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IN THE HIGH COURT OF DELHI AT NEW DELHI
AMIT BANSAL, J.
Ravi Kumar Bajaj – Appellant
Versus
Ashok Bajaj & Ors - Respondents
CM(M) 537 of 2019 & CM No. 29207 of 2019 (for placing on record additional documents), CM No. 8201 of 2020 (for permission to file documents), CM No. 8203 of 2020 (for condonation of delay of 7 days in refiling), CM No. 3863 of 2021(for evidence), CM No. 36780 of 2021(for permission to file documents), CM No. 38461 of 2021(for rectification of order dated 20.09.2021), CM No. 38511 of 2021(for dismissal in limine), CM No. 38513 of 2021(for condonation of delay of 97 days in refiling two accompanying CMs), CM No. 364 of 2022 (for rectification/modification of order dated 15.11.2021by R-3), CM(M) 1168 of 2021 & CM No. 45595 of 2021(for condonation of delay in filing), CM No. 45596 of 2021(for stay)
Decided on : 07-02-2022
Constitution of India, 1950 - Article 227 - Code of Civil Procedure, 1908 - Section 151 - Order XLII Rule 1 read with Section 114 - Specific Relief Act, 1963 - Section 34 read with Section 41(h) - Property from leasehold to freehold - Willing to execute all relevant documents for purpose of mutation - Seeking, inter alia, conversion of suit property from leasehold to freehold - Plaintiff along with his deceased uncle purchased suit property vide Sale Deed - Property was mutated in joint names of plaintiffs and and two independent houses were constructed on said property - Eastern side of the plot has a house in possession of plaintiff, whereas western side of plot is in the occupation - survived by his wife and two sons, being respondent - Plaintiff that a Memorandum of Agreement (MoA) was executed - Plaintiff and legal heirs of Jagdish Lal Bajaj and acting on said MoA, plaintiff and filed a joint application for conversion of suit property into freehold - Defendants were not cooperating with plaintiff and were not willing to convert property from leasehold to freehold - Defendants were neither paying ground rent, nor house tax towards their portion of the property to L&DO
Finding of the Court :
Defendants no.2 to 4 in relation to prayer B in the suit - Only contentions raised in application under Order VII Rule 11 of CPC qua prayer B are that (i) said relief is barred by limitation - plaint does not disclose if there is a right in favour of the plaintiff or an obligation on defendants to get suit property mutated or converted from leasehold to freehold - There is a right in favour of a co-owner to perfect his title in respect of a property jointly owned by him and therefore, seek conversion from leasehold to freehold and nutation of property - Right is a continuing cause of action - Bar of limitation would not apply - No grounds are made out in terms of Order VII Rule 11 for rejection of plaint
Result: Petition is disposed of
JUDGMENT :
AMIT BANSAL, J.
CM No. 45595/2021(for condonation of delay in filing) in CM(M)1168/2021
1. For the reasons stated in the application, the same is allowed.
CM No. 45596/2021(for stay) in CM(M)1168/2021
2. The present application has been filed by the petitioner seeking (i) stay of the proceedings in CM(M) 537/2019; and (ii) that the petition being CM(M) 1168/2021 be heard and decided first.
3. Since both the aforesaid petitions, CM(M) 1168/2021 and CM(M) 537/2019 are being heard and decided together, the present application has become infructuous and is disposed of as such.
CM No. 8203/2020 (for condonation of delay of 7 days in refiling) in CM(M) 537/2019
4. For the reasons stated in the application, the same is allowed.
CM No. 29207/2019 (for placing on record additional documents), CM No. 8201/2020 (for permission to file documents) & CM No. 36780/2021(of R-3 for permission to file documents) in CM(M) 537/2019
5. For the reasons stated in the applications, the same are allowed.
CM No. 3863/2021(for evidence) in CM(M) 537/2019
6. This application has been filed for taking evidence to be incorporated at the stage of oral arguments.
7. There is no basis for the reliefs claimed in the present application for taking such evidence in petitions filed under Article 227 of the Constitution of India.
8. Accordingly, the application is dismissed.
CM No. 38461/2021(for rectification of order dated 20.09.2021) in CM(M) 537/2019
9. The present application has been filed by the applicant/respondent no.3 seeking rectification of the order dated 20th September, 2021 passed by this Court.
10. For the reasons stated in the present application, the application is partly allowed in respect of the modifications sought in paragraphs 7(b) and 7(c) of the present application.
11. By the said order, early hearing of CM(M) 537/2019, on an application filed by the petitioner, being CM No.32616/2021, was allowed by this Court in exercise of its discretion and while taking note of the urgency expressed in the application.
12. Insofar as the rectification sought in the order is concerned with directing the plaintiff to serve the respondents no.2 and 4 of CM No.32616/2021, it is noted in the said order that a joint reply has been filed on behalf of the respondents no.2 to 4. On a query to the respondent no.3 on the said date, whether or not he represents the other respondents, being respondents no.2 to 4, it was only stated by the respondent no.3 that he does not hold a power of attorney to this effect. However, a joint reply to CM(M) 537/2019 was filed by the respondents no.2 to 4.
13. It was in view of the position of parties explained above that the respondent no.3 and the counsel for the petitioner were requested to apprise the respondents no.1, 2, and 4 of the order passed. Therefore, no rectification is warranted in the order dated 20th September, 2021 in respect of paragraphs 7(a) and 7(d) of the application.
CM No. 38511/2021(for dismissal in limine) in CM(M) 537/2019
14. No grounds for dismissal in limine are made out.
15. Dismissed.
CM No. 38513/2021(for condonation of delay of 97 days in refiling two accompanying CMs) in CM(M) 537/2019
16. For the reasons stated in the application, the same is allowed.
CM No. 364/2022 (for rectification/modification of order dated 15.11.2021by R-3) in CM(M) 537/2019
17. The present application has been filed by the applicant/respondent no.3 seeking, inter alia, rectification/modification of the order dated 15th November, 2021 to the extent that the appearance of the respondents no.2, 3, and 4 be recorded as appearing in person.
18. For the reason stated in the application, the same is allowed.
CM(M)537/2019 and CM(M) 1168/2021
19. Both the petitions arise out of the same suit bearing CS No.57749/2016 and impugned order, and are therefore, being taken up together.
20. CM(M)537/2019 filed under Article 227 of the Constitution of
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