Failure to seek the relief of declaration within the prescribed time bars the right to sue for possession.

IA No.23346/2012 (of defendant No.2 u/O VII Rule 11 CPC)

1. The two plaintiffs i.e. Ms. Ruma Kaur and her husband Sh. Mohan Singh have instituted the present suit on 07.11.2008 for recovery of possession of:

(i) property No.A-126 (New No.JE-34 and JE 34A), Gupta Colony, Khirki Extension, Malviya Nagar, Delhi; and,

(ii) Flats no. F-9/51-52, Sector 15, Rohini, Delhi, from the four defendants together with mesne profits/damages for use and occupation.

2. Summons of the suit were issued. A written statement has been filed on behalf of the defendants 1&2 i.e. Sh. Joginder Singh Raina and Ms. Harminder Kaur. Though the defendant No.4 Mr. Parminder Rana was also served and had appeared through advocate on 23.03.2009 but failed to appear thereafter and has also not filed any written statement. The defendant no.3 was ordered to be served by publication. In the meanwhile, the plaintiff no.2 Sh. Mohan Singh died and an application for substitution of his legal representatives was filed and which was allowed on 13.10.2011. The plaintiffs have filed replication to the written statement of the defendants 1&2. The defendant no.3 Mr. Dinesh Kumar and defendant no.4 Mr. Parminder Rana were proceeded ex parte on 19.12.2011.

3. On the pleadings of the plaintiffs and the defendants no.1&2, the following issues were framed on 30.10.2012: “(i) Whether the plaint does not disclose any cause of action? OPD

(ii) Whether the suit filed for possession is not maintainable without the relief of declaration? OPD

(iii) Whether the suit filed is barred by limitation? OPD

(iv) Whether the plaintiffs are entitled to possession of the properties as claimed in the prayer? OPP

(v) Whether the plaintiffs are entitled to mesne profits? If so, at what rate and for what period? OPP

(vi) Whether the plaintiffs are entitled to interest? If so, on what amount, at what rate and for what period? OPP

(vii) To what relief, if any, are the plaintiffs entitled?”

The counsel for the defendants no.1&2 on the same date stated that an application under Order VII Rule 11 of the CPC shall be filed and has thereafter filed this application and to which reply has been filed by the plaintiffs.

4. This application was listed for hearing on 02.04.2014 when the counsel for the plaintiffs did not appear and sent a proxy counsel who had no knowledge of the case. The counsel for the applicant/defendants no.1&2 was heard and the hearing adjourned to 03.04.2014 for the counsel for the plaintiffs to address arguments. The counsel for the plaintiffs addressed arguments on 03.04.2014 but upon being quizzed, sought adjournment for today, stating that this is a legal aid matter and he will have to take instructions from the plaintiffs. Today, the counsel for the plaintiffs has not appeared and has sent a message that this Court may pass appropriate orders.

5. The applicant/defendants no.1&2 seek rejection of the plaint on the ground that the present suit for possession of immovable properties, without seeking the relief of declaration qua the documents under which the defendants hold the property, is barred by time. Reliance in this regard is placed on Raj Kumari Garg Vs. S.M. Ezaz (2012) 129 DRJ 284.

6. To understand the aforesaid contention of the counsel for the defendants, it is necessary to analyze the plaint. The case of the plaintiffs as set out in the plaint, though long-winded and incomprehensible, is found to be:

(a) that the defendant no.1 while working as Manager of the branch at Agartala, Gauhati of the Punjab & Sind Bank, gained the trust of the plaintiffs who were then resident of Agartala;

(b) that the defendant no.1 induced the plaintiffs to invest their hard earned money to buy a petrol pump in USA and to migrate to USA;

(c) that the plaintiffs under such inducement by the defendant no.1 sold and disposed of their entire movable and immovable properties and shifted to Delhi and also handed over Rs.22,00,000/-in cash for safe custody of the defendant no.1 fo