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HIGH COURT OF DELHI
JUDGMENT
OM PRAKASH ARORA ..... Plaintiff
Through: Mr Arun Bhardwaj, Sr. Adv. with Mr Bharat Deepak, Mr. Abhishek Mohan, Mr. Tarun Kapoor, Advs.
Through: Mr Sandeep Sethi, Sr. Adv. with Mr Irfan Ahmed, Adv. for D-1
Mr Irfan Ahmed, Adv. for D-1 to D-3 Mr Krishnendu Datta, Sr. Adv. with
Mr Sanjay Dua, Adv. for D-4 to D-7
ORDER DT. 07.07.2020
1. These are applications filed on behalf of Defendant No.1 and Defendant Nos. 4 to 7 respectively under Order XXXIX Rule 4 seeking vacation and/ or modification of the order dated 07.07.2020 passed by this court wherein this court was pleased to direct the Defendants to maintain status quo with regard to title and possession of property bearing number 21, 21-A Tughlak Road, New Delhi. 2022:DHC:2840
2. The factual matrix of the case as per the plaintiff is as under:a. Property bearing No. 21, 21-A Tughlak Road, New Delhi (hereinafter called the “Suit property”) was acquired by one Mrs. Chandnee Widya Madden through a perpetual lease on 03.12.1957 from Land and Development Office (L&DO). b. Mrs. Chandnee Widya Madden died on 20.10.1965 and was survived by her four daughters and one son viz., defendant No.1 (Mrs. Meenakshi Sardana), defendant No.2 (Smt. Raisina Bhatia) and defendant No.3 (Mrs. Sheila Chaithli) and the fourth daughter who is Ms. Prem Madden and also a son, Mr. Santosh M. Madden. c. Subsequent to a judgment and decree dated 13.01.1975 passed in Suit No. 132/1972 seeking declaration concerning the devolution of properties left behind by Mrs. Chandnee Widya Madden, it was declared that property bearing No. 21, 21-A Tughlak Road, New Delhi shall devolve upon her four daughters, herein mentioned above, to the extent of 25 % undivided share each. d. One of the daughters, Ms. Prem Madden remained unmarried and died on 11.01.1988, intestate, leaving no other legal heir except Defendant Nos. 1 to 3 and her brother, named Santosh M. Madden who inherited her 25 % share to the extent of 6.25% each in respect of the Suit Property. Hence, Defendant Nos. 1 to 3 became owners to the extent of undivided 31.25 % share each and Santosh
New Delhi being Probate Case No. 05/2014, and the Court of Ms. Vrinda Kumari, learned ADJ-03/PHC/New Delhi vide judgment dated 25.11.2014 was pleased to grant probate with the Will dated 23.10.2013 in respect of the debts and securities in favour of the Plaintiff. Hence, as per the plaint, the Plaintiff is the owner and in possession of undivided 6.25 % share of the Suit property. i. In the plaint, it is further submitted that the Statesman Ltd. is the tenant in respect of a portion in the Suit property and the rest of the area is in common possession of the Plaintiff and the Defendants. j. The Plaintiff submits that on 01.06.2020, the Plaintiff requested the Defendants through Defendant No.1 to partition suit property by metes and bounds, which request was again repeated on 20.06.2020. k. The Defendants refused to do so and on 25.06.2020 they further threatened to sell the entire Suit property and hand over possession to intending purchasers. The Defendants were threatening to dispose off the suit property to some third party along with possession of whole of the suit property to the detriment of the Plaintiff. Hence, the Suit filed by the Plaintiff for partition and injunction.
3. Defendant No.1 has filed a written statement wherein: a. The Defendant has taken preliminary objection that the Plaintiff has filed the Suit for possession but is not, nor has ever been in possession of any portion of the Suit property (either actual or constructive) and is liable to pay ad valorem Court fees on the value of the property. b. It is stated that the Plaintiff has only made a bald averment with regard to being in constructive possession of the Suit property and has failed to place any evidence which would show the Plaintiff to have any possessory rights in the Suit property. c. The Defendant No.1 has also challenged the Will dated 23.10.2013 as being forged and fabricated and states that she has already filed an application seeking revocation of grant of probate to the plaintiff. Defendant No.1 further states that none of the Defendants had been arrayed as party to the probate petition even though they were class I legal heirs of Mrs. Santosh M. Madden, and definitely close relatives of Mrs. Santosh M. Madden. They were the people whose rights were directly affected by grant/ non-grant of the Will, and hence, were a proper and necessary party in the list of close relatives. d. When the matter came up before this Court on 07.07.2020, this Court directed the Defendants to maintain status quo with regard to title and possession of the Suit property till the next date of hearing. The said order continues till date. e. On 08.04.2022, this Court allowed I.A. No. 3352/2021 filed by the Defendant Nos. 4 to 7 under Order 1 Rule 10. In the application, it was submitted that the Defendants Nos. 4 to 7 have purchased undivided 31.25 % of property from Mrs. Raisina Bhatia (Defendant No.2) in the year 1994, and pursuant to a compromise decree, possession was also handed over to the said Defendants.
4. Consequently, this Court was pleased to implead the Defendant Nos. 4 to 7 as proper and necessary parties to the present Suit. Consequent to their impleadment, Defendant Nos. 4 to 7 have filed their written statement, wherein amongst other submissions they have stated as under:a. It is clear from the record that the Plaintiff obtained the ex-parte ad-interim injunction vide order dated 07.07.2020 without impleading the present Defendant Nos. 4 to 7, who were necessary and proper parties. In fact, in the suit, the Plaintiff impleaded dead persons as Defendant Nos. 2 and 3 and clearly misled the Hon'ble Court in obtaining ex-parte injunction directing status quo in respect of the subject property. It is submitted by Defendant Nos. 4 to 7 that it is the present Defendants who ought to have been impleaded as Defendants and served the advance copy as it is the present Defendants whose rights in the property are severely affected by the ex-parte order. b. Defendant Nos.[4] to 7 further state that Defendant Nos. 2 and 3 have died long before filing of the present suit still they have been named as Defendants and ex-parte order has been obtained. It is an admitted fact that (purported) Defendant No.2, Ms. Raisina Bhatia, had passed away on 23.07.2011 i.e., about 9 years before institution of the present suit. Similarly, the Defendant No.3, Ms. Sheila Chaitli, had died on 12.01.2018. The present suit, filed on or around 01.07.2020, has thus been filed by impleading dead persons. This has obviously been done with malafide intention with a view to obtain an ex-parte injunction in the absence of and at the back of the present Defendants, who are the real affected persons. c. It is further stated that the Plaintiff has claimed to be in possession (though falsely) of his alleged undivided 6.25% share in the subject property with other co-owners i.e., inter alia, Defendant No.2 and Defendant No.3. If the Plaintiff claims to be in possession as alleged, surely, he cannot feign ignorance about their death which had happened 9 years and 2 years respectively before filing of the suit. d. The Plaintiff has no cause of action for filing the suit and has miserably failed to show his rights in the Suit property. The Plaintiff has claimed an Agreement to Sell dated 19th October 2013 in his favour from Mrs. Santosh M Madden in respect of an undivided 6.25% share in the suit property. The Agreement to Sell has not been filed. He has further submitted that Mrs. Santosh M Madden had received the full sale consideration. However, any particulars in this regard is conspicuously missing. In this view of the matter, the claim of the Plaintiff is wholly baseless and unsubstantiated. e. The Plaintiff has also claimed that Mrs. Santosh M Madden left behind her Will dated 23.10.2013 in his favour, the probate of which he has obtained from the Patiala House Court. It is a matter of record that in the said probate petition, the necessary and relevant parties were not impleaded and no notice was issued to them. Thus, the probate was obtained at the back of the Defendant No.1 and other relatives of Mrs. Santosh M Madden and as such, prima facie, is liable to be revoked. f. The present suit is liable to be dismissed since the Plaintiff has not paid the requisite court fee. The suit has been filed without paying the ad-valorem court fee, as per the Court Fee Act, 1870, as applicable to Delhi. The Plaintiff has also grossly undervalued the suit by claiming the value of the entire property as Rs. 40 Crores. The suit is therefore liable to be dismissed under the provisions of Order VII Rule 11 CPC.
5. With this factual background, the application under Order XXXIX Rule 4 being IA No. 7719/2022 was filed by Defendant No.1 wherein the Defendant No.1 submits that the will dated 23.10.2013 is under a cloud, and therefore the Plaintiff has no right interest in the Suit property.
6. It is also submitted by Defendant No.1 that the Suit and Probate proceedings is an attempt to illegally usurp the estate of Mrs. Santosh
7. It is submitted that the Defendant No.1 is a widow, aged about 84 years and has no source of income. The Defendant No.1 is desirous of settling all her property affairs during her lifetime. Further, the proposed Legal Representative (“LR”) of the Defendant No.3 has health issues and require funds for her medical treatment.
8. The Defendant No.1 also states that the operation of the order dated 07.07.2020 is by concealment of material facts and has rendered the Defendant No.1 remediless and the Defendant No.1 is unable to monetise her undivided 31.25 % share in the Suit property.
9. The Defendant Nos. 4 to 7 have also filed an application under Order XXXIX Rule 4 read with Section 151 CPC for vacation of ex-parte adinterim order dated 07.07.2020 being I.A. 7720/2022. The Defendant Nos. 4 to 7 have contended that the Plaintiff deliberately omitted to implead Defendant Nos. 4 to 7 and filed a suit against dead persons i.e., Defendant No.2 and Defendant No.3. Furthermore, the Plaintiff has no prima-facie case to obtain an injunction since he has failed to show his rights in the Suit property. Consequently, the Plaintiff has not placed any documents substantiating his claim over the said property. Additionally, the Plaintiff has not paid the appropriate court fee. It is further argued that assuming that the Plaintiff is entitled to 6.25% in the suit property, the said share is a miniscule portion of the entire property and thus, it would be unjust for the Plaintiff to claim an injunction in respect of the entire property. Moreover, it would prejudicially affect the rights of the co-owners particularly, the Defendants.
10. The Plaintiff has filed replies to both the applications namely, IA 7719 by Defendant No. 1 and IA 7720 by Defendant Nos. 4 to 7 where the stand of the Plaintiff is as under:a. The application under reply is not maintainable as the basic purpose of passing of ad-interim order was to preserve the title and possession of the property and to avoid multiplicity of litigation. b. The Applicants have no reason, cause or justification to file and maintain the application under reply after about two years from the date of passing of the ad-interim order, although the Defendant NO. 1 has been appearing in the matter and no such application or request has been made till the filing of the present application under reply. No reasonable cause, justification or any change in facts and circumstances has been shown as to why such an application was not filed earlier, if the Defendant No. l/applicant was aggrieved with the said interim order and no grave urgency has been depicted now. Moreover, no loss or injury is being caused to and/or pleaded by the Defendant No.1 because of the said adinterim order. c. It is also submitted that no ground for vacation of ad-interim stay order has been made out as the Defendant No. 1 has wrongly and falsely claimed and alleged that the Plaintiff has knowingly made any false or misleading statement in relation to a material particular. Admittedly, the Defendant No.1 has not claimed any right, title or interest in the 6.25% right, title, share and interest in the suit property which the Plaintiff has purchased by entering into an agreement to sell and making payment of sale consideration thereunder to Mrs. Santosh M Madden (since deceased), this fact has been admitted and confirmed by the said deceased in her last Will and Testament. d. The Defendant Nos.[4] to 7 have no locus standi to file and maintain the application under reply as the Defendant Nos.[4] to 7 are not the owners/co-owners of the suit property. Admittedly, there is no sale deed executed and registered in favour of the Defendant Nos.[4] to
7. The Defendant Nos.[4] to 7 claimed to have an alleged agreement to sell of 1994 and a compromise decree dated 20.02.2002, which do not confer/transfer any title in the suit property in favour of the Defendant Nos.[4] to 7. However, in spite of passage of the alleged compromise decree about 20 years ago, there is no sale deed executed and registered in favour of the Defendant Nos.[4] to 7. Further, during all this period of about 20 years from the date of alleged decree, the Defendant Nos.[4] to 7 have never sought any partition of the suit property. e. That the application under reply is not maintainable as in spite of the alleged agreement to sell of 1994 and the alleged compromise decree of 2002, the Defendant Nos. 4 to 7's suit for permanent and mandatory injunction being suit no. 159/2008 titled „Mr. K. L. Suneja and ors. -Vs- The Statesman Ltd. and Ors.‟ was dismissed by the then Ld. Court of Additional District Judge, Delhi vide judgment dated 03.03.2011. In the said suit, the Applicants i.e., Defendant Nos. 4 to 7, herein also impleaded Smt. Raisina Bhatia (with whom the Defendant Nos. 4 to 7 claimed to have entered into an agreement of 1994) as one of the Plaintiffs. Further, till recently the Defendant No.1, Smt. Meenakshi Sardana, never admitted and/or recognized the Defendant Nos. 4 to 7 or anyone of them to be the co-owners of the suit property. It appears that the Defendant No. 1 on the one hand and Defendant Nos. 4 to 7 on the other have joined hands in an unholy alliance with an ulterior motive to cast a cloud on the share of the Plaintiff and their illegal designs are apparent from their filing simultaneous applications for vacation of ex-parte interim Orders passed about 2 years back. Therefore, these applications are not maintainable in law and on facts.
11. Vide order dated 31.05.2022, the predecessor court had fixed these applications to be heard before the vacation bench. Accordingly, I have heard Mr. Arun Bhardwaj, learned senior counsel for the Plaintiff, Mr. Sandeep Sethi, learned senior counsel for Defendant No.1 and Mr. Krishnendu Datta, learned senior counsel appearing for Defendant Nos. 4 to 7.
12. The application has been filed under Order XXXIX Rule 4 seeking vacation and/ or modification of the order dated 07.07.2020 passed by this court. Order XXXIX Rule 4 of CPC reads as under: “Any order for an injunction may be discharged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order: Provided that if in an application for temporary injunction or in any affidavit supporting such application a party has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice: Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the order has caused undue hardship to that party.”
13. The proviso makes it clear that the court can exercise jurisdiction if in the application seeking temporary injunction or in the affidavit supporting such application, a party has made a false and misleading statement in respect to a material particular and injunction was granted without notice to the opposite party. Second proviso to Order XXXIX Rule 4 CPC lays down that even in cases where an injunction was passed after giving an opportunity to a party of being heard, the order can be varied or set aside where there is a change in circumstance or undue hardship is being caused to the party.
14. In the present case, the Plaintiff claims to be owner of 6.25% share of the suit property and admits that 31.25% undivided share in the Suit property belongs to the Defendant No.1. The same is clear from Paragraph 10 of the plaint which reads as under:- “10. That the Plaintiff Shri Om Prakash Arora in this manner became the owner and in possession in respect of undivided 6.25% share of the property bearing No 21,21 A Tughlak Road New Delhi with the three Defendants namely Defendant No 1 Smt Meenakshi Sardana, Defendant No 2 Smt Raisina Bhatia and Defendant No 3 Smt. Sheila Chaithli who are co owners to the extent of 31.25% undivided share each.”
15. Defendant No.1 is an 84-year-old widow and a senior citizen and has no source of income. She is seeking to monetise her share of 31.25%. The learned senior counsel has stated that all she wishes to do is to sell her entire undivided 31.25 % share or a portion of the 31.25 % share. However, the impugned order dated 07.07.2020 is preventing Defendant No.1 to sell her share.
16. I am of the view that the order dated 07.07.2020 is causing undue hardship and loss to the Defendant No.1. She cannot sell her share which is 31.25% of the undivided Suit property. The Plaintiff at best can be concerned with 6.25 % (of which he claims to be an owner) undivided share of the Suit property. He cannot be permitted to put to ransom the owners of 93.75 % share of the Suit property (admittedly). To maintain status quo in respect of the entire property is to prejudicially affect the rights of the co-owners and particularly the present Defendants. Thus, the ex-parte injunction order in favour of the Plaintiff (on the basis of his alleged 6.25% share in the entire property, the value of which he claims to be at Rs. 40 Crores) is wholly unjust and inequitable. The ex-parte injunction order dated 07.07.2020 is liable to be vacated on this ground.
17. I am also of the view that in order to succeed in an Order XXXIX Rule 1 and 2 application, the plaintiff has to satisfy the trinity test of primafacie case, balance of convenience and irreparable loss and injury. Assuming at best, the plaintiff has a prima-facie case of being an owner of 6.25% undivided share in the suit property, the balance of convenience does not lie in his favour. In fact, the balance of convenience lies in favour of owners of 93.75% share in the suit property whose rights have been curtailed by the ex-parte order dated 07.07.2020. The plaintiff has put a value of Rs. 40 crores to the suit property and his share of 6.25% is clearly quantifiable in monetary terms. Hence, the plaintiff cannot be said to be suffering irreparable loss which cannot be compensated in terms of money if the ex-parte order dated 07.07.2020 is vacated. According to me, the plaintiff does not satisfy the trinity test.
18. In addition to the above, equities and balances have to be struck between the competing claims. It is evident that the Plaintiff in the present case, being co-owner of a miniscule portion in the suit property amounting to 6.25%, is creating a dog in a manger scenario. The Defendant No.1 has a clear 31.25% share in the suit property as per plaintiff‟s own admission. The Plaintiff‟s share is 6.25% in the suit property but vide the impugned Order dated 07.07.2020 the Plaintiff is preventing Defendant No.1 from enjoying her share of 31.25% in the Suit property thereby acting in a prejudicial manner and causing undue hardship to Defendant No.1.
19. The Apex Court in Gautam Paul v. Debi Rani Paul 2000 SCC OnLine SC 1426 has held the following:
20. A similar view was taken by a single judge bench of this court in Sarla Aggarwal v. Sh. Ashwani Kumar Aggarwal 2012 SCC OnLine Del 5408, later upheld by a division bench of this court, that held the following:
21. According to me, plaintiff cannot put fetters on the defendant No.1 in enjoyment of her 31.25% share in the suit property. Enjoyment would include right to stay, let out, sell and/or monetise her share. In the present case, the Defendant No.1 is only concerned with her share and not with the 6.25% share of the plaintiff. The counsel for Defendant No.1 has made a categorical statement that she shall only deal with her 31.25% undivided share.
22. My attention is also drawn to the fact that the Defendant No.2, Ms. Raisina Bhatia and Defendant No.3, Ms. Sheila Chaitli died long before filing of the present suit on 23.07.2011 and 12.01.2018 respectively while the present suit has been filed on or around 01.07.2020. Yet they are named as Defendants and an ex-parte order has been obtained against them. The Plaintiff claims that he was not aware about the death of Defendant Nos.[2] and 3 at the time of filing of the suit, as Plaintiff was dealing with Defendant No.1 and then proceeded to implead dead persons in the suit filed on 01.07.2020. This reason does not satisfy the court. If the Plaintiff claims to be in possession as alleged, surely, he cannot feign ignorance about the death of Defendant Nos. 2 and 3 which had happened 9 years and 2 years ago respectively before filing of the suit. In fact, the non-impleadment of the LRs will amount to abatement of the suit against them.
23. It appears that the Plaintiff‟s actions are motivated by mischief and malafide intention with a view to obtain an ex-parte injunction in the absence of and at the back of the present Defendants, who are the real affected persons.
24. I am also of the view that the Plaintiff is neither in constructive nor in actual physical possession of the suit property. The mere averment that Plaintiff is in constructive possession is not good enough. There has to be some substantial proof to prima-facie show his constructive possession. The address of the Plaintiff, as per memo of parties, is 122, Jor Bagh, New Delhi. The Plaintiff has not filed any document to even remotely show that he was ever in possession of the suit property in any manner. If the plaintiff was in any kind of possession, the Plaintiff would have not shown ignorance about the death of two other coowners namely, Defendant Nos. 2 and 3, who died way back in the years 2011 and 2018 respectively. This adds weight to the averment that the Plaintiff is not in actual or constructive possession of the suit property. If he was aware, he would have certainly impleaded the LRs of the deceased Defendant Nos. 2 and 3.
25. Mere bald averments as to being in constructive possession of the suit property without supporting documents are not sufficient to establish constructive possession. The plaintiff claims that he being a co-owner is in joint possession of the suit property by virtue of the tenant who are in possession for and on behalf of the plaintiff and defendants. There is no rent agreement or any rent shown to have been received by the plaintiff. There is not even an averment to this effect in the plaint. The plaintiff does not have either actual or constructive possession of the suit property. The plaintiff has failed to place on record any evidence, documentary or otherwise, which should show that after specific ouster of his alleged predecessor i.e., Late Mr. Santosh Madden from the suit property, the plaintiff has done any act which would raise the presumption as to restoration of any possessory rights in the suit property in his favour.
26. According to me, the plaint is to be read as a whole and the possession of the plaintiff has to be ascertained from the averments made therein. The plaint and the documents accompanying the same form the basis on which inferences and conclusions are rendered. The coordinate bench of this court in Ramesh Kumar Bhagchandka v. Mahesh Kumar Bhagchandka 2014 SCC OnLine Del 1324 held the following:
27. In the present case also, a bare perusal of the plaint demonstrates that even though the plaintiff states he is in constructive possession, he has not placed any material evidence or document supporting the same. Except for bald averments, there is nothing to show possession of the plaintiff in the suit property. According to me, being in constructive possession is both a matter of fact and law. To plead that the plaintiff is in constructive possession without disclosing documents to show prima-facie possession of the plaintiff would not meet the rigours of Article 17(vi) of Schedule II of the Court Fees Act, 1870. Lack of material averments is a ploy to escape paying ad-valorem court fees provided under Section 7(iv)(b) of the Court Fees Act, 1870.
28. As a result, the Plaintiff is required to pay ad-valorem court fee at least on the valuation put by him on the value of the property for the purpose of court fee and jurisdiction as Plaintiff is not in possession, either physical or constructive, of the suit property. It is thus directed that the Plaintiff will pay ad-valorem court fee on his share within 15 days from today.
29. For the aforesaid reasons, the applications are allowed and the interim order of 07.07.20 is vacated. However, it is directed that the Defendants shall not sell, encumber, mortgage or create third-party rights with respect to undivided 6.25% share in the property bearing number 21, 21-A Tughlak Road, New Delhi till the next date of hearing.
30. List before Roster Bench on 08.08.2022.