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2019 Supreme(Del) 1734
IN THE HIGH COURT OF DELHI AT NEW DELHI
ANU MALHOTRA, J.
Deepak Aggarwal and Another – Appellants
Versus
Shakuntala Devi – Respondent
RSA No. 10 of 2019, CM No. 2714 of 2019
Decided On : 07-02-2019
For the Appellants : Mr. Rajiv Tyagi, Mr. Rohit Gupta.
For the Respondents: Mr. Mayuri Raghuvanshi, Mr. Vyom Raghuvanshi.
Headnote:
The court held that the suit filed by the plaintiff seeking partition of the property was dismissed vide order dated 28.10.2015 of this Court of CS (OS) 2711/2015 observing that the plaintiff did not have any right in these properties in as much as no HUF was shown to have existed. The court further held that the suit filed by the plaintiff i.e. the respondent before the learned Trial Court was apparently maintainable.
Fact of the Case:
The plaintiff, who is the mother of the appellant No. 1 and the mother-in-law of the appellant No. 2, filed a suit for permanent and mandatory injunction with the prayers to the effect: 1. Pass a decree of mandatory injunction in favour of the plaintiff and against the defendants thereby directing the defendants to vacate the first floor of property bearing no. 160, Harsh Vihar, Pitampura, Saraswati Vihar, Delhi. 2. Pass a decree of permanent injunction in favour of the plaintiff and against the defendants therefore restraining the defendants and their agents, associates. Assignees, employees etc. from dispossessing the plaintiff from property bearing no. 160, Harsh Vihar, Pitampura, Saraswati Vihar, Delhi. 3. Direct the defendants to pay a sum of Rs. 25,000/- per month as usage/occupation charges and mesne profits from 20.01.2015 till the date of vacating the suit property.
Finding of the Court:
The court held that the suit filed by the plaintiff seeking partition of the property was dismissed vide order dated 28.10.2015 of this Court of CS (OS) 2711/2015 observing that the plaintiff did not have any right in these properties in as much as no HUF was shown to have existed. The court further held that the suit filed by the plaintiff i.e. the respondent before the learned Trial Court was apparently maintainable.
Issues: 1. Whether the judgment of the learned Trial Court as well as the first Appellate Court is not contrary to the dicta laid down, by this Hon'ble Court as well as the Hon'ble Supreme Court of India with regard to the meaning, scope and interpretation of an "Admission" under Order XII Rule 6 of the Code of Civil Procedure, 1908 and particularly the judgment of the Hon'ble Supreme Court of India in Karam Kapahi vs. Lai Chand Public Charitable Trust, AIR 2010 SC 2077 : (2010) 4 SCC 753? 2. Whether a judgment against one of the contesting parties, when rejected in an appeal, could despite the Doctrine of Merger, still operate as an "Admission" under Order XII Rule 6 of the Code of Civil Procedure, 1908 against such contesting parties and continue to bind them? 3. Whether a purported "Admission" under Order XII Rule 6 of the Code of Civil Procedure, 1908, when such an "admission" has to be extracted on the basis of a detailed reading, interpretation and construction of a judgment which too, has subsequently been annulled in appeal? 4. Whether an "admission" has to be clear, unequivocal and cannot be based on a detailed process of reasoning and culling out the Ratio Decidendi of a judgment? 5. Whether a Suit for permanent and mandatory injunction could be maintained for seeking the eviction of a purported licensee or for seeking the recovery of possession of the purported licensed premises when there is a serious cloud over the title of the alleged licensor Plaintiff? 6. Whether if the title of the purported "licensor" to the Suit premises is disputed by the licensee when, they are in a direct blood relationship with each other, could the Suit be dismissed without framing any issue regarding the title of the Defendants -Appellants when the Suit premises has been inherited by both from the common ancestor? 7. Whether a Suit contested on the basis of the Defendant's title to the immovable properties could have been dismissed on an admission alleged on the basis of an annulled judgment while ignoring that the title in the immovable properties involved complicated questions of fact and law? 8. Whether a judgment could still hold its ground when that judgment has been annulled in appeal with liberty to the Appellants to re-agitate all questions of fact and law in the subsequently instituted Suits? 9. Whether a Suit dismissed for want of cause of action under Order VII Rule 11 of the Code of Civil Procedure, 1908 could operate as Res-judicata qua the defence taken by the Plaintiff-Appellant, in the subsequent Suit? 10. Whether the dismissal of a Suit at the threshold without issue of notice to the Defendant; without as much as framing of issues; without taking evidence and without affording an opportunity to the Plaintiff to prove his case by evidence, could still be considered as an admission on the part of the Plaintiffs-Appellants? 11. Whether when the judgment dismissing the Suit at the threshold as not disclosing any cause of action, having been successfully challenged in Appeal, could bar the Plaintiffs' defence in another Suit involving the adjudication of a part of the rights claimed in the first Suit?
Ratio Decidendi: The court held that the suit filed by the plaintiff seeking partition of the property was dismissed vide order dated 28.10.2015 of this Court of CS (OS) 2711/2015 observing that the plaintiff did not have any right in these properties in as much as no HUF was shown to have existed. The court further held that the suit filed by the plaintiff i.e. the respondent before the learned Trial Court was apparently maintainable.
Final Decision: The present appeal and the accompanying application CM No. 2714/2019 are declined.
JUDGMENT :
ANU MALHOTRA, J.
1. The appellants No. 1 and 2 vide the present Regular Second Appeal assail the impugned order dated 30.10.2018 of the First Appellate Court of the Additional District Judge-03 (North-West), Rohini Courts in RCA No. 86/2017 vide which the said appeal against the judgment and decree dated 5.9.2017 of the Court of the ACJ-cum-ARC (North-West) in New Suit No. 59269/2016 (Old Suit No. 32/2015) was dismissed.
2. Vide the order dated 5.9.2017, the suit filed by Smt. Shakuntala Devi arrayed as the respondent to the present appeal against the appellants herein arrayed as the defendants to that suit was decreed to the effect:
“20. In view of the aforesaid discussion, the application in hand is allowed. Suit of the plaintiff is decreed as under:
(a) A decree of mandatory injunction is passed in favour of plaintiff and against the defendants in respect of the suit property. Thus, the defendants are directed to vacate the suit property i.e. First Floor of property bearing no. 160, Harsh Vihar, Pitampura, Delhi. It is directed that the decree of mandatory injunction shall not be executed for a period of three months from today enabling the defendants to shift out on their own/search for alternative accommodation. However, in case of appeal the extension of time shall be subject to the order passed by the Ld. Appellate Court.
(b) A decree of permanent injunction is passed in favour of plaintiff and against the defendants thereby restraining the defendant, their agents, associates, representatives etc. from dispossessing the plaintiff from the property bearing no. 160, Harsh Vihar, Pitampura, Delhi.
(c) A decree of mesne profit/use and occupation charges at the rate of Rs. 25,000/- p.m. w.e.f. 20.01.2015 till the suit property is vacated by the defendants. The relief qua mesne profit shall be executable only upon payment of requisite court fees by the plaintiff.
No order as to cost.
Decree sheet be prepared accordingly.”
3. The said decree was prepared in terms of the Order XII Rule 6 of the CPC on the basis of the pleadings and the material available on record on an application filed by the plaintiff dated 3.4.2017 which was disposed of vide order dated 5.9.2017. Through the application under Order XII Rule 6 CPC, the plaintiff, i.e. the respondent herein had stated that on the basis of the defence that had been taken by the defendants to the said suit, i.e. the appellants herein, in their written statement filed in the instant case, the defendant No. 1 i.e. the appellant No. 1 herein, had filed a suit for partition bearing CS (OS) No. 2711/2015 tilted Sh. Deepak Aggarwal vs. Sh. Raj Goyal and Others which was dismissed in limine by this Court vide order dated 28.10.2015. Through her application under Order XII Rule 6 of the CPC, the plaintiff i.e. the respondent had stated that apart from the dismissal of the suit CS (OS) No. 2711/2015 by this Court, it was submitted by the appellants i.e. the appellants herein, that the pleas of defendant No. 1 i.e. the appellant herein in relation to the aspect of the property in question, being an HUF property had been rejected and it had been observed vide para 10 of the order to the effect:
“In view of the above, so far as the property which are purchased by means of title papers in the name of defendant No. 2/Smt. Shakuntala Devi or the defendant No. 2/Smt. Shakuntala Devi jointly with Sh. Brijesh Garg/defendant No. 14 or any other defendants are concerned, these properties would be the properties of these persons and plaintiff (defendant No. 1 herein) cannot claim any rights to these properties. The suit seeking partition and possession of these immovable properties is therefore dismissed.”
4. The respondent to the present appeal i.e. the plaintiff of the suit had filed a caveat No. 58/2019 and was represented by a counsel and was heard on the date of hearing on 21.1.2019 in th
