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HIGH COURT OF DELHI
KAILASH GAMBHIR, NAJMI WAZIRI, JJ.
ANUPAMA GUPTA & ORS. – Appellants
Versus
KULDEEP SINGH & ORS. – Respondents
RFA(OS) 152/2014
Decided On : 24-12-2014
Constitution of India, 1950 - Article 142 - Judgment - Power of supreme Court - Effect of judgment - Fresh issue of fraud - Appellants had raised the issue of fraud in their Written Submissions and other pleadings and had abandoned the issue in their review petition - Appellants are estopped from re-agitating the same issue by way of an independent suit - Plenary powers of Supreme Court under Article 142 of the Constitution of India are of very wide amplitude and this provision contained no limitation regarding the causes or the circumstances in which the power cannot be exercised - Decision of the Supreme Court, is binding on all the parties for all purposes, who were before the Supreme Court - Decision will not be affected by the fact that no express findings have been given on the particular contention raised by the appellants - Once any decision is given by the Supreme Court, it becomes binding under Article 141 of the Constitution of India - Appellant had filed a review petition seeking review of the order but the said plea of fraud was not raised by them and now to raise the same in the said suit would be a sheer abuse of the process of the Court.
Specific Relief Act, 1963 - Section 28 - Civil Procedure Code, 1908 - Order 7 Rule 11 - Agreement to Sell - Performance of contract - Denial of - Due diligence - Property was purchased by the respondent No. 1 - vide Agreement to Sell - An amount of Rs. 1,40,000/- was paid to the co-owners of the property in advance and the balance consideration of Rs. 12,60,000/- was to be paid at the time of registration of requisite title documents as well as the delivery of actual physical possession - Agreement to Sell was executed by all the legal heirs except one, who was a minor - Fact of his being minor was not disclosed to the purchaser - A suit for specific performance was filed by the respondent No. 1 which was decreed in his favour - Several petitions are filed by the parties - Parties have been litigating since 10.01.1982 - It was for them to have made reasonable inquiries to find out as to whether any property was owned by the respondent No. 1 or his dependant family members - This minimum diligence was not exercised by the appellants during the time span of more than 30 years - Appellants have also not ever made any such inquiries from respondent No. 1 either at the time of execution of agreement to sell or even at the time of filing of their application to the L&DO for the sale permission - Single Judge was also correct in observing that the appellants have not given any explanation as to why they have not impleaded L&DO as one of the parties in the suit when primarily the alleged fraud for filing the said false affidavit was upon the L&DO - Held, there is no merit in the appeal and the same is dismissed.
KAILASH GAMBHIR, J.
“The difficulties of a litigant in India begin when he has obtained a Decree” observed the Privy Council1 142 years ago in the year 1872. The state of affairs are true even as of today as the facts of the present case would amply demonstrate.
1 General Manager of the Raj Durbhunga under the Court of Wards v. Maharajah Coomar Ramaput Sing, 14 MIA 605
1. The dispute between the parties relates to property being Bungalow No.9, admeasuring 867 sq. yards in Sunder Nagar, New Delhi which is regarded as a tony colony of the city. This property was purchased by the respondent No. 1– Mr. Kuldeep Singh vide Agreement to Sell dated 30th July 1980 for a total sale consideration of Rs.14 lacs, out of which an amount of Rs.1,40,000/- was paid to the co-owners of the property in advance and the balance consideration of Rs.12,60,000/- was to be paid at the time of registration of requisite title documents as well as the delivery of actual physical possession of the entire property, sans one garage. Agreement to Sell dated 30.07.1980 was executed by all the legal heirs of Late Shri Nand Lal except one Mr. Rajinder Kumar, who was a minor at the relevant point of time. The fact of his being minor was not disclosed to the purchaser. A suit for specific performance was filed by the respondent No. 1 against all the legal heirs of Late Shri Nand Lal and the same was decreed in his favour vide judgment and decree dated 30.04.1984. The said judgment and decree was challenged by the judgment debtors vide RFA No.1485, however vide orders dated 22nd March 1985 the same was dismissed as being time barred, by the Division Bench of this Court. Thereafter the judgment debtor filed an application under Order IX Rule 13 of CPC for setting aside the ex-parte decree dated 30th April 1984, however, the said application of the defendants was also dismissed vide order dated 15.7.1985.
2. On 7th November 1990, the decree holder had filed an execution petition. In the said execution petition, the Judgment Debtor, Mohinder Kumar raised objections, but the same were dismissed by the Learned single Judge of this court vide order dated 01.02.2002. Separate objections were also filed by the legal heir– Rajinder Kumar under Order XXI Rule 58 of CPC on the ground that the present decree was not passed against him. Further on the demise of Shri Dhanpat Rai, Judgment debtor, his legal heirs filed I.A. No. 4274/1999 in the main suit, under Section 28 Specific Relief Act for rescission of the Agreement to Sell on the ground of failure on the part of Decree Holder in depositing the balance sale consideration of Rs.12,60,000/-. However, the said I.A. was dismissed by the learned Single Judge vide order dated 23rd February 2000 and this order was challenged by the legal heirs of the Judgment Debtors before the Division Bench of this Court in FAO No.110/2000. Furthermore, against the judgment dated 01.02.2002, FAO (OS) No. 66 of 2002 and EFA (OS) 4 of 2002 were filed by Judgment debtors, Mohinder Kumar and Rajinder Kumar, respectively. Vide order dated 19.2.2010, the Division Bench of this Court dismissed F.A.O. No.110/2000 and F.A.O. (OS) No. 66/2002 but allowed EFA (OS) 4 of 2002. Two separate review petitions No. 210 of 2010 and 328 of 2010 were also preferred against the said judgment by the Judgment Debtors to seek review of order dated 19th February 2010. Both the review petitions were dismissed by the Division Bench of this Court vide judgment and order dated 25.04.2011. Against the judgments dated 19th February 2010 and 25th April 2011, four Special Leave Petitions were preferred by the Judgment Debtors in the Hon’ble Supreme Court. All the above SLPs were consolidated as CA Nos.1873-1877 of 2014. During the pendency of these SLPs, the present appellants had filed a fresh suit vide C.S. (OS) No. 948/2013 seeking a declaration that the decree dated 30.04. 1984 was vitiated by fraud and was liable to be set aside. Vide order, dated 7th February 2
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