Full Text
HIGH COURT OF DELHI
PRIME TIME INDIA ..... Plaintiff
Through: Mr. Anil K. Airi, Sr. Advocate with Mr. Ravi Krishan Chandna, Ms. Sadhana Sharma, Ms. Bindiya Logawney, Mr. Karan Chibber and
Mr. Malyaj Sehgal, Advocates
Through: Mr. Shikhar Sareen, Advocate for D-2
Mr. R. S. Saini, Mr. Viniay Sharma and Ms. Jasmine Saini, Advocates for D-4
JUDGMENT
1. The present application has been filed by the Applicant/ Plaintiff under Order XIV Rule 5 read with Section 151 of Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) inter-alia seeking the following reliefs: “a. Strike off the issues No. 2,3,5,6,[7] and 9 framed on 15.09.2017; b. Appoint a local commissioner for recording of Evidence in the above matter on the cost to be borne by the parties; c. Pass any other order(s) that this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”
FACTUAL MATRIX
2. The captioned suit has been filed on behalf of the plaintiff seeking specific performance of agreement dated 24th December, 2003.
3. In the present suit the following issues were framed by the predecessor bench of this Court on 15th September, 2017:- “i. Whether the plaintiff is entitled for the decree of specific performance of the agreement to sell dated 24.12.2003? OPP ii. Whether the suit filed by the plaintiff company is not maintainable? OPD-1 iii. Whether the suit is liable to be stayed under Section 10 CPC? OPD-1 iv. Whether the plaintiff has no cause of action to institute the present suit? OPD-1, 2 & 4 v. Whether the suit is not maintainable under Section 80 CPC? OPD-1 vi. Whether the suit is bad for non-joinder of necessary and proper party? OPD-1 vii. Whether the present suit has not been filed by a competent person? OPD-1 viii. Whether the proper description of the property in dispute has not been furnished in the plaint, if so, its effect? OPD ix. Whether the plaintiff company has no locus standi to file the present suit? OPD-1 x. Whether defendant No.1 - SomnathVij had no legal authority to sign agreement to sell dated 24.12.2003 on behalf of the defendants No.2 & 4? OPD-2 & OPD-4 xi. Whether the present suit has been filed in conspiracy between the plaintiff, defendant No.1 & Ashok Kapoor? OPD-2 xii. Whether the agreement to sell dated 24.12.2003 is a fabricated and manipulated document? OPD-2 & 4 xiii.Relief” (emphasis supplied)
4. The Applicant/ Plaintiff by way of present application is praying for deletion / striking off of issues no ii, iii, v, vi, vii & ix.
5. Mr. Anil K. Airi, learned senior counsel appearing for the plaintiff submitted that during the pendency of the instant suit, the plaintiff with defendant no. 1 & 3 entered into a compromise qua the 22% share of defendant no. 3 in the suit property. The terms of this compromise were reduced to writing vide application submitted under Order XXIII Rule 3 of the CPC, i.e. I.A. no. 1541 of 2005. The agreement was signed and money was received from the Plaintiff, according to an affidavit that was also submitted by Defendant no. 1 in support of the motion. The following are the terms of the said settlement:
6. It is submitted that in view of the compromise between the parties a decree dated 15th July, 2017 was also issued.
7. It is submitted that since the pleadings of Defendants No. 1 and 3 have been included into the compromise application and the decree thereof, the issues no. ii, iii v, vi, vii & ix are liable to being struck off and thus, no issues pertaining to the Defendants nos. 1 and 3 may be framed.
8. It is submitted that the matter was scheduled to be brought before this Court on 15th September, 2017, however the counsel for the Defendant submitted an adjournment slip indicating his inability to appear on that day. Resultantly, the Plaintiff's counsel was unable to appear to assist this Court. It is further argued that the issues framed will prolong the resolution of the aforementioned suit and consequently harm the interest of the Applicant/ Plaintiff.
9. It is further submitted that this Court framed the aforementioned issues on the basis of the objections submitted by the Defendants in the written submissions and hence, the burden of proof for the aforementioned issues has also been placed on Defendant no. 1.
10. Learned senior counsel appearing on behalf of the Plaintiff/ Applicant further submitted that Defendant no. 1 had been added as a Defendant in the aforementioned suit, since, he was the person with the right to sell the property in question and was a signatory of the agreement to sell.
11. It is submitted that the Defendants no. 1 and 3 filed baseless motions and objections to the aforementioned compromise in an effort to back out of its provisions, which was done with malicious motives. On the basis of the joint application filed by the Plaintiff, Defendant no. 1, and Defendant no. 3, this Court was pleased to issue a decree dated 6th July, 2017 in favour of the parties to the said application with respect to the 22% share of the Defendant no.3 in the property in question, dismissing the objections to the terms of the settlement.
12. In light of the submissions made by the Applicant/ Plaintiff, it is prayed before this Court that the said issues are liable to be to deleted/ struck off. (on behalf of Defendants/Non-applicants)
13. Learned counsel appearing on behalf of the Defendants/ Non- Applicants submitted that the purported authorized representative/director of the Applicant/ Plainitff in this case filed the application without being authorized to do so. The present application under Order XIV Rule 5 read with Section 151 CPC was neither filed with a board resolution, nor was the affidavit embossed with the company's seal and hence, the same is liable to dismissed solely on this ground.
14. It is submitted that the Plaintiff has violated the Court's orders by adding new construction as recently as late December 2017 to the Custodia- Legis property, which is the subject of the lawsuit. On 21st November, 2005, the predecessor bench of this Court issued orders stating hereunder: "The learned counsel for the parties seek permission to withdraw all their respective applications. The same are dismissed as withdrawn. The parties undertake to maintain status quo as obtaining today with respect to the suit properties." Thus in view of the above, the Defendant maintains the right to take appropriate legal recourse against the Plaintiff.
15. Learned counsel appearing on behalf of Defendant no. 2 submitted that Defendant no. 3 filed a motion for compromise only with respect to her 22% ownership interest in the suit property. In accordance with Order XXIII Rule 3, the Plaintiff, Defendant no. 3 and Defendant no. 1 filed an application. The same applied to Defendant no. 3's rights alone, or to her 22% part exclusively. The aforementioned compromise proposal does not grant Defendant no. 1 any rights in the suit property. It is disputed that the compromise application merges the arguments of Defendant no. 1. Issues ii, iii, v, vi, vii & ix regarding the pleadings of Defendant no. 1 are still open and are not subject to being dismissed.
16. It is submitted that the compromise application bearing I.A. NO. 1541/2005 was exclusively with respect to the rights of Defendant no. 3‟s 22% stake pertaining to the suit property, without affecting the rights of Defendants no. 2 and 4A. Moreover, the Defendant no. 1 has no inherent title in the suit property.
17. Learned counsel appearing on behalf of the Defendants/Non- Applicants submitted that the Defendant no. 1 had no authority to enter into or execute any agreement on behalf of the Defendant no. 4, all of the issues that are being sought to be struck, are required for a fair and accurate determination. In actuality, the issues raised also come from the Defendant's pleadings.
18. It is further submitted that this Court correctly framed the issues on 15th September, 2017, and the said issues are crucial for the fair and appropriate adjudication of the current case. It is further submitted that Defendant no. 1 had the proper authority to enter into an agreement to sell with the Plaintiff. The written statement of Defendant no. 1 disputes the Plaintiff Company‟s assertions on the validity of the agreement to sell dated 24th December, 2003. Therefore, the issues ranging from (i) to (xiii) have been correctly framed by the predecessor bench of this Court.
FINDINGS AND ANALYSIS
19. Heard the learned counsel for the parties and perused the record.
20. At this juncture, this Court finds it appropriate to peruse the judgment dated 6th July, 2017 passed by the predecessor bench of this Court in I.A. No. 1541/2005 i.e. with respect to the compromise application jointly filed by the Plaintiff/ Applicant and Defendant No. 1 & 3. Perusal of the said judgment makes it evident that only the rights with respect to Defendant NO. 3 have been crystallised, without affecting the rights of other co-owners. The relevant paragraphs of the said judgment are reproduced hereunder:
21. Furthermore, in order to adjudicate the present lis, it would also be relevant to elaborate Order XIV Rule 5 of the CPC. The same reads as follows:
22. The revision, addition, deletion, or striking of issues, that have been framed by the Court for the purposes of adjudicating a dispute, are allowed under the provisions of Order XIV Rule 5 CPC. To ensure the determination of all issues that are in controversy between the parties to the suit is the primary objection of the said provision under the CPC. Another way to put this is to say that the enabling purpose of the provision is to do justice between the parties by not allowing any contentious questions to go undecided or undetermined.
23. The word “issue” has not been defined in the CPC, however, Order XIV Rule 1 of CPC elucidates that “issues arise when a material proposition of fact or law is affirmed by the one party and denied by other”. Thus, in a civil suit an issue is a point of contention on which both the parties contest. Furthermore, an issue emerges out of „material propositions‟ of either fact or law where parties are on a disagreement. To determine the real dispute and resolve the same, an issue may be framed that can narrow down the ambit of conflict. As per the provision of Order XIV Rule 1(5), an issue should be framed after the court has examined all the parties to the suit.
24. The object of Order XIV Rule 5 of CPC has been elaborated in the judgment of the Allahabad High Court titled as Modi Spinning and Weaving Mills Co v. Ladha Ram and Co reported as 1978 SCC OnLine All 221. The relevant paragraph of the said judgment is reproduced herein:
25. Furthermore, the scope with respect to amendment/ deletion of issues has been laid down by the Madras High Court in its judgment titled as M. Govindarajan & Ors. v. R. Ganesamoorthy & Anr. reported as 2013 SCC OnLine Mad 1229 whereby, it has been held that when the issues have been framed properly the same cannot be struck off or deleted. The relevant paragraph of the said judgment is reproduced hereunder:
26. Considering the arguments advanced on behalf of the parties and documents placed on record, it is clear that the issues were framed subsequent to the judgment dated 6th July, 2017 that was passed in compromise application bearing I.A. No. 1541/2005. Thus, it is apparent that all the relevant contentions, including the compromise decree, raised on behalf of the parties have been duly considered by the predecessor bench of this Court whilst the issues were framed.
27. Moreover, the issues that have been challenged before this Court are legal in nature and hence required for proper and just adjudication of the captioned suit.
CONCLUSION
28. Order XIV Rule 5 of CPC provides power to the Court to amend issues that are already framed or to frame additional issues or to recast the issues which may be necessary in order to determine a dispute before it. This power of the Court also includes the power to strike out the issues which are wrongly introduced or framed.
29. This power of the courts is to be exercised in accordance with the facts before the court while framing or reframing the issues of a particular matter in dispute. The Court has the authority to amend or strike out the issues as the need arises.
30. On perusal of the material on record and arguments advanced on behalf of the parties, this Court is of the view that a compromise with respect to the share of Defendant no. 3 between Plaintiff and Defendant NO. 1 & 3 in the said property shall not impact the rights of Defendant no. 2 and 4A. Moreover, the said judgement dated 6th July, 2017 passed by the predecessor bench of this Court does not crystallise the rights of any other co-owners pertaining the property in question.
31. Therefore, in light of the facts of the present application this Court finds that even though as per Order XIV Rule 5 of the CPC, the courts have the power to amend issues, the same will not be applicable in this case as the reliance by the Plaintiff on the compromise under Order XXIII Rule 3 of CPC qua the share of Defendant no. 3 is misplaced and the said averment cannot come to the rescue of the plaintiff since, the rights of other parties remain unaffected.
32. This court finds force in the arguments of the Non- Applicant/Defendants that the issues that are sought to be deleted are legal issues and are necessary for adjudication of the present suit. Thus, this Court is of view that the present application is devoid of any merit.
33. Accordingly, the present application is dismissed being devoid of any merit.
34. The judgment be uploaded on the website forthwith.
JUDGE FEBRUARY 2, 2023 Dy/ug