judge found that the suit did not lie in
view of the provisions of Section 55 (4) of the Transfer
of Property Act, 1882. There is also a finding recorded
that the suit was barred under Order 2 Rule 2 of CPC as
earlier suits had been withdrawn without liberty to file a
fresh suit. The petitioners aggrieved by that order filed
a SLP bearing No.15374/2011, which was dismissed in
limine, on 06.07.2011.
6. It is after these rounds of litigation, that the present writ
petition under Article 226 of the Constitution of India
has been filed praying for the following reliefs:
” a) issue an appropriate writ, order or
direction in the nature of Mandamus by
setting aside the judgment and order dated
1.12.2009 passed by the Hon’ble Mr.Justice
Rajiv Sahai Endlaw, the Learned single
Judge of this Hon’ble Court in Civil Revision
Petition No.183/2007 and FAO No.25/2009
which is beyond jurisdiction and in violation
of Order 20 Rule 1 CPC read with Section 35
of CPC;
b) issue an appropriate writ, order or direction
in the nature of Mandamus by setting aside
the judgment and order passed by the
Additional District Judge, Delhi dated
20.11.2010 in Civil Suit Nos.102/08/1999 to
105/08/1999 and the records be
summoned.
c) issue an appropriate writ, order or direction
in the nature of Mandamus by setting aside
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the judgment and order dated 17.2.2011
passed by the Hon’ble Mr.Justice Valmiki
J.Mehta, the learned single Judge of this
Hon’ble Court in RFA No.104/2011 which is
also without jurisdiction and mainly hinges
on the findings given by the Hon’ble
Mr.Justice Rajiv Sahai Endlaw, the learned
Single Judge of this Hon’ble Court vide order
dated 1.12.2009 passed in CRP
No.183/2007 and FAO No.25 of 2009 which
in fact is the complete violation of
procedural provisions of the CPC is
apparent on the face of the record when all
issues arising on the basis of the pleadings
were framed by the Additional District Judge
Delhi on 18.05.2006 and the cases were
listed on 31.8.2006 for plaintiff’s evidence;
d) the aforesaid three orders may kindly be set
aside and the matter be remanded back to
the Court of learned Additional District
Judge, Tis Hazari, Delhi when the aforesaid
Civil Suit No.102/08/1999 to 105/08/1999
for fresh disposal in accordance with the
law;
e) then notice issued by Hon’ble Mr.Justice
Shiv Narain Dhingra learned Single Judge of
this Hon’ble Court to the respondents in
FAO No.25/2009 be recalled and the
respondents be proceeded under Section
340, 195 Cr.P.C. in view of the order dated
19.9.2006 passed by Additional District
Judge, Delhi in M/44/2006;
f) and pass such other or further order/orders
as this Hon’ble Court may deem fit and
proper in the facts and circumstances of the
case and in the interest of justice.”
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WPC No.7547/2011 Page 7 of 13
7. The Registry raised an objection about the
maintainability of such a writ petition, but the learned
counsel for the petitioners insisted that the matter may
be placed before the court for hearing subject to the
office objection. The writ petition has accordingly been
placed before us.
8. We have heard learned counsel for the petitioner at
length.
9. It is the say of the learned counsel for the petitioners
that the petitioners have not received justice at the
hands of various forums where proceedings have gone
on. It is his say that the learned single Judge fell into
an error while passing the order dated 01.12.2009 and
the directions passed there could not have been taken
into account by the Trial Court while passing the order
dated 20.11.2010. Learned counsel further contends
that the dismissal of the special leave petition does not
give finality to the matter as the dismissal was in
limine. Learned counsel for the petitioners strenuously
contends that this court in exercise of power of under
Article 226 of the Constitution of India has every right
to look into the matter as the rights of the petitioners
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under Article 300A of the Constitution of India have
been violated as the petitioners have been deprived of
their property without following the legal process.
10. Learned counsel has relied upon the Indian Oil
Corporation Ltd. v. State of Bihar and Ors.; AIR 1986
SC 1780 to contend that the dismissal of a special
leave petition by Supreme Court by a non-speaking
order is no bar to the trial of the same issues in High
Court under Article 226 of the Constitution of India. It
may be noticed that the matter in controversy was a
service dispute.
11.Learned counsel for the petitioners next referred to
State of UP through Secretary v. Atulji Mishra & Ors.;
(2003) 10 SCC 210 to contend that the High Court must
first issue notice to the respondents, call upon their
reply and then pass an order under Article 226 of the
Constitution of India. We may note that this case again
pertained to the issue of parity in employment and
equal pay for equal work where Supreme Court found
that the records ought to have been called and a
reasoned order should have been passed. Learned
counsel for the petitioners referred to the Gurudevdatta
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Vksss Maryadit and Ors. v. State of Maharashtra and
Ors.; (2001) 4 SCC 534, State of Himachal Pradesh v.
Dhanwant Singh; JT 2004 (2) SC 367 and A.V.Papayya
Sastry and Ors.v. Govt. of A.P.& Ors. (2007) 4 SCC 221
to contend that that the statutory provisions cannot
take away the constitutional rights and that where a
fraud takes place, it vitiates all judicial proceedings.
12. We have given our thought to the matter and
considered it appropriate to pen down a detailed order,
setting the facts in controversy.
13. We find that the matter really does not pertain to
deprivation of any constitutional rights of the
petitioners qua the right of property in view of the
petitioners voluntarily entering into a transaction for
sale of the property. It is of course the say of the
petitioners that they have executed what were
purportedly mortgage papers. The fact, however,
remains that the sale deed was duly registered and
mutation carried out and all endevours of the
petitioners to get the mutation set aside were
unsuccessful. The petitioners kept on moving
applications including one under Section 340 Cr.P.C.
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which formed subject matter of adjudication of the
learned single Judge vide order dated 01.12.2009.
Learned single Judge deplored the mode and manner of
conduct of proceedings on behalf of the petitioners
especially the factum of incorrectly quoting the orders
in the petition to give an impression as if the trial court
was delaying the proceedings qua certain applications
while records showed that it was the petitioners who
were pressing the application under Section 340 of
Cr.P.C. first. The dismissal of that application has been
upheld as no perjury was found nor any inconsistencies
in the statements of the defendants. This order has
become final and the same is stated not to have been
assailed further. It is by this very order where the court
exercising supervisory jurisdiction under Article 227 of
the Constitution of India directed the Trial Court to
examine the legality and validity of the claim as framed
in the plaint in the form of a preliminary issue. This
preliminary issue has been decided against the
petitioners vide the order dated 20.11.2010 by the Trial
Court which has received the imprimatur of this Court
by dismissal of the RFA No.104/2011 vide order dated
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17.02.2011. The special leave petition has also been
dismissed.
14. In our considered view, this puts the controversy to rest
insofar as the claim of the petitioners over the
cancellation of documents is concerned. We may notice
that the Trial Court had left it to the petitioners, if so
advised, to file legal proceedings for recovery of the
balance consideration of the sale deed as pleaded by
them since that was not the relief claimed in the suit.
15. We must strongly deprecate the practice of repeated
litigation on the same cause of action, wasting the time
of the court. The lis, as agitated by the petitioners, has
attained finality. The Registry also pointed out that
such a writ petition would not be maintainable as the
order passed in RFA No.104/2011 by a learned single
Judge of this Court is not to be set aside in the writ
petition by this Court. Not only that, the orders passed
in Civil Revision Petition No.183/2007 and FAO
No.25/2009 are also not to be set aside by this Court
under Article 226 of the Constitution of India, and that
too, after a period of 2 years. The petitioners seek to
continue litigation under one pretext or the other and
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courts must come down with heavy hand on such
litigation.
15. We thus dismiss the writ petition with exemplary costs
of Rs.25,000/- to be deposited with the Delhi High
Court Legal Services Committee within a period of two
weeks.
CM No.17075/2011
In view of the dismissal of the writ petition, no further
directions are called for on this application.
The application stands disposed of.
SANJAY KISHAN KAUL, J.
OCTOBER 18, 2011 RAJIV SHAKDHER, J. dm
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