Rohit Mahajan v. Rajiv Bhardwaj

RAJIV SAHAI ENDLAW, J SEPTEMBER 06, 2017 "gsr".. (corrected & released on 14th October, 2017)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 6th September, 2017. + ROHIT MAHAJAN ..... Petitioner Through: Mr. S.C. Singhal, Adv. Versus RAJIV BHARDWAJ ..... Respondent Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW CM No.32533/2017 (for exemption) 1. Allowed, subject to just exceptions. 2. The application is disposed of. CM(M) 978/2017 & CM No.32534/2017 (for stay) 3. This petition under Article 227 of the Constitution of India impugns the order [dated 14th July, 2017 in Civil Suit No.17583/2016 of the Court of Additional District Judge-03 (ADJ), Dwarka Courts, New Delhi] of dismissal of the application filed by the petitioner / defendant under Order VII Rule 10 read with Section 151 of the CPC. 4. The counsel for the petitioner has been heard. 5. The respondent / plaintiff instituted the suit from which this petition arises, "for division / separation and recovery of physical possession" of half undivided portion of second floor of property bearing No.B-1/308, Janak Puri, New Delhi-110058 and for the relief of mandatory injunction restraining the petitioner / defendant from transferring, alienating and / or parting with possession of the said half portion of the second floor to any other person, pleading i) that one Sh. Kaptan Singh Rathi had represented to the respondent / plaintiff that he owned the said second floor of property No.B-1/308, Janak Puri, New Delhi-110058 and offered to sell the same to the respondent / plaintiff; ii) that the said Kaptan Singh Rathi with dishonest intention fixed an exorbitant price of the said second floor, which was more than five times of the existing market price and since the respondent / plaintiff was then not aware of the market price as well as the exact status of the ownership, on bona fide belief, signed the agreement to sell dated 6th February, 2015; iii) that however later on the respondent / plaintiff came to know that the said agreement was got executed from the respondent / plaintiff on misrepresentation and concealment of the fact that the said Kaptan Singh Rathi was not having any ownership or title to the said second floor of property No.B-1/308, Janak Puri, New Delhi-110058; iv) that the agreement dated 6th February, 2015 was thus a void document and the respondent / plaintiff is not bound by the same; v) that the respondent / plaintiff thereafter learnt that the petitioner / defendant was the absolute owner in possession of entire property No.B-1/308, Janak Puri, New Delhi- 110058 aforesaid and approached the petitioner / defendant for purchase of half undivided portion of second floor of the said property; vi) that vide registered sale deed dated 13th April, 2015, the respondent / plaintiff purchased half undivided share of second floor of the property from the petitioner / defendant for a total consideration of Rs.56,50,000/-; vii) that under the sale deed, the petitioner / defendant handed over vacant physical possession of the said half undivided portion of the second floor of the said property to the respondent / plaintiff, as also recorded in the sale deed; viii) that however, since the construction of the second floor was not completed at that time, the actual physical possession was not available and not received by the respondent / plaintiff; ix) that though the construction has since been completed but despite repeated requests of the respondent / plaintiff, the petitioner / defendant had failed to deliver possession; x) that the petitioner / defendant on the contrary, in connivance with the aforesaid Sh. Kaptan Singh Rathi, filed a suit against the respondent / plaintiff and pending in the Court of Sh. R.K. Jangala, ADJ, Tis Hazari Courts, Delhi for cancellation of the registered sale deed dated 13th April, 2015 aforesaid in favour of the respondent / plaintiff. 6. The respondent / plaintiff, on the pleas aforesaid, claimed inter alia the following reliefs in the suit: "a. pass a decree of division / demarcation of the half porti