Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 2552/2008
SHRI VARINDER SAHNI ..... Plaintiff
Through: Mr. N.S. Vasisht, Advocate.
versus
PRATAP K. KAULA AND OTHERS ..... Defendants
Through: Mr. Rajiv Nanda, Advocate for
defendants No. 2 to 4.
Mr. Kajal Chandra, Advocate with
Ms. Prachi Gupta, Advocate for
defendants No.5 and 6.
nd
% Date of Decision: 22 February, 2013.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
J U D G M E N T
MANMOHAN , J (Oral):
I.A. 8821/2012 in CS(OS) 2552/2008
1. Present application has been filed by defendant Nos. 5 and 6 under
Section 151 CPC praying for dismissal of the plaintiff’s suit in view of the
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order dated 26 April, 2012 passed by a Division Bench of this Court in
RFA(OS) 8/2008.
2. In the present application, it is stated that applicants being defendants
No.5 and 6 had filed a suit for specific performance for Agreement to Sell
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dated 30 September, 1986 against defendants No.1 to 4 in suit being
CS(OS) 2552/2008 Page 1 of 7
CS(OS) 2630/1994 and the plaintiff herein with respect to the suit property.
3. In CS(OS) 2630/1994 an issue was framed “Whether Defendant no.6
(plaintiff herein) is a bonafide purchaser for valuable consideration without
notice of the suit property? If so, its effect.”
4. A learned Single Judge of this Court vide judgment and order dated
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20 December, 2007 decreed the applicants suit being CS(OS) 2630/1994 in
favour of the applicants and against the defendants No.1 to 4 and the
plaintiff herein.
5. Against the said judgment and order of learned Single Judge, plaintiff
preferred an appeal being RFA(OS) 8/2008 before the Division Bench of
this Court.
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6. The Division Bench vide its judgment and order dated 26 April,
2012 in RFA(OS) 8/2008 dismissed the appeal of the plaintiff and upheld
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the judgment and order dated 20 December, 2007 passed in CS(OS)
2630/1994. The relevant portion of the Division Bench’s order is
reproduced hereinbelow:-
“15. Qua R.N.Sahni, Varinder Sahni and Sahni
International Pvt. Ltd. the learned Single Judge has held
that they were aware of the agreement to sell Ex.PW-1/2
and that the tenancy in favour of the company and the
agreement to sell in favour of Varinder Sahni
created/executed by the legal heirs of Mrs.Vijay Malini
Kaula were intended to weaken the right of Mrs.Nisha Raj
and Ranjit Raj.
16. We need not note the reasoning of the
learned Single Judge with respect to the issues settled on
13.11.1995, for the reason the impugned decree was
challenged by the legal heirs of Mrs.Vijay Malini Kaula
vide RFA(OS) No.5/2008. During the pendency of the
said appeal they settled the dispute with Mrs.Nisha
CS(OS) 2552/2008 Page 2 of 7
Raj and Ranjit Raj and filed CM No.14086/2008 in
said appeal, bringing on record the settlement
that they would receive ` 3 crores and would
simultaneously execute the sale deed in favour of
Mrs.Nisha Raj and Ranjit Raj. The settlement has been
given effect to.
xxx xxx xxx
22. Thus, unless Varinder Sahni can show that he
was unaware of the agreement to sell Ex.PW-1/2 when
the legal heirs of Mrs.Vijay Malini Kaula and he
entered into the agreement to sell Ex.DW-6/1 on
30.12.1994, he cannot predicate any defence to defeat
the right of Mrs.Nisha Raj and Ranjit Raj, which has
been acquired by them after they compromised the
dispute with the legal heirs of Mrs.Vijay Malini Kaula.
23. Narration of some facts may be necessary to
show whether Varinder Sahni was a bona-fide purchaser
or not. As noted above, after the death of Mrs.Vijay
Malini Kaula, Mrs.Nisha Raj and Ranjit Raj filed CWP
No.3314/1994 where Mr.P.K.Kaula, the husband of the
seller was impleaded as respondent No.3. This writ
petition was disposed of by order dated 10.11.1994
leaving the parties to resolve their problems elsewhere.
However, the statement of the counsel for Income Tax
Authorities was recorded that the possession of the
property would be handed over if the payment was
made within one week by the owner. Mr.P.K.Kaula,
accordingly, made payment to the Income Tax
Department on 16.11.1994. The p oss es sion was,
h ow e ve r , no t han ded o ve r to Mr.P.K.Kaula.
xxx xxx xxx
29. From the admissions made by Varinder
Sahni it needs to be highlighted that he admits having
discussed the transaction with his father before signing the
agreement to sell Ex.DW-6/1. He admits being aware of
CS(OS) 2552/2008 Page 3 of 7
the Income Tax Authority’s requisitioning the property,
which requisition was with respect to the agreement to
sell Ex.PW-1/2. It is apparent that the knowledge of his
father pertaining to Ex.PW-1/2 was passed on to him,
dehors the fact that his admission of being made aware of
the property being requisitioned by Pawan Kaula
establishes his knowledge of the existence of Ex.PW-1/2.
30. Thus, there is tell-tale evidence of R.N.Sahni and
his son Varinder Sahni being aware of the existence of
Ex.PW-1/2 and the claim of Mrs.Nisha Raj and Ranjit Raj
under the same.
31. The claim of Varinder Sahni that the talks
and the agreement between him and the legal heirs of
Mrs.Vijay Malini Kaula pertaining to the subject
property was discussed and settled on 30.12.1994 is
patently false for the reason, the stamp papers
pertaining to the lease deed Ex.DW-2/1 under which
Sahni International Pvt. Ltd. was inducted as a tenant in
the property and the agreement to sell Ex.DW-6/1
bear a stamp of having been issued on 29.12.1994. The
same stamp vendor has sold the two stamp papers which
bear serial issue number as entered in the sale register by
the stamp vendor.
32. Thus, the appellants cannot predicate a stand
that it would be iniquitous to enforce the agreement to
sell Ex.PW1/2 and relief of specific performance as per
Section 20 of the Specific Relief Act is discretionary. The
claim for equity could be raised by the legal heirs of
Mrs.Vijay Malini Kaula. They have settled the matter
with Mrs.Nisha Raj and her husband Ranjit Raj.
Appellants cannot urge the bar of limitation.
Appellants cannot urge that with the requisition of
the property by the Income Tax Authorities the
agreement to sell Ex.PW-1/2 stood frustrated. They
cannot urge that due to rise in the price of the property
and that under Ex.PW-1/2 a paltry sum of 10,000/-
was paid as earnest money-cum-sale consideration
CS(OS) 2552/2008 Page 4 of 7
and thus Ex.PW-1/2 should not be specifically enforced.
We reiterate, being not bona-fide prospective
purchasers; and there being evidence that the appellants
were only desiring to put spokes in the wheels set into
motion by Mrs.Nisha Raj and her husband Ranjit Raj, the
appellants are left with nothing to litigate with Mrs.Nisha
Raj and her husband Ranjit Raj.
33. The appeals are dismissed with one set costs
assessed in sum of ` 50,000/- against the appellants and
in favour of Mrs.Nisha Raj and her husband Ranjit Raj.”
7. In reply to the present application, plaintiff has only stated that a
Special Leave petition has been preferred in the Supreme Court against the
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judgment and order dated 26 April, 2012 passed in RFA(OS) 8/2008 by the
Division Bench.
8. In rejoinder, it has been pointed out that even the Special Leave
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petition filed by the plaintiff against the judgment dated 26 April, 2012 has
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been dismissed by the Supreme Court on 18 January, 2013. The order
passed by the Supreme Court is reproduced hereinbelow:-
“Delay condoned.
We find no merit in these petitions for special leave. These are
dismissed.”
9. Mr. N.S. Vasisht, learned counsel for plaintiff urges that the present
suit is still maintainable as the plaintiff is a prior bonafide purchaser for
valuable consideration.
10. In the opinion of this Court, there cannot be two decrees of specific
performance with regard to the same suit property and that too, when the
plaintiff’s version in the present suit which had been set up as a defence in
CS(OS) 2552/2008 Page 5 of 7
CS(OS) 2630/1994 between the same parties has been specifically rejected
by another learned Single Judge and Division Bench of this Court.
11. This Court is of the view that after the judgment of Division Bench
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dated 26 April, 2012, the cause of action in favour of the plaintiff to
maintain the present suit does not survive.
12. It is pertinent to mention that in Liverpool & London S.P. & I
Association Ltd. Vs. M.V. Sea Success I and Another, (2004) 9 SCC 512
the Supreme Court has held as under:-
“132. 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 of the
Code of Civil Procedure.
133. 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. (See Azhar
Hussain v. Rajiv Gandhi 1986 Supp SCC 315 at pp. 324-35.)”
13. The Supreme Court in Shipping Corporation of India Ltd. Vs.
Machado Brothers and Others, (2004) 11 SCC 168 has held as under:-
“25. Thus it is clear that by subsequent event if the original
proceeding has become infructuous, ex debito justitiae, it will
be the duty of the court to take such action as is necessary in the
interest of justice, which includes disposing of infructuous
litigation. For the said purpose it will be open to the parties
concerned to make an application under Section 151 CPC to
CS(OS) 2552/2008 Page 6 of 7
bring to the notice of the court the facts and circumstances
which have made the pending litigation infructuous. Of course,
when such an application is made, the court will enquire into
the alleged facts and circumstances to find out whether the
pending litigation has in fact become infructuous or not.
xxx xxx xxx
31. For the reasons stated above, we are of the opinion that
continuation of a suit which has become infructuous by
disappearance of the cause of action would amount to an abuse
of the process of the court, and interest of justice requires that
such suit should be disposed of as having become infructuous.
The application under Section 151 CPC in this regard is
maintainable.”
14. Consequently, in the opinion of this Court, the present suit has
become infructuous in view of the subsequent judgment of the Division
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Bench of this Court dated 26 April, 2012. Accordingly, present suit is
dismissed, but with no order as to costs.
15. With the aforesaid observations, present application also stands
disposed of.
MANMOHAN, J
FEBRUARY 22, 2013
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CS(OS) 2552/2008 Page 7 of 7