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2002 DIGILAW 230 (DEL)

SAFIA IQBAL v. ISHAAT-E-LSLAM TRUST

2002-02-15

C.K.MAHAJAN

body2002
C. K. MAHAJAN ( 1 ) BY way of this application, plaintiffs seek interim protection of dispossession from the school situated at Jamia Nagar, New Delhi by the defendant till final disposal of the suit. The plaintiff has sought a decree of specific performance of the contract with a direction to defendant to execute lease deed for a period of 99 years in respect of the land on which the school in question is run, with a further direction not to create any hindrance in smooth and peaceful running of the "scholar School" being run by the plaintiffs. Plaintiffs have further prayed that they be not dispossessed from the school otherwise than in accordance with due process of law. ( 2 ) THE case of the plaintiff, in short is that the defendant trust had given the land to the plaintiffs on lease on 9/08/1989 with mutual understanding that in case the plaintiffs successfully construct, establish, furnish, maintain and run a school for education of students within a period of five years, the defendant would execute further lease for a period of 99 years. Plaintiffs constructed the entire building on the lease-land and spent approximately rs. 50 lakhs within a period of 10 years and gave the name of the school as " Scholar school". It is alleged that as the price of the land went up during a period of 10 years, the defendant started pressurising the plaintiffs to execute cancellation deed of the lease. It is also alleged that signatures of the plaintiffs were got on a false and unbinding agreement under the threat of gun point. The plaintiffs were never presented before the Notary Public or the appropriate Registering Authority for registration of the cancellation deed as well as the agreement alleged to have been executed on 28/07/1995. The defendant turned dishonest as they were not inclined to execute the lease deed for 99 years and started threatening the plaintiffs in order to forcibly dispossess them from the school premises. The plaintiffs sent a legal notice dated 26/11/1998 to the defendant calling upon them not to interfere with the running of the school by the plaintiffs. It is also alleged that the defendant interfered in recognition of the school and sent a legal notice dated 17. 9. 1998 to the Director of Education, Govt. of National Capital Territory of Delhi and Deputy Director of education, Govt. It is also alleged that the defendant interfered in recognition of the school and sent a legal notice dated 17. 9. 1998 to the Director of Education, Govt. of National Capital Territory of Delhi and Deputy Director of education, Govt. of N. C. T. of Delhi opposing the recognition. Oral requests to execute the base deed for a period of 99 years were made. The defendant did not respond. A legal notice was addressed to the defendant calling upon them to execute the lease deed for a period of 99 years. The defendant threatened to dispossess the plaintiffs. Hence the suit. ( 3 ) THE defendant raised numerous objections with regard to the maintainability of the suit. According to the defendant the plaintiff s have not come with clean hands and have misstated and concealed and suppressed material facts from this Court. The suit is barred by time. The plaint does not disclose any cause of action and is liable to be rejected under order VII Rule 11 CPC. The suit is also bad for misjoinder of parties as the parties to the agreement of 28/07/1995, i. e. , Mohd. Shafi Moonis and Mohd. Ashfaq Ahmad have not been made parties to the suit. The suit was filed with mala fide intention to grab the property of the defendant. Land in question was given on lease to plaintiff No. 2, who is the husband of plaintiff No. 1 and one Mr. Mohammad Ashfaq Ahmed, vide lease deed dated 9. 8. 1989 for a period of 5 years on a nominal rent of Rs. 100. 00 per annum. The lease was to commence from 1. 7. 1989 and to remain in force upto 30. 6. 1994. The lease was given for running a school in accordance with the educational policy of the defendant Trust. It was specifically agreed that the plaintiff No. 2 would raise temporary structure to run the school in a portion of the land in question. A temporary structure was raised. A request was made to the defendant Trust for extension of said lease for a further period of 5 years vide their letter dated 16. 12. 1993. The defendant trust declined the request. The plaintiffs surrendered the possession of the land in question to the defendant along with superstructure and the school on 28. 7. 1995. A request was made to the defendant Trust for extension of said lease for a further period of 5 years vide their letter dated 16. 12. 1993. The defendant trust declined the request. The plaintiffs surrendered the possession of the land in question to the defendant along with superstructure and the school on 28. 7. 1995. A letter of handing over and taking over the possession of the land along with superstructure thereon and a Cancellation Deed were executed and signed by the parties on 28. 7. 1995. The defendant is in actual and physical possession of the land and superstructure and the school since 28. 7. 1995. However, to safeguard the interest of the students and the teachers, defendant entrusted the property of the school to the plaintiffs and two other persons namely mr. Mohammad Shafi Moonis and Mr. Mohammad Ashfaq upto 31/03/2000 by way of an agreement dated 28. 7. 1995. It was agreed that in case the plaintiffs and the above two persons were not in a position to manage the school, they would hand over the management of the school by 31. 3. 2000 including goodwill, management, furniture, super-structure etc. The plaintiffs and the other two persons took over management of the school in July 1995. The plaintiffs became dishonest and planned to grab the school and the property of the defendant. An application was made to the Delhi Government for recognition of the school. The application was made in the name of another society, namely, Scholar Educational board. The agreement specifically provides that the parties would apply jointly to the concerned state authorities for recognition of the school upto the secondary level. The application was moved without the knowledge of the defendant trust. When it came to the knowledge of the defendant trust that an application had been moved without their knowledge, they informed the Education Department to withhold the recognition. Legal notice to this effect was sent to the Administrator, Govt. of NCT and to the Director of Education. The defendant trust contends that the plaintiffs committed a fraud. The plaintiffs offered to purchase the land in February 1999. The defendant trust declined to accept the said offer. The defendant trust further denies that there was any request for execution of a lease deed for a period of 99 years. The cancellation deed dated 28. 7. 1995 has not been challenged. The plaintiffs offered to purchase the land in February 1999. The defendant trust declined to accept the said offer. The defendant trust further denies that there was any request for execution of a lease deed for a period of 99 years. The cancellation deed dated 28. 7. 1995 has not been challenged. The said document is legal, valid and binding between the parties. The lease deed executed between the parties on 9/08/1989 expired on 30/06/1994. The suit on the basis of. the said agreement is not maintainable. ( 4 ) I have heard learned counsel for the parties and perused the documents on record. ( 5 ) THE lease deed dated 9. 8. 1989 was executed between the parties for a period of five years. It remained in force upto 30. 6. 1994. The plaintiffs sought extension of the lease for a further period of five years by way of a letter dated 16. 12. 1993. The defendant did not extend the lease. The plaintiffs surrendered possession of the land in question to the defendant along with the superstructure on 28. 7. 1995. Plaintiff No. 2 and Mohd. Ashfaq ahmed executed and signed a letter acknowledging the delivery and possession of the land along with the school and superstructure. It was categorically stated by the plaintiffs that they are not interested in running the school on the leased land. In these circumstances, lease was terminated. Cancellation deed was also executed on the said date. It is thus clear from a perusal of the record that vacant physical possession of the land under the lease along with the "superstructure was handed over to the trust on 28. 7. 1995. Thereafter by way of agreement dated 28. 7. 1995, the trust permitted the plaintiffs to run the school till 31. 3. 2000. There is nothing placed on record to show that there was an oral agreement between the parties for grant of a 99-year lease. The contention appears to be an after thought. The plaintiffs has not pleaded or disclosed in the plant the terms and conditions, of. an alleged agreement/understanding for extension of the lease for 99 years. The defendants have categorically denied that there was any oral agreement. The contention appears to be an after thought. The plaintiffs has not pleaded or disclosed in the plant the terms and conditions, of. an alleged agreement/understanding for extension of the lease for 99 years. The defendants have categorically denied that there was any oral agreement. ( 6 ) IN a case where the plaintiffs come forward to seek a decree for specific performance of an agreement of lease on the basis of an oral agreement alone, heavy burden lies on the plaintiffs to prove that there was consensus ad idem between the parties. Whether there was such a concluded agreement or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiff that vital and fundamental terms of the oral agreement were concluded between the parties. An oral agreement can be specifically performed provided the plaintiff is able to show that he has performed all the obligations of the said oral agreement in question as the grant or refusal of injunction is dependent on this question. ( 7 ) IN the present case, there is only bald averment that the parties had entered into an oral agreement for 99 years. There is nothing on record to indicate that the parties had taken any steps in furtherance of the said agreement. The cancellation deed of the letter of handing over/talking over speak to the contrary. It does not appear reasonable that the defendant trust had agreed to lease the property for a period of 99 years. It is not stated in the plaint as to when and where the terms of the alleged oral agreement were settled or as to what were the terms. ( 8 ) THE understanding between the parties is apparent from the documents on record which reveal that a temporary school was to be run by the plaintiffs under the lease executed on 9. 8. 1989. The agreement to run the school has also come to an end by efflux of time. The plaintiffs contention that the cancellation agreement was executed and signed at gunpoint, appears to be without any force and is an after thought. The execution of the documents is admitted. 8. 1989. The agreement to run the school has also come to an end by efflux of time. The plaintiffs contention that the cancellation agreement was executed and signed at gunpoint, appears to be without any force and is an after thought. The execution of the documents is admitted. Had there been any coercion and compulsion or any threat in signing the cancellation agreement, the plaintiffs would have filed a complaint against the trust and would not have executed- the agreement dated 27. 8. 1995 for running the School. The documents-bind the plaintiffs. The plaintiffs did not lay any challenge to these documents in any other forum or before any other authority. The plaintiffs had applied to the education board for obtaining recognition of the school in the name of Scholar Educational Board in 1996. A false and fictitious registration number was also given. The "scholar Educational board" is not a registered society and hence could not have applied for recognition under the rules. This fact was not disclosed to the defendant trust. The agreement provides for making of a joint application. The unilateral act of the plaintiffs was in contravention of the agreement and reflects on the conduct of the plaintiffs. The plaintiffs had a limited right to run the school in terms of the agreement and on the expiry of the lease, the defendant are within their right to take such action as they may be advised or entitled to in law. ( 9 ) FOR grant of relief of temporary injunction the applicant must prove that there exists in his favour prima facie case, balance of convenience and that irreparable injury will be caused to him if the injunction sought for is not granted. Prima facie case means the existence of circumstances justifying the trial of the questions of facts and law raised in the litigation. Merely filing of the suit does not show existence of a prima facie case. In applying the principles of "balance of convenience", the Court should weigh the amount of substantial mischief that is likely to be done to the applicant if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. In applying the principles of "balance of convenience", the Court should weigh the amount of substantial mischief that is likely to be done to the applicant if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. The term "irreparable injury" does not mean that there must be no physical possibility of repairing the injury but means only that the injury must be a material one, i. e. , one that cannot be adequately compensated for in damages. ( 10 ) THE plaintiffs have suppressed material facts and have not come to Court with clean hands and this is clearly an attempt to over-reach the process of the Court. The application is liable to be dismissed on this short ground alone. The plaintiffs have failed to establish any right to continue in the property or show any entitlement under the agreement. The plaintiffs have also failed to make out a prima facie case for grant of interim protection. ( 11 ) ON a consideration of the totality of the facts and circumstances and particularly in view of the fact that the oral agreement relied upon by the plaintiffs does not inspire confidence and prima facie cannot be given credence at this stage. The plaintiffs have also concealed the documents of handing over/taking over of the school and the execution of the cancellation deed I am of the considered opinion that the plaintiffs have failed to make out a case for grant of discretionary relief of injunction. ( 12 ) THERE is sufficient material on record to suggest that vacant possession was handed over to the trust in 1995. Thereafter fresh agreement on the same date was executed. The said agreement has come to an end by efflux of time. The plaintiffs were only managing the school in terms of the agreement dated 28. 7. 1995. The agreement having come to an end, the plaintiffs are not entitled to run the school. ( 13 ) BALANCE of convenience is also not in favour of the plaintiffs. No irreparable injury is likely to result to the plaintiffs. It is difficult to hold at this stage that the school was not handed over to the defendants on the expiry of the lease in 1989. ( 14 ) FOR the aforesaid reasons, the defendant must succeed in the application. No irreparable injury is likely to result to the plaintiffs. It is difficult to hold at this stage that the school was not handed over to the defendants on the expiry of the lease in 1989. ( 14 ) FOR the aforesaid reasons, the defendant must succeed in the application. The application is dismissed with costs. The interim order granted on 25. 5. 1999 is vacated. ( 15 ) THE defendant admits that the plaintiffs are in possession inasmuch as plaintiff No. 1 is running the school under the agreement dated 28. 7. 1995, though the possession is illegal. The plaintiffs shall not be dispossessed otherwise than in accordance with due process of law. ( 16 ) LIST before the regular bench on 1st March 2002 for further proceedings.