Birmati v. Iqbal Singh

V.B.GUPTA, J.

* HIGH COURT OF DELHI : NEW DELHI CM (M) No.956/2010 & CM No. 13211/2010 % Judgment reserved on: 28th July, 2010 Judgment delivered on: 3rd August, 2010 Smt. Birmati W/o Sh. Kartar Singh R/o Village- Shikarpur New Delhi ….Petitioner. Through: Mr. Brijesh Kumar Srivastava, Advocate Versus Sh. Iqbal Singh S/o Sh. Karan Singh R/o Village & P.O – Mundka Delhi - 110041. ….Respondent. Through: None Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. Petitioner has filed the present petition under Article 227 read with 226 of the Constitution of India, against order dated 29.3.2010 passed by the Additional District judge, Delhi vide which application of respondent under Order 23 Rule 1 of Code of Civil Procedure (for short as "Code") seeking permission to withdraw/abandon a part of the claim, was allowed. 2. Brief facts are that, respondent filed suit for Specific Performance of Contract and Permanent Injunction against present petitioner, making following prayer:- "a) Pass a decree of specific performance of the agreement to sell dated 08.09.2009 in favour of the plaintiff and against the defendant, whereby directing the defendant to obtain the possession on spot from the DDA and get the conveyance deed executed in her favour and thereafter execute and get registered the sale deed/title documents in respect of the same in favour of the plaintiff and handover the actual physical possession of her share in the suit plot i.e. Plot No. 49, Block-B, measuring sq. mtrs., situated at Rangpuri/Vasant Kunj, New Delhi, as the plaintiff has already paid the entire sale consideration to the defendant; b) Pass a decree of permanent injunction in favour of the plaintiff and against the defendant, whereby restraining defendant her attorney/s, servant/s, representative/s, LR/s, family members etc. from selling, alienating, transferring, parting with possession and/or creating any kind of third party interest in any manner in favour of any third person in respect of her share in the suit plot i.e. Plot No.49, Block-B, Rangpuri/Vasant Kunj, New Delhi; c) Alternatively, if this Hon"ble Court due to any reason comes to the conclusion that the plaintiff is not entitled for the decree of specific performance as prayed the plaintiff pray for an alternative prayer that this Hon"ble Court may be pleased to pass a decree for recovery of Rs.12,80,000/- paid as full and final payment to the defendant along with interest @ 18% per annum till the payment is made and pass a decree for recovery of damages in favour of the plaintiff and against the defendant to the tune of Rs.12,50,000/- whereby directing the defendant to pay a sum of Rs.12,50,000/- along with interest @ 18% per annum till the payment is made to the plaintiff for the breach committed by the defendant and the loss and damages suffered by the plaintiff." 3. Respondent valued its suit for purposes of jurisdiction and court fees as under:- i) for relief of specific performance and possession at Rs.12,80,000/-; ii) for permanent injunction at Rs.130/-; iii) for damages at Rs.12,50,000/- upon the adveloram court fees as already affixed as the same is covered under the sub clause (i). 4. Petitioner contested the suit amongst others, on the ground that Court has no pecuniary jurisdiction to try the suit as the title value affixed by respondent to the suit for purposes of jurisdiction comes to Rs.25,30,130/-, which is beyond its jurisdiction. 5. Trial court framed a preliminary issue in this regard that is; "(i) whether this Court does not have the pecuniary jurisdiction to try the suit?" 6. When the matter was listed before trial court for arguments on this preliminary issue, respondent moved application under Order 23 Rule 1 of the Code, seeking permission to abandon the relief of damages of Rs.12,50,000/- from the prayer c