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2014 DIGILAW 1416 (DEL)

Ashok Kapoor v. Municipal Corporation of Delhi

2014-05-06

JAYANT NATH, PRADEEP NANDRAJOG

body2014
Judgment Pradeep Nandrajog, J. CM No. 7884 of 2014 Allowed subject to just exceptions. 1. The appellants are aggrieved by the order dated March 11, 2014 dismissing IA No.4372/2014 seeking amendment of the plaint instituted by the appellants. The suit filed has been dismissed burdening appellants costs in sum of Rs.25,000/- (Rupees Twenty Five Thousand only) each to be paid to the Municipal Corporation of Delhi. 2. The learned Single Judge has noted various decisions to reach the conclusion arrived at. 3. We proceeded to note the averments of the appellants even as per the proposed amended plaint for the reason we need to bring out the frivolousness of the suit and our agreement with the view taken by the learned Single Judge. 4. It is the case of the appellants that along the road named Khajoor Road, Karol Bagh, Delhi a parcel of land abutting the plots on either side of the road has been leased by the MCD to the appellants. In the same breath the appellants have pleaded that the Municipal Corporation of Delhi has licensed the said land to the appellants. To give clarity to the pleadings we note that it is the case of the appellants that along the boundary of their plots abutting the road a three feet wide strip of land has been leased/licensed to them by the Municipal Corporation of Delhi. 5. There is no reference to the date when the lease or the license was granted. What are the terms of the lease or the license has not been pleaded. 6. Learned counsel for the appellant states that the land was under a license pursuant to a policy decision taken by the Corporation to permit use of the strip as a licensee on the conditions contained in letters sent to some occupants. Our attention has been drawn to one such letter at page No.110 of the appeal paper book. 7. The letter would evidence that MCD wrote to the addressees that upon payment of a fee in sum of Rs.259.98 for the years 1962-1968 and further annual payment @ Rs.1 per sq.yds. the addresses would be permitted to use the said strip of land provided no temporary or permanent structure is erected thereon. It records that the permission can be revoked any time. 8. Learned counsel for the appellants states that the letter in question contains the terms of the license. the addresses would be permitted to use the said strip of land provided no temporary or permanent structure is erected thereon. It records that the permission can be revoked any time. 8. Learned counsel for the appellants states that the letter in question contains the terms of the license. 9. Now, if this was so, the appellants had to plead in the suit and we mean even the proposed amended plaint, that they were licensees under the aforesaid grant and that they were complying with the terms of the license, in that, had paid the demand raised in the letter in question and each year had deposited the necessary license fee. 10. There are no such pleadings. 11. In 1903, the US Supreme Court in the decision reported as 191 U.S. 84 United States vs. Denver & Rio Grande Railroad Company, said: “Upon principle as well as upon authority, a party who hasbeen shown to be prima facie guilty of a trespass, and relies upon a license, must exhibit his license, and prove that his acts were justified by it. The practical injustice of a different rule is manifest. It is a general rule of evidence, noticed by the elementary writers upon that subject (1 Greenl. Ev. 79) that where the subject-matter of a negative averment lies peculiarly within the know-ledge of the other party, the averment is taken as true unless disproved by that party. When a negative is averred in pleading, or plaintiff's case depends upon the establishment of a negative, and the means of proving the fact are equally within the control of each party, then the burden of proof is upon the party averring the negative; but when the opposite party must, from the nature of the case, himself be in possession of full and plenary proof to disprove the negative averment, and the otherparty is not in possession of such proof, then it is manifestly just and reasonable that the party which is in possession of the proof should be required to adduce it; or, upon his failure to do so, we must pre-sume it does not exist, which of itself establishes a negative. Familiar instances of this are where persons are prosecuted for doing a business, such, for instance, as selling liquor without a license. Familiar instances of this are where persons are prosecuted for doing a business, such, for instance, as selling liquor without a license. It might be extremely difficult for the prosecution in this class of cases to show that the defendant had not the license required, whereas the latter may prove it without the slightest difficulty. In such cases the law casts upon the defendant not only the burden of producing his license, but of showing that it was broad enough to authorize the acts complained of. As the license (the statute in this case) authorized the timber to be cut only for a specific purpose, and the means of proof as to the purpose for which the timber was cut were peculiarly within the knowledge and control of the defendant, we think the burden of producing evidence to that effect devolved upon it.” 12. In the decision reported as 1998 III AD Delhi 487 Allora Electric & Cable Co. vs M/s. Shiv Charan & Bros it was held as under:- “11. The defendants in corresponding para 7 of the written statement have admitted that plaintiff had been supplying goods to them from time to time and accounts used to be settled at the end of each year. The total purchases made and the total payments made by defendants as pleaded in paras 8 to 19 of the plaint have been denied but not specifically. Only vague denial has been made stating that the contents of such paras are either incorrect or wrong and denied. Learned counsel for the plaintiff has strongly contended that in the absence of specific denial the above said averments made in these paras of the plaint should be deemed to have been admitted as provided under Order 8 Rule 5 CPC. The object of this provision is to narrow the issues to be tried in the case and to enable either party to know what the real point is to be discussed and decided. The word “specifically” qualifies not only the word “deny” but also the words “stated to be not admitted” and therefore a refusal to admit must also be specifically stated. A defendant can admit or deny the several allegations made in the plaint and if he decides to deny any such allegations, he must do so clearly and explicitly. The word “specifically” qualifies not only the word “deny” but also the words “stated to be not admitted” and therefore a refusal to admit must also be specifically stated. A defendant can admit or deny the several allegations made in the plaint and if he decides to deny any such allegations, he must do so clearly and explicitly. A vague or evasive reply by the defendant cannot be considered to be a denial of fact alleged by the plaintiff. A party is expected to expressly deny the fact which is within its knowledge and a general denial is not a specific denial. 12. Evasive or vague denial of fact in the written statement of such facts should be taken to be no denials and so deemed to be admitted. On that principle in the absence of specific and unambiguous denial and the denial here being vague, the averments made in paras 8 to 19 should be deemed to have been admitted by the defendants.” 13. In the decision reported as (2004) 49 SCL 597 Official Liquidator of Amfort Agro Finance Ltd. vs Shishpal Singh it was held as under:- “7. Reply to this application is filed by the respondent. It is not a parawise reply. Thus the averments made in Para No. 7 stand uncontroverted.” 14. In the decision reported as 2003 (96) FLR 722 Rajesh Singh vs M.P.Rajya Krishi Vipnan Board it was held as under:- “4. The return filed by the respondent No. 4 is cryptic. There is no parawise reply. Therefore, the averments made in the petition which have not been specifically denied will be deemed to have been admitted.” 15. On November 21, 2011 this Court while deciding RFA (OS) 78/2011 P.K. Gupta vs Ess Aar Universal (P) Ltd. held as under:- “11. We need to highlight that the fundamental principles, essential to the purpose of a pleading is to place before a Court the case of a party with a warranty of truth to bind the party and inform the other party of the case it has to meet. It means that the necessary facts to support a particular cause of action or a defence should be clearly delineated with a clear articulation of the relief sought. It means that the necessary facts to support a particular cause of action or a defence should be clearly delineated with a clear articulation of the relief sought. It is the duty of a party presenting a pleading to place all material facts and make reference to the material documents, relevant for purposes of fair adjudication, to enable the Court to conveniently adjudicate the matter. The duty of candour approximates uberrima fides when a pleading, duly verified, is presented to a Court. In this context it may be highlighted that deception may arise equally from silence as to a material fact, akin to a direct lies. Placing all relevant facts in a civil litigation cannot be reduced to a game of hide and seek. In the decision reported as 2011 (6) SCALE 677 Rameshwari Devi vs. Nirmala Devi the Supreme Court highlighted that pleadings are the foundation of a claim of the parties and where the civil litigation is largely based on documents, it is the bounden duty and obligation of the Trial Judge to carefully scrutinize, check and verify the pleadings and the documents filed by the parties. 12. Highlighting that pleadings must be sufficient and consequence of laconic pleadings, which cannot be permitted,and the failure to plead sufficient details amounting to an insufficient plea, in the decision reported as AIR 1999 SC 1464 D.M. Deshpande vs Janardhan Kashinath Kadam, the Supreme Court observed qua a claim for tenancy that in the absence of a concise statement of material facts relating to the tenancy, the mere raising of a plea of tenancy is not enough for the purpose of raising an issue on the question. The Court cautioned against a pedantic approach to the problem and directed that the Courts must ascertain the substance of the pleading and not the form, in order to determine the same. It was observed that pertaining to a claim of tenancy, the exact nature of the right which is claimed has to be set-forth and no issue pertaining to existence of tenancy could be framed on a vague plea.” 16. In the decision reported as 2012 (5) SCC 370 Maria Margarida Sequeria Fernandes vs Erasmo Jack de Sequeria it was held as under:- “72. The Court will examine the pleadings for specificity as also the supporting material for sufficiency and then pass appropriate orders. x x x 74. In the decision reported as 2012 (5) SCC 370 Maria Margarida Sequeria Fernandes vs Erasmo Jack de Sequeria it was held as under:- “72. The Court will examine the pleadings for specificity as also the supporting material for sufficiency and then pass appropriate orders. x x x 74. If the pleadings do not give sufficient details, they will not raise an issue, and the Court can reject the claim or pass a decree on admission. On vague pleadings, no issue arises. Only when he so establishes, does the question of framing an issue arise. Framing of issues is an extremely important stage in a civil trial. Judges are expected to carefully examine the pleadings and documents before framing of issues in a given case. x x x 78. The Court must ensure that pleadings of a case must contain sufficient particulars. Insistence on details reduces the ability to put forward a non-existent or false claim or defence.” 17. In the decision reported as 2012 (6) SCC 430 A. Shanmugam vs Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam it was held as under:- “27. The pleadings must set-forth sufficient factual details tothe extent that it reduces the ability to put forward a false or exaggerated claim or defence. The pleadings must inspire confidence and credibility. If false averments, evasive denials or false denials are introduced, then the Court must carefully look into it while deciding a case and insist that those who approach the Court must approach it with clean hands.” 18. In the decision reported as 2012 (10) SCALE 330 Kishore Samrite vs State of U.P. it was held as under:- “32. The parties must state forthwith sufficient factual details to the extent that it reduces the ability to put forward false and exaggerated claims and a litigant must approach the Court with clean hands. 33. While approaching the court, a litigant must state correct facts and come with clean hands. Where such statement of facts is based on some information, the source of such information must also be disclosed. A litigant is bound to make “full and true disclosure of facts”. 19. Without quibbling any further and noting the pleadings even the amended plaint as if brought on record, we find that the suit filed by the appellants is completely frivolous. A litigant is bound to make “full and true disclosure of facts”. 19. Without quibbling any further and noting the pleadings even the amended plaint as if brought on record, we find that the suit filed by the appellants is completely frivolous. A strip of land abutting the plots of the appellants even if permitted to be used as licensees by the appellants does not denude the Municipal Corporation of Delhi to revoke the license. Besides, the pleadings in the original suit and as proposed to be amended continued to be vague and of a kind which, in view of the decisions noted above, require it to be held that the plaint does not disclose any cause of action. 20. The appeal is dismissed in limine.