Full Judgment Text
$~24.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 948/2013
% Judgment dated 17.07.2014
ANUPAMA GUPTA & ORS ..... Plaintiffs
Through : Mr.Arunav Patnaik and Ms.Bhabna
Das, Advs.
versus
KULDEEP SINGH & ORS ..... Defendants
Through : Mr.P.S. Patwalia, Sr. Adv. with
Mr.Ashok Mahajan and Ms.Kamlesh
Mahajan, Advs. for defendant no.1.
Mr.Y.R. Sharma, Adv. for defendant
no.9.
Mr.Ravi Bassi, Adv. for defendants no.11
to 17, 23 to 25 and 27 to 29.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J ( ORAL )
I.A.3470/2014
1. This is an application filed by defendant under Order VII Rule 11 CPC
read with Section 151 CPC seeking rejection of the plaint on the ground
that all the disputes between the parties have attained finality before the
Supreme Court of India by a detailed judgment dated 7.2.2014 passed in
Civil Appeals Nos.1873, 1874 and 1875/2014, and, thus, there is no cause
of action in favour of the plaintiffs for the continuation of the present suit.
2. This application has been opposed by counsel for the plaintiffs/non-
applicants on the ground that issues raised in the present suit with respect
CS(OS)No.948-2013 Page 1 of 24
to fraud played upon by defendant no.1 on the Court was not a subject
matter before the Supreme Court of India and, thus, this question remains
wide open to be adjudicated upon by this Court.
3. Before the rival submissions of the parties can be noticed, it would be
necessary to notice the background in this matter. This case has a long and
chequered history. The basic dispute between the parties arises out of an
Agreement to Sell dated 30.7.1980, with respect to the property bearing
no.9, Sunder Nagar, New Delhi (hereinafter referred to as the „suit
property‟). The defendant no.1 is the purchaser of the suit property. The
undisputed facts are as that the suit property initially belonged to one
Sh.Nand Lal, who expired in the year 1962. Thereafter the property was
inherited by his four legal heirs i.e. (i) Sh.Banarsi Dass, (ii)
Sh.Dhanpat Raj, (iii) Sh.Din Dayal and (iv) Smt.Gaindo Devi, widow of
th
Sh.Paras Ram, one of the sons of late Sh.Nand Lal, with 1/4 share, each.
After the demise of Sh.Nand Lal, the property stood mutated in the name
of the four legal heirs of late Sh.Nand Lal.
4. The Agreement to Sell with respect to the suit property was signed by
eight legal heirs of late Sh.Nand Lal, as disclosed by the sellers. It is the
case of defendant no.1 that the name of one legal heir, who was a minor,
Sh.Rajinder Kumar, (hereinafter referred to as „the minor‟) was not
disclosed to the purchaser. On 12.11.1981 L&DO granted permission to
the legal heirs to sell the suit property subject to payment of unearned
increase of Rs.7,17,330/-. The permission was sought by the sellers being
the owners of the suit property. In the year 1981, the minor filed a suit
th
with the prayer that he had succeeded to 1/24 share in the suit property
and he was not bound by the Agreement to Sell dated 30.7.1980.
Meanwhile, defendant no.1 filed CS(OS)280/1982 on 10.1.1982 for
specific performance of the Agreement to Sell against the sellers
CS(OS)No.948-2013 Page 2 of 24
including the minor (all legal heirs). The defendants were duly served
with the summons in the suit. Time was granted to file the written
statement, however, since, the defendants after service and after seeking
time to file the written statement failed to file written statement, the
Single Judge decreed the suit for specific performance on 30.4.1984 under
Order VIII Rule 10 CPC in favour of the plaintiff (defendant no.1 herein).
5. Aggrieved by the decree so passed, defendants in the suit filed RFA
14/1985 before a Division Bench of this Court. This said RFA was
dismissed on 22.3.1985. Thereafter the judgment debtors (defendants no.1
to 8 in Suit No.280/1982) filed an application under Order IX Rule 13
CPC on 15.7.1985 seeking to set aside the ex parte decree dated
30.4.1984. This application under Order IX Rule 13 CPC was dismissed
on 15.7.1985. Meanwhile, the decree holder filed an execution petition,
being Ex.Pet.No.164/1990 on 7.11.1990. One of the judgment debtors,
being judgment debtor no.5, Sh.Mahender Kumar Gupta, filed objections
to the said Execution Petition on 19.4.1981 on the ground that the decree
did not satisfy the requirement of Section 2(2) of the Code of Civil
Procedure. Another application was filed by the minor under Order XXI
Rule 58 CPC stating that there was no decree against him. During the
pendency of the execution petition on 24.4.1999 judgment debtors filed
I.A.4274/1999 in CS(OS)280/1982 under Section 20 of the Specific
Relief Act for rescission of the Agreement to Sell dated 29.7.1980 and to
set aside the decreed so passed. This application was filed on the ground
that the purchaser, Sh.Kuldeep Singh, had failed to deposit the balance
sale consideration of Rs.12.60 lakhs. The matter was contested by
Sh.Kuldeep Singh, being defendant no.1, in the said suit and the
application was dismissed on 23.2.2000. Thereafter against the order
dated 23.2.2000, an appeal, being FAO(OS)110/2000, was filed on
CS(OS)No.948-2013 Page 3 of 24
24.4.2000 before a Division Bench of this Court.
6. Meanwhile, the Single Judge dismissed the objections filed by judgment
debtors on 1.2.2002 holding the decree dated 30.4.1984 as an executable
decree. Against the aforesaid order, FAO(OS) 66/2002 was filed by the
judgment debtor in the month of February, 2002. The High Court directed
defendant no.1 to deposit the balance sale consideration on 6.1.2010 at the
time of final hearing of FAO(OS)110/2000 and FAO(OS)66/2002.
7. Vide two separate judgments of the same date, FAO(OS)110/2000, which
had arisen out of dismissal of the application filed under Section 20 of
Specific Relief Act, and FAO(OS)66/2002, which had arisen out of
dismissal of the objections, were dismissed by the Division Bench on
19.2.2010.
8. Two review petitions were filed in both FAO(OS)NOS.110/2000 and
66/2002, which were dismissed by two separate judgments dated
25.4.2011. Against the judgments dated 19.2.2010 and 25.4.2011 four
Special Leave Petitions were filed in the Supreme Court of India by the
judgment debtors including the plaintiffs in the present suit. The Supreme
Court dismissed all the Special Leave Petitions in part and allowed the
appeals arising out of an application filed under Section 28 of the Specific
Relief Act by a detailed judgment dated 7.2.2014. The Supreme Court
directed defendant no.1 herein to deposit the sale consideration at the
circle rate as fixed by the Supreme Court at the rate of Rs.2.15 lakhs, per
sq. meters, which amounts to Rs.15,50,15,000/-. This Court is informed
that this amount stands deposited by defendant no.1.
9. The submission of learned counsel for both the parties are to be
considered in this backdrop.
10. The first submission of learned senior counsel for defendant
no.1/applicant is that the averments made and the issues raised in the
CS(OS)No.948-2013 Page 4 of 24
present suit were also argued before the Apex Court by the plaintiffs
herein and the Apex Court finally passed a judgment on 7.2.2014
exercising jurisdiction under Article 141 of the Constitution of India with
a view to do substantial justice in the matter, which is evident upon
reading of paras 38, 44 and 45 of the judgment and with a view to finally
decide all the disputes between the parties except the rights of the minor,
although it is pointed out that as of today the suit filed by the minor also
stands dismissed and the RFA is still pending.
11. To buttress his arguments further, Mr.Patwalia learned senior counsel for
the contesting defendant no.1 submits that the Supreme Court of India in
the judgment dated 7.2.2014 observed that two issues would arise for their
consideration as noticed in para 12 of the judgment, being:
(A) Is the decree executable? and
(B) Was the application for rescission properly decided?
12. It is contended by learned senior counsel for defendant no.1 that issue
no.(A), being a broad issue, would cover each and every aspect relating to
the subject property including the issues raised in the present suit and all
the disputes and arguments, which were raised before the Apex Court. As
far as issue no.(B) is concerned, the same was decided in favour of the
judgment debtors inasmuch as the Apex Court, to balance the equities,
directed payment to be made at the circle rate from 16 November, 2011,
onwards. Paras 44 and 45 read as under:
“44. The circle rate of the residential property based on which the
unearned increase is calculated by the L&DO, would show a sharp
increase during the period. Sunder Nagar comes under Category
„A‟ colonies. Under the Delhi Stamp (Prevention of Undervaluation
of Instruments) Rules, 2007, the notified circle rate for Category
„A‟ colonies from July 2007 was Rs.43,000/- per square meter and
from February 8, 2011, it was Rs.86,000/- per square meter. From
CS(OS)No.948-2013 Page 5 of 24
November 16, 2011, it was Rs.2,15,000/- per square meter and
from January 5, 2012, it is Rs.6,45,000/- per square meter.
45. In the peculiar facts and circumstances of the case, we are of the
view that the trial court should have passed an equitable order while
considering the application for rescission. Having regard to the fact
that the decree was passed in 1984, we feel that it would be unjust
and unfair to relegate the parties to the trial court at this distance of
time. For doing complete justice to the parties, we are of the view
that it is a case where the purchaser should be directed to pay the
land value to the vendors as per the circle rate notified for the
residential property in Category „A‟ colonies prevailing during
November 16, 2011 to January 5, 2012, at the rate of Rs.2,15,000/-
per square meter. The purchaser shall also be liable to meet the
liability arising by way of unearned increase to be paid to the Land
and Development Office. He is free to withdraw the amounts
deposited by him in the court as per order dated 06.01.2010. It is
also ordered that in case the plaintiff does not deposit the amount to
be paid to the vendors within three months from today, the vendors
shall deposit in court within two months thereafter the amount
calculated as per the circle rate referred to above by way of
compensation to be paid to the purchaser, and in which event, they
shall stand discharged of their obligations under the contract and
the decree. In the event of the purchaser depositing the amount as
above, the execution proceedings shall be finalized
within another one month. The Court in seisin of the Suit OS No.
1428 of 1981 shall dispose of the same within three months from
today.”
13. Mr.Patwalia, learned senior counsel for the defendant no.1, submits that
the issues raised in the present suit were also raised by the plaintiffs
before the Supreme Court of India at the time of arguments and detailed
written submissions were filed with respect to the issues before this Court.
Further to show that the subject matter of the present suit was also argued
CS(OS)No.948-2013 Page 6 of 24
before the Supreme Court of India, reliance is placed by learned senior
counsel for defendant no.1 on the contents of an application filed by the
present plaintiffs, who were arrayed as petitioners no.1A to 1D in the
Special Leave Petition No.29361-29361/2012. In the application for
permission to file additional documents an averment was made in para 2
that the subsequent to filing of the petition (SLP) there have been
important subsequent developments in the execution proceedings as well
as in a connected suit entitled Rajinder Kumar v. Kuldeep Singh , which
would have an essential bearing on the petition and also the
accompanying documents, sought to be relied upon by the
applicants/plaintiffs herein and also the petitioners before the Supreme
Court were party to the proceedings in courts below. In para 2 of this
application, the applicant has averred that the documents would establish
that the decree dated 30.4.1984 was obtained by concealment and fraud
on the Court and such a decree would be a nullity and non-est in the eyes
of law. Para 2 of the application filed before the Supreme Court of India
reads as under:
“2. That, after the filing of this Petition, there have been
important subsequent developments in the Execution proceedings,
as well as in connected Suit entitled Shri Rajinder Kumar v. Kuldip
Singh, that have an essential bearing on the present Petition. The
accompanying documents, are a part of the proceedings in the
Courts below. They are necessary to be placed on Record before
this Hon‟ble Court. These documents establish that the Decree
dated 30.04.1984 was obtained by concealment and fraud on the
Hon‟ble Court. Such a Decree is a nullity on its own and is non-est
in the eyes of law. It has been held in numerous pronouncements
that such a Decree can be and has to be held as a nullity in any
connected proceeding – including these proceedings [Vide (2012)
11 SCC 574; (1994) 1 SCC 1].”
CS(OS)No.948-2013 Page 7 of 24
14. It is further submitted by Mr.Patwalia, learned senior counsel for
defendant no.1, that the plaintiffs herein (petitioners before the Supreme
Court) had also filed written submissions before the Supreme Court
wherein reference to the present suit has been mentioned in the first para
of the written submissions, which reads as under:
“At the very outset, it is submitted that the judgment and decree
dated 30.4.1984 is a nullity being (a) obtained by deception,
concealment and fraud both prior to the passing of the decree as
well as after, and (b) against statutory provisions of the Urban Land
Ceiling Act, 1976 wherein there was a bar against the vendee
decree holder (DH) from purchasing the suit property. These issues
have been dealt with in the arguments and submissions made on
behalf of respondent no.6, Vijay Lakshmi, by learned senior
counsel, Mr.Jayant Bhushan. The petitioners adopt the same and
are not repeating them to avoid prolixity. These frauds are the
subject matter of pending objections before the Executing Court as
well as Suit No.948/2013 pending in the High Court of Delhi for a
declaration that the decree is a nullity as it was obtained by fraud.”
15. Thereafter in para 6 under the heading “ fraud played by the decree
holder ”, it has been observed as under:
“6. The DH obtained the Decree by manifest concealment and
fraud. In the pre Decree period, the DH did not disclose his
inability to pay the money demanded by the L&DO, he also did not
disclose his ineligibility to purchase the property as he was
debarred from such a purchase under Sec 29(b) of the ULCA 1976.
These aspects are subject matter of pending objections in the
Executing Court.”
CS(OS)No.948-2013 Page 8 of 24
16. Reliance was also placed by the plaintiffs herein before the Supreme
Court of India on various decisions including the decision rendered in
S.P. Chengalvaraya Naidu (Dead) by LRs. v. Jagannath (Dead) By LRs
and Others , reported at 1994 (1) SCC 1, in support of the contention that
a decree obtained by concealment is a nullity and can be challenged at any
time and also mentioned that the same decision was followed in 2012 (1)
SCC 476 (both decisions are being relied upon by counsel for the plaintiff
today as well.)
17. Learned senior counsel for defendant no.1 submits that a complete
reading of the judgment of the Supreme Court would leave no room for
doubt that the aim and purpose of the Apex Court was to put the entire
controversy between the parties at rest and the same very issues, which
are subject matter of the present suit, were argued before the Supreme
Court, which is also evident upon reading the preliminary submissions
made in the written submissions extracted hereinabove.
18. Once these issues were raised before the Apex Court and the Supreme
Court has finally decided the matter the plaintiff cannot be allowed to re-
agitate the same in the present suit as the present suit would now have
been left with no cause of action.
19. It has also been argued that the present suit is hopelessly barred by
limitation as the affidavit was filed within the knowledge of the sellers
and the sellers were aware of the same even at the time when the suit was
filed and decreed.
20. Mr.Patnaik, learned counsel for the plaintiffs, further submits that the
present suit was filed within the period of limitation as the period of
limitation would commence from the date the fraud was discovered and in
this case the fraud was discovered in the year 2012.
CS(OS)No.948-2013 Page 9 of 24
21. Counsel for the plaintiffs/non-applicants submits that the subject matter
before the Supreme Court was entirely different and the dispute between
the parties has not attained finality.
22. Mr.Patnaik, learned counsel for the plaintiffs/non-applicants, submits that
as per the policy of L&DO, no person was allowed to be allotted any
leasehold residential property if he/she his/her spouse/dependent children
owned any residential property in Delhi/New Delhi/Cantonment. Further
any such person who did not satisfy the above mandatory requirement
was not allowed to acquire such property even by indirect sale. This was
ensured by an affidavit which was required to be filed with the L&DO
under its Policy as well as the competent authority under the Urban Land
Ceiling Act, 1976. Thus in the year 1980, in order to obtain the said
permission, the vendee was mandatorily required to submit an affidavit
wherein the vendee was, inter alia , required to swear the affirm as
follows:
“ I further declare that neither my wife/ nor any of my
dependent children nor any of my other dependents own any
residential plot/ house in Delhi / New Delhi/ cantonment
either in his/her own name or in the name(s) of any other
person.”
23. Shri Kuldeep Singh, defendant no.1 herein, signed the above affidavit of
22.09.1980, which was attested by the Indian Embassy in Kuwait and
submitted the same on 30.01.1981. Based on the same, and other relevant
documents, L&DO granted the sale permission on 12.11.1981. However,
it was later discovered that Gurcharan Kaur, the wife of Shri Kuldeep
Singh, was, as on the date of the affidavit, and continues to be, the owner
of a property being N-7, Green Park Extension, New Delhi. The said
property was purchased by defendant no.1 in his wife‟s name vide
CS(OS)No.948-2013 Page 10 of 24
registered sale deed no.5240, additional book no.1, Volume 1168, page
no.179-182, dated 30.07.1964, and supplementary sale deed no.5723,
additional book no.I, volume 1177, at page 163, dated 22.08.1964. In
addition, it was discovered that defendant no.1 also owns numerous other
properties in his own name, and that the address of his father-in-law was
given in all correspondence in order to deliberately cheat and mislead the
property owners.
24. Mr.Patnaik further submits that it was further discovered, by way of an
application under the Right to Information Act, 2005, that on 13.11.1981,
a letter was sent on behalf of defendant no.1 to L&DO seeking an
extension of 1 month to deposit the unearned increase in price of the
property. However, the said amount, which was the responsibility of the
vendee to pay as per the agreement, was never deposited with L&DO, as
the said Vendee was not ready with the funds in the time period required
to be deposited by L&DO. It is therefore evident that the vendee was not
ready and willing to perform his obligations under the agreement. Further,
as a result of non-payment of the unearned increase by the vendee within
the extended period (which expired on 12.12.1981), the sale permission
was closed by L&DO. Therefore, in any event, in the absence of the sale
permission from L&DO, the agreement to sell cannot be enforced.
25. It is thus contended that a completely false and misleading affidavit and
declaration as regards ownership of other property in Delhi was submitted
by defendant no.1 to L&DO, and were it not for this false affidavit,
L&DO would not have granted permission to sell the said property. These
crucial facts had been concealed not only from the owners of the property
but also from the High Court while it was deciding Suit No.280 of 1982.
It is submitted that if the Court was aware of these facts it would
undoubtedly not have decided the matter in favour of Shri Kuldeep Singh,
CS(OS)No.948-2013 Page 11 of 24
defendant no.1. Hence, the decree dated 30.04.1984 was obtained by
fraud and suppression of crucial facts which strike at the heart of the
matter.
26. As far as the submission of learned senior counsel for defendant no.1 that
the decision of the Supreme Court covers all the aspects of the matter,
learned counsel for the plaintiff submits that the Supreme Court had not
returned any finding on the subject matter of the present suit i.e. question
of fraud and secondly while the Supreme Court had made a categorical
observation with regard to the suit filed by the minor no such observation
was made to the present suit. It is strenuously argued that the judgment or
decree obtained by fraud on the Court is a nullity and non-est in the eyes
of law.
27. I have heard learned counsel for the parties and considered their rival
submissions. Defendants no.1 has filed the present application for
rejection of the plaint in view of the judgment dated 7.2.2014 rendered by
the Supreme Court of India. The arguments of learned senior counsel for
defendant no.1 can be summarised as under:
(i) The Supreme Court of India in its judgment dated 7.2.2014
has decided all the issues between the parties including the
subject matter of the present civil suit.
(ii) Reading of the judgment dated 7.2.2014 rendered by the
Supreme Court of India would show that the subject matter
of the present suit and all arguments relating thereto were
argued in detail before the Supreme Court of India, which is
evident from the fact that:
(a) in the application filed by the plaintiffs before the
Supreme Court of India to file additional
documents, an averment was made in para 2 of the
CS(OS)No.948-2013 Page 12 of 24
application that the decree dated 30.4.1984 was
obtained by defendant no.1 by concealment and
fraud and, thus, the decree would be a nullity and
non-est in the eyes of law.
(b) the plaintiff, who was also party before the
Supreme Court of India, that filed written
submissions before the Supreme Court of India
wherein reference of the present suit was
maintained. Relevant extract of the written
submissions have been extracted hereinabove.
(c) reliance placed on judgments before the Supreme
Court of India and this Court is identical.
(iii) In view of the judgment rendered by the Supreme Court of
India, the present suit has become infructuous as the cause of
action is disappeared.
(iv) Reading of the judgment passed by the Supreme Court of
India would show that the Apex Court had passed the
judgment exercising jurisdiction under Article 141 of the
Constitution of India with a view to do substantial justice in
the matter, which is evident upon reading of paras 38, 44 and
45 of the judgment.
(v) The present suit is hopelessly barred by limitation.
28. The arguments of learned counsel for the plaintiffs/non-applicants can be
summarised as under:
(i) The subject matter before the Supreme Court of India was
entirely different than the dispute raised in the present suit.
(ii) Defendant no.1 has played a fraud on the Court and sale
permission was granted by the L&DO on 12.11.1981 based
CS(OS)No.948-2013 Page 13 of 24
on a false affidavit.
(iii) In case the Supreme Court of India had decided issues raised
in the present suit such an observation would have been
made by the Court.
(iv) The plaintiffs only learnt in the year 2012 after filing of the
SLPs that the decree dated 30.4.1984 had been obtained by
fraud and suppression of crucial facts.
(v) A judgment was obtained by fraud is to be treated as a
nullity.
(vi) Application was filed before the Supreme Court of India only
to bring on record details of the present suit, however, no
orders were passed hterein.
29. The plaintiffs have sought the following relies in the present suit:
(i) Declare that the Judgment and Decree dated 30.04.1984
passed in Suit no.280/1982 (Annexure II), is a nullity as it
was obtained by concealment and fraud.
(ii) Pass a Decree of mandatory injunction restraining the
Defendant No.1 to 35 levy the fraudulently procured decree
dated 30.04.1984 on the plaintiff and defendant 2 to 38.
30. The stand taken by the plaintiffs/non-applicants in the suit as also in the
reply to the present application who were arrayed as petitioners no.1A to
1D in the Special Leave Petition Nos.29361-29362/2012 is that the decree
obtained by defendant no.1 is a nullity as it was obtained by fraud and by
deliberate concealment of essential facts.
31. During the pendency of the proceedings before the Supreme Court of
India the present plaintiffs had made an application to file additional
documents. Para 2 of the application reads as under:
CS(OS)No.948-2013 Page 14 of 24
“2. That, after the filing of this Petition, there have been
important subsequent developments in the Execution proceedings,
as well as in connected Suit entitled Shri Rajinder Kumar v. Kuldip
Singh, that have an essential bearing on the present Petition. The
accompanying documents, are a part of the proceedings in the
Courts below. They are necessary to be placed on Record before
this Hon‟ble Court. These documents establish that the Decree
dated 30.04.1984 was obtained by concealment and fraud on the
Hon‟ble Court. Such a Decree is a nullity on its own and is non-est
in the eyes of law. It has been held in numerous pronouncements
that such a Decree can be and has to be held as a nullity in any
connected proceeding – including these proceedings [Vide (2012)
11 SCC 574; (1994) 1 SCC 1].”
32. The submission of learned counsel for the plaintiffs/non-applicants that
the application filed before the Supreme Court of India was simply to
place additional subsequent events on record cannot be accepted as
reading of para 2 of the application, extracted hereinabove, would show
that according to the plaintiffs the subsequent events would have an
essential bearing on the Special Leave Petition. The plaintiffs further goes
on to state in para 2 that the documents, sought to be placed before the
Supreme Court of India, are necessary documents and those documents
would establish that the decree obtained on 30.4.1984 was obtained by
concealment and fraud. Reliance was placed on Badami (Deceased) By
her LR. V.Bhali , reported at (2012) 11 SCC 574 and S.P. Chengalvaraya
Naidu (Dead) By LRs v. Jagannath (Dead) By LRs and Others , reported
at (1994) 1 SCC 1.
33. Moreover, in case the only aim and object of the plaintiffs was to bring
subsequent events on record the same is not borne out from the record as
in case the plaintiffs before Supreme Court of India were not agitating the
CS(OS)No.948-2013 Page 15 of 24
question of fraud and concealment (subject matter of this suit) then there
was no occasion for the plaintiffs to submit written submissions on this
issue, which read as under:
“At the very outset, it is submitted that the judgment and decree
dated 30.4.1984 is a nullity being (a) obtained by deception,
concealment and fraud both prior to the passing of the decree as
well as after, and (b) against statutory provisions of the Urban Land
Ceiling Act, 1976 wherein there was a bar against the vendee
decree holder (DH) from purchasing the suit property. These issues
have been dealt with in the arguments and submissions made on
behalf of respondent no.6, Vijay Lakshmi, by learned senior
counsel, Mr.Jayant Bhushan. The petitioners adopt the same and
are not repeating them to avoid prolixity. These frauds are the
subject matter of pending objections before the Executing Court as
well as Suit No.948/2013 pending in the High Court of Delhi for a
declaration that the decree is a nullity as it was obtained by fraud.”
34. Reading of the application for placing additional documents on record and
the written submissions leave no room for doubt that the plaintiffs had
fully argued the grounds taken in the present suit before the Supreme
Court of India. If the aim and objective of the plaintiffs was not to seek a
decision from the Supreme Court and only bring to the notice of the
Supreme Court the pendency of the present suit there was no reason for
the plaintiff to cite list of judgments in support of the submission that a
decree obtained by concealment is a nullity.
35. Upon reading of the entire judgment of the Supreme Court of India, it
may be noticed that the Supreme Court in para 12 of his judgment
observed that two issues would arise for consideration i.e. (A) Is the
decree executable? and (B) Was the application for rescission is properly
decided?
CS(OS)No.948-2013 Page 16 of 24
36. In my view the issue no.(A) As to whether the decree is executable is a
very wide issue and the same would pertain to all the issues between the
parties. In view of the written submissions and the application to bring
additional documents on record, it cannot be said that this issue was not
agitated before the Supreme Court of India for the reason that if a matter
had not been argued there was no occasion for the plaintiffs to give
written submissions on the issue of concealment and fraud.
37. In the case of Shipping Corporation of India Ltd. Vs. Machado Brothers
& Ors. , reported at (2004) 11 SCC 168, the Apex Court has held that
during the pendency of the suit, if certain events takes place which makes
the suit infructuous then the suit cannot be kept pending. Relevant
paragraphs of the judgment read as under:
“25. Thus it is clear that by the 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 of CPC to 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.
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 such suit
should be disposed of as having become infructuous. The
application under Section 151 of CPC in this regard is
maintainable.”
CS(OS)No.948-2013 Page 17 of 24
38. In view of the decision rendered by the Supreme Court of India on
7.2.2014, the cause of action has disappeared and continuation of the suit
would amount to abuse of the process of Court and the plaint is liable to
be rejected.
39. The sequence of events, which have been detailed above, would show that
the parties have been fighting tooth and nail. Further decision has been
appealed and reviews have been filed.
40. It has also been argued before this Court that the present suit is hopelessly
barred by limitation as the plaintiffs seek to challenge the decree passed in
the year 2004. It may also be noticed that the case of the plaintiff in the
present suit is that a fraud has been played by defendant no.1 on the Court
and the fraud is that a false affidavit was filed with the L&DO. Further it
was suppressed that the unearned increase was not deposited by defendant
no.1 and the sale permission was closed. There is no explanation on the
part of the plaintiffs as to why the fraud was not unearthed earlier when
the parties have been locked into serious litigation during the period 1982
upto the year 2014. Two FAO(OS), application under Order IX Rule 13
CPC, RFAs, Objections to the execution petition and in fact two review
petitions and four Special Leave Petitions were filed, which would show
that the parties were actively pressing their respective proceedings in
every court of law.
41. Section 17 of the Limitation Act reads as under:
“17. Effect of fraud or mistake (1) Where, in the case of any suit or
application for which a period of limitation is prescribed by this
Act-
(a) the suit or application is based upon the fraud of the
defendant or respondent or his agent; or
CS(OS)No.948-2013 Page 18 of 24
(b) the knowledge of the right or title on which suit or
application is founded is concealed by the fraud of any
such person as aforesaid; or
(c) the suit or application is for relief from the
consequences of a mistake; or
(d) where any document necessary to establish the right of
the plaintiff or applicant has been fraudulently
concealed from him;
the period of limitation shall not begin to run until the plaintiff or
applicant has discovered the fraud or the mistake or could, with
reasonable diligence, have discovered it; or in the case of a
concealed document, until the plaintiff or the applicant first had the
means of producing the concealed document or compelling its
production:
PROVIDED that nothing in this section shall enable any suit to be
instituted or application to be made to recover or enforce any
charge against, or set aside any transaction affecting, any property
which-
(i) in the case of fraud, has been purchased for valuable
consideration by a person who was not a party to the fraud
and did not at the time of the purchase know, or have reason
to believe, that any fraud had been committed, or
(ii) in the case of mistake, has been purchased for valuable
consideration subsequently to the transaction in which the
mistake was made, by a person who did not know, or have
reason to believe, that the mistake had been made, or
(iii) in the case of concealed document, has been purchased for
valuable consideration by a person who was not a party to
the concealment and, did not at the time of purchase know,
CS(OS)No.948-2013 Page 19 of 24
or have reason to believe, that the document had been
concealed.
(2) Where a judgement-debtor has, by fraud or force,
prevented the execution of a decree or order with the period of
limitation, the court may, on the application of the judgement-
creditor made after the expiry of the said period extend the period
for execution of the decree or order:
PROVIDED that such application is made within one year
from the date of the discovery of the fraud or the cessation of force,
as the case may be.”
42. A careful reading of Section 17 of the Limitation Act would show that the
period of limitation would not begin to run until the plaintiff or the
applicant has discovered the fraud or the mistake with reasonable
diligence have discovered it or in the case of concealed document until the
plaintiff or the applicant first had the means of producing the concealed
document or compelling its production.
43. It is not in dispute that the affidavit, which according to the plaintiffs is a
false affidavit, was filed within the knowledge of the plaintiffs and in fact
their predecessors, as the application seeking permission to sell was filed
by the predecessors of the plaintiffs and no such objection was raised.
Moreover in case the plaintiffs were as serious as claimed about the fraud,
the minimum plaintiffs could have done was to implead the L&DO as a
party, which the plaintiffs has failed to do. In my view fraud, if any, was
not played upon the Court or on the plaintiffs but against the L&DO and
in case the present suit was bona fide L&DO would surely have been
impleaded as a party. It is surprising that the alleged false affidavit has
been filed before the L&DO. There is no explanation as to why L&DO
has not been made a party in the present suit. The plaintiffs had agreed to
CS(OS)No.948-2013 Page 20 of 24
sell the property for valuable consideration and not as to whether
defendant no.1 had another property in his name or anyone dependent
upon him or not. The relevant paragraph of the plaint with regard to the
present suit being within the period of limitation reads as under:
“4. That under the provisions of the Right to Information Act
[2005], as a result of inspection of the records of the Land and
Development Office [L&DO] on 06.11.2012, the present Plaintiff
has come to know that Defendant No.1 deliberately concealed and
suppressed essential material facts that go to the very root of the
issues pertinent for proper adjudication of the Suit No.280/1982.
The Defendant No.1 made completely false averments regarding
the eligibility of the Defendant No.1 to purchase the suit property
and his entitlement to the Decree sought in the said Suit. The
concealment and suppression of material facts as well as false
statements pertaining to the eligibility of the plaintiff to seek the
Decree for purchase of the suit property, are a fraud played on the
Hon‟ble Court. It has been held in numerous Judgments and
precedents that such a Decree obtained by fraud is non-est and a
nullity. That,
a. To this date, the Defendant and their legal heirs are
opposing the Execution of the Decree dated 30.04.1984,
interalia , on the grounds that (i) the Decree holder never
deposited the sale consideration in Court as per the
Decree, and, (ii) Each of the prayers in the decree dated
30.4.1984 was contingent to adjudication in the Original
Suit, which adjudication was never done. However,
notwithstanding the above objections, the Plaintiffs have
now discovered that the Decree dated 30.4.1984 was
obtained by Defendant no.1 by a manifestly blatant fraud,
not only on this Hon‟ble Court, but also on all the co-
owners of the Suire property.
b. On 15.10.2012, a property broker Sh.Baleshwar Sharma,
approached Plaintiff No.2, with an investment proposal in
flats in a property numbered N-7, Green Park Extension,
CS(OS)No.948-2013 Page 21 of 24
New Delhi. On examination of property papers, the
plaintiff no.2 was surprised to learn for the first time that
the said property was owned by the wife of Defendant
No.1, Sh.Kuldeep Singh. The plaintiffs were in a
quandary as the basic eligibility of the defendant no.1 to
purchase the suit property was that neither he, nor his
wife or children could own any property in Delhi, New
Delhi, or Delhi Cantonment area. Thereupon, the said
Plaintiff No.2 decided to investigate this matter further.”
44. In the abovestated paragraphs extracted above it has been explained that
on an application made under the Right to Information Act on 6.11.2012
the plaintiff learnt that defendant no.1 had deliberately concealed and
suppressed material facts. They had made false averments regarding the
eligibility of defendant no.1 to purchase the suit property and further it is
only on 15.10.2012 that the plaintiffs learnt through a broker that the wife
of defendant no.1 was the owner of N-7, Green Park Extension, Delhi.
The point which would require consideration is „could either of these two
facts be not made available to the plaintiff if he was diligent in pursuing
the matter?‟. The answer is in the negative for the reason that the affidavit
was handed over to the plaintiffs in the year 1980. It was open for the
plaintiffs to have made reasonable inquiries to learn as to whether
defendant no.1 or his wife own any other property in Delhi and secondly
during the entire period of various litigations the plaintiffs could have
well ascertained whether sale permission had elapsed or not. Moreover,
the plaintiffs/their predecessors had agreed to sell the property to the
defendant no.1, if anyone is entitled to raise an objection with regard to
the affidavit it is L&DO alone.
45. In the absence thereof, I am of the view that the present suit is patently
barred by limitation. Even otherwise during the pendency of the suit even
of the decision of the Supreme Court dated 7.2.2014 where the same
CS(OS)No.948-2013 Page 22 of 24
grounds raised before this Court stands decided.
46. In the case of T. Arivandandam v. T.V. Satyapal and Anr. reported at
(1977) 4 SCC 467 the Apex Court has very strongly condemned
entertaining vexatious and meritless plaints and observed that “An activist
Judge is the answer to irresponsible law suits” and also observed that such
litigation should be nipped in the bud at the earliest. Paragraph 5 of the
judgment reads as under:
“We have not the slightest hesitation in condemning the
petitioner for the gross abuse of the process of the court repeatedly
and unrepentantly resorted to. From the statement of the facts
found in the judgment of the High Court, it is perfectly plain that
the suit now, pending before the First Munsif's Court, Bangalore, is
a flagrant misuse of the mercies of the law in receiving plaints. The
learned Munsif must remember that if on a meaningful-not formal-
reading of the plaint it is manifestly vexatious, and meritless, in the
sense of not disclosing a clear right to sue, he should exercise his
power under Order VII Rule 11 C.P.C. taking care to see that the
ground mentioned therein is fulfilled. And, if clever, drafting has
created the illusion of a cause of action, nip it in the bud at the first
hearing by examining the party searchingly under Order X C.P.C.
An activist Judge is the answer to irresponsible law suits. The trial
courts would insist imperatively on examining the party at the first
bearing so that bogus litigation can be shot down at the earliest
stage. The Penal Code is also resourceful enough to meet such men,
and must be triggered against them. In this case, the learned Judge
to his cost realised what George Bernard Shaw remarked on the
assassination of Mahatma Gandhi:
"It is dangerous to be too good."
47. In my view once the Supreme Court of India has decided all the disputes
between the parties, there was no reason for the plaintiffs to continue with
the suit, which has become infructuous. Moreover, the suit is barred by
time.
48. Accordingly, application is allowed. Plaint stands rejected under Order
VII Rule 11 CPC.
CS(OS)No.948-2013 Page 23 of 24
CC /2014 (To be numbered and registered separately)
49. Written statement to the counter claim has been filed. Replication be filed
within six weeks from today. Parties to file documents, which are in their
possession and power, within the same period.
50. List the matter before Joint Registrar for admission/denial of documents
on 25.9.2014.
G.S.SISTANI, J
JULY 17, 2014
msr
CS(OS)No.948-2013 Page 24 of 24