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15th March, 2012 PJ VERGHESE ..... Appellant
Through: Ms. Vineeta Bansal, Advocate.
Through: Mr. Anil Sharma, Advocate with Mr.Vinod Kumar, Advocate.
To be referred to the Reporter or not? Yes VALMIKI J. MEHTA, J. (ORAL)
C.M. No. /2012 (to be numbered by the Registry)
Let this application be registered. There is no opposition to this application. Legal heirs of the deceased appellant are brought on record.
Application stands disposed of.
C.M. No.3096/2012 (Exemption)
Exemption allowed subject to just exceptions.
Application stands disposed of.
2010:DHC:1517 C.M. No.3093/2012
JUDGMENT
1. This matter was passed over on three occasions. Different counsel have appeared on the calls. On the 4th call, the counsel who appears states for the first time that the main counsel is out of station. It is prayed that the matter be adjourned. The counsel for the respondent/nonapplicant vehemently opposes the grant of adjournment. For the facts which are narrated subsequently, it is obvious that this application, and the strategies which are adopted on behalf of the appellant, are a sheer abuse of the process of law. For the sake of convenience the erstwhile appellant (since deceased), as also his legal heirs, are referred to as the appellant in this order.
2. The main appeal being RFA No.56/2010 was argued in detail on three dates of hearing, namely, on 5.1.2012, 19.1.2012 and 24.1.2012. At the stage of pronouncement of judgment on 24.1.2012 whereby I was inclined to dismiss the appeal, erstwhile counsel for the appellant, after taking instructions from the son of the appellant, who was present in Court (and which fact is confirmed by the counsel for the respondent appearing before me), agreed that the appeal be disposed of by a consent order. The presence of the son of the erstwhile appellant cannot be disputed. On 24.1.2012, the following consent order was passed:- “1. After arguments, counsel for the parties agree that the appeal can be disposed of, and is accordingly disposed of, by the following consent order:-
(i) The money decree of mesne profits passed against the appellant by the impugned judgment and decree is set aside.
(ii) The appellant will be entitled to withdraw the amount deposited by him in this Court alongwith accrued interest, if any.
(iii) The respondent will pay a total sum of ` 3 lacs to the appellant within a period of three months in full and final satisfaction of all his claims under the subject agreement to sell as also the present litigation. This amount granted to the appellant is in addition to the relief of waiver with respect to mesne profits decreed by the trial Court.
(iv) Appellant is granted time till 31.1.2014 to vacate the suit premises and the appellant agrees to file an undertaking within a period of four weeks from today to vacate the premises on or before 31.1.2014.
(v) Appellant will not in any manner encumber or part with possession or construct on the suit property till the time he vacates the premises and hands over actual, physical and vacant possession to the respondent/plaintiff.
2. Appeal is disposed of accordingly, leaving the parties to bear their own costs. Decree sheet be prepared. Trial Court record be sent back.
3. A copy of this order be given dasti to the counsel for the parties.”
3. After the passing of the aforesaid compromise order, this application was filed to recall the consent order dated 24.1.2012, obviously because there is backing out by the erstwhile appellant, and his son who was present in Court. The ground urged in the application that the earlier Advocate entered into a compromise suo moto without instructions is ex facie false because the son of the appellant was present in Court during the hearings/arguments of the appeal, and in fact the matter was during the hearing passed over for consideration of compromise terms and also adjourned too. At the outset, I considered that I might as well allow the application and pass the judgment on merits as the case was completely argued. The order dated 19.1.2012 also records that the arguments of the counsel were heard. However, if I allow this application by recalling the order dated 24.1.2012, the same would mean that the counsel, who argued the complete case on behalf of the appellant on the three dates of hearings, did not fairly argue the appeal, which however is false to the knowledge of the appellant. Travesty of justice is such that the appellant who had agreed to the consent order dated 24.1.2012 went to the extent of filing a complaint with the Bar Council against the earlier Advocate who had argued the appeal in detail and who had on instructions thereafter stated the terms of the compromise at the stage the appeal was to be dismissed on merits. Copy of the complaint to the Bar Council is annexed to the present applications. This complaint, I am now informed, has been withdrawn.
4. I would like to, therefore, recapitulate the facts in this case which were persuading me to dismiss the appeal against the impugned judgment dismissing the suit for possession and damages or in the alternative for recovery of the balance price paid under an Agreement to Sell. To put it in a nutshell the appellant regularly and repeatedly used to agree to the disposal of the suit by a compromise and thereafter each time backed out, and which is once again being done by this application to recall the consent order dated 24.1.2012.
5. The challenge by means of this Regular First Appeal (RFA) filed under Section 96 of Code of Civil Procedure, 1908 (CPC) was to the impugned judgment of the trial Court decreeing the suit of the respondent/plaintiff/proposed seller for possession of the suit premises bearing No. E-6, Kailash Park, Moti Nagar, New Delhi, admeasuring 60 feet x 42 feet-6 inches, and possession of which property was with the appellant under the subject Agreement to Sell. The trial Court also decreed the suit for damages in addition to the relief of possession.
6. The facts of the case are that respondent/plaintiff as a seller, and the appellant/defendant as a buyer, entered into an agreement to sell with respect to the suit property. The agreement between the parties is comprised in an undated receipt recording payment of a sum of `50,000/by the appellant/defendant to the respondent/plaintiff. The date of this receipt/agreement can be taken as 20.9.1993 as under the receipt an amount of `50,000/- was paid by a cheque dated 20.9.1993. There is one other subsequent undated receipt of `1,00,000/- which records the factum with respect to the agreement qua the suit property and the extension of time for making balance payment. The total price of the property was mentioned in this second receipt and which was to be calculated at `2,000 per sq. yds. It was claimed by the respondent/plaintiff that appellant/defendant being unable to make payment of the balance amount, initiated false litigation by filing a suit for injunction which was dismissed by the Court of Civil Judge at Delhi and an appeal against which judgment was also dismissed by the Senior Civil Judge by his judgment dated 16.1.1996 in RCA No. 69/1995. As per these judgments of the Civil Courts, possession of the appellant/defendant of the suit premises was held not to be as a tenant but only under the agreement to sell. Since the appellant/defendant failed to make the payment, the subject suit was filed claiming the alternative reliefs of possession with damages or for the balance of the price with interest. The appellant/defendant contested the suit by pleading that the respondent/plaintiff was not the owner of the suit property and he was therefore not entitled to the reliefs claimed in the suit. It was pleaded that since the respondent/plaintiff had no title he could not transfer title and, therefore, the suit should be dismissed. The factum with respect to the agreement to sell was admitted and it was also admitted that two amounts of `50,000/- and `1,00,000/- were paid by separate receipts. The appellant/defendant claimed that another sum of `75,000/- in cash was paid, and which was denied by the respondent/plaintiff. There was no proof with respect to this payment made of `75,000/-. It was pleaded by the appellant/defendant that the suit was liable to be dismissed.
7. Therefore, till the filing of the suit it appears that the basic dispute was the contention of the appellant/defendant of lack of title of the respondent/plaintiff qua the suit premises. After the pleadings in the suit were completed and during the course of hearing of an interim application, an order was passed on 27.3.2003 which reads as under:- “Suit No.158/2002 and IA No.965/2003 After hearing learned counsel for the parties for sometime and upon taking note of the circumstances that defendant had earlier filed a suit in the Court of Senior Sub-Judge, Delhi claiming the benefit of the same very agreement of which specific performance is sought by the plaintiff in the present suit before this Court, and also the circumstance that plaintiff has in the site plan filed in the suit before trial court, described the plaintiff as the "owner", and furthermore the stand taken by the learned counsel for the plaintiff in this Court that the recorded owner of suit property is Mr. Vazir Chand Kapur, Father of Mr. S.K. Kapur who died on 28.5.1978 leaving behind three sons (and one daughter) all of whom are present in Court, and all the sons and daughter of Mr. Vazir Chand Kapur would be prepared to execute necessary documentation for conferring proper title in favour of the defendant. In this view of the matter to my mind there is hardly any controversy left in this suit requiring the same to be sent to trial. Moreover the defendant is in possession of the entire suit property for over the last several years. The defendant has not made payment of rent, or in any manner exercised any status other than that of being the second party to that agreement of which specific performance is sought. Since by the conduct of the defendant, the defendant has owned up the terms of agreement, and is using and enjoying the property for so may years in part performance of the said agreement, it would be most inequitable and unjust for allowing the defendant to hold back the balance amount of consideration, which had to be paid as far back in the year
1994. Photocopy of the title deed in favour of the father Mr. V.C. Kapur will be handed over to defendant during the course of the day. Accordingly, while leaving the question of payment of interest for the delayed payment, in case delay be established, for being adjudicated at the end of the trial, the defendant is directed to deposit in this Court, the balance out of total agreed amount of Rs.5,66,670/- within a period of four weeks, which shall stand extended to eight weeks in case within a period of first four weeks atleast 50% of the balance amount is deposited. It is made clear that whereas the defendant claims that Rs.2.25 lakhs has been already paid, the plaintiff accepts only Rs.1.50 lakhs as having been paid, and therefore this aspect of Rs.75,000/- which is in dispute, will also be decided at the end of the trial. For the present purposes, the orders are being passed on the admitted stand of the parties, and thereafter it will be treated as if the defendant has already paid Rs.2.25 lakhs as claimed by the defendant. The plaintiff will hand over photocopy of the sale deed in favour of the father, as well as set of proposed documents which are proposed to be executed by the three sons and one daughter, and also the proposed draft of the final sale deed to be prepared in favour of the defendant, to the learned counsel for the defendant within the same period of four weeks. The originals of sale deed in favour of t he father, will be shown to learned counsel for the defendant within a period of two weeks from today. List on 18.7.2003. IAs No.750-52/2002 In view of the orders passed in the main suit, no orders are being passed in this application, which will however be revived in the event of non-compliance with those orders. Applications (IAs No.750-52/2002) stands disposed of. IA No.965/2003 This application is allowed. Subject to defendant complying with all the directions passed today., the written statement will be taken on record. Application (IA No.965/2003) stands disposed of.” (underlining added)
8. A reading of the order dated 27.3.2003 shows the following:-
(i) There was an agreement to sell between the parties and there was no dispute with respect to the identity of the suit property or the total price to be paid.
(ii) There were only two disputes which existed i.e. one was the stand of the appellant/defendant of lack of sole ownership of the respondent/plaintiff (there being other legal heirs of Wazir Chand Kapur other than the respondent/plaintiff) and the second of the fact whether the respondent/plaintiff had received, in addition to the sum of `1,50,000/- (which was admitted) also a sum of `75,000/-.
(iii) The aspect of dispute of ownership was settled because the suit property had belonged to the father of the respondent/plaintiff-Sh. Wazir Chand Kapur, who had died on 28.5.1978, and on the date of passing of the order all the legal heirs, being three sons and one daughter, including the respondent/plaintiff were present in Court, i.e. there was no dispute that the respondent/plaintiff was the owner of the suit property.
(iv) The only thing remaining was the showing of the title deeds in favour of the father of the respondent/plaintiff pertaining to the suit property.
9. I may note that during the course of trial, the respondent/plaintiff has proved on record the title deeds in favour of the father as Ex.PW1/1. The original title deeds were brought to the Court, and after the exhibiting of the photocopies of the title deeds, the original title deeds were returned back to the respondent/plaintiff.
10. The subject suit which was originally pending in the original side of this Court, was thereafter transferred to the District Court and the appellant/defendant once again backed out of the agreement recorded on 27.3.2003 by stating that the transaction could not be completed because No Objection Certificate (NOC) was required from the Delhi Development Authority (DDA) which was pleaded for the first time to be the owner of the property. Therefore, once again on account of the appellant/defendant disputing the title of the respondent/plaintiff, settlement could not be arrived at.
11. In fact, because of the disputes, the trial Court framed issues on 28.1.2004 and did not decide the applications filed by the respective parties, i.e. of the respondent/plaintiff to withdraw the balance sale consideration (less the disputed sum of `75,000/-) deposited in this Court by the appellant/defendant, and the other application filed by the appellant/defendant for seeking directions to the respondent/plaintiff that it was a must to get NOC from DDA to receive the consideration deposited in Court.
12. Once again, thereafter, there were talks of compromise and on 1.3.2005 the following order was passed:- “Parties have almost workout a compromise and the defendant has agreed to pay a sum of Rs.45,000/- (Forty Five Thousand only) to the plaintiff, besides withdrawal of the entire sum which was deposited in the Hon’ble High Court, to the plaintiff. The plaintiff has also agreed to this and he further states that he will assist the defendant by giving NOC and in any other manner which is necessitated by the defendant. Parties want to move appropriate application in this regard. As prayed, put up for further proceedings on 02.03.05.”
13. Even this compromise, which was almost arrived at, could not get through because of the backing out by the appellant/defendant, and this was recorded by the Court in its order dated 17.3.2005 which reads as under:- “Compromise could not be effected between the parties as the defendant is retracting now. Put up now for cross examination of the plaintiff witness on 21.4.05.”
14. During the course of trial, the witnesses from DDA/revenue department appeared as DW[4], and it was shown that the subject property did not belong to the Government or DDA and in fact the same was a private land. Affidavits by way of evidence were filed by both the parties and the respondent/plaintiff proved his case of his ownership of the suit property through his father and the factum of the appellant/defendant refusing to pay the balance consideration, including of opposing the withdrawal by the respondent/plaintiff of the amount deposited in the Court by the appellant/defendant and as recorded in the order of the Court dated 27.3.2003. The appellant/defendant in his evidence once again pleaded with respect to disentitlement of the respondent/plaintiff of the price of the property as it was pleaded that DDA was the owner and not the respondent/plaintiff. The respondent/plaintiff was also cross-examined that it was DDA which was the owner of the suit property and whereby the Agreement to Sell was allegedly could not/cannot be gone through.
15. A conspectus of the above makes it clear that the appellant/defendant was disputing the title of the respondent/plaintiff simply for the sake of it, although the title deeds of the suit property in the name of the father of the respondent/plaintiff was proved on record, and the witnesses from the DDA/revenue department stated that the suit land was in fact a private land not belonging to DDA. It was, therefore, clear that the appellant/defendant wanted to continue the enjoyment of the suit property by creating unnecessary disputes and vexatiously denying the title of the respondent/plaintiff.
16. It is in this background that after the appeal was argued for three dates, I was inclined to dismiss the same, and at which stage, the matter was settled between the parties by recording a consent order on 24.1.2012 and the salient features of which were as follows:- (a) The rights of the respective parties under the agreement to sell came to an end, and the respondent/plaintiff was to pay a sum of `3,00,000/- to the appellant/defendant, besides waving the money decree in his favour at `1000 per month alongwith interest thereon at 6% per annum. (b) The appellant/defendant was granted a long period of time so as to make alternative arrangements to shift from the suit property, i.e. time was granted up to 31.1.2014 to vacate the suit premises.
17. I have stated the aforesaid facts in detail to show that the disputes were settled and a consent order was passed as per the situation which emerged on 24.1.2012. Clearly, therefore, the subsequent backing out of the appellant/defendant from the compromise was mala fide to say the least, and which is compounded by the fact that a false complaint was made to the Bar Council alleging that the Advocate for the appellant/defendant acted suo moto, although, the said Advocate was regularly and duly instructed on different dates.
18. If Courts allow recalling of consent orders on frivolous and vexatious ground that the Advocate who represented the appellant committed breach of faith and duties, and which is definitely not the case herein, then no Advocate will be safe and every litigant merely to suit his interest will not only seek recalling of a consent order, but will file complaint in the Bar Council against his Advocate. It is, therefore, clear that the consent order was in fact a due consent order and it cannot be said that the Advocate for the appellant/defendant acted unilaterally as is being falsely alleged now. Merely, because there has been a change of thought is not a ground for recalling of a consent order. Of course backing out by the appellant was nothing new, as the same was a regular feature in the past also.
19. The application, being a gross abuse of the process of law, is therefore dismissed with costs of `50,000/-, and which amount can be adjusted from the amount which is payable by the respondent/plaintiff/nonapplicant to the appellant/defendant under the consent order dated 24.1.2012.
20. C.M. stands dismissed and disposed of in the aforementioned terms.
VALMIKI J. MEHTA, J. MARCH 15, 2012 Ne/AK