Full Text
HIGH COURT OF DELHI
DATE OF RESERVE: December 07, 2009
Date of Decision: April 16 , 2010
SMT. TARAWATI (NOW DECEASED)
THROUGH HER LEGAL REPRESENTATIVE SHRI I.D. TYAGI ..... Appellant
Through: Mr. I.D. Tyagi.
THROUGH HIS LEGAL REPRESENTATIVES ..... Respondents
Through: Mr. Madan Bhatia, Sr. Advocate with Mr. Viraj R. Datar and
Mr. Chetan Lokur, Advocates
JUDGMENT
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?: REVA KHETRAPAL, J.
1. By this appeal the appellant assails the order of the learned Trial Court dated 01.05.1997 dismissing the suit for possession filed by the appellant as not maintainable. 2010:DHC:2090
(i) The appellant had filed a suit for the possession of the first floor of the property bearing no. N-85, Greater Kailash, Part-I, New Delhi and for the recovery of Rs.75,000/- as damages against the respondent on the ground that the appellant had purchased the first floor of the aforesaid property from its owner Ms. Neelam Mahajan by a Registered Sale Deed and the defendant was merely a licensee who was in occupation of the property, and who later on became an unauthorized occupant after the termination of the license by the appellant.
(ii) The respondent, along with his written statement, filed an application under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure for rejection of the plaint on the ground that the aforesaid suit of the appellant was barred by law and thus liable to be rejected. The respondent averred that the respondent had filed a civil suit for partition of the joint Hindu family properties which was registered as Suit No.3041/1990 wherein the following properties were sought to be partitioned: a. Property bearing No. N-85, Greater Kailash, Part-I, New Delhi-
110048. b. Property bearing No. C-58, Preet Vihar, Delhi-110092. c. Shop No. 5677 at Gandhi Market, Sadar Bazaar, Delhi-06.
3. The respondent in the aforesaid application further stated that in order dated 12th March, 1992 had directed the parties to maintain the status quo regarding “portion of the property bearing No. N-85, Greater Kailash, Part-I, New Delhi, which is stated to be in the possession of the appellant, the respondent herein.”
4. The respondent also stated that though the order dated 12th March, 1992 was confirmed by the Division Bench on 21st October, 1992, in wilful disobedience of the aforesaid order and in collusion with the outside agencies/individuals, the appellant violated the said order, in regard to which contempt proceedings were instituted in this Court against her by the respondent. The Division Bench, by an order dated 2nd March, 1993 passed in CCP No. 231/1992 admitted the said contempt petition for hearing.
5. In the application filed by the respondent herein, it was further alleged that while the suit was founded on an alleged Sale Deed dated 9th September, 1992, in the earlier suit pending on the Original side of this Court appropriate pleas with regard to the fraudulent and illegal nature of the entire transaction had been taken by the respondent. It was alleged therein that the suit was based on a fraudulent claim of title and is barred by law. It was denied that the appellant had been residing on the first floor of the suit premises either as a tenant or as a licensee. The suit property was the subject matter of litigation in the aforesaid suit for partition being Suit No. 3041/1992 when it was purchased by the appellant for a paltry amount of money. The relevant extract of the Sale Deed dated 9th September, 1992 reads as under: - “WHEREAS Shri-Shashi Kumar Mahajan the brother of the Vendor is occupying the built up portion of the property i.e. a room and W.C. as licensee and refused to vacate the occupied portion and it not within (sic) her means to get the possession of the property: hence she has agreed to sell the first floor (terrace) upto sky limit being „as it is, where it is‟.”
6. The appellant filed reply to the application under Order VII Rule 11 CPC denying knowledge of any interim orders passed, as alleged, and stating that as she was not a party in the suit for partition, she had no knowledge of the said interim orders. The appellant further stated that she was neither in collusion with anyone nor had violated any order passed by this Court and that no contempt proceedings had ever been initiated against her. She further stated that she had purchased the property in question from Ms. Neelam Mahajan without any knowledge of Ms. Neelam Mahajan being a party in any pending litigation in respect of the premises and accordingly prayed for the dismissal of the application under Order VII Rule 11 CPC filed by the respondent.
7. The learned Trial Court, after hearing the parties and noting that the appellant had filed the suit for possession of the ground floor of the property in question and for the recovery of damages on the ground that the respondent was in occupation of the premises in question as a termination of the license by the appellant, dismissed the suit by holding as follows: -
8. Arguments were advanced before this Court by Mr. I.D. Tyagi appearing for appellant and by Mr. Madan Bhatia, Sr. Advocate, appearing on behalf of the respondents.
9. Mr. Tyagi, contended that the conclusion of the suit being barred under any law must be drawn from the averments made in the plaint and judgment of the Supreme court in the case reported as Kamla and Ors. Vs. K.T. Eshwara Sa and Ors. AIR 2008 SC 3174 and in particular to paragraph 15 of the said judgment which is reproduced as follows: -
10. Mr. Tyagi also referred to the judgment of the Supreme Court in the case of Mayar (H.K.) Ltd. & Ors. Vs. Owners & Parties, Vessel M.V. Fortune Express & Ors., AIR 2006 SC 1828 to contend that the plaint cannot be rejected on the basis of the allegations made by the defendant/respondent in the written statement or in an application under Order VII Rule 11 for rejection of the plaint. The court must read the plaint in its entirety to ascertain for itself whether the plaint can be rejected by the Court by exercising the powers under Order VII Rule 11 of the Code. So long as the plaint discloses some cause of action which requires adjudication by the Court, the mere fact that in the opinion of the court, the plaintiff may not succeed, cannot be a ground for rejection of the plaint.
11. Mr. Madan Bhatia, the learned Senior Counsel appearing on behalf of the respondent, on the other hand, contended that the plaint in the instant case was not only barred under the provisions of the clause
(d) Rule 11 Order VII of the Code but was also barred by the provisions of clause (a) of the aforesaid Rule 11, inasmuch as the plaint did not disclose any cause of action. While conceding that the provisions of clause (a) of Order VII Rule 11 of the Code were not pressed into service by the respondent before the learned Trial Court, Mr. Madan Bhatia contended that this did not impose any embargo on this Court to call into service the provisions of clause (a) for the purpose of arriving at the conclusion that the plaint had been rightly rejected by the learned Trial Court.
12. Mr. Madan Bhatia further relied upon the decisions of the Supreme Court in the cases reported as Madhukar and Ors. Vs. Sangram and Ors. (2001) 4 SCC 756; Thota Lakshmi Venkata Bala vs. Muttamsetti Seethamma 2008 (9) AD SC 27; United Provinces vs. Mt. Atiga Begum and Ors. AIR 1941 Federal Court 16; Giani Ram and Ors. Vs. Ramji Lal and Ors. AIR 1969 SC 1144 and Mahant Dhangir and Anr. Vs. Madan Mohan and Ors. 1988 (1) SCR 679 to demonstrate the wide amplitude of the powers vested in the Appellant Order XLI) and to determine the questions of fact and law in order to render complete justice between the parties.
13. Mr. Bhatia, also referred to a catena of judgments to contend that the appellant, being admittedly a purchaser pendente lite, had acquired no title in the property, as the sale transaction was hit by Section 52 of the Transfer of Property Act (for short „TPA‟) and the doctrine of lis pendens enshrined therein. Mr. Bhatia urged that the learned Trial Judge, Sh. S.N. Dhingra (as his Lordship then was) rightly dismissed the suit, for, if the Court had allowed a purchaser pendente lite, from one of the defendants in the suit for partition, to proceed with the present suit for eviction of the respondent, who was the plaintiff in the suit for partition and against whom the purchaser pendente lite had acquired no title, would have been a monument to absurdity. It was urged that this was all the more so as the sale was in violation of the status quo orders passed in favour of the respondent (appellant before the Division Bench) by the Division Bench in the suit for partition.
14. Mr. Madan Bhatia, the learned Senior Counsel in support of the aforesaid contention relied upon the decisions of the Supreme Court reported as Surjit Singh & Ors. Vs. Harbans Singh and Ors. (1995) 6 SCC 50; Lakshmanan vs. Kamal AIR 1959 Kerala 67 (V 46 C 28); K. Subbayyamma & Ors. Vs. Sajja Chimpirayya & Ors. 1976 (1) Andhra Weekly Reporter 438; Simla Banking and Industrial Co. Ltd. Vs. Singh and Ors. Vs. Rajinder Singh & Ors.; Achut Sitaram Patwardhan vs. Shivajirao vs. Shivajirao Krishnarao Gaikwar and Ors AIR 1937 Bombay 244; Kishan Singh vs. Mohinder Singh Etc. ILR (1973) 2 Punjab & Haryana 142; Sarvinder Singh vs. Dalip Singh & Ors. 1996 VI AD S.C. 546; Mt. Sant Kaur vs. Teja Singh and Ors. AIR 933) 1946 Lahore 142; Pt. Ram Charan vs. Parmeshwar Din AIR 1933 Allahabad 201; Gouri Dutt Maharaj vs. Sukur Mohammed and Ors. AIR 935) 1948 Privy Council 147; P.I. Iducula vs. Padmanabhan Nair 1967 KLT 1060; Jayaram Mudaliar vs. Ayyaswami & Ors. AIR 1973 SC 569; Rajender Singh vs. Santa Singh AIR 1973 SC 2537 and Dhanna Singh & Ors. Vs. Baljinder Kaur & Ors. (1997) 5 SCC 476.
15. The common thread running through all the aforesaid decisions is the maxim pendente lite nihil innovator which means that pending the suit nothing should be changed. This maxim, known as the rule of lis pendens is a very well acknowledged rule of public policy, for otherwise successive alienations would defeat the purpose of litigation, making it interminable. The ultimate effect of the Rule is not to render void the conveyance, but the intention is to invest the Courts with complete control over the alienations made during the pendency of the suit and thereby to render its judgment binding upon the alienees, as if they were parties to the already instituted suit. As already stated, in all the property pendente lite would be hit by the doctrine of lis pendens due to the operation of the Section 52 of the Transfer of Property Act. It is proposed to make reference to only two of them, which are apposite to the case at hand, in order to avoid prolixity.
16. In the case of Jayaram Mudaliar (supra), a three Judge Bench of the Supreme Court pronounced that a private sale of the Joint Family Property executed by the karta, not on behalf of the whole family but in his individual capacity, during the pendency of the suit for partition brought by a member of the family, would not be binding on the family and would be hit by Section 52 of the Transfer of Property Act.
17. In Surjit Singh’s case (supra), where pending the final decree proceedings in a partition suit one of the parties assigned its rights under the preliminary decree by a registered deed in favour of others despite an order passed by the Trial Court restraining the parties from alienating any part of the suit property, it was held that the said alienation/assignment having been made in defiance of the Court‟s order, the court was obliged to treat the said alienation/assignment as non est. This was irrespective of whether it was assignment of the property per se or of the decree pertaining to the property and also irrespective of whether the assignment was by a Registered Deed or not. The following apposite observations were made by the Supreme Court in Surjit Singh’s case (supra). is not only required to be maintained, but is is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes. Once that is so, Pritam Singh and his assignees, respondents herein, cannot claim to be impleaded as parties on the basis of assignment. Therefore, the assignees-respondents could not have been impleaded by the trial court as parties to the suit, in disobedience of its orders. The principles of lis pendence are altogether on a different footing…….:
18. Mr. Madan Bhatia, the learned Senior Counsel also submitted that when a blatant abuse of the process of the court comes to the notice of this Court, such an abuse should not be allowed by the Court to circumvent and defeat the ends of justice. In this context, Mr. Bhatia heavily relied upon the decision of the Supreme Court in the cases of Jhumman Singh vs. Central Board of Investigation and Ors, AIR 1995 Supreme Court 2083, apart from relying upon the decisions rendered in K.K. Modi vs. K.N. Modi and Ors. (1998) 3 SCC 573; Amir Din Shahad Din vs. Shiv Dev Singh AIR (34) 1947 Lahore 102 and R.V. Weisz & Anr. Ex parte Hector Mac Donalt 1951 Vol.2, All England Law Reports 408.
19. After carefully considering the rival submissions of the parties, this Court is of the view that the suit in instant case was not maintainable and the learned Trial Court, rightly did not entertain the same. Apart from the fact that there was a legal bar against the maintainability of the Act which was brought to the notice of the court by the defendant, the suit was manifestly vexatious and a blatant abuse of the process of the Court. It can only be termed as an audacious attempt on the part of one of the parties to a prior litigation to overreach the court and the Trial Court in such a case could not have remained a silent spectator, when it was satisfied that the litigation was inspired by vexatious motives and was meant only to harass the other parties to the suit.
20. In the case of T. Arivandandam vs. T.V. Satyapal and Anr. 1978 (1) SCR 742 while exercising powers under Order VII Rule 11 of the Code, the Supreme Court made the following pertinent observations to curb the filing of frivolous litigations: - “We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif‟s Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful-not formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Or. VII r.11 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if cleaver drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X C.P.C. An activist Judge is the answer to irresponsible law suits. The trial court should insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code (Ch.XI) is also to his cost realized what George Bernard Shaw remarked on the assassination of Mahatma Gandhi: “It is dangerous to be too good.” The trial court in this case will remind itself of s.35-A C.P.C. and take deterrent action if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless. In any view, that has no survival value and should be disposed of forthwith after giving an immediate hearing to the parties concerned.”
21. In the celebrated case reported as Liverpool & London S.P., & I Association Ltd. Vs. M.V. SEA Success I and Anr., (2004) 9 SCC 512, the Supreme Court held as under: - “….It is trite that a party should not be unnecessarily harassed in a suit. An order refusing to reject a plaint will finally determine his right in terms of Order 7 Rule 11 CPC. The idea underlying Order 7 Rule 11(a) is that when no cause of action is disclosed, the courts will not unnecessarily protract the hearing of a;suit having regard to the changes in the legislative policy as adumbrated by the amendments carried out in the Code of Civil Procedure, the courts would interpret the provisions in such a manner so as to save expenses, achieve expedition and avoid the court‟s resources being used up on cases which will serve no useful purpose. A litigation which in the opinion of the court is doomed to fail would not further be allowed to be used as a device to harass a litigant.….”
22. In the case of ITC Limited vs. Debts Recovery Appellate Supp. SCC 315 with reference to the provisions of Order VII Rule 11 CPC again reiterated that the whole purpose of conferment of such powers is “to ensure that a litigation which is meaningless and is bound to prove abortive should not be permitted to occupy the time of the court.”
23. In view of the aforesaid discussion, there is no merit in the present appeal. The appeal is accordingly dismissed.
REVA KHETRAPAL (JUDGE) April 16, 2010 sk