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HIGH COURT OF DELHI
RFA 253/2016
KRISHAN GOPAL AGGARWAL ..... Appellant
Through Mr. Ankur Mahindro and Mr. Rohan Taneja, Advs.
Through Mr. Bhim Sain, Adv.
RAVINDER KUMAR AGGARWAL ..... Appellant
Through Mr. Ankur Mahindro, Adv.
VIJAY KUMAR AGGARWAL ..... Appellant
Through Mr. Ankur Mahindro, Adv.
JUDGMENT
01.04.2022
2022:DHC:1371
1. These applications, for the reasons which would be elucidated hereinafter are, in my view, a complete abuse of the process of Court.
2. RFAs 253/2016, 254/2016 and 255/2016 in which these applications have been moved, impugn a judgment dated 21st December, 2015, passed by the learned Additional District Judge (“the learned ADJ”), whereby CS No. 214/14/2009, CS No. 213/14/09 and CS No. 212/14/09, preferred by the appellants, which were in the nature of counter-claims by the appellants, seeking specific performance of an Agreement to Sell dated 29th September, 1995 read with a Compromise dated 30th April, 2004, were rejected. The appellants claimed to have been in continuous physical possession of the suit property and, according to Mr. Mahindro, they continue to be in continuous physical possession of the suit property till date.
3. The three counter-claimants, whose counter-claims were dismissed by the aforesaid order dated 21st December, 2015, have assailed the said decision and also preferred by way of the aforesaid RFAs and also preferred applications for stay being CMs 15694/2016, 15709/2016 and 15715/2016. The following order was passed by this Court on 2nd May, 2016 while admitting the said appeals: “3. The appeals impugn the judgment and decree of dismissal of the claim for specific performance of each of the appellants.
4. Admit.
5. Trial Court records be requisitioned.
6. Issue notice to the respondent by all modes including dasti, returnable before the Registrar on 31st August, 2016.
7. List in the category of "Regulars" as per turn.
8. The counsel for the appellants after full hearing and when this Court wanted to give reasons for declining the interim stay sought withdraws the applications for stay.
9. CMs No.15694/2016, 15709/2016 & 15715/2016 stay are dismissed as withdrawn.”
4. By these applications, the appellants effectively seek a second bite at the cherry, as they desired to resuscitate the prayer for stay of operation of the judgment dated 21st December, 2015; a prayer which this Court, expressly, was inclined to reject on 2nd May, 2016, and at which juncture the appellants chose to withdraw their applications for stay.
5. In my view, it is completely impermissible for the applicants, at this stage, to revive the request for stay which, at pain of rejection, they consciously chose to withdraw on 2nd May, 2016.
6. Mr. Mahindro submits that he has now chosen to revive the request for stay in view of intervening circumstances, which were not in existence on 2nd May, 2016.
7. In support of this contention, Mr. Mahindro has invited my attention to the orders dated 9th May, 2018 in CS 609/2017 and 15th February, 2020 in CS 419/2019. These appear to be suits in which the present appellants were defendants and the present respondents were the plaintiffs. Mr. Mahindro points out that the order dated 9th May, 2018 in CS 609/2017, passed by the learned Senior Civil Judge-cum- Rent Controller (“the learned SCJ”), records the submission of the respondent in the present appeal (as the plaintiff in that suits) that the appellants were in physical possession of the suit property.
8. Mr. Mahindro also invites my attention to the following passages, from the order dated 15th February, 2020, passed by the learned Civil Judge in CS 419/2019. “The title of the plaintiff over the suit property has not been denied by the defendant. The mere contention raised by the defendant is to the extent that by way of agreement to sell between the parties, right has existed in favour of the defendant who held that mere agreement between the parties does not create any right or title over the suit property. It is in admitted fact that no sale deed has ever been executed in favour the defendant. Moreover, the suit for specific performance filed by the defendant has already been dismissed by Ld. ADJ and till the the appeal filed by the defendant is disposed off, the finding given by Ld. ADJ shall be treated as final. The defendant has also relied upon Deoraj Vs. State of Maharashtra & Ors. cited in SLP.
(C) No. 2617 of 2004 wherein it was held by the Hon'ble Supreme Court of India that where granting of an Interim relief would tantamount to granting of the final relief itself, a very strong prima facie case of a standard much higher than the just prime facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of case totally in favour of the applicant may persuade the court to grant interim relief though it amounts to granting the final relief itself. In the present case the plaintiff has proved his title over the suit property; the possession of Ms. Prem Kanta Jain over the suit property; right of the plaintiff to enter into the suit property and the apprehension that the the defendant may create any third party interest in the suit property, to the satisfaction of the court. A strong prima facie case exists in favour of the plaintiff.”
9. Mr. Mahindro submits that the aforesaid order dated 15th February, 2020 in CS 419/2019 was assailed by his clients, as aggrieved defendants in that suit, by way of MCA 02/2020, which came to be dismissed by the learned SCJ by the judgment dated 17th November, 2021, in which Mr. Mahindro draws my attention to the following words: “It is not the averment of the defendant that after the purchase of the impugned property, possession of the suit property was transferred to him and Ms. Prem Kanta Jain became his tenant and ever paid rent to him. Suit for specific performance filed by the defendant has already been dismissed by Ld. ADJ and till the appeal filed by the defendant is disposed of/ further directions or observations made in the said appeal, the findings given by the ld. ADJ shall be treated as final.”
10. If the aforesaid orders are permitted to be implemented, and the respondents are permitted to act on their basis, Mr. Mahindro submits that it would result in irreparable prejudice to his clients, who, even as per the position admitted by the respondent, have been and continued to be in possession of the suit property. For these reasons, he submits that in the interest of justice it would merit a direction to continue the status quo regarding possession of the suit property, as it existed during the pendency of the proceedings before the learned ADJ, which culminated in passing of the judgment dated 21st December, 2015 under challenge in these RFAs.
11. Mr. Mahindro also cites, in support of his contention, the judgment of the Supreme Court in Mool Chand Yadav v. Raza Buland Sugar Company Limited[1], specifically drawing my attention to para 4 of the said report, which reads thus: “3. We heard Mr. S.N. Kacker, learned Counsel for the appellants, and the respondents appeared by Caveat through Mr. Manoj Swarup, Advocate. We are not inclined to examine any contention on merits at present, but we would like to notice of the emerging situation if the operation of the order under appeal is not suspended during the pendency of the appeal. If the F. A.F.O. is allowed, obviously Mool Chand Yadav would be entitled to continue in possession. Now, if the order is not suspended in order to avoid any action in contempt pending the appeal, Mool Chand would have to vacate the room and handover the possession to the respondents in obedience to the Court's order. We are in full agreement with Mr. Manoj Swarup, learned advocate for respondents, that the Court's order cannot be flouted and even a covert disrespect to Court's order cannot be tolerated. But if orders are challenged and the appeals are pending, one cannot permit a swinging pendulum continuously taking place during the pendency of the appeal, Mr. Manoj Swarup may be wholly right in submitting that there is intentional flouting of the" Court's order. We are not interdicting that finding. But judicial approach requires that during the pendency of the appeal the operation of an order having serious civil consequences must be suspended. More so when appeal is admitted. Previous history of litigation cannot be overlooked. And it is not seriously disputed that the whole of the building, Hari Bhawan, except one room in dispute is in possession of the Corporation. We accordingly suspend the operation of the order dated 6th August 1982 directing the appellants to handover the possession of the room to the respondents till the disposal of the first appeal against that order pending in the High Court of Allahabad. Mr. Manoj Swarup requests that both the earlier and later Appeals should be heard together as early as possible, We order accordingly and request the High Court if it considers proper in its own discretion to hear both the appeals as expeditiously as possible in order to avoid the continuance (1982) 3 Supreme Court Cases 484 of the boiling situation. The appeal stands disposed of. There shall be no order as to costs.”
12. It is for these reasons, Mr. Mahindro submits that his clients have been constrained to seek, yet again, stay of operation of the judgment dated 21st December, 2015.
13. As I have stated at the commencement of this order, this proceeding is prima facie an abuse of process of the Court.
14. There is no question of the appellants being entitled to reagitate their claim for stay of the impugned judgment dated 21st December, 2015, once the claim has been agitated and there is a clear recording by this Court, at that stage, in the order dated 2nd May, 2016, that, when the Court was inclined to dismiss the applications for stay, the appellants consciously withdrew the request for stay. Allowing them to reagitate the applications for stay, would be permitting forum shopping, which is something to be condemned at all costs.
15. Clearly, the appellants are seeking, by a sidewind, to obtain interlocutory interdictions against the respondent acting in pursuance of the orders passed in other proceedings between the appellants and the respondent in CS 609/2017 and CS 419/2019.
16. Having failed in appeals, preferred by them against the order dated 15th February, 2020, before the learned SCJ, the appellants are now seeking maintenance of the status quo, prior to passing of the judgment dated 21st December, 2015, by means of these applications.
17. Once the applications for stay of the judgment dated 21st December, 2015, were withdrawn by the appellants, the judgment dated 21st December, 2015 operates with full force. All parties are entitled to proceed on the premise that the judgment is in operation. There can be no grievance whatsoever to any party proceeding on that basis, as it is but a natural and inexorable sequitor of the appellants having consciously decided not to press their applications for stay filed with these RFAs.
18. The judgment in Mool Chand Yadav[1], clearly, is completely distinguishable. It did not involve any such situation, in which an order was under challenge and applications for stay of the order were withdrawn and, thereafter, the parties chose to act on the basis of that order. If they do so, it is entirely in accordance with law, and there can be no question of any interdiction with any such action.
19. For the aforesaid reasons, these applications, being completely misconceived, are dismissed. No costs.