Kiran Girhotra v. Raj Kumar

Manmohan Singh, J.— By this order, I shall dispose of the plaintiff's application under Order 39 Rule 4 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’) being I.A No. 11196/2009 wherein it is prayed that the order dated 3rd February, 2004 be modified and in addition to earlier order defendant Nos. 2 to 4 be restrained thereby to (a) not to cause any construction in the suit plot; (b) to handover the peaceful possession to the plaintiffs and (c) alternatively to seal the suit property in question.

PRESENT APPLICATION

2. The above mentioned application has been filed by the plaintiff under Order 39 Rule 4 read with Section 151, CPC mainly on the ground of change of circumstances, namely:

(a) That, Mr. Sunil Gupta, defendant No. 3 has started the construction in the plot bearing No. W-137, Greater Kailash Part-II, New Delhi in the month of August, 2009.

(b) That, probate has been granted in favour of the plaintiff vide order dated 14th January, 2009 in Probate Petition No. 46/2006 which is a judgment in rem and no appeal has been filed against any Class-I legal heirs of late Shri Harbhagwan and the plaintiffs are legally authorized to administer all the properties left by their late father, Shri Harbhagwan.

3. There are various civil and criminal litigations pending between the parties with regard to the two properties being the suit property and property bearing No. Q-29, Tagore Park, Model Town, New Delhi. For the purpose of deciding the present application, one of the properties i.e W-137, G.K-II, New Delhi concerning the application in which relief is sought will be referred as suit property hereinafter.

4. The plaintiffs filed a suit under Section 31 of the Specific Relief Act, 1967 for declaration, permanent and mandatory injunction and for possession of suit property.

PREVIOUS INTERIM ORDER

5. In I.A No. 631/2004 under Order 39 Rules 1 and 2, CPC on 3rd February, 2004 an interim order was passed in the present of Counsel for the parties against the defendants restraining them from creating any third party interest in the suit property as well as property bearing No. Q-29, Tagore Park, Model Town, New Delhi. The said order was confirmed by order dated 1st December, 2005.

6. The case of the plaintiff is that Shri Harbhagwan, son of Shri Jai Kishan Das purchased the following two properties:

(a) Property bearing No. W-137, Greater Kailash Part-II, New Delhi, by means of Registered Sale Deed dated 27th April, 1973 executed by M/s. DLF Limited in his favour;

(b) Property bearing No. Q-29, Tagore Park, Model Town, New Delhi, purchased vide Registered Sale Deed dated 3rd October, 1959.

7. Shri Harbhagwan and his wife disowned and disinherited their son Mr. Raj Kumar, defendant No. 1 by giving a public notice dated 14th August, 1987 in the Newspaper ‘Statesman’. Defendant No. 1 was also ousted from the parental house on 17th January, 1994 by way of a decree of the Court in the suit filed in the year 1997 and various criminal and civil cases are pending against him and he started residing at Nazafgarh, New Delhi (separate place).

8. Shri Harbhagwan during his lifetime had executed a Will dated 15th May, 1996, which was registered by him vide registration No. 19906 in additional Book No. 3 Volume-2660 at pages 137-138 registered on 17th May, 1996 in favour of his wife, Smt. Pushpa Kumari. Shri Harbhagwan expired on 4th November, 1997.

9. Shri Harbhagwan had a number of self acquired properties including the suit property. According to the plaintiffs, defendant No. 1 forged a Will dated 30th October, 1997 after the death of his father with the collusion and conspiracy of defendant Nos. 2 to 4, namely, Mr. Amit Pahwa, Mr. Sunil Gupta and Mr. Jayant Ghadia respectively and got the said Will registered with the Sub-Registrar, Kashmere Gate, Delhi on 2nd June, 1999 without notice to any of the legal heirs of the deceased and on a Stamp Paper of Rs. 2/-, which was purchased from the Stamp Vendor for the purpose of Agreement. During the years 1998-2000, public notices were given by the plaintiffs and their mother against defend ant No. 1 declaring that he had no right, title or interest in the properties left behind by his father, late Shri Harbhagwan.

10. In the month of February, 2000, Jayant Ghadia (defendant No. 4 herein) filed a suit for specific performance against Raj Kumar, defendant No. 1 herein being CS(OS) No. 382/2000 in respect of the suit property on the basis of receipt executed and relied upon by Mr. Raj Kumar as Agreement to Sell. On 22nd February, 2000, an ad interim order was passed to the following effect:

“In the meanwhile the status quo qua possession and construction as of today shall be maintained by both the parties in respect of suit property being No. 137, Block W, Greater Kailash, New Delhi.”

11. As per the report of the Local Commissioner, Mr. Jayant Ghadia was in possession of the suit property when the visit was made.

12. In October, 2000, the plaintiffs herein moved an application for their impleadment in CS(OS) No. 382/2000. The said application was allowed vide order dated 9th August, 2002 and they were impleaded as defendants in the said Suit No. 382/2000.

13. Simultaneously, the plaintiffs also applied for probate of the last Will of their father in the year 2000.

14. Various proceedings were initiated by the plaintiffs against defendant No. 1 including registration of FIR No. 429/2000 registered in respect of forged Will wherein an order under Section 156(3) for investigation was passed and the plaintiffs have also obtained status quo orders in their favour against him.

15. Mr. Raj Kumar admittedly was aware of the interim order dated 22nd February, 2000 as he was represented by Counsel in Suit No. 382/2000, still, on 27th June, 2003 he sold/transferred the suit property by means of registered Sale Deed dated 27th June, 2003 in favour of Mr. Amit Pahwa (defendant No. 2) for a sum of Rs. 9,00,000/- (Rupees nine lacs only). The said Sale Deed was duly registered vide Registration No. 5111 in Additional Book No. 1 Vol. 3418 on pages 30 to 41 registered on 27th June, 2003.

16. Within 28 days, Mr. Amit Pahwa sold and transferred the same property in the name of Shri Sunil Gupta, defendant No. 3 on 25th July, 2003 by executing a number of documents namely Agreement to Sell, General Power of Attorney, Will, Affidavits, Possession letters, etc.

17. On 7th August, 2003 the defendant Nos. 2 and 3 herein also moved an application for impleadment in CS (OS) No. 382/2000 filed by Mr. Jayant Ghadia, defendant No. 4.

18. The contention of the plaintiffs is that Shri Raj Kumar, defendant No. 1 had at no point of time had any right, title or interest in the suit property of the plaintiffs as he was also never in possession of the same. Moreover, the interim order was passed on 22nd February, 2000 by this Court to maintain status quo. Therefore, defendants 2 to 4 derive no right, title or interest in the suit property from defendant No. 1. They have prior knowledge of all the previous litigation, public notices, criminal cases and interim orders with respect to the property in question but despite the protection given by this Court in favour of the plaintiffs, the defendants 1 to 4 deliberately entered into the sale transaction in respect of the suit properties in their favour at a throwaway price.

19. The plaintiff submitted that the plaintiffs are in possession of all the original titles of the suit property, which were shown to this Court in another litigation being FAO No. 793/2003, which proves the possession of the plaintiffs and, therefore, the plaintiffs are the lawful co-owners. On the other hand, defendant No. 3 has not shown a single document in his favour.

20. It is contended by the plaintiff that on the date of transferring the said titles and interest, as per the judicial record, Shri Jayant Ghadia, defendant No. 4, was in possession and other defendants were aware about the status quo order passed by the Court as defendant Nos. 2 and 4 were represented by the same Counsel.

21. The plaintiffs submit that defendant No. 3, Shri Sunil Gupta got into forcible and illegal possession of the suit property in early August, 2003 by demolishing the front boundary wall and FIR No. 266/2003 was registered with Chittaranjan Park Police Station, New Delhi. Shri Jayant Ghadia, defendant No. 4, who was in possession at that time, also filed a contempt application in his suit and filed the Criminal Writ Petition No. 955/2003 for getting the FIR registered against Shri Sunil Gupta and Shri Raj Kumar. Thereafter, the plaintiffs, in the month of August, 2003, moved a contempt application being I.A No. 8514/2003 in CS(OS) No. 382/2000 against defendants and an application being I.A No. 8513/2003 for sealing of the property.

22. An anticipatory bail application was moved by defendant No. 3 herein on 27th December, 2003, which was rejected by this Court vide order dated 25th May, 2004 in Crl. Misc. (Main) No. 5304/2003. The order passed by this Court reads as under:

“Heard. The property in dispute was owned by one Harbhagwan. He executed a Will in favour of his son Raj Kumar, who on the basis of the said Will, executed an agreement to sell dated 4th December, 1999 in favour of the complainant, Jayant Ghadia. Later on some dispute arose between the complainant and Raj Kumar aforesaid whereupon complainant filed civil suit for specific performance of the agreement to sell and in that suit an interim injunction directing to the opposite party to maintain status quo was passed by this Court in the civil suit on 22nd February, 2000. The Local Commissioner was also appointed. The Local Commissioner submitted his report on 23rd February, 2000 confirming the possession of the complainant on the said plot. Yet Raj Kumar aforesaid sold the property to one Amit Pahwa vide sale deed dated 27th June, 2003 and Amit Pahwa executed various documents, namely, power of attorney, agreement to sell, etc. in favour of the present petitioner on 25th July, 2003. It seems that the petitioner on the basis of these documents encroached upon the plot. When the complainant came to know about it, he lodged FIR. The petitioner further admits the fact that the possession was handed over to the complainant on 6th January, 2004. Even thereafter petitioner executed collaboration agreement with Yogesh Gupta on 27th December, 2000 for the development of the said property. A perusal of the said collaboration agreement indicates that the possession has already been handed over to the developer, i.e, Yogesh Gupta, knowing fully well that the status quo order passed by the civil Court continued to be in force. Learned Counsel for the petitioner submits that this collaboration agreement has been arrived at without the knowledge and approval of the complainant. However, there is no document on record to suggest this besides it is pointed out by the IO that the petitioner has not joined the investigation despite service of notice.

Considering the conduct of the petitioner, I think it is not a fit case for grant of anticipatory bail. Rejected.

O.P DIWEDI, J.”

23. It is contended by the plaintiffs that in order to defeat the rights of the plaintiffs and to overreach the interim order passed by this Court on 22nd February, 2000 and after rejection of bail by this Court on 25th May, 2004, the defendant No. 4 in connivance and collusion with the other defendants filed an application under Order 23 Rule 1 read with Section 151, CPC before the Vacation Judge for withdrawal of Suit No. 382/2000.

24. The said suit was withdrawn by Shri Jayant Ghadia (defendant No. 4 herein) without giving any intimation to the plaintiffs who were defendants in the said suit and the orders were passed on 9th June, 2004.

25. In the application, it was stated by Shri Jayant Ghadia that the parties have settled their matter in respect of the suit property.

26. It is stated by the plaintiffs that the said act of the defendants is deliberate as there was no urgency to withdraw the suit during the vacation period and at the back of the plaintiffs. It was done by the defendants with the mala fide intention to deprive the valuable rights of the suit property of the plaintiffs.

27. The allegation made by the plaintiffs is that the said suit was withdrawn intentionally as there was an order of status quo passed on 22nd February, 2000 regarding the construction and possession of the suit property and the suit was withdrawn by Shri Jayant Ghadia, defendant No. 4 in connivance with the other defendants in order to play a fraud upon the Court, which is apparently an abuse and misuse of the process of law. On the date of withdrawal the present plaintiffs were parties to the suit and the application dated 7th August, 2003 on behalf of defendants 2 and 3 herein was pending for impleadment in the said suit.

28. The plaintiffs have argued that the defendants were also aware that in the plaintiffs' application for interim relief, there was a relief for restraining construction of the suit property but the same was not pressed by the plaintiffs when the parties' interim order was passed on 3rd February, 2004 as interim order for construction of the suit property was already passed in CS(OS) No. 382/2000. Thus, there is a mala fide intention of the defendants in withdrawing the suit.

29. The plaintiffs submit that the defendant No. 3, Mr. Sunil Gupta has admitted in his written statement filed by him in CS(OS) No. 1692/2007, consolidated with the present suit, that he has no concern with the plot bearing No. W-137, Greater Kailash-II, New Delhi, which reads as under:

“This answering defendant has got nothing to do with the plot situated at Greater Kailash, Part-II, New Delhi and, therefore, the various allegations made by the plaintiffs against the answering defendant in respect of the plot in Greater Kailash, Part-II, New Delhi, are absolutely wrong and false and the same are denied.”

30. The defendant No. 3 thereafter also filed an application seeking his impleadment under Order 1 Rule 10 in the probate proceedings wherein he stated that he had purchased the two properties from Shri Amit Pahwa who himself had purchased the same from Shri Raj Kumar and since he had vital interest in the aforesaid two properties and also in the determination of the legality and validity of the alleged Will dated 9th September, 1997, he apprehended that Shri Raj Kumar may connive with the plaintiffs, therefore, the application under Order 1 Rule 10 was filed and the same was allowed vide order dated 24th December, 2004.

31. The plaintiffs challenged the said order before this Court by filing a Civil Miscellaneous Main Petition being No. 285/2005. The said petition was allowed by Hon'ble Mr. Justice Sanjay Kishan Kaul by his order dated 31st August, 2006 and while passing the order, the learned Single Judge observed as under:

“Not only that no probate was obtained or applied for of the Will dated 30th October, 1997 and the sale has been effected in pursuance of the said Will without no objection of the other legal heirs. Thus, the purchasers are only speculators who have purchased the litigated property.

The purchaser, Shri Amit Pahwa and thereafter respondent, Sunil Gupta herein also got into speculative purchase of litigated property.

The respondent No. 1, Sunil Gupta, cannot hide behind the plea of bonafide purchase since the purchase itself cannot be said to be bona fide. If the petitioners failed in establishing the Will propounded by them the consequences would follow and in that eventuality if the respondent No. 1 is able to avail of certain benefits in accordance with law, the same would be available to him.”

32. The defendant No. 3 challenged the said order before the Supreme Court by filing Civil Appeal No. 4729/2007 which was dismissed and the judgment was 2007 AD SC 1. The Supreme Court in Paras 16 and 17 of the judgment observed as under:

“16. Raj Kumar evidently was aware of the proceedings. If the proceeding had been initiated for grant of probate, the appellant and/or his predecessor, Shri Amit Pahwa would be deemed to have notice thereof.

17. Citation as it well known should be conspicuously displayed on a notice board. Before purchasing the properties, Amit Pahwa and consequently the appellant had taken calculated risk. In situation of this nature, he is not a necessary party. He took the risk of the result of the probate proceedings. His apprehension that Raj Kumar may not take any interest in the litigation cannot by itself a ground for interfering with the impugned judgment. It is speculative in nature.”

33. The plaintiffs have also referred to the reply to the application under Order 39 Rule 4 filed by defendant No. 3 in the present suit wherein in Para 20, the defendant No. 3 has stated that Shri Jayant Ghadia was not in possession of the suit property and with effect from 25th July, 2003, it is the answering defendant who has been in uninterrupted possession of the suit property and he is also not bound by any report of the Local Commissioner as the answering defendant is in peaceful possession of the property.

34. Learned Counsel for the plaintiffs has argued that the said statement made by defendant No. 3 is contrary to the written statement filed by him in CS(OS) No. 1692/2007 and also from the admission of facts recorded by the Court in Crl. MM. 5304/2003 wherein while seeking bail, defendant No. 3 had admitted that he handed over the possession to Shri Jayant Ghadia on 6th January, 2004.

35. The probate of the suit property and other properties of the deceased was granted in favour of the plaintiffs vide judgment dated 14th January, 2009. The Will propounded by Shri Raj Kumar (defendant No. 1 herein) and relied upon by defendant No. 3 and other defendant Nos. 2 and 4 was declared as forged as per the CFSL report. No appeal is stated to have been filed. The defendants have not denied the factum of grant of probate in favour of the plaintiffs.

36. The defendant No. 3 has admitted that he started construction in the plot bearing No. W-137, Greater Kailash, Part-II, New Delhi in the month of August, 2009. Thus, the present application under Order 39 Rule 4 read with Section 151, CPC has been filed on the ground of change of circumstances for variation of interim order already passed.

37. The present application has been opposed by defendant No. 3 by stating that the application under Order 39 Rule 4 is not maintainable as the said provision applies only for discharge, variation and setting aside the injunction order and can be invoked only by a party against whom any interim order has been passed and the present application is also barred by the principle of res judicata.

38. It is submitted that along with the present suit, the plaintiffs had filed an application being I.A No. 631/2004 seeking a similar relief of restrain of construction. The said application was considered on 3rd February, 2004 and disposed of on 1st December, 2005 but no such relief for construction was granted to the plaintiffs.

39. It is also contended that another application being I.A No. 6362/2004 for the relief of injunction qua construction was sought by the plaintiffs but no such injunction was granted. Since, the application of the plaintiffs under Order 39 Rules 1 and 2, CPC was finally disposed of and no appeal was filed against the said order, hence the order attained finality.

40. It is argued by the Counsel for defendant No. 3 that defendant No. 3 was not a party in the Suit No. 382/2000 filed by Shri Jayant Ghadia (defendant No. 4) and the suit filed by him has already been withdrawn. The interim orders granted on 22nd February, 2000 for construction and possession are automatically vacated, hence there is no hurdle for the defendant No. 3 to carry on construction in the suit property.

41. It is alleged by defendant No. 3 that the said order has also lost its significance, the moment the suit has been dismissed as withdrawn on 9th June, 2004 by order passed in I.A No. 1956/2004.

42. He submits that there is no hardship to the plaintiffs as regards the relief sought, as the plaintiffs would not gain any advantage by not allowing the construction except to deprive the defendant No. 3 of the fruits of his property. The defendant No. 3 is raising construction which is authorized and permitted by the MCD and is willing to give an undertaking that in case, ultimately the plaintiffs succeed in their suit, the defendants shall not claim any equity. Even otherwise, the plaintiffs have not pleaded any injury/hardship in the interim application. The defendant No. 3 has referred and relied upon 1986 RLR 518 (Para 5), 1996 (34) DRJ 290 (DB) (Para 18) and Union of India v. Naman Singh Sekhawat, (2008) 4 SCC 1 (Para 26 and 27).

43. As regards the grant of probate in favour of the plaintiffs, the learned Counsel for defendant No. 3 has also argued that defendant No. 3 has filed a suit for declaration, possession and mesne profits being CS (OS) No. 878/2009 in this Court against the plaintiffs and others, wherein the prayer is sought for declaration against the defendants declaring that the probate granted on 14th January, 2009 be declared as fraudulent proceedings and bad in law and not binding upon defendant No. 3. Thus, the present application is not maintainable as there is hardly any change in circumstances.

44. According to the defendant No. 3, the possession is with him since 25th July, 2003. The said possession, according to him, was handed over by defendant No. 2. Shri Amit Pahwa who sold and transferred the said property against consideration. As regards the been withdrawn/settled.

45. It is also denied by defendant No. 3 that the defendant No. 4 filed the application in collusion with him under the provisions of Order 23 Rule 1, CPC in Suit No. 382/2000 as he was never a party in the said suit. He submits that he has not signed the application and the plaintiff can withdraw his suit filed by him unconditionally and no person can object to the said unconditional withdrawal. The said suit was for specific performance primarily against defendant No. 1 and the same was ultimately withdrawn in the presence of Counsel for defendant No. 1. The question of any notice to any other party does not arise in law. The Court has allowed the said withdrawal without feeling a necessity to issue a notice in the said application to any party and the said order has become final as the plaintiffs' application to any party and the said order has become final as the plaintiffs' application for recalling withdrawal order has been dismissed on 23rd April, 2009. The contempt application of the plaintiffs is also dismissed.

46. The relief sought in this application has already been declined in the earlier application which was dismissed vide order dated 23rd January, 2007, hence the status quo order sought regarding construction and possession in the present proceedings cannot be granted. The application filed by the plaintiffs deserves to be dismissed with heavy costs.

47. After hearing learned Counsel for the parties and their rival submissions and having gone through the pleadings in the matter, now I shall deal with the application filed by the plaintiff under Order 39 Rule 4 read with Section 151, CPC for variation of the order due to change of circumstances.

48. Various pleas and documents have been referred by the parties with regard to the pending litigation. It is not necessary to refer all the proceedings as this Court is of the view that at this stage only short point is to be determined in the application filed by the plaintiffs as to whether the plaintiffs are entitled for the relief claimed in the application.

49. The parties are involved in a dispute regarding property bearing No. W-137, Greater Kailash Part-II, New Delhi and also property No. Q-29, Tagore Park, Model Town, Delhi. The dispute which was subject matter of Suit No. 124/03 pending before the Additional District Judge filed by the plaintiffs seeking permanent injunction against the defendants has been consolidated with the present suit vide order dated 15th May, 2006.

50. Admittedly, in the suit filed by Mr. Jayant Ghadia being CS(OS) No. 382/2000 before this Court, an interim order was passed on 22nd February, 2000 wherein statics quo order qua possession and construction in respect of the suit property No. 137, Block W, Greater Kailash, Part-II, New Delhi. The said interim order was in force uptil 9th June, 2004 when Mr. Jayant Ghadia withdrew the suit by filing an application under Order 23 Rule 1 of the Code of Civil Procedure during the vacation period. It is not denied by defendant No. 3 that the present plaintiffs were impleaded as defendants in that suit and the application on behalf of defendant Nos. 2 and 3 herein for their impleadment was pending at the time of withdrawal of the suit. When the said suit was withdrawn, admittedly no notice was issued to the plaintiffs nor copy was supplied.

51. It is not denied by the Counsel for defendant No. 3 that defendant Nos. 2 and 3 have acquired the alleged rights in the suit property during the pendency of the interim order passed by this Court. In case the conduct of the defendants is examined, it would, prima facie, appear that none of the defendants in the present suit have cared to obey the interim orders passed by this Court on 22nd February, 2000 in CS(OS) No. 382/2000 and the order dated 3rd February, 2004 passed in the present suit (directing the parties not to create any third party interest). Both the orders have been violated by the defendants mercilessly and without any fear or respect. Thus, it has become necessary to discuss the conduct of each of the defendants.

DEFENDANT NO. 1 RAJ KUMAR

52. CS(OS) No. 382/2000 was filed by Mr. Jayant Ghadia, defendant No. 4 against Mr. Raj Kumar for specific performance on the basis of receipt executed by him in his favour. Mr. Raj Kumar had, inter alia, acquired the right of the suit property on the basis of propounded Will dated 30th October, 1997 which has now been declared forged and fabricated in the probate proceedings and final judgment has been pronounced on 14th January, 2009. He has not sought any probate of the alleged propounded Will dated 30th October, 1997. He was duly represented by a Counsel and was fully aware about the interim orders passed by the Court. Admittedly he had no titles or original documents of the suit property. On 27th June, 2003, he sold/transferred the suit property to Mr. Amit Pahwa, defendant No. 2 by virtue of Sale Deed. He, as per documents filed, was disowned and disinherited by his parents in the year 1987 by virtue of various notices placed by the plaintiffs during the period 1997 to 2000 in the newspapers. FIR No. 429/03 was also registered against him and others and according to the plaintiffs he was in custody for some time. He has now stopped appearing in the present matter.

DEFENDANT NO. 2 AMIT PAHWA

53. Defendant No. 2 purchased the suit property from defendant No. 1 on 27th June, 2003 during the pendency of the interim order passed by this Court. Later on, in his written statement filed in the year 2003 and in the anticipatory bail application for the same year, he admitted the fact that he had filed a suit for damages against Mr. Raj Kumar, defendant No. 1 who trapped him and is the actual culprit.

DEFENDANT NO. 3 SUNIL GUPTA

54. (a) Mr. Amit Pahwa, defendant No. 2 allegedly sold the Greater Kailash property to defendant No. 3 on 25th July, 2009 by execution of agreement to sell, GPA, Will, Affidavits, etc. within 28 days from the date of its purchase. Upon sale, FIR No. 226/03 was registered against him. The bail sought by him was rejected by this Court in Crl. Misc. Main No. 5304/03 on 25th May, 2004. While rejecting the bail, it was recorded by O.P Dwivedi, J. as under:

“It appears that defendant No. 3 on the basis of the documents, namely, power of attorney, agreement to sell etc. encroached upon the plot and when the defendant No. 4 (Mr. Jayant Ghadia) came to know about it, he lodged the FIR. The defendant No. 3 thereafter admits the fact that the possession was handed over to the defendant No. 4 on 6th January, 2004. It was also recorded in the said order that even thereafter the defendant No. 3 executed collaboration agreement with Yogesh Gupta on 27.2.2004 for the development of the said property by virtue of the agreement, which indicates that the possession has also been handed over to the developer i.e Yogesh Gupta knowing fully well that the status quo order passed by civil Court continues to be in force.”

(b) Despite above mentioned orders passed by this Court, defendant No. 3 subsequently filed various affidavits and pleadings and made a statement that after the purchase of the property from Amit Pahwa on 25th July, 2003, he is in possession and enjoying the property from that date itself.

(c) In the written statement filed by him in CS (OS) No. 1692/2007 (originally the suit was filed in the year 2003 by the plaintiffs) which is consolidated with the present suit, the defendant No. 3 has specifically stated that he has got no concern with the plot bearing No. W-137, Greater Kailash-II New Delhi. The relevant portion of his admission in the written statement reads as under:

“This answering defendant has got nothing to do with the plot situated at Greater Kailash, Part-II, New Delhi, and, therefore, the various allegations made by the plaintiffs against the answering defendant in respect of the plot in Greater Kailash, Part-II, New Delhi are absolutely wrong and false and the same are denied.”

DEFENDANT NO. 4 JAYANT GHADIA

55. Defendant No. 4 purchased the suit property from defendant No. 1 (Raj Kumar) by way of alleged receipt/agreement at the strength of registered Will dated 30.10.1997, the same has now been declared as forged document. Defendant No. 4 filed the suit bearing No. CS(OS) 382/2000 against Raj Kumar wherein the interim order was passed. He was also aware that the property in question was sold by the defendant No. 1 to defendant No. 2 by way of registered Sale Deed dated 27.6.2003 and later on, defendant No. 2 to defendant No. 3 on 25th July, 2003 on the basis of GPA, Agreement to Sell, Will, etc. because he himself filed the contempt petition and also lodged FIR against the defendant No. 3. Despite having full knowledge, he withdrew the suit on 9th June, 2004, during the vacation time without any communication to the plaintiffs and without serving any copy thereof.

56. It is not clear if as per the judicial record, the possession of the suit property was again handed over to Mr. Jayant Ghadia, defendant No. 4 by defendant No. 3 on 6th January, 2004 and on 3rd February, 2004, an interim order was passed in this suit not to create any third party interest, then how the defendant No. 3 subsequently has been claiming possession in the suit property. No explanation has been given by him nor documents have been produced except that the defendant No. 3 was filing affidavits and pleadings that he is in possession after purchase of the suit property on 25th July, 2003 from Mr. Amit Pahwa.

57. I do not agree with the contention of defendant No. 3 that prior to the purchase of the property, the defendant No. 3 was not aware about the interim order dated 22nd February, 2000 passed in CS(OS) No. 382/2000. It is the admitted fact that defendant Nos. 2 and 3 themselves filed an application in the said suit for their impleadment during the first week of August 2003. Even assuming for the sake of argument that he got the knowledge about the interim order during the end of July or the first week of August, 2003 itself, but at that time, defendant No. 4 was in possession and because of the interim order, it could not have been transferred to defendant No. 3. Even if he took the possession forcibly or otherwise with the consent of defendant No. 4, as per judicial record, he had again handed over the possession to the defendant No. 4 on 6th January, 2004. Further, after filing the impleadment application the defendant No. 3 admittedly executed a collaboration agreement with Mr. Yogesh Gupta on 27th February, 2004 for development of the suit property as recorded in the order dated 25th May, 2004 in Crl. Misc. (Main) No. 5304/03. The said act of defendant No. 3 is in violation of the orders passed in the present suit on 3rd February, 2004. Not only that the defendant No. 3 also handed over the possession to the developer i.e Mr. Yogesh Gupta as per the collaboration agreement. The said circumstances clearly indicates that Mr. Amit Pahwa, Sunil Gupta and Mr. Jayant Ghadia, defendants 2 to 4 were having the knowledge about the interim orders otherwise why Mr. Jayant Ghadia, defendant No. 4 would have withdrawn the suit on 9th June, 2004 by filing of an application stating that the disputes have been settled by the parties. No other explanation whatsoever has been given by defendant No. 3 that how he got the possession of the suit property after 6th January, 2004. In case, he got the possession after the withdrawal of the suit on 9th June, 2004, even then, iv amounts to breach of orders passed on 3rd February, 2004.

58. It is well settled law that the guilty party is liable to be thrown out at any stage. In the case of S.P Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1 : AIR 1994 SC 853 it is held that:

“We are constrained to say that more often than not, process of the Court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the Court process a convenient lever to retain the illegal gains indefinitely.”

59. I do not agree with the plea of the defendant No. 3 regarding the bona fide purchase of the suit property. In view of the facts and circumstances mentioned above, prima facie, it cannot be said that the purchase of suit property by the defendant No. 3 from defendant No. 2 was bona fide. The defendant No. 3 has claimed the possession of the suit property by way of GPA, Agreement to Sell, Will etc. and other documents executed by defendant No. 2, which are unregistered and unstamped documents. A bare reading of Section 49 of the Registration Act makes it clear that to make a document admissible in evidence there should be proper registration and stamping under the Stamp Act as the possession of the property is also transferred in the present case, hence transfer of right can only be valid if the documents of the property are registered and stamped. Unregistered/Unstamped documents shall have no effect on the property and they are unenforceable under Section 54 of the Transfer of Property Act. In 2001, the Registration Act was amended and the provision of Section 17(1A) was inserted which provides that a document purporting to operate as an Agreement to Sell shall be registered if it has been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001 and if such a document is not registered on or after such commencement it would have no effect for the purposes of Section 53A of the Transfer of Property Act. In the case of Avinash Kumar Chauhan v. Vijay Krishna Mishra., 2009 II AD (SC) 109, the Apex Court has held that:

“If all purposes for which document is sought to be brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposes.”

60. Defendant No. 3 has argued that the probate has been obtained in the fraudulent manner and he has already filed a suit in this Court against the plaintiffs and others challenging the said proceedings on various grounds wherein summons have been issued to the defendants. In the case of Indian Association v. Shivendra Bachadur Singh, in 104 (2003) DLT 820 (DB) (DHC) it has been held that the judgment of Court in brobate proceedings is a judgment in rem and not judgment in personam.

61. Learned Counsel for the defendant No. 3 has heavily relied upon the judgment 1995 (34) DRJ (DB), Raj Kumar Nigam v. Khalifa Khajan Singh, wherein the Division Bench has held that by not allowing construction on the property the plaintiffs do not gain any advantage except that they will have the satisfaction of being able to deprive the defendants of the fruits of their property. The same are the arguments of the Senior Counsel appearing on behalf of the defendant No. 3, who has also argued that the defendant No. 3 is prepared to give undertaking to this Court that the construction be allowed to the defendant No. 3 at his own risk and cost and subject to the final outcome of the present litigation and in case the plaintiffs succeed in the matter, the defendant No. 3 would not have any claim of equity. The said judgment referred by the learned Counsel for the defendant No. 3 is not applicable to the facts and circumstances of the present case, firstly in the same para of the said judgment, the Division Bench do not find any merit of the claim of the plaintiffs as observed in the said judgment and, secondly, the suit in that case was filed for damages and not for possession as referred in Para 13 of the said judgment. The following relevant portion of the said judgment reads as under:

“The learned Counsel for the appellants has also submitted that the plaintiffs have filed a suit for damages. They have not filed a suit for possession. Therefore, they cannot seek to restrain the defendants from carrying on construction in the premises. In other words the submission is that plaintiffs cannot be permitted to go beyond their pleadings. In a suit for damages the plaintiffs cannot seek to restrain another from carrying on construction on his own property.”

62. The next submission of the learned Counsel for the defendants is that the application filed by the plaintiffs under Order 39 Rule 4 of the Code is not maintainable under the provisions as it applies only for discharge, variation or setting aside the injunction order and can only be invoked by a party against whom any interim order has been passed. I do not agree with the submission of the learned Counsel for defendant No. 3 in this regard. In order to appreciate the provisions of Order 39 Rule 4 which clearly indicates that the order of injunction may be discharged, varied or set aside on application made thereto by any party and proviso of the said provision lays down the following:

“Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances or unless the Court is satisfied that the order has caused undue hardship to that party.”

63. In the present case the plaintiffs have filed the application for variation of the order due to change of the circumstances in relation to the order already passed on 3rd February, 2000, therefore, the submission of the learned Counsel for defendant No. 3 has no force and cannot be accepted. Even otherwise, I am of the view that is is the substance of the application that matters and not the nomenclature given in the cause title of the application. Under Section 151, CPC the Court has inherent power to consider an application wherein a wrong provision is mentioned. It cannot be an obstacle for granting the relief made out from the contents of the application. It is settled law that no party can be permitted to sidetrack the main issue and allowed to control the Court proceedings, sometime by going to elementary procedure law, sometimes by pressing hyper-technical issues with the sole motive of delaying the disposal of main suit and to continue with violations and keep on reaping fruits at the cost of prolonging decision on main controversies as held in 32 (2006) DLT 169 Delhi High Court i.e the case of Lynameeh Machozer Fabric Ltd. v. V.S Filteration Ltd.

64. I also do not agree with the learned Counsel for the defendant No. 3 that since the hardship in the application has not been pleaded, therefore, the application is liable to be dismissed. The application is to be read as a whole. It is clear after reading the application that the plaintiffs have been able to demonstrate the various grievances and their hardships. At the request of the plaintiffs the Local Commissioner was appointed after filing the present application to verify the status of the construction carried on by defendant No. 3.

65. The next contention of defendant No. 3 is that the principle of res judicata will apply in the present application as in the plaintiffs' earlier application filed being I.A No. 631/04 seeking the relief to restrain construction in the property, no such relief was granted despite confirmation order dated 1st December, 2005. Even the contempt application filed by the plaintiffs was dismissed. I do not agree with the learned Counsel for defendant No. 3. It is a matter of fact that when the interim order was granted in this matter in I.A No. 631/04 and on confirmation on 1st December, 2005, the circumstances were entirely different than the present circumstances. At that time, the probate proceedings were pending wherein the defendant No. 1 Mr. Raj Kumar had propounded the registered Will on the basis of which he transferred to the defendant No. 4 and later on to the defendant No. 2 Mr. Amit Pahvva. However, the probate proceedings have already been decided and the propounded Will has been declared as a forged Will. The judgment was passed in the month of January, 2009. Consequently none of the defendants had tried to construct the property during the pendency of the interim order and even subsequently till July, 2009. It was for the first time that the defendant No. 3 in the month of August, 2009 started construction in the suit property. Therefore, in view of the said change of circumstances, the question of res judicata does not apply in the present case.

66. The contention of the learned Counsel for defendant No. 3 is that along with the suit, the plaintiffs have earlier filed an application being I.A No. 631/2004 seeking the similar relief to restrain construction in the suit property. However, after considering the application, it was disposed of on 1st December, 2005 and no such relief of restrain of construction was granted to the plaintiffs even in the contempt application filed by the plaintiffs.

67. When the application of the plaintiffs was listed for consideration, no construction was being carried out by the defendants nor had any specific finding been given by the Courts while deciding I.A No. 631/2004. Since the construction has been started by the defendant No. 3 in the suit property only in the month of August, 2009, therefore, the question of res judicata in the application does not arise. The judgment cited by the defendant No. 3 is not applicable in the present case, the plea of defendant No. 3 cannot be accepted under the said circumstances.

68. I do not agree with the submissions of learned Counsel for defendant No. 3 that the suit was legally withdrawn by defendant No. 4 and no notice as per law was required to be served upon the parties. It is well settled law that the Court should not allow the withdrawal of a matter if it prejudices the right of the other party and the party withdrawing the suit wants to achieve an ulterior goal by adopting an oblique method. In the present case, withdrawal of the Suit No. 382/2000 tantamounts to the vacation of the interim order granted on 22nd February, 2000 for restraining of construction. Defendant No. 3 got the possession of the suit property although without any explanation and has now started the construction in the month of August, 2009. One can easily assess that withdrawal of the suit on the part of defendant No. 4 with the collusion of the other defendants was to take the advantage of the said vacation of the interim order. The plaintiffs were admittedly defendants in the said suit and no copy of the application was served upon the most affected party. The withdrawal of the suit, without any doubt, has prejudiced the rights of the plaintiffs in view of the facts and circumstances of the present case.

69. The contention of the learned Counsel for defendant No. 3 cannot be accepted that after withdrawal of the suit, the plaintiffs' application for recalling the order dated 9th June, 2004 has been dismissed. The said application has been dismissed in default. Had the plaintiffs appeared before the Court at the time of withdrawal of the suit, the Court might not have passed the order for withdrawal on the application under Order 23 Rule 3, CPC. It creates doubt in the mind as to where was the occasion by the defendant No. 4 to withdraw the suit during the vacation period and could have been withdrawn by the adoption of the proper procedure by the defendant if the withdrawal was bona fide.

70. I also do not agree with the contention of the defendant No. 3 that defendant No. 3 is constructing the suit property for his residential purposes. The said submissions are without any substance as although the present application is concerning only Greater Kailash property but as per the plaint, the defendants have also given the same treatment in the same fashion in respect of another property in Model Town belonging to the plaintiffs in which probate has also been granted. Prima facie, since the title of the suit property is defective, being unstamped, the possession is illegal and doubtful and the conduct of defendant No. 3 if not proper, therefore, the defendant No. 3 cannot be allowed to make any construction in the suit property.

71. It is pertinent to mention that the defendant Nos. 2 to 4 have purchased the property with the undisputed fact that all the titles of the suit property and other properties are in possession of the plaintiffs and the findings in this regard are given by this Court in the appeal decided by Hon'ble Mr. Justice Madan B. Lokur. It is a matter of surprise that the defendant Nos. 2, 3 and 4 have purchased the suit property as well as another property of the plaintiffs without seeing the original titles of the properties. This is one of the circumstances which shows that the defendants in this matter have been in connivance with each other.

72. Lastly, learned Counsel for the defendant No. 3 has argued that there is no question of hardship as the plaintiffs would not gain any advantage by not allowing the construction. I do not agree with the learned Counsel for defendant No. 3. The conduct of defendant No. 3 is not proper as, prima facie, he has violated the orders passed by the Court and titles of the property are defective, the possession is also contrary to the orders and as per the judicial record, cannot be permitted to raise the construction in the suit property as balance of convenience and equity do not lie in his favour.

73. After thoughtful consideration of the entire gamut of the matter, I am of the considered view that the plaintiffs have been able to make a prima facie case in their favour and, therefore, are entitled for the relief of variation and modification of the order dated 3rd February, 2004 in addition to the earlier order of restraining the defendant Nos. 2 to 4 from causing any construction in the suit plot bearing No. W-137, Greater Kailash, Part-II, New Delhi, till the final disposal of the suit.

74. As regards the other reliefs i.e handing over the peaceful possession and sealing of the suit property, the said reliefs cannot be allowed in the present application as in the original application filed by the plaintiffs, there was no such prayer nor did the plaintiffs file a fresh application for injunction. The application is accordingly disposed of.

75. With the above said directions, in order to preserve order and to know the present status of the construction of the suit property, the Local Commissioner, Ms. Mamta Jha, Mobile No. 9891038008, who was also appointed earlier in the present matter, is appointed to immediately visit the suit property to ascertain the present status of the construction being done by defendant No. 3. The Local Commissioner shall also be entitled to take photographs and to obtain police assistance from the local Police Station to execute the above said orders. The fee of the Local Commissioner is fixed at Rs. 20,000/-, which shall be paid by the defendant No. 3. The plaintiff No. 4 and defendant No. 3 are permitted to accompany the Local Commissioner who shall file her report within two weeks from today. Copy of the orders may be given dasti to the Local Commissioner. Observations made in this order shall have no bearing on the final outcome of the suit.

CS (OS) No. 75/2004:

76. List this matter before the Court on 8th January, 2010 for framing of issues.

Ordered accordingly.