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2016 Supreme(Del) 1705
IN THE HIGH COURT OF DELHI AT NEW DELHI
HIMA KOHLI, J.
IN THE MATTER OF: VIMAL CHAND JAIN - Plaintiff
Versus
SUSHILA RANI BHAVNANI & ORS - Defendants
CS(OS) 3295/2011
Decided on : 08-04-2016
Mr. Vimal Goel, Advocate
Mr. H.L. Tiku, Senior Advocate with Mr. Ajit Singh and Ms. Yashmit Kaur, Advocates for D-1.
Mr. Abhishek Kumar Singh, Advocate for D-2/DDA
Mr. Ravi Gupta, Senior Advocate with Mr. Sanjay Abott and Ms. Heena Sharma, Advocates for D-4
Headnote:
Limitation - Declaration - Article 58, Limitation Act, 1963 - Summary
Fact of the Case:
The plaintiff filed a suit for permanent injunction and declaration against the defendant No.1, seeking to restrain her from issuing any document/power of attorney in respect of a plot and for a declaration that the subsequent allottee of the plot does not have any substantive right. The defendant No.1 had executed a Bayana Receipt and sale documents in favor of the plaintiff despite an injunction order. The defendant No.4 filed a writ petition seeking allotment of the same plot. The plaintiff claimed that the suit plot was cancelled by the defendant No.2/DDA and filed the present suit in September 2011.
Finding of the Court:
The court found that the suit was barred by limitation as the right to sue first accrued in 1996 when the defendant No.2/DDA issued the cancellation order, and again in 1999 when the plaintiff filed an impleadment application. The court held that the plaint espoused a manifestly stale claim and rejected the plaint, resulting in the dismissal of the suit.
Issues: The main issue was whether the suit was barred by limitation under Article 58 of the Limitation Act, 1963.
Ratio Decidendi: The court held that the right to sue first accrued in 1996 and again in 1999, making the suit barred by limitation. The court emphasized that the plaint espoused a manifestly stale claim and rejected the plaint, resulting in the dismissal of the suit.
Final Decision: The court allowed the applications filed by the defendants No.1 & 4, rejected the plaint, and dismissed the suit.
HIMA KOHLI, J.
IA No. 5870/2014 (by D-1 u/O-VII R-11 CPC) and IA No. 18107/2014 (by D-4 u/O VII 7 R-11 CPC)
1. This common order shall dispose of two applications, registered as IA No.5870/2014, (filed by the defendant No.1) and IA No.18107/2014 (filed by the defendant No.4), both filed under Order VII Rule 11 CPC, seeking rejection of the plaint on the ground that the same is barred by limitation.
2. The plaintiff has filed the accompanying suit praying inter alia for a decree of permanent injunction against the defendant No.1, the original allottee of plot bearing No.B-14, Mayfair Gardens, Hauz Khas, New Delhi, measuring 611.11 sq. yards (hereinafter referred to as the suit plot), for restraining her from issuing any document/power of attorney in respect of the subject plot and for a decree of declaration, for declaring the cancellation letter dated 11.6.1996 issued by the defendant No.2/DDA to the defendant No.1 in respect of the suit plot, as non-est and further, for declaring that the defendant No.4, the subsequent allottee of the suit plot, does not have any substantive right on the suit plot.
3. Stated concisely, the facts of the case are that on 9.9.1970, the defendant No.2/DDA had executed a perpetual sub-lease deed in respect of the suit plot in favour of the defendant No.3/Cosmopolitan Housing Society and the defendant No.1. In the year 1984, one Shri Kamal Kumar had instituted a suit for specific performance against the defendant No.1 in the High Court, registered as CS(OS) No.1030/1984 entitled Kamal Kumar vs. Sushila Rani Bhavnani claiming inter alia that in the year 1981, she had executed an Agreement to Sell in his favour in respect of the suit plot. Accompanying the said suit was an application for grant of an ex parte ad interim order, registered as IA No.4076/1984. Vide ex parte ad interim injunction order dated 11.7.1984, the defendant therein (defendant No.1 in the present suit) was restrained from selling, disposing of or in any way encumbering the suit plot or from interfering with the possession of the plaintiff therein. Eventually, vide order dated 12.8.1985, the said application was disposed of, while directing the parties to maintain status quo in respect of the suit plot with further directions that the defendant will not sell, dispose of or otherwise encumber the suit plot during the pendency of the suit.
4. Despite the aforesaid injunction order, the defendant No.1 had executed a Bayana Receipt in favour of the plaintiff on 29.7.1992, in respect of the suit plot and on 8.4.1993 proceeded to execute a set of sale documents in his favour including an Agreement to Sell dated NIL.4.1993, GPA, SPA, will etc. all dated 8.4.1993. Vide order dated 11.6.1996, the defendant No.2/DDA informed the defendant No.1 that the Lieutenant Governor, Government of NCT of Delhi had cancelled the sub-lease deed of the suit plot on account of breach of Clause 5 of the Sub-Lease Deed executed in her favour.
5. Though the defendant No.1 had submitted representations dated 15.10.1999 and 10.8.2002 to the defendant no.2/DDA against the aforesaid cancellation order, she did not take any legal recourse for seeking revocation thereof. In the meantime, on 9.1.1998, on an application asking for stay filed by Sh. Kamal Kumar in his suit, DDA was restrained from taking any further steps for effecting any change in the allotment of the suit plot. In the same year, i.e., in the year 1998, the defendant No.4, Sh. Subhash Kumar, who happened to be the senior most member in the waiting list prepared by the defendant No.3/Society, filed a writ petition in the High Court, registered as WP(C)No.3867/1998, seeking allotment of the very same plot. It is also relevant to note that Shri Kamal Kumar had moved an application for impleadment in the writ petition filed by the defendant No.4 (CM No.10012/1998) and the Division Bench had dir
