Research › Search › Judgment

Delhi High Court · body

2023 DIGILAW 1086 (DEL)

Arvind Dugar v. Anand Mohan Agarwal

2023-02-21

CHANDRA DHARI SINGH

body2023
ORDER Chandra Dhari Singh, J. (Oral) I.A. No. 19161/2022 1. The present application under Order XIV Rule 5 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the CPC") has been filed by the plaintiffs seeking the following prayers: "a) Allow the present application of the plaintiffs under Order 14 Rule 5 read with Section 151 of the Code of Civil Procedure and direct the following issue to be framed as additional issue No. (iii) "Whether the Plaintiffs are entitled to a decree of mesne profits from the date of filing of the present suit till the defendants remain in continuous occupation of the entire suit property?" b) Pass any such other or further order(s) as this Hon'ble Court may deem fit and proper to protect the right of the plaintiffs/applicants." 2. The issues in the captioned suit were framed by the predecessor Bench of this Court vide Order dated 22nd September, 2016. The said issues are reproduced hereunder: "(i) Whether the plaintiffs are entitled to a declaration that they are the owner of 50% share in the suit property bearing plot no.146, Pocket-1, Jasola Residential Scheme, Jasola, New Delhi? OPP (ii) Whether the plaintiffs are entitled to a decree for recovery of sum of Rs.19,25,000/- towards damages for use and occupation for the period of February, 2007 upto the date of filing the present suit? OPP (iii) Whether the plaintiffs are entitled to a decree of possession in respect of the suit property bearing plot no.146, Pocket-1, Jasola Residential Scheme, Jasola, New Delhi? OPP (iv) Whether the plaintiffs are entitled to permanent injunction, as prayed for? OPP (v) Whether the suit is barred by limitation? OPD (vi) What is the total cost of construction/development of suit Property? Onus on the parties (vii) What was the total amount invested by the plaintiffs on the construction/development of the suit property? Onus on the parties (viii) Whether the defendants are entitled to 73% of the sale proceeds of the suit property as stated in the written statement? OPD (ix) Relief." 3. Furthermore, this Court vide order dated 11th July, 2017 framed two additional issues. Onus on the parties (viii) Whether the defendants are entitled to 73% of the sale proceeds of the suit property as stated in the written statement? OPD (ix) Relief." 3. Furthermore, this Court vide order dated 11th July, 2017 framed two additional issues. The said additional issues framed are reproduced hereunder: "(i) Whether the plaintiffs are entitled to a decree of rendition of accounts towards the amounts spent on development and construction of the suit prope1ty i.e. construction of basement, Ground Floor, First Floor and Second Floor upon the property bearing plot No. 146, Pocket- I, Jasola Residential Scheme, Jasola, New Delhi till December 2006? OPP (ii) Whether the suit has been properly valued for the purpose of Court fee and wether the plaintiffs are entitled to decree of rendition of accounts in the absence of non-valuation of the said relief? OPP" Submissions on behalf of the plaintiff 4. It has been submitted on behalf of the plaintiff that the plaintiffs are the lawful owners of 50% share of the property bearing plot no.146, Pocket I, Jasola Residential Scheme, Jasola, New Delhi. The suit property was jointly allotted to the plaintiffs and defendants by way of auction tendered by the Delhi Development Authority (in short 'DDA') on 28th August, 2002 for valuable consideration for sum of Rs.47.26 lakhs and the possession of the suit property was jointly delivered to the plaintiff and defendants by way of registered lease deed dated 12th December, 2003. 5. It has been further submitted that the lease deed dated 12th December, 2003 was jointly registered in favour of plaintiff No.1 and 2 and defendants No.1 and 2 as joint lessees. 6. It has been submitted on behalf of the plaintiff that in October, 2005 the parties initiated construction on the suit property utilizing their joint funds and efforts in line with the site plan duly sanctioned by the Delhi Development Authority (DDA). 7. It has been submitted that a joint account was opened in order to keep a track of the expenses incurred on the said construction. It is further submitted that despite the property being in semi-finished condition, the defendants started residing in the suit property with no prior intimation to the plaintiff. 8. 7. It has been submitted that a joint account was opened in order to keep a track of the expenses incurred on the said construction. It is further submitted that despite the property being in semi-finished condition, the defendants started residing in the suit property with no prior intimation to the plaintiff. 8. It has been submitted on behalf of the plaintiff that despite the property being jointly allotted, the defendants with mala fide and dishonest intention applied for conversion of the suit property from lease hold to free hold vide request application dated 22nd March, 2010. The said request, however, was declined by the DDA. 9. It has been submitted on behalf of the plaintiff that the suit property was converted from lease hold to free-hold jointly in favour of the parties by virtue of Conveyance deed dated 8th October, 2012. 10. Learned counsel for the plaintiff submitted that all the expenses were incurred by the parties equally. However, only the defendants are enjoying the possession of the suit property that too since February, 2007. 11. It has been submitted by the plaintiff that the plaintiffs missed to pray for an issue pertaining to the relief of a decree of mesne profits in favor of the plaintiff, as may be determined by this Court, from the date of filing of the suit till the defendants continuously occupy the entire suit property. Submissions on behalf of the defendant 12. It has been submitted on behalf of the defendants that the instant application filed by the plaintiff is not bona fide and is an attempt by the plaintiff to delay the instant suit. 13. It has been further submitted that the instant application deserves dismissal, inter alia, for the reasons that framing of additional issue is not necessary to determine the matter in controversy as per the provision under Order XIV Rule 5 of the CPC. 14. It has been submitted that the defendants are the co-sharers and are not in illegal possession of any part of the suit property. It has been further submitted that the plaintiff is barred to claim mesne profit against the defendants. 15. It has been submitted on behalf of the defendants that defendants are in use and occupation of approximate 50% share of the suit property. It has been further submitted that the plaintiff is barred to claim mesne profit against the defendants. 15. It has been submitted on behalf of the defendants that defendants are in use and occupation of approximate 50% share of the suit property. The remaining approximate 50% of the property is not even in a habitable condition and not fit for use and enjoyment as the same is incomplete, without amenities and utilities and is not fit for occupation. 16. It has been submitted that the plaintiffs are not entitled to any mesne profit, they did not press for issue sought to be framed by way of application under reply nor framing of such an issue was prayed at the time of filing of earlier application by the Plaintiffs, being LA. No.15252 of 2016, for framing of additional issues. Findings and Analysis 17. Heard the learned counsel for the parties and perused the record. 18. In order to adjudicate the lis, this Court finds it evident to peruse Order XIV Rule 5 of the CPC. The same is reproduced hereunder: "5. Power to amend, and strike out, issues.--(1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. (2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced." 19. The revision, addition, deletion or striking off of issues that have been framed by a Court for purposes of adjudicating a suit has been elaborated under Order XIV Rule 5. The same vests in Court the power to amend issues that have been framed that are necessary for determination of a dispute before it. This Court finds that power of the Courts is to be exercised in accordance with facts before it while framing or re-framing the issues. 20. The issue that is sought to be framed additionally before this Court reads as follows: "Whether the Plaintiffs are entitled to a decree of mesne profits from the date of filing of the present suit till the defendants remain in continuous occupation of the entire suit property?" 21. 20. The issue that is sought to be framed additionally before this Court reads as follows: "Whether the Plaintiffs are entitled to a decree of mesne profits from the date of filing of the present suit till the defendants remain in continuous occupation of the entire suit property?" 21. In view of the foregoing submissions and discussions, this Court finds force in the arguments advanced on behalf of the plaintiffs. It is an admitted fact that the defendants are in possession of the suit property. Moreover, if the instant suit is decided in favour of the plaintiffs then they shall suffer huge loss on account of mesne profits. 22. Therefore, it would be imperative to add the said additional issue in the list of issues framed by the predecessor bench of this Court. 23. The instant application, in light of the said observation is disposed of. 24. The order be uploaded on the website forthwith.