Full Text
HIGH COURT OF DELHI
Date of Decision: 27th November, 2024
RAJNISH KHOSLA .....Petitioner S/o VM Khosla R/o B-2/40, Sector 15, Rohini
New Delhi – 110089
Through: Mr. Keshav Sehgal, Mr. Shivam Gaur, Mr. Kshitij Joshi and Mr. Aryan Kumar, Advocates.
JUDGMENT
1. USHA GHAI.....Respondent No. 1 W/o Late Sh. KL Ghai R/o E-1 Block, Pocket-8 Sector-15, Rohini New Delhi-110089
2. SANJAY GHAI …..Respondent No.2 S/o Late Sh. K.L. Ghai R/o F-13/24, 1st Floor New Delhi-110089
3. LALITA GHAI ….Respondent No.3 W/o Sanjay Ghai R/o F-13/24, 1st Floor
4. SEEMA GHAI ….Respondent No. 4 W/o Late Sh. Harish Ghai R/o F-21/42, New Dlehi-110089 Through: Mr. Chandan Rai Chawla and Mr. Bharat Khuran, Advocates. CORAM: HON'BLE MS.
JUSTICE NEENA BANSAL KRISHNA JUDGMENT (oral)
1. A Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’) has been filed on behalf of the Petitioner, to challenge the Order dated 21.09.2024 vide which the Application under Order VII Rule 11 CPC, has been dismissed.
2. Learned counsel on behalf of the Revisionist, Mr. Rajnish Khosla (defendant No. 5 in the Suit) submits that the property in question was originally allotted to Smt. Savita Chakraborty vide Perpetual Lease Deed dated 23.04.199, who sold it to the Respondent No.1, Ms. Usha Ghai vide Agreement to Sell etc. in 1992. She further sold the property to her son Sh. Sanjay Ghai, Respondent No.2 and his wife, Ms. Lalita Ghai in 1999 by virtue of the Agreement to Sell, etc. The Respondent No.2 and 3 in return executed a registered Agreement to Sell dated 22.09.2023 in favour of the Petitioner, Rajneesh Khosla. Respondent Usha Ghai (Plaintiff) has now filed the Suit for Declaration that the alleged Agreement to Sell, etc. of 1999 as well as of 2023, be declared Null and Void.
3. The Revisionist (Defendant No. 5 in the main Suit), had moved an Application under Order VII Rule 11 CPC seeking rejection of the Suit on the ground that the Defendant Nos. 2 and 3, Mr. Sanjay Ghai and Ms. Lalita Ghai (son and daughter-in-law of the Plaintiff) had agreed to sell the Suit Property to him by virtue of a registered Agreement to Sell, etc. dated 22.09.2023. The Plaintiff had signed the documents as a witness and this whole process has been duly videographed. She now with mala fide intention has filed the present Suit seeking Declaration of the Agreement to Sell executed in 1999 by her in favour of her son and daughter-inlaw/defendant Nos. 2 & 3. She merely wants to now retract from the transaction of sale of property made by her in his favour, through his son and daughter-in-law.
4. Learned Civil Judge considered the rival contentions of the parties and observed that there are clear averments by the Plaintiff in the Suit that the Agreement to Sell, etc. in the year 1999 had been created, without her knowledge and consent and that she had never agreed to sell the Property, to the Respondent Nos. 2 and 3. Though she admitted her signatures on the registered Agreement to Sell dated 22.09.2023, in favour of the Revisionist but asserted that she had been taken to the Office of Sub-Registrar on the pretext of getting a property made freehold. According to the Plaintiff, she came to know about the entire fraud only in August, 2023 and thereafter, she immediately filed the present Suit to get the documents declared null and void.
5. The learned Civil Judge, in the light of the specific averments in the Plaint, observed that the truthfulness of the averments need to be considered on evidence. Insofar as the limitation was concerned, it was observed that according to the Plaintiff, she came to know about the fraud only in August, 2023 and therefore, while considering the Application under Order VII Rule 11 CPC, it could not be held that the Suit was barred by limitation.
6. Aggrieved by dismissal of the Application under Order VII Rule 11 CPC for rejection of the Suit, the present Revision Petition has been filed.
7. The main grounds of challenge to the impugned Order are that the Respondent No. 1, Ms. Usha Ghai has not been residing in the Suit Property. She actually sold the property by virtue of an Agreement to Sell, etc. in the year 1999, on a consideration of Rs.3,00,000/- to the Respondent Nos. 2 and 3 and the documents were witnessed by Mr. K.L. Ghai, the husband of Plaintiff.
8. The possession thereafter was handed over to the Respondent Nos. 2 and 3, who had been in possession since then. The Respondent Nos. 2 and 3 being the owners of the Suit Property on the basis of these documents, namely, Agreement to Sell etc., applied for conversion of the Suit Property to freehold in DDA vide conversion Application dated 07.02.2004.
9. It is further asserted that the Respondent Nos. 2 and 3 had entered into the negotiations with the Revisionist, who agreed to purchase the Suit Property for a sale consideration of Rs.20,00,000/- and consequently, the registered documents, namely, Agreement to Sell etc. got executed on 22.09.2023 and Smt. Usha Ghai, the Plaintiff was a witness to the said documents. It is asserted that the Suit filed by the Plaintiff, is mala fide and without any basis.
10. In fact, the Petitioner/Revisionist Rajneesh Khosla has filed a Civil Suit bearing CS No. 891/2023, titled Rajnish Khosla vs. Seema Ghai, before the Court of learned District Judge, seeking possession of the first and second floor and the terrace in which the Plaintiff/Respondent No. 1, Smt. Usha Ghai has filed an Application for impleadment.
11. The Revisionist has further contended that since the ground floor of the Suit Property was in occupation of a tenant, Mr. Kapil Aggarwal, he had preferred Civil Suit bearing CS SCJ No. 174/2024, titled Rajnish Khosla vs. Kapil Aggarwal, seeking the eviction of the tenant from the property in question.
12. Moreover, the Petitioner has filed a Complaint Case No. 124/2024 under Section 156(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘CrPC’) titled Rajnish Khosla vs. State before the learned Metropolitan Magistrate seeking registration of FIR against the Plaintiff/Respondent Nos. 1 and 2. While the Application under Section 156 (3) of CrPC has been dismissed, but the Complaint under Section 200 CrPC, is still pending. The Revisionist has stated that an Action Taken Report dated 28.03.2024, was filed by the Police in the Complaint Case wherein it has been stated that the DDA allotted the plot in question to Mr. Panchan Chakraborty, which stood transferred to Smt. Savita Chakraborty, the original allottee.
13. It is claimed that the learned Civil Judge while rejecting his Application under Order VII Rule 11 CPC, has failed to appreciate that the claim of the Plaintiff that the documents dated 04.03.1994 or the subsequent documents, are forged and fabricated, is not correct. This is more so when she herself was a witness to the documents of sale executed in his favour and was duly registered by the Sub-Registrar. It is asserted that on the bare reading of the Civil Suit, it is evident that it is sham litigation and does not disclose any cause of action.
14. Reliance has been placed on the decision of the Apex Court in Rajendra Bajoria vs. Hemant Kumar Jalan, (2022) 12 SCC 641, wherein it has been observed that where the Suit does not disclose any cause of action it the Court should not permit the Plaintiff to unnecessarily protract the proceedings. Similar observations have been made in Balram Singh vs. Kelo Devi, 2022 SCC OnLine SC 1283 that clever drafting cannot result in the Plaint getting the relief to which he is otherwise not entitled.
15. It is further contended that valuation of the Suit should not be less than the value of the property in a Suit for declaration and consequential relief. The court fee ought to have been paid on ad valorem basis as held in Suhrid Singh vs. Randhir Singh, (2010) 12 SCC 112. Similar position of law has been reiterated by the Co-ordinate Bench of this Court in Satyam & Anr. vs. DDA & Ors., 2022 SCC OnLine Del 2640.
16. In the end, it is submitted that similar facts as at hand, were considered by the Co-ordinate Bench of this Court in Savitri Devi vs. Ashok Kumar Sehgal, 2011 SCC OnLine Del 5109 wherein the Sale Deed in favour of the son, was challenged by the mother on the premise that her signatures before the Sub-Registrar, were obtained on the pretext of it being a Will. It was held that such litigation was inspired at the behest of another brother and by observing that the mother herself was a witness to the documents, the Suit was dismissed. It is, therefore, submitted that the impugned Order is liable to be set-aside and the Plaint is liable to be rejected under Order VII Rule 11 CPC.
17. Learned counsel on behalf of Respondent No.1 and 4 has vehemently contested the present Revision Petition. It has been submitted that the property which was originally in the name of Smt. Savita Chakraborty by virtue of Perpetual Lease Deed dated 22.04.1991, was sold by her to one Mr. Jaspaul by virtue of unregistered Agreement to Sell, etc. dated 23.04.1991, who in turn executed Agreement to Sell, etc. in favour of the Respondent No.1, Ms. Usha Ghai. It is claimed that she thereafter, never sold the property to her son and daughter-in-law and has never been aware of the execution of the alleged set of Agreement to Sell, etc. of 1999.
18. The Plaintiff further asserted that on 22.09.2023, she was taken to the Office of Sub-Registrar on the pretext of getting the property converted from Leasehold to Freehold. She though was a witness to these documents, but was not aware of the true nature of the documents.
19. In support of these assertions, the learned Counsel for the Respondent No.1, has also referred to a copy of Indemnity Bond dated 23.01.2023 submitted to the Office of Sub-Registrar, Rohini, wherein the son and daughter-in-law had stated that all the original documents of the property have been lost. It is submitted that this very document supports the contention of Respondent No.1 in so much as the entire chain of original documents right from the Perpetual Lease Deed to the Agreement to Sell in favour of the Respondent No.1, are in her possession, the copy of which is undertaken to be filed along with the Replication.
20. It is claimed that the Plaintiff had never executed any Agreement to Sell and she came to know about this alleged Agreement to Sell of 1999 and of 2022[3] only after inquiry from the Office of Sub-Registrar in last week of September, 2023 and her Suit discloses a cause of action.
21. It is argued that from the various triable issues raised in the suit and the Application under Order VII Rule 11 CPC has been rightly rejected.
22. Submissions heard.
23. Documents submitted by the Respondent No.1 in the Court, be taken on record.
24. The factual matrix is that the Plot bearing No. 42, F-Block, Pocket-21, Sector 15, Rohini, New Delhi-110089 (hereinafter referred to as ‘Suit Property’) ad measuring 25.[9] square meters was allotted by the DDA vide provisional Letter dated 25.04.1988, in favour of Pancham Chakraborty, who expired on 13.03.1988. He was survived by his wife, two sons and one daughter. The sons and daughters executed the Relinquishment Deed dated 04.11.1988 in favour of their mother, Smt. Savita Chakraborty, who got the transfer of the Suit Property in her name vide Letter dated 03.09.1990. The possession was handed over to Smt. Savita Chakraborty vide Possession Letter dated 05.03.1991. The DDA executed the Perpetual Lease Deed dated 23.04.1991 in her favour whereby she became the owner of the Suit Property and was in its possession.
25. The Plaintiff has asserted that she got the property constructed in the year 1994, which at the relevant time, comprised of three floors. The Plaintiff has claimed that the Defendant No. 4, Ms. Seema Ghai, is the wife of her deceased elder son Sh. Harish Ghai, who had expired in 2017. She along with her two children has been in continuous possession of the property in question since last 28 years and has been residing there. However, the Respondent No. 2, Mr. Sanjay Ghai and his wife, Ms. Lalita Ghai, gave a Legal Notice dated 14.08.2023 to the Defendant No. 4, claiming to have sold the property to the Petitioner, Mr. Rajnish Khosla, on 03.01.2023.
26. The Plaintiff/Respondent No. 1, Ms. Usha Ghai then discovered the Sale Agreement dated nil registered on 22.09.2023 wherein she had allegedly signed as a witness. She also came to know that the Respondent Nos. 2 and 3 were claiming to have purchased the Suit Property from her on 20.05.1999 vide Agreement to Sell, etc. allegedly executed by the Plaintiff, in their favour. The Plaintiff has claimed that she had never sold the Property to the Respondent Nos. 2 and 3 and has asserted that the subsequent Agreement to Sell of 1999 and of 2023, are forged and fabricated documents.
27. It is further asserted by her that she did not purchase the Property directly from Ms. Savita Chakravorty in 1992 as has been set-up by the Respondent Nos. 2 and 3, but in fact, she purchased it in the year 1994 from Mr. Jaspaul S/o Mr. Kundan Singh, through Agreement to Sell, Will, General Power of Attorney, Possession Letter, etc. dated 04.03.1994, who had earlier purchased this Property from Ms. Savita Chakravorty.
28. She has further asserted that the entire chain of original documents, are in his power and possession, which were shown in the Court. Moreover, the Respondent Nos. 2 and 3 had submitted an Indemnity Bond dated 23.01.2023 wherein it is asserted that the original documents have got misplaced, which is patently false as the entire chain of documents are in her possession, which she produced in the Court, in original.
29. The Plaintiff has further given an explanation that though she had signed the Agreement to Sell dated 22.09.2023 before the said Sub- Sub-Registrar on the fake pretext of signing the documents for getting the Property made Freehold. Hence, she is entitled to declaration of the documents including the Agreement to Sell executed in favour of Revisionist, as null and void.
30. Though the Respondent has asserted that the Agreement to Sell in his favour, is a registered document but when the authenticity of the document is challenged, the same cannot be rejected merely because the document under challenge, is a registered document.
31. Likewise, the Petitioner/ Defendant No.5 has relied upon the Report of Truth Labs, which has given an opinion that the Agreement to Sell dated 27.04.1992, executed in favour of Ms. Usha Ghai, bears the signatures of her husband, Mr. K.L. Ghai as a witness. However, the Revisionist/Defendant No. 3 is claiming that the Plaintiff acquired the title in the Property by virtue of an Agreement to Sell executed in her favour on 27.04.1992. However, the Plaintiff/Respondent No. 1 is claiming to have acquired the title only in the year 1994 from Mr. Jaspaul, for which she has also produced the Agreement to Sell. This again raises a disputed fact, which requires to be adjudicated.
32. It is trite law that while considering the Application under Order VII Rule 11 CPC, it is only the averments made in the Plaint, which need to be considered. There are specific pleas of fraud in relation to the documents relied upon by the Respondent Nos. 2 & 3 which are claimed to be forged and fabricated, to claim the title in their favour.
33. Insofar as the issue of limitation is concerned, it has been rightly observed that as per the averments, the Respondent No. 1, Ms. Usha Ghai discovered the fraud only in August, 2024 and therefore, prima facie the Suit is within the limitation.
34. Reliance has been placed on Savitri Devi (supra) wherein it is claimed that the facts involved are similar. However, in the said case, it was found that the litigation had been inspired at the behest of another brother, who was prosecuting the claim, through his mother. In the present Case, the genuineness of averments is yet to be ascertained. The facts involved in the present Case, are distinguishable.
35. In the end, an objection has been take is that the Court Fee was liable to be paid ad valorem. However, the Revisionist is at liberty to agitate this aspect before the learned Civil Judge, who may consider the aspect or frame the issue, in accordance with law.
36. There is no merit in the present Revision Petition, which is hereby dismissed and the pending Application(s) are disposed of accordingly.
JUDGE NOVEMBER 27, 2024 va/RS