Research › Search › Judgment

Delhi High Court · body

2013 DIGILAW 1481 (DEL)

PROMOD KHANNA v. SUBOD KHANNA

2013-08-05

MUKTA GUPTA

body2013
JUDGMENT I.A. No. 80/2011 and 6086/2011 (by Defendants under Order VII Rule 10 CPC for rejection of plaint) in CS (OS) No. 2203/2006 1. By I.A. No. 80/2011 the Defendants seek rejection of the amended plaint under Order VII Rule 11 read with Section 151 CPC. Vide I.A. No. 6086/2011 under Order VII Rule 10 read with Section 151 CPC the Defendants seek direction to the Plaintiffs to value the reliefs in accordance with law and on their failure to do so rejection of the plaint. 2. Arguments on both the applications have been heard together. 3. Learned counsel for the Applicants/Defendants states that Prayer-(c) in the amended plaint is for a decree of mandatory injunction in favour of the Plaintiffs and against the Defendants directing the Defendants to revert back the possession of „Part-A & C? of the property bearing No. W-105, Greater Kailash-II, New Delhi to the Plaintiffs after removing any construction done on the said „A? and „C? portion illegally and without any authority. It is contended that a suit for relief of mandatory injunction without seeking consequential relief of possession is not maintainable and thus the amended plaint is liable to the rejected on this ground. Reliance is placed on Devender Lal Mehta vs. Shri Dharmender Mehta and another, AIR 2009 Delhi 189; Geetanjali Nursing Home (P) Ltd. vs. Dileep Makhija, AIR 2004 Delhi 53 and Jagdish Chandra vs. Basant Kumar Ghos and another, AIR 1963 Patna 308 (FB). It is further contended that for seeking relief of possession ad-valorem court fee has to be paid as held in Punjab Exchange vs. Rajdhani Grants Ltd., 1975 Rajdhani Law Reporter 485. 4. As regards Relief-(b) it is contended that even for a decree of declaration ad-valorem court fee is required to be paid and in the absence of ad-valorem court fee being paid the plaint is liable to be rejected. Reliance is placed on Suhrid Singh @ Sardool Singh vs. Randhir Singh and others, AIR 2010 SC 2807 ; Ami Chand vs. Raj Pal and others, AIR 2011 Punjab and Haryana 109 and Mahant Purshottam Dass and others vs. Har Narain and others AIR 1978 Delhi 114 (FB). It is further urged that Shri Amod Khanna and Ms. Reliance is placed on Suhrid Singh @ Sardool Singh vs. Randhir Singh and others, AIR 2010 SC 2807 ; Ami Chand vs. Raj Pal and others, AIR 2011 Punjab and Haryana 109 and Mahant Purshottam Dass and others vs. Har Narain and others AIR 1978 Delhi 114 (FB). It is further urged that Shri Amod Khanna and Ms. Angela Khanna, son and daughter of Plainitff No.1 who have signed the documents as executants of the settlement have not impleaded as party, neither as the Plaintiffs nor as Defendants and thus the suit is liable to be rejected as joint promisees are not impleaded. Reference is made to Santosh Kumar vs. Bahadur Singh etc. 1982 Rajdhani Law Reporter 672. 5. Further though the case of the Plaintiffs is based on fraud however, no particulars of fraud or misrepresentation have been stated in the amended plaint. The Plaintiffs seek declaration of their title on the basis of another Memorandum of Family Settlement and that the one filed by the Defendants is a forged document. The Plaintiff have not produced the said Memorandum of Family Settlement and in the absence of prayer seeking decree of declaration qua the purported genuine settlement, the suit merely seeking cancellation of the Memorandum of Settlement with the Defendants, cannot be entertained. 6. Learned counsel for the Plaintiffs/non-applicant on the other hand contends that before filing I.A. No. 80/2011 the Defendants had filed I.A. No. 3235/2007 on the same grounds however, the same was withdrawn in view of the amendments carried out in the plaint. The case of the plaintiff is that the settlement has not been given effect to and thus the Plaintiffs are in constructive possession of the suit property. The suit property is in the name of the Plaintiffs and the Defendants. The suit property was vacant plot which was in symbolic possession of both the Plaintiffs and the Defendants on which the Defendants have later raised construction. The alleged Memorandum of Family Settlement is not a complete document and the Defendant No. 1 did not pay the balance amount since the same was not acted upon and thus the same is meaningless. A perusal of the plaint clearly shows that the manipulation, forgery and fabrication in the alleged Memorandum of Family Settlement has been specifically alleged and thus amended plaint cannot be rejected being vague. A perusal of the plaint clearly shows that the manipulation, forgery and fabrication in the alleged Memorandum of Family Settlement has been specifically alleged and thus amended plaint cannot be rejected being vague. Relying on Babli Brar vs. Adesh Kanwarjit Singh Brar, 2011 (180) DLT 418 it is stated that in the plaint only material facts are required to be stated and not the evidence. The plaint should be read holistically and meaningfully. Since the relationship is such that the property was in trust, thus all the parties are in constructive possession of the property. The moment the Plaintiffs are able to prove that the documents are null and void, the possession would revert back to the Plaintiffs. It is further contended that in a relief of partition where the parties are enjoying the possession of the property only fixed court fee is required to be paid and to ascertain whether the suit has been properly valued for the purposes of court fee or not, only the averments made in the plaint have to be seen without reference to the plea taken by the Defendants. Reliance is placed on Sushma Tehlan Dalal vs. Shivraj Singh Tehlan, 2011 (123) DRJ 91. Relying on Neelavathi and others vs. M. Natarajan and others, 1980 (2) SCR 307 it is contended that the question of court fee must be considered in the light of the allegations made in the plaint and the decision thereon cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. The material allegations contained in the plaint should be construed and taken as a whole. It was further held that the averments in the plaint that the Plaintiffs could not remain in the joint possession and he was not given any income from the joint property would not amount to his exclusion from the possession. 7. I have heard learned counsel for the parties. 8. By the amended plaint the Plaintiff has sought the following reliefs: - “(a) Pass a decree of permanent injunction in favour of plaintiffs and against the defendants, whereby, the defendants acting themselves or through their agents, servants, attorneys, etc. 7. I have heard learned counsel for the parties. 8. By the amended plaint the Plaintiff has sought the following reliefs: - “(a) Pass a decree of permanent injunction in favour of plaintiffs and against the defendants, whereby, the defendants acting themselves or through their agents, servants, attorneys, etc. be restrained from carrying out any contraction activities on part “A” & “C” of property bearing No. W-105, Greater Kailash Part-II, New Delhi-110048, belonging to the Plaintiffs, as described in the site plan of the property annexed with the sale deeds; (b) pass a decree of declaration in favour of Plaintiffs and against the defendants, thereby, declaring any purported documents such as, purported memorandum of family settlement on non-judicial stamp papers dated 4.4.2006, possession letters, dated 4.4.2006, letters to MCD for mutation dated 4.7.2006, the power of attorneys and special power of attorneys dated 29.5.2006 and any other documents, deeds, affidavits etc. in respect of property bearing No. W-105, Greater Kailash Part-II, New Delhi-110048, signed and executed by the Plaintiffs being forged, fabricated, manipulated, interpolated, illegal, null and void, as the same were obtained fraudulently and under misrepresentation of facts and is not binding on the Plaintiffs; (c) Pass a decree of Mandatory Injunction in favour of Plaintiffs and against the Defendants, whereby directing the defendants to revert back the possession of part “A” & “C” of the property bearing No. W-105, Greater Kailash Part-II, New Delhi-110048 to the Plaintiff, after removing any construction done on the said “A” & “C” portion illegally and without any authority; (d) Award cost in favour of the Plaintiffs and against the defendants.” 9. As regards the fabrication and manipulation in the draft memorandum of family settlement inter alia it is clearly stated by the Plaintiffs in Paras 10C to 10H that when the purported Memorandum of Family Settlement printed by the Mediator on non-judicial stamp papers was given to Plaintiff No. 2 for signing, she noticed that this purported Memorandum of Family Settlement was not the same. In the purported Memorandum of Family Settlement, Schedule –I was having 13 properties as joint properties instead of nine joint properties listed in Schedule-I of the „Actual Memorandum of Family Settlement.? Schedule-II was having seven joint properties instead of three joint properties in Schedule-II of the actual Memorandum of Family Settlement. In the purported Memorandum of Family Settlement, Schedule –I was having 13 properties as joint properties instead of nine joint properties listed in Schedule-I of the „Actual Memorandum of Family Settlement.? Schedule-II was having seven joint properties instead of three joint properties in Schedule-II of the actual Memorandum of Family Settlement. Even the names of Angela Khanna, Payal Arora and Cherry Khanna were added which were not there in the actual Memorandum of Family Settlement. The Schedule-IV of the Actual Memorandum of Family Settlement which referred to the valuation of the properties was missing and there was no mention of codicils and payment of equalizer amount of Rs. 7.51 crores payable by the Defendants to the Plaintiffs. Besides these, there was also other changes in certain other paragraphs and Schedules. It is thus evident that detailed facts have been mentioned in the plaint. Further it is well settled that no evidence is required to be mentioned in the plaint which would be for the Plaintiff to prove while adducing evidence. Thus I find no reason to reject the plaint on the ground that the details of forgery, fabrication and manipulation are not mentioned. 10. As regards the contention of the learned counsel for the defendants that the suit seeking injunction without seeking the relief of possession is not maintainable, on the face of it appears to be sound however, the said proposition is not applicable to the facts of the present case. It is well settled that at this stage only the averments in the plaint are required to be seen as held by the Hon?ble Supreme Court in Neelavathi (supra). In the case before the Hon?ble Supreme Court the averment in the plaint was that the Plaintiff could not remain in the joint possession as he was not given any income from the joint family property. It was held that the property to which the Plaintiffs therein were entitled was undivided joint family property though not in the fit sense of terms and thus in law all the co-owners were in possession of the same. To continue to be in joint possession in law it is not necessary that the Plaintiff should be in actual possession of the whole or part of the property. To continue to be in joint possession in law it is not necessary that the Plaintiff should be in actual possession of the whole or part of the property. In Devender Lal Mehta (supra) relied upon by learned counsel for the Defendants, the Plaintiffs and Defendant therein were not joint owners of the property and the Plaintiff himself had claimed that this was his property and has sought a decree against the Defendants restraining them from causing them any hindrance or interference in the ingress or egress of the Plaintiff therein. Even as per the plaint the Defendants therein were in possession of the suit property not as joint owners but as tress passers. Similarly in Geetanjali Nursing Home (P) Ltd. (supra) also this Court held that though a suit for injunction simplicitor would not lie however, where the parties are in jural or fiduciary relationship, the possession of the parties in the eye of law has to be deemed to be that of the Plaintiff and thus there is no requirement of his obtaining decree of possession. Thus I find no merit in the contention of the learned counsel for the Defendants that the amended plaint is required to be rejected on the ground that no decree for possession has been sought by the Plaintiff. Since no decree for possession is required to be sought no ad-valorem court fee is required to be paid. 11. Coming to the contention of learned counsel for the Defendants/applicant that ad-valorem court fee is required to be paid for the relief (b) seeking declaration of the purported Memorandum of Family Settlement being forged, fabricated, manipulated, illegal, null and void, in Suhrid Singh @ Sardool Singh (supra) relied upon by the learned counsel for the Defendants itself, it was held that if „B? who is the non-executant, is in possession and sues for declaration that the deed is null and void and does not bind him or his share, he has to merely pay the fixed court fee. In the present case admittedly the Plaintiff No. 2 has not signed the Memorandum of Family Settlement and the claim of the Plaintiffs is that the documents signed by the Plaintiff No. 1 has been manipulated and he has not executed the purported Memorandum of Settlement. Thus ad-valorem court fee is not required to be paid. 12. In the present case admittedly the Plaintiff No. 2 has not signed the Memorandum of Family Settlement and the claim of the Plaintiffs is that the documents signed by the Plaintiff No. 1 has been manipulated and he has not executed the purported Memorandum of Settlement. Thus ad-valorem court fee is not required to be paid. 12. No doubt the Plaintiffs in plaint have stated in Para 10D that the Plaintiff No. 1 and his son signed the Memorandum of Family Settlement which as per the Mediator was identical to the Memorandum of Family Settlement signed earlier by the parties, it is clearly stated in Para-10H that the purported memorandum of Family Settlement had not been signed by the parties added later on i.e. Angela Khanna, Payal Arora and Cherry Khanna. Thus the Plaintiffs are disputing the authenticity and genuineness of this purported Memorandum of Settlement and in view thereof it could not be said that the persons who signed this document as executants, being joint promisee, are required to be impleaded as parties in the suit. Further the two tests required to be satisfied for determining the question as to who is a necessary party are – (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings and (2) no effective decree can be passed in the absence of such party. The son of the plaintiffs does not qualify either of the test and thus is not a necessary party in whose absence the suit must fail. Hence, I find no merit in this objection of learned counsel for the defendants as well. 13. In view of the aforesaid discussion I find no merit in the applications and the same are dismissed.