Prerna Seemar Kalra Petitioner v. Pramod Anand And Ors. S

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: 11^th July, 2018

+ CM(M) 622/2017 & CM No.44763/2017 (of the petitioner for modification of order dated 16^th November, 2017).

PRERNA SEEMAR KALRA ..... Petitioner

Through: Mr. Sudhanshu Batra, Sr. Adv. with Ms. Sahiba Pantel, Mr. Lokesh

Chopra and Mr. Aditya Mishra, Advs. versus

PRAMOD ANAND AND ORS ..... Respondents

Through: Mr. Abhijeet Chatterjee and Mr. Patnaik, Advs. for R-1.

Mr. Abhinav Mukerji and Mr.

Siddharth Garg, Advs. for R-2&3.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. On 16^thNovember, 2017, the following order was passed in this petition:-

"1. This petition under Article 227 of the Constitution of India impugns the order [dated 9^th May, 2017 in CIS No.10887/2016 of the Court of Additional District Judge-04, South-East District, Saket Courts, New Delhi] of dismissal of an application filed by the petitioner under Order I Rule 0 of the Code of Civil Procedure, 1908 (CPC) for impleadment in the suit.

2. Though the counsel for the petitioner has not filed the copies of the pleadings and the issues framed in the suit but on enquiry informs that i) the respondents no.2&3 viz. Jayadittya Palit and Rajika Puri instituted the suit, from which this petition arises, against the respondent no.1 for declaration that they had agreed to purchase an immovable property from the respondent no.1 and had

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paid the entire sale consideration thereof to respondent no.1 and were put in possession of the property by respondent no.1 and were owners of the property and for restraining the respondent no.1 from interfering with the said ownership rights of the respondents no.2&3; ii) that there is no Sale Deed by the respondent no.1 in favour of the respondents no.2&3 and only an Agreement to Sell;

iv) that the respondents no.2&3 further sold the property to the petitioner; and, v) that the petitioner applied for substitution / impleadment in place of the respondents no.2&3 who are not interested in pursuing the suit.

3. I have enquired from the counsel for the petitioner as to how the suit for declaration was maintainable when the appropriate remedy was to file a suit for specific performance.

4. When the respondents no.2&3 evidently had no right or cause of action for instituting the suit, the question of the petitioner succeeding to the cause of action would not arise.

5. The counsel for the petitioner to file before this Court the pleadings and the issues and the order sheet in the suit and to also inform the counsel for the respondents to appear on the next date of hearing.

6. At this stage, the counsel for the respondents no.2&3 appears.

7. The counsel for respondent no.1 be informed.

8. List on 5^th December, 2017."

2. The counsel for the respondent no.1 and the counsel for the respondents no.2&3 appear.

3. The senior counsel for the petitioner, in response to the query as contained in the order dated 16^thNovember, 2017 reproduced above, has referred to para 9 of Vimla Gautam Vs. Mohini Jain 2013 I AD (Delhi) 516

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and to paras 13 & 14 of Anathula Sudhakar Vs. P. Buchi Reddy (2008) 4

SCC 594.

4. However neither of the aforesaid judgments answer the query which was raised.

5. The respondents no.2&3 / plaintiffs, in the suit from which this petition arises, claimed the following reliefs:-

"(a) declare that the plaintiffs are the absolute owners of the suit property - namely C-423, 2^nd Floor, Defence Colony, New Delhi comprising of one bedroom with attached bathroom, one unattached bathroom, one drawing room, one dining room, kitchen, existing top room over the garage block and it's bathroom, along with open terraces at the front and back of the flat and rights to all common areas;

(b) pass a decree of permanent injunction thereby restraining the defendant, his agents, assigns and those claiming under him from selling, alienating, creating any third party interest, interfering with, trespassing, or dispossessing the plaintiffs from possession, or of undertaking any action to prevent the plaintiffs from exercising and enjoying their full ownership rights, in the suit property namely C-423, 2^nd Floor, Defence Colony, New Delhi comprising of one bedroom with attached bathroom, one unattached bathroom, one drawing room, one dining room, kitchen, existing top room over the garage block and it's bathroom, along with open terraces at the front and back of the flat and rights to all common areas;

(c) pass a decree of permanent injunction thereby restraining the defendant, his agents, assigns and those claiming under him from attempting to dispose of any movable property of the plaintiffs from the suit property

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namely C-423, 2^nd Floor, Defence Colony, New Delhi comprising of one bedroom with attached bathroom, one unattached bathroom, one drawing room, one dining room, kitchen, existing top room over the garage block and it's bathroom, along with open terraces at the front and back of the flat and rights to all common areas;"

6. The position according to the petitioner also is, (i) that the respondent no.1 was the registered owner of the 2^ndfloor of property no.C-423, Defence Colony, New Delhi; (ii) that the respondent no.1 executed registered Agreement to Sell, General Power of Attorney and Will with respect to the said second floor in favour of predecessor-in-interest of respondents no.2&3;

(iii) that the respondents no.2&3 filed the suit from which this petition arises claiming the aforesaid reliefs; (iv) that the respondents no.2&3, though there was only an Agreement to Sell in favour of their predecessor, executed a registered Sale Deed in favour of the petitioner; and, (v) the petitioner approached in the suit aforesaid filed by the respondents no.2&3, for being impleaded as a party thereto and which application was dismissed and impugning which order this petition has been filed.

7. Since the claim of respondents no.2&3 / plaintiffs in the suit was for declaration of ownership on the basis only of Agreement to Sell, General Power of Attorney and Will in their favour from the respondent no.1/defendant and which documents in accordance with the dicta of the Supreme Court in Suraj Lamp & Industries P. Ltd. Vs. State of Haryana (2012) 1 SCC 656 overruling the judgment of the Division Bench of this Court in Asha M. Jain Vs. Canara Bank 94 (2001) DLT 841 did not constitute documents of title, it was enquired from the counsel for the petitioner on 16^thNovember, 2017 as aforesaid, that when on a bare reading

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of the plaint there is no possibility of granting of relief of declaration of ownership on the basis of Agreement to Sell, General Power of Attorney and Will, what purpose will impleadment of the petitioner in such a suit serve.

8. One of the contentions of the senior counsel for the petitioner today is that this petition is concerned only with impleadment and the question, whether the suit is maintainable or not, will be decided only after the petitioner is impleaded.

9. I am afraid not.

10. This Court cannot be privy to a useless exercise taking up the time of the Courts subordinate to it. It has been held in Liverpool and London S.P. and I Asson. Ltd Vs. M.V. Sea Success I (2004) 9 SCC 512 that when there is no possibility of grant of relief claimed on the averments in the plaint, the Courts should remove the said lis from their Board as deadwood and such lis should not be permitted to clog up the Courts at the cost of other deserving matters. It cannot be lost sight of, that the Courts are for adjudication of bona fide disputes and not for litigants and lawyers to spend time there.

11. The senior counsel for the petitioner then, with reference to Vimla Gautam supra, contended that a Coordinate Bench of this Court, after noticing Suraj Lamp & Industries P. Ltd., held the suit to be maintainable.

12. All that Vimla Gautam supra is found to have held is that though an Agreement to Sell does not confer ownership but creates rights under Section 53A of the Transfer of Property Act, 1882 and Section 202 of the Indian Contract Act, 1872. The same nowhere holds as indeed could not hold, contrary to what the Supreme Court held in Suraj Lamp & Industries P. Ltd. supra.

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13. The relief claimed in the suit in the present case, as aforesaid, is of declaration of ownership and not in assertion of any of the said rights.

14. Choice has been given to the senior counsel for the petitioner, that the petitioner, in the event of being permitted to be impleaded, can at best seek injunction against forceful dispossession.

15. The senior counsel for the petitioner, under instructions, presses for a declaration of ownership on the basis of Agreement to Sell, Power of Attorney and Will and which cannot be permitted.

16. The senior counsel for the petitioner has also raised the argument of prescription, contending that the Agreement to Sell, Power of Attorney and Will in favour of the predecessor of the respondents no.2&3 are over 12 years old.

17. Attention of the senior counsel for the petitioner has been drawn to the consistent judgments of the Supreme Court in Annasaheb Bapusaheb Patil Vs. Balwant (1995) 2 SCC 543, Mohan Lal Vs. Mirza Abdul Gaffar (1996)

1 SCC 639, Karnataka Board of Wakf Vs. Government of India (2004) 10 SCC 779, T. Anjanappa Vs. Somalingappa (2006) 7 SCC 570, P.T. Munichikkanna Reddy Vs. Revamma (2007) 6 SCC 59, L.N. Aswathama Vs. P. Prakash (2009) 13 SCC 229 and Dagadabai Vs. Abbas (2017) 13 SCC 705 holding that a claim for prescription cannot co-exist with and is antithetical to the claim for lawful title and it has been enquired, whether the petitioner, if at all impleaded in the suit, is willing to give up the claim of lawful title on the basis of Agreement to Sell, Power of Attorney and Will in favour of predecessor of respondents no.2&3 and Sale Deed in her own favour and only then can urge the plea of prescription.

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18. The senior counsel for the petitioner has no instructions in this regard also.

19. I may also mention that the respondents no.2&3, as plaintiffs in the suit from which this petition arises, have not made any claim for ownership on the basis of prescription, if at all can be made as a sword instead of as a shield. Thus, the plea of prescription i.e. of adverse possession being argued before this Court is also contrary to the pleadings.

20. As far as the reliance on Anathula Sudhakar is concerned, the said judgment is a precedent on an enquiry and declaration of title to immovable property being not permissible in a suit for permanent injunction simpliciter. Paras 13 & 14 of the said judgment, to which attention is drawn, are also to the effect that where the title to the property is in dispute, a relief of declaration has to be specifically claimed and title cannot be proved in a claim for permanent injunction simpliciter.

21. The reason which has prevailed with this Court in the order dated 16^th November, 2017 is, that the claim in the suit for declaration cannot be granted on the facts pleaded in the plaint itself. I am unable to understand the relevance of Anathula Sudhakar to the said aspect.

22. Once it is found that the relief of declaration of ownership cannot be granted on the facts pleaded, no purpose will be served in considering the aspect of impleadment of the petitioner. I may also mention, that as far as the relief claimed in the suit of injunction against forceful dispossession is concerned, the counsel for the respondents no.2&3 states that the respondents no.2&3 continue to be in possession of the property. The senior counsel for the petitioner, under instructions controverts that the respondents no.2&3 are in possession and contends that the petitioner is in possession.

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The same also demonstrates, that no case for substitution of the petitioner qua the relief of injunction also is made out inasmuch as the cause of action if any to the petitioner is not the cause of action with which the suit was filed.

23. There is thus no merit in the petition.

24. Dismissed, with costs of Rs.20,000/- to the respondent no.1 and Rs.20,000/- to the respondents no.2&3.

RAJIV SAHAI ENDLAW, J.

JULY 11, 2018

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