Asha Sharma & Ors v. Sanimiya Vanijiya Pvt Ltd & Ors

order.

¶15In the course of the revisional order, this court noted that: "4. On 30.6.1995, Ms. Satyawati executed six sale deeds at Kolkatta in favour of six different companies who are respondent nos. 6 to 11 before this Court. Consequent to the execution of the sale deeds, respondents 6 to 11 became sole and absolute owners of the aforesaid property, which was earlier owned by Ms. Satyawati Sharma. The ownership of the said respondents 6 to 11 is not disputed before me by the respondent no.1 or by the legal heirs of Ms. Satyawati Sharma who are the petitioners." In the revision petition, filed by the plaintiffs (is part of the record, having been produced by the defendant) and, is not denied. The plaint itself avers that: "7. That in the mean time, both the suits were transferred to District Court, and the application filed by the heirs of Smt. Satyawati Sharma i.e. the plaintiffs and the application filed by the defendants No.1 to 6 under order 22 rule 10 were heard and decided by Shri S.N. Dhingra, the then ADJ, Delhi. Vide order dated 10.03.2004 the application of the plaintiffs under order 22 rule 3 was dimissed and application of the defendants No.1 to 6 under application of the defendants No.1 to 6 under order 22 rule 10 moved in suit No.2361/96 (changed to suit No.215/2004) was allowed. A copy of the order dated 10.03.2004 is filed herewith as Annexure – P-2.

¶8That against the said order the plaintiffs filed Revision Petition before Hon'ble High Court being C.R.P. No.316/2004 which was heard and decided by Justice Sanjeev Khanna vide order dated 04.05.2006. By the said order the application of the plaitnffs under Order 22 rule 3 was allowed and the defendants No.1 to 6 were permitted to amend the plaint and to implead copy of the order dated 04.05.2006 is filed herewith as Annexure P-3.

¶9That as submitted above, that as Smt. Satywati Sharma died on

21.09.2003 and after her death, the plaintiffs moved an application Under Order 22 Rule 3 for being impleaded as parties. However, the said application was dismissed by Shri S.N. Dhingra, the then Additional District Judge, Delhi vide order dated 10.03.2004 (Annexure P-2) and by the said order the Ld. Additional District Judge also found that the defendants No.1 to 6 are owners and the plaintiffs challenged the said order before Hon'ble High Court. The order passed by the Ld. Additional District Judge, Delhi has been set aside vide order dated 04.05.2006 (Annexure P-3) and the plaintiffs were permitted to continue in the suit. The plaintiffs came to know regarding alleged sale of the property in September, 2003 when they moved application under order 22 rule 3 for being impleaded as parties." The revision, filed by the plaintiffs here, in 2004, records as follows: "5. That due to some misunderstanding and ill advise the deceased petitioner filed a suit against the respondent NO.1 Impleading respondents No.2 to 11 as party. The suit was for recovery of possession, recovery of rent and mesne profits. In fact Late deceased petitioner was given to understand that the rent agreement is between her and the bank as such the bank is liable to restore the possession to deceased petitioner despite sale deed executed by deceased petitioner in favour of respondents No. 6 to 11. At present the legal heris of the deceased petitioner concede that the said notion was absolutely incorrect and illegal in as much as after execution of the sale deed i.e. after 30.10.1995 when deceased petitioner sold the property to respondents No.6 to 11, she has no right to claim the possession of the property and the said right virtually wasted in respondents No. 6 to 11."

¶16The copy of reply to application under Order XXII Rule 10, filed by Satyawati Sharma, which led to revisional proceedings, and the order dated 4-5-2006, is also a matter of record; its veracity has not been denied. In the reply to that application, Satyawati Sharma, the vendor, averred as follows: "It is submitted that the property was transferred on 30-6-1995 and the suit was instituted on 19-6-1996 therefore, the application is liable to be dismissed…"

¶17The above facts show that the plaintiffs were conscious of the status concerning the transfers, made in 1995 by Satyawati Sharma. Crucially, they were also aware about the averments made by her regarding those sales; she categorically said in the reply to the applicant's application under Order 22, Rule 10, about having executed the sale deeds in 1995. These are undisputed facts; the pleading by Ms. Satyawati Sharma, in fact amounts to admission that title had been conferred through the impugned sale deeds. All that she contested in the reply, which was also carried further, in revisional proceedings, was the validity of the subsequent instruments, which were sought to be the basis for recovery of rent, and creation of rights in others' favour. So far as the impugned sale deeds are concerned, it is apparent that in the reply to the application (by Satyawati Sharma) and the revision petition (filed by the plaintiff) there is clear concession about the title of applicants on account of the impugned sale deeds. Having regard to the averments in the plaint, in the present suit, that the plaintiffs became aware of the fraud in the sale deeds, after the death of Satyawati Sharma (without explanation as to why the plaintiffs did not impugn it in 2004, or in any manner reserve their rights in any pleading in the revisional proceedings), the above surrounding circumstances are clear pointers to the contrarar. The in fact amount to admissions based on pleadings.

¶18A litigant who approaches the court for relief should not be doing so, in derogation of a previously held and articulated position. It needs hardly be emphasized that inconsistent pleas are not permitted in the same action. Equally inconsistent pleas are not permitted in two different actions. This was held to be so in Cooke v. Rickman [(1911) 2 KB 1125]. The Court there held that the rule of estoppel could not be restricted to a matter in issue, stating : ".... The rule laid down in Hawlett v. Tarte (1) C.B. (N.S.) 813 - was that if the defendant in a second action attempts to put on the, record a plea which is inconsistent with any traversable allegation in a former action between the same parties there is an estoppel. ..."

¶19The Supreme Court held, in Jai Narain Parasrampura (Dead) and Others v. Pushpa Devi Saraf and Others (2006) 7 SCC 756 that: "While applying the procedural law like principle of estoppel or acquiescence, the court would be concerned with the conduct of a party for determination as to whether he can be permitted to take a different stand in a subsequent proceeding, unless there exists a statutory interdict." The court also held: "The doctrine of estoppel by acquiescence was not restricted to cases where the representor was aware both of what his strict rights were and that the representee was acting on the belief that those rights would not be enforced against him. Instead, the court was required to ascertain whether in the particular circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he had allowed or encouraged another to assume to his detriment. Accordingly, the principle would apply if at the time the expectation was encouraged." All these principles were reiterated and applied in Deewan Singh –vs-Rajendra Prasad Ardevi 2007 (10) SCC 528.

¶20The plaintiffs categorically stated, in the previous revisional proceeding that they were not challenging the sale deeds of 1995; they have also averred to that effect, in the revision petition, admittedly filed by them. Also, the revision itself arose out of an application filed by the applicant defendants here, under Order 22 Rule 10, CPC. The plaintiff's predecessor in interest, as a matter of pleading, categorically averred having executed the sale deeds. She contested the right to recover rents for a certain period, and having conferred residual rights. However, as far as validity of the impugned sale deeds are concerned, she did not deny them.

¶21In the totality of the above circumstances, the court is of the opinion that the plaintiffs are estopped from maintaining the suit; they are also deemed to have acquiesced to the applicant's title. The averments in the suit are not that they became aware of the so called fraud, after the order of this court; indeed, the cause of action, according to them, arose after the death of Satyawati Sharma.

¶22In the decision reported as N.V. Srinivasa Murthy v. Mariyamma , (2005) 5 SCC 548, while adverting to the T. Arivandandam v. T.V. Satyapal 1977 (4) SCC 467 it was held: "This is a fit case not only for rejecting the plaint but imposing exemplary costs on the appellant on the observations of this Court in the case of T. Arivandandam v. T.V. Satyapal: "The trial court must remember that if on a meaningful ― not formal ― reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise its power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, the court must nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men (Chapter 11) and must be triggered against them."

¶23The previous pleadings adverted to above, by this court, clearly estop the plaintiffs from disputing the validity of the documents, impugned in these proceedings. Though the suit alleges fraud, the elements and basis of such fraud are tell tale and vague. The suit is a disguised attempt to attack the title to something which the vendor herself did not dispute in her lifetime; the plaintiffs elected in their pleadings, in the revision, not to challenge these documents. Therefore, the suit is not maintainable on the principle of estoppel by pleading, and acquiescence.

¶24In view of the above discussion, the plaint in the suit is barred, under Order VII, Rule 11 (d), CPC. It is accordingly rejected. The suit and all pending applications are therefore rejected. DATED: August 20, 2008 S. RAVINDRA BHAT (JUDGE)

* IN THE HIGH COURT OF DELHI AT NEW DELHI + IA No.9577/2007, 9081/2007 & CS (OS) No.1883/2006 % Reserved on: 25.04. 2008 Pronounced on: 20.08.2008 Asha Sharma & Others Plaintiff's Through : Ms. Kamalakshi Singh, Advocate Vs Sanimya Vajijiya Pvt. ltd. & Others Respondents Through :Mr. C.Mukund, Advocate Def 1 to Def 6. Mr. A.P. Mukund, Advocate Def - 9 Ms. Monica Garg, Advocate for UOI % 20.08.2008 CORAM: Mr. Justice S. Ravindra Bhat 1. Whether reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes Mr. Justice S. Ravindra Bhat: 1. This order will dispose of the defendants' application for rejection of plaint under Order 7, Rule 11, Code of Civil Procedure, CPC. 2. The plaintiffs seek declaration that documents executed by one late Ms. Satyawati Sharma, in 1995, in relation to property, being 70 Golf Links, New Delhi (hereafter "suit property") are void and illegal. In the suit, the relevant averments relating to cause of action and the plaintiffs' occasion to approach this court,as well as the reliefs claimed, are averred as follows: "10. That after September,2003, the plaintiff made inquiries from defendantsNo.7 and 8 and they were told that defendants No.1 to 6 have applied for mutation of the property in their names, on account of objections raised in the office of defendants No.7 and 8 regarding alleged transfer, the property could not mutated in the names of defendants No.1 to 6. When the plaintiffs came to know of the said fact, they also filed objections to said mutation proceedings representing actual facts and upon objections of the plaintiffs, mutation proceedings are still pending and the property has not been mutated in the names of the defendants No.1 to 6. It is further submitted that though the defendants No.1 to 6 are claiming to be owners of the property by virtue of 6 transfer deeds dated 30.06.1005 executed by Smt. Satyawati Sharma in their favour and claiming that Smt. Satyawati Sharma has sold 1/6th share each to defendants No.1 to 6 but till today they have not filed the original Sale Deed on record of Suit No. of 1997. However, on inquiry and from the photo copies of the Sale Deed, the plaintiff came to know that the alleged Sale Deed in favour of the defendants No.1 to 6 has been allegedly executed on 30.06.1995 – Serial Nos. 151789 Vol. No.45 Book No.1, Deed No.2564 Sl.No.2823 page No.163-181, 151791 Vol. No.45 Book NO.1, Deed No.2566 Sl. No.3825 page No. 200-217, 151792 Vol. 45 Book No.1 Deed No. 2567 Sl. No. 3826 page No.218 to 235, 151790 Vol. No.45 Book No.l1 Deed No. 2565 Sl.No. 3824 Page No. 182 – 199, 151794 Vol. No. 45 Book NO.1 Deed No.2569 Sl. No.3828 Page No. 254 to 272 and 151793 Vol No.45 Book NO.1 Deed No.2568 SL. No.3827 Page No. 236 to 253 respectively. 11. That Smt. Satyawati Sharma since deceased along with one of her sons Sri Kamal Sharma was residing in the premises in dispute on the first floor, whereas, the ground floor was and is under tenancy of Indian Overseas Bank. Shri Kamal Sharma persuaded Smt. Satyawati Sharma deceased to shift to Noida and to lock the presmies in dispute. Shri Kamal Sharma had also arranged a flat at Noida for his residence where he took his mother Smt. Satyawati Sharma also. The premises in dispute i.e. the first floor and half constructed second floor was put under lock of deceased Smt. Satyawati Sharma. However, Shri Kamal Sharma being the sond had control over the keys of lock put on the property in dispute. 12. That Shri Kamal Shamra in collusion with defendants No.1 to 6 handed over possession to them in the grab of the alleged fabricated sale deed without knowledge of Smt. Satyawati Sharma. 13. That since then i.e. 1996, the defendants No.1 to 6 are in unauthorized occupation of the premises and were enjoying the same against the wishes of Smt. Satyawati Sharma and now against the wishes of the plaintiffs who are actual owners havin