IN THE HIGH COURT OF DELHI AT NEW DELHI

Transcription

1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : CODE OF CIVIL PROCEDURE Date of decision: 17th April, 2013 I.A. No.3890/2013 (of D-3 to 8 u/o 14 R-5 CPC) in CS(OS) 3227/2011 KAWAL SACHDEVA... Plaintiff Through: Mr. Dinesh Garg and Ms. Rachna Agrawal, Advocates. Versus MADHU BALA RANA & ORS... Defendants Through: Mr. M.M. Singh, Adv. for D-2. Mr. Gurmit Singh, Adv. for D-3 to 8. CORAM :- HON BLE MR. JUSTICE RAJIV SAHAI ENDLAW RAJIV SAHAI ENDLAW, J 1. The plaintiff has sued for possession pleading, that Major Ranbir Singh Rana was the sole absolute owner of property no.j-1/161-a, Rajouri Garden, Delhi and acting through his wife and attorney defendant no.1, vide Sale Deeds of the year 2009 has sold the middle and rear portion of the said property admeasuring 910 sq. yds. to the plaintiff; that though possession/constructive possession of the entire property sold was under the Sale Deeds delivered but in fact possession of some portions was not delivered on the plea that the goods of the defendant no.2 who is the daughter-in-law of the defendant no.1 and Major Ranbir Singh Rana were lying therein; that the defendant no.2 instead of removing her goods has not only refused to deliver possession but also collusively inducted defendants no.3 to 8 as her tenants in the said portion. The plaintiff has thus sued for possession and for future mesne profits with interest. 2. The defendant no.1 has supported the plaintiff.

2 3. The defendant no.2 has contested the suit pleading the property to be belonging to the HUF of Major Ranbir Singh Rana and she and her son, on the demise of her husband, having a right in the said property. 4. The defendants no.3 to 8 inter alia claim the suit for possession to be barred under Section 50 of the Delhi Rent Control Act, They however admit having been inducted into the property by the defendant no Following issues were framed on :- (i). Whether the property belongs to the HUF of Major Ranbir Singh Rana and the defendant no.2 and her son as members of the said HUF, have a right to continue in possession of the same? OPD-2 (ii). Whether the defendant no.2 has any other right, title, claim or interest over the suit property so as to retain possession thereof? OPD-2 (iii). If the aforesaid issues are decided against the defendants, whether the plaintiff is entitled to any mesne profit/damages for use and occupation and if so, from whom and at what rate and for what period? OPP (iv). If the above issue is decided in favour of the plaintiff, whether the plaintiff is entitled to any interest on arrears of mesne profit and if so for what period, from whom and at what rate? OPP (v). Relief. 6. No issue on the plea of the defendants no.3 to 8 of the suit being barred by Section 50 of the Rent Act was framed for the reason that if the defendant no.2 fails to establish any right in the property, the defendants no.3 to 8 cannot derive any tenancy rights through her. 7. The defendants no.3 to 8 filed this application seeking framing of the following issues: (i). Whether the suit is barred under Section 50 of the Delhi Rent Control Act, 1958? OPD 3 to 8 (ii). Whether the suit has been filed by the plaintiff in collusion with defendants no.1&2 to illegally evict defendants no.3 to 8 from the tenanted portions in the suit property? OPD 3 to The said application first came up for consideration on when it was the contention on behalf of the defendants no.3 to 8 that it being their plea in their written statement that the premises were let out to them by

3 the defendant no.1 as well as the defendant no.2 and that they are paying rent to the defendant no.2 only at the asking of the defendant no.1 and the defendant no.1 being admittedly the attorney of the owner of the property having joined in letting out of the property to the defendants no.3 to 8, the defendants no.3 to 8 would enjoy the protection of the Rent Act even if the defendant no.2 fails in setting up a right to the property. 9. It was on enquired from the senior counsel then appearing for the defendants no.3 to 8 whether there was anything whatsoever to show that the defendant no.1 had joined the defendant no.2 in the letting of the property to defendants no.3 to 8. Though the senior counsel for the defendants no.3 to 8 in the course of hearing on argued that there is plethora of earlier litigation and complaints inter se the parties but admitted that copies of none of them were on record and sought time to check whether the defendants no.3 to 8 at any earlier point of time had taken the plea of being a tenant under both, defendants no.1&2 and/or of the defendant no.1 having joined in letting out of the property by the defendant no Accordingly, further hearing on the application was adjourned to enable the parties to file documents. 11. No documents were filed by the defendants no.3 to 8 though the plaintiff filed documents in pursuance to the order dated The counsel for the defendants no.3 to 8 on stated that the said defendants would be relying on the documents filed by the plaintiff only. 12. Today, the counsel for the applicants/defendants No.3 to 8 fairly states that in the documents filed in pursuance to the order dated 6th March, 2013, there is nothing to show that the applicants/defendants No.3 to 8 at any time prior to the written statement in the present suit took a plea of the premises having been let out to the applicants/defendants No.3 to 8 by the defendant No.2 on behalf of the defendant No.1 or the defendant no.1 having joined in letting out to them by the defendant no On enquiry, it is further fairly stated by the counsel for the applicants/defendants No.3 to 8 that the documents of letting in favour of the applicants/defendants No.3 to 8 are also by the defendant No.2 only and do not show the defendant No.2 to have acted under any authority from or on behalf of or as an agent of the defendant No.1. He however again contends

4 that since the said applicants/defendants No.3 to 8 in the written statement in the present suit have taken a plea of collusion between the defendants No.1 & 2, an issue be framed on the aforesaid aspect. 14. The senior counsel appearing for the defendants no.3 to 8 on , in support of the contention that since the defendants no.3 to 8 have taken a plea in their written statement, even in the absence of any material thereon an issue ought to be framed, had referred to S. Surjit Singh Sahni Vs. Smt. Brij Mophan Kaur 65 (1997) DLT It was however put to the senior counsel appearing for the applicants / defendants no.3 to 8 on as to what meaning is to be ascribed to the word material in Order14; whether issues are to be framed on the clever drafting of the Advocates or on the facts as emerging on record. It was also observed that it cannot be lost sight of that an issue once framed requires evidence to be led thereon and which means delay in the disposal of the suit. It was yet further observed in the order dated that this aspect, though may not have been considered at any earlier point of time, time has come for Courts to look into the said aspect and the law which may have been good in times gone by, cannot be said to be good in the face of a changing societal status where false pleas in pleadings have become rampant. It is therefore felt that unless the Courts peruse the pleadings together with the material on record to determine whether the plea taken can be said to be a material one or not so as to invite framing of an issue thereon, the litigants, interested in protracted trial, would by clever drafting of pleadings and taking of pleas which otherwise have no legs to stand, would have a large number of issues framed, entitling them to examine a number of witnesses, thereby making a mockery of the judicial process. It was also prima facie observed in the order dated that in the state of the pleadings in the present suit, the plea of collusion between the defendants no.1 and 2 is not made out. Liberty was also granted to the defendants no.3 to 8 to press this aspect if at any point of time in trial it was felt that the defendant no.2 is not pursuing her defence diligently and properly and is in collusion with the plaintiff and the defendant no Thus, the reluctance to frame the additional issues as sought. 17. Reference may at the outset be made to D.M. Deshpande Vs. Janardhan Kashinath Kadam (1998) 8 SCC 315 where in the absence of particulars viz. date, mode and terms of creation of tenancy in the pleadings,

5 it was held that an issue on a bare claim of tenancy ought not to have been framed. 18. This Court in Lakshmikant Shreekant (HUF) Vs. M.N. Dastur & Company Pvt. Ltd (44) DRJ 502 held that the Court is required to frame issues of fact or of law that necessarily and properly arise for determining the real controversy involved on the pleadings of the parties and that such issues arise when a material proposition of fact or law is affirmed by one party and denied by the other and the Court would not frame an issue which does not arise on the pleadings nor a issue need be framed on a point of law which is perfectly clear. It was further held that the Court is required to apply its mind and understand the facts before framing the issue. It was yet further held that if the plea is mala fide or preposterous or vexatious and can be disposed of without going into the facts or is contrary to law or the settled legal position, the Court will not be justified in adopting a hands off policy and allow the game of the defendant to have its sway. 19. Similarly in Zulfiquar Ali Khan Vs. Straw Products Limited 87 (2000) DLT 76 it was observed that it is a notorious fact that to drag the case, a litigant often takes all sorts of false or legally untenable pleas and it was held that legal process should not be allowed to be misused by such persons and only such defence as give rise to clear and bona fide dispute or triable issues should be put to trial and not illusory or unnecessary or mala fide based on false or untenable pleas to delay the suit. It was yet further held that the Court is not bound to frame an issue on unnecessary or baseless pleas, thereby causing unnecessary and avoidable inconvenience to the parties and waste of valuable Court time. 20. The High of Bombay also in Mohammad Hayatkhan Karimkhan Vs. Taramati MANU/MH/1494/2010 held that in order to frame an issue it is necessary to consider whether the plea raised is bona fide or merely raised to delay decision in the matter and which entitles the litigant so raising the plea to remain in possession of the property until adjudication of the issue. It was further held that it is also necessary to see whether there is sufficient material placed on record to frame an issue and to make a reference. The learned Judge observed that it is well settled that no frivolous plea need be a matter of reference and the Court before framing an issue is entitled to see whether such plea is bona fide and has any basis in the material placed on record. Reliance was placed on the judgment of the Division Bench of that Court in Pulmati Shyamlal Mishra Vs. Ramkrishna Gangaprasad Bajpai

6 1981 Maharashtra Law Journal 321 laying down that it is not correct to assume that the Court is under any obligation to frame and remit the issue of tenancy mechanically, merely on the same being raised in the written statement without judicial satisfaction of its necessity and justification; that remittance of any such tenancy issue and the trial thereof is known to have become a long winding and time consuming process enuring the delay for the benefit of the person in possession of the land and which prompts and tempts such persons to take such pleas to perpetuate his unmerited possession. The Bombay High Court further held that the Court has a duty to examine the substance and refuse to frame and remit any issue if the same appears to be demonstrably frivolous and mala fide. Reliance in this regard was placed on the law laid down by the Apex court on Thomas Antony Vs. Varkey Varkey (2000) 1 SCC 35 though in the context of reference to a Tribunal but holding that the law making reference to the Tribunal mandatory cannot be said to have intended that even a patently frivolous, mala fide and illegal plea taken by a party merely to delay the proceeding and to remain in possession is to be referred to the Tribunal and the statutory provisions have to be read as envisaging a reference only where a bona fide and legally sustainable plea is taken. 21. The Bombay High Court in Sociedade Patriotica Dos Baldios Das Novas Conquistas Vs. Sudhakar Sagun Bhandari MANU/MH/0819/2008 also held that under order 14 of the CPC an issue can only arise when a material proposition of fact or law is affirmed by one party and denied by the other and when a vague plea is taken, the Court should hesitate to frame an issue on such a vague plea, unless the party is able to give particulars in support of the plea. To the same effect is the judgment of yet another Bench of the Bombay High Court in Uttam Sambha Deshmukh Vs. Yamunabai MANU/MH/0387/1998 where a bald plea unsubstantiated by any documentary evidence was held to be not sufficient for the purpose of framing an issue. 22. This Bench also in order dated in CS(OS) No.505/2010 titled as Kavita Chaudhri Vs. Eveneet Singh; order dated in CS(OS) No.791/2011 titled Satish Handa Vs. Ashok Diwan and order dated in CS(OS) No titled Satya Gupta Vs. Guneet Singh held: (i) that the Court under Order 14 Rule 1(5) is required to, after reading the plaint and the written statement and after examination under Rule 2 of Order 10 and after hearing the parties or their pleaders, ascertain upon what

7 material propositions of fact or of law the parties are at variance, and to thereupon proceed to frame and record the issues on which the right decision of the case appears to depend; (ii) that issues are not to be framed on whatsoever pleas are contained in the pleadings but on material pleadings of fact and law and a plea which has no basis in law to stand on and / or a plea qua which law is well settled cannot be said to be a material plea inviting framing of an issue thereon; and (iii) it cannot be lost sight of that framing of an unnecessary issue invites unnecessary evidence and arguments and which protracts disposal of the suits. 23. Mention may lastly be made of the judgment of the Division Bench of this Court in Vijaya Myne Vs. Satya Bhushan Kaura 142 (2007) DLT 483 (DB) though in the context of order 12 Rule 6 of the CPC but holding that admissions can even be constructive which can be inferred from vague and evasive pleadings and that admissions can even be inferred from the facts and circumstances of the case. If it were to be held that on every plea, howsoever vague and unsubstantiated, an issue needs to be struck, there can be no effective application of Order 12 Rule 6 CPC as laid down in this judgment. 24. Applying the aforesaid principles, I am unable to agree with the counsel for the applicants / defendants no.3 to 8. Though undoubtedly the defendants no.3 to 8 have in their written statement taken a plea of the letting by the defendant no.2 being on behalf of the defendant no.1 who is the attorney of the owner of the property and the rent payable by them being less than Rs.3,500/- per month, this suit in a Civil Court for possession of the premises is barred by Section 50 of the Rent Act but the fact remains; (i) that the defendants have never in the past taken the said plea; (ii) there is no material before this Court to support the said plea; (iii) it is not as if the applicants / defendants no.3 to 8 had no opportunity in the past to take such a plea there have admittedly been a number of complaints and litigations and in which the applicants / defendants no.3 to 8 claimed to be tenant under the defendant no.2 only and never claimed to be a tenant under Major Ranbir Singh Rana or the defendant no.1 or of letting though by the defendant no.2 being with the consent of Major Ranbir Singh Rana or the defendant no.1; (iv) even the documents of letting are by the defendant no.2 only and admittedly do not state the letting by the defendant no.2 being with the consent of or on behalf of the plaintiff or the defendant no.1; and, (v) oral evidence contrary to the written document is barred.

8 25. The plea thus of the applicants / defendants no. 3 to 8 on which issue is sought thus fails to meet all the parameters listed hereinabove of a plea on which issue is required to be framed. 26. S. Surjit Singh Sahni supra, a judgment of the Single Judge of this Court relied upon by the plaintiff in the hearing on 6th March, 2013 is not apposite to the matter in controversy. That is a judgment on the scope of Order 14 Rule 5 of the CPC and lays down that since framing of issues is the duty of the Court, the Court even if on an earlier occasion has refused to frame an issue, can always correct its mistake. In that case an issue proposed was refused in the light of law then prevalent but was again sought upon change in the legal position. In that context an observation was made that the reason that the plaintiff may eventually lose cannot be a ground to refuse issue. However, the said sole observation in the judgment cannot be said to be taking a different view than the case law discussed hereinabove. 27. It cannot be lost sight of that the six tenants impleaded as defendants no.3 to 8 even if were to examine themselves, their examination and cross examination itself will stretch for a year if not more. It cannot also be lost sight of that no bar can be put on each of the said defendants examining witnesses other than themselves and once that is permitted, the same will enable the applicants / defendants to perpetuate their possession of the premises, it ultimately held to be illegal, for at least a decade if not decades. 28. Though jurisprudentially our justice delivery system is an adversarial one but even the said system does not require the Court / Judge to be a mute spectator in the litigation before it and to apply its mind only at the stage of final decision and by which time, if the litigants are shrewd or cunning, the delay may end up in denial of justice. The Courts have to keep pace with the times and cannot notwithstanding the practice, of the litigants taking false pleas to suit their purpose, becoming rampant, continue to act in a passive manner to conduct the trial mechanically. The Supreme Court recently in Maria Margarida Sequeira Fernandes Vs. Erasmo Jack De Sequira (2012) 5 SCC 370 has also observed that the Judge has to play an active role. 29. No merit is thus found in the application which is dismissed.

9 APRIL 17, 2013 Sd/- RAJIV SAHAI ENDLAW, J