Rakesh Jain v. Mithilesh Mishra & Ors

RAJIV SAHAI ENDLAW, J MAY 17, 2016

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*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 17th May, 2016 + RFA No. 249/2016 RAKESH JAIN ..... Appellant Through: Mr. Himal Akhtar, Adv. Versus MITHILESH MISHRA & ORS ..... Respondents Through: None. CORAM:- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The appeal impugns a judgment and decree of the Court of the Additional District Judge (ADJ)-02 (East), Karkardooma Courts, Delhi of dismissal of CS No.2067/16 filed by the appellant (i) for declaration that the irrevocable General Power of Attorney (GPA) dated 24th June, 2004 allegedly executed by the respondent/defendant no.3 Smt. Jaspal Kaur in favour of respondent/defendant no.1 Smt. Mithilesh Mishra regarding property no.X/3458A/2, Gali No.2, Raghuvar Pura No.2, Gandhi Nagar, Delhi – 110 031 is illegal, null and void; and, (ii) for permanent injunction restraining the respondent/defendant no.1 from dealing with the property, consequent to rejection under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (CPC) of the plaint on the ground of the relief claimed therein on the basis of averments in the plaint itself not disclosing a cause of action in favour of the appellant/plaintiff and being barred by time. 2. Having gone through the paper book and being prima facie of the view that there is no merit in the appeal, the counsel for the appellant/plaintiff has been given ample opportunity to address on the appeal. 3. The appellant/plaintiff instituted the suit from which this appeal arises pleading (i) that the appellant/plaintiff is an old tenant in the aforesaid property under the respondent/defendant no.3 who is the owner/landlord of the appellant/plaintiff and some other tenants in the property; (ii) that the appellant/plaintiff had paid up-to-date rent to the respondent/defendant no.3; (iii) however the respondent/defendant no.3 started refusing to accept the rent compelling the appellant/plaintiff to deposit the rent under Section 27 of the Delhi Rent Control Act, 1958; (iv) that the respondent/defendant no.1 served notices dated 25th September, 2004 on some of the other tenants in the property claiming herself to be the owner of the property and asking for rent thereof; (v) however upon the other tenants asking the respondent/defendant no.1 to furnish proof of her ownership, she failed to do so; (vi) that the appellant/plaintiff came to know that the respondent/defendant no.1 has purchased the property from the respondent/defendant no.3 in the sum of Rs.6 lacs when the market value of the property was not less than Rs.10 lacs and the appellant/plaintiff was also ready to purchase the property in the said amount; (vii) complaint dated 5th August, 2004 was made to the respondent / defendant no.2 Sub Registrar (East) of undervaluation of the property but no action was taken; (viii) that on 2nd August, 2009 the respondent/defendant no.1 along with the notice to one of the tenants in the property annexed a copy of irrevocable GPA mentioning the sale consideration at Rs.6,50,000/- and wherefrom the appellant/plaintiff learnt of the said undervaluation; (ix) that the respondent/defendant no.1 on the basis of the said documents had been dealing with the property; and, (x)"that the cause of action to file the present suit firstly arose in favour of the plaintiff and against the defendant on 24.06.2004 when the illegal sale transaction has taken place between the defendant no.1 and 3 and on 05.08.2004 when the matter was reported by the plaintiff to the Revenue Collector/SDM. The cause of action further arose on 02.08.2009 when the plaintiff saw the irrevocable General Power of Attorney dated 24.06.2004. The cause of action further arose when the plaintiff approached the defendant no.2 with the request to cancel the GPA in question. The cause of action is still subsisting and continuing". 4. The learned ADJ has rejected the plaint, finding/observing/holding (i) that the appellant/plaintiff has no right to ask for declaration as he has no personal interest whatso