Nawal Singh vs Mehant Narain Dass and Another

Rajiv Sahai Endlaw, J.—The appeal impugns the judgment and decree dated 13th July, 1994 of the Court of the learned Additional District

Judge (ADJ), Delhi of dismissal of Suit No. 6/1994 filed by the appellant for specific performance of an Agreement dated 5th December, 1984 by

the respondent/defendant No. 1 Mahant Narain Dass to sell the property consisting of one room with varandah and open courtyard built on a

piece of land admeasuring 50 sq. yds. situated at Khasra No. 400, Village-Kilokri known as Temur Nagar, New Delhi to the appellant/plaintiff for

a sale consideration of Rs. 50,000/-. The respondent/defendant No. 2 Sh. Vinod Kumar Gupta was impleaded being an occupant as tenant of the

said property. It was inter alia the case of the appellant/plaintiff that the respondent/defendant No. 1, at the time of Agreement to Sell itself and

against receipt of the entire sale consideration of Rs. 50,000/-, had delivered vacant, peaceful and physical possession of the property to the

appellant/plaintiff and had promised to execute the Sale Deed after obtaining the necessary permissions but failed to execute the Sale Deed and

started attempting to dispossess the appellant/plaintiff therefrom and in which regard the appellant/plaintiff had earlier filed a suit for injunction

against the respondent/defendant No. 1 and in which interim order restraining the respondent/defendant No. 1 from so dispossessing the

appellant/plaintiff was also issued but before the same could be served on the respondent/defendant No. 1, the respondent/defendant No. 1

forcibly dispossessed the appellant/plaintiff from the property on 13th March, 1985. Accordingly, the suit was filed on 13th October, 1987,

besides for the relief of specific performance, also for the relief of mesne profits/damages for use and occupation at the rate of Rs. 400/-per month.

The respondent/defendant No. 1 contested the suit by denying the Agreement to Sell and receipt of Rs. 50,000/- and claiming the

appellant/plaintiff to have fraudulently got the same executed from the respondent/defendant No. 1. The respondent/defendant No. 2 also

contested the suit claiming to be a bona fide tenant in the property at a rent of Rs. 600 per month with effect from 1st May, 1985. Both the

respondents/defendants were proceeded against ex-parte in the suit; the respondent/defendant No. 1 after leading his evidence and the

respondent/defendant No. 2 without leading any evidence.

The learned ADJ vide the impugned judgment, though held the respondent/defendant No. 1 to have been unsuccessful in proving/establishing

that the appellant/plaintiff had got the Agreement to Sell admittedly executed by him, executed from him fraudulently or for the reasons alleged but

held the appellant/plaintiff to be still not entitled to the relief of specific performance on a finding of the property being of the temple known as Shiv

Mandir of which the respondent/defendant No. 1 was only a Pujari and thus had no right to sell the same.

The appeal came up before this Court for admission first on 8th May, 1995, when no error was found in the reasoning given by the learned ADJ

for denying the relief of specific performance to the appellant/plaintiff. It however appears that the counsel for the appellant/plaintiff sought the relief

before this Court, of refund of Rs. 50,000/- which had been paid by the appellant/plaintiff to the respondent/defendant No. 1 and which relief was

not claimed in the suit. Permission was as such sought to amend the plaint to claim compensation in the alternative. The matter was adjourned to

enable to appellant/plaintiff to move appropriate application.

Thereafter, CM No. 587/1995 for amendment of the plaint was filed and vide order dated 22nd August, 1995, notice of the appeal and of the

application for amendment of plaint was ordered to be issued.

The notices issued were returned unserved with the report that the respondent/defendant No. 1 was a mental patient and the

respondent/defendant No. 2 was not available at the address given.

The order dated 30th March, 1998 in this appeal records that the respondent/defendant No. 2 had been served. However, none appeared on

his behalf. The matter continued to languish for the service of the respondent/defendant No. 1. On 4th March, 1999, the counsel for the

appellant/plaintiff informed that the respondent/defendant No. 1 had expired. Thereafter, application was filed for substitution of one Smt. Giano

Devi wife of Sh. Nirmal and one Sh. Raghuvir son of Sh. Nirmal as legal heirs of the deceased respondent/defendant No. 1. Though their

relationship with the deceased respondent/defendant No. 1 was not disclosed but they were sought to be substituted by pleading that they were in

occupation of the premises possessed by the deceased respondent/defendant No. 1 and claiming thus to be the successors of the deceased

respondent/defendant No. 1. The said persons i.e. Smt. Giano Devi and Sh. Raghuvir appeared in person before this Court on 19th November,

1999 in response to the notice issued to them and stated that the deceased respondent/defendant No. 1 was a Sadhu and did not have any legal

heirs. The said persons however subsequently filed a reply pleading that the deceased respondent/defendant No. 1 had left a Will dated 17th

August, 1990 in their favour and that they were maintaining the property in question and though not having any objection to substitution as legal

heirs but opposing the application as barred by time. The said legal heirs also filed a reply to the application for amendment of the plaint. The

appellant/plaintiff thereafter filed an application for condonation of the delay in applying for substitution of the legal heirs and the matter again

continued to languish. Ultimately, vide order dated 6th September, 2006, the delay in applying for substitution of the legal heirs of the deceased

respondent/defendant No. 1 was condoned and the said Smt. Giano Devi and Sh. Raghuvir substituted as the legal heirs of the deceased

respondent/defendant No. 1.

Thereafter, when the appeal came up for hearing, none appeared for the respondents/defendants and again notice was ordered to be served on

them and the proceedings languished at the said stage. Though the counsel for the legal heirs of the deceased respondent/defendant No. 1

appeared initially but stopped appearing thereafter. The respondent/defendant No. 2 was ultimately served by publication but none appeared on

his behalf.

None appeared for the appellant/plaintiff also when the appeal came up for hearing on 9th December, 2010, when it was dismissed in default

and for non-prosecution. CM No. 13038/2011 has been filed for restoration of the appeal; again notice of this application was issued and the

counsel appeared for the legal heirs of the deceased respondent/defendant No. 1 but again stopped appearing. The respondent/defendant No. 2

was again served by publication and none appeared on his behalf.

Today also none appears for either of the respondents/defendants. They are proceeded against ex parte.

Accordingly, for the reasons stated, CM No. 13038/2011 is allowed and the appeal restored to its original position.

The counsel for the appellant/plaintiff has been heard.

The counsel for the appellant/plaintiff has stated that the appellant/plaintiff has merely stated that the appellant/plaintiff claims refund of Rs.

50,000/- paid by him to the deceased respondent/defendant No. 1 together with a sum of Rs. 20,000/- spent by the appellant/plaintiff in carrying

out works on the property between December, 1994 and March, 1995, when the appellant/plaintiff was in possession of the property.

However, the said relief as aforesaid was not claimed in the suit as originally filed and has been claimed for the first time in the application filed

on 8th May, 1995 in this appeal for amendment of the plaint.

The counsel for the appellant/plaintiff states that the said amount together with interest @ 24% per annum claimed thereon with effect from 5th

December, 1984, when the amount was paid, will be a substantial amount today.

However, the first obstacle which the appellant/plaintiff is to get over, is of whether the said amendment is to be allowed.

As noticed above, the deceased respondent/defendant No. 1 against whose legal heirs only the claim for refund of Rs. 50,000/- and for Rs.

20,000/- can be maintained, had in his written statement denied the Agreement to Sell as well as receipt of Rs. 50,000/-. Though the learned ADJ

in the impugned judgment has returned a finding of the deceased respondent/defendant No. 1 having failed to prove that the appellant/plaintiff had

got his signatures on the Agreement to Sell fraudulently and under a misrepresentation but no finding has been returned on the aspect of payment of

Rs. 50,000/- obviously because there was no claim therefor. Though one view can be that once the plea of the deceased respondent/defendant

No. 1 of the Agreement having been got signed by him fraudulently and under misrepresentation has been negatived, it ipso facto follows that

whatever is written in the said Agreement has to be believed but according to me, in the facts of the present case, the failure of the deceased

respondent/defendant No. 1 to establish that the Agreement to Sell was got signed from him under misrepresentation cannot lead to an inference of

receipt by the deceased respondent/defendant No. 1 of Rs. 50,000/- even though it is so recorded in the Agreement to Sell. The Agreement to

Sell does not state the mode in which the said sum of Rs. 50,000/- has been received; it rather states that the said amount had been received vide

a separate legal receipt. The appellant/plaintiff however in his examination-in-chief did not prove the said receipt. No copy of the said receipt is

also found on the Trial Court file. The appellant/plaintiff in his cross-examination, when quizzed in this regard deposed that he had paid Rs.

50,000/- in cash and as to the source stated that he was in service getting a salary of about Rs. 1,000/- per month in 1984 and the said amount

was the sale proceed of a house in Kartar Nagar sold by him. Upon being quizzed further, he stated that the sale proceeds of the Kartar Nagar

house were the funds of himself and his family; that he had not intimated his office of the purchase of the property; that out of Rs. 50,000/-, he had

contributed only Rs. 5,000/- and his wife had contributed about Rs. 12,000/or Rs. 13,000/- and the remaining amount had been contributed by his

children. He further admitted that he had not withdrawn the amount of sale consideration from any Bank.

The deceased respondent/defendant No. 1 in his deposition categorically denied having received the said amount.

I am of the view that no finding on the aspect of the claim for refund of Rs. 50,000/- with interest can be given, even if the amendment were to

be allowed, without giving the parties an opportunity to lead evidence. It is more so qua the claim for Rs. 20,000/-.

What I have wondered is whether the formality of allowing the amendment, either recording the evidence in this Court or remanding the case to

the learned ADJ for recording evidence, is worthwhile.

In my opinion, no. The deceased respondent/defendant No. 1 has already died; the legal heirs substituted are not the children of the deceased

respondent/defendant No. 1 but stated to be in possession of the property where the deceased respondent/defendant No. 1 was residing. It is in

the pleadings that the deceased respondent/defendant No. 1 was residing in the same temple property with respect to a part of which, the

Agreement to Sell was executed. The persons substituted as legal representatives, when they first appeared in person denied having inherited any

property from the deceased respondent/defendant No. 1, though subsequently in their reply stated that the deceased respondent/defendant No. 1

had left a Will in their favour. The said Will is not on record. It appears that the Will, if any would be with respect to the rights as Pujari in the

temple. The temple has already been held to be not the property of the deceased respondent/defendant No. 1 and it is for this reason only that the

relief of specific performance has been denied.

A decree for recovery of money against the legal heirs of a deceased judgment debtor can be executed only from the asset/property, if any left

by the deceased judgment debtor. There is nothing to show that the deceased respondent/defendant No. 1 has left any asset/property. For this

reason also, the decree, even if any, passed in favour of the appellant/plaintiff and against the deceased respondent/defendant No. 1 for recovery

of Rs. 70,000/- with interest, cannot be executed against his legal heirs substituted in this appeal, without it being established that they had inherited

any property from the deceased respondent/defendant No. 1.

The litigation has already remained pending since 1985 i.e. now for about nearly three decades. The negligence/defaults of the

appellant/plaintiff in not claiming the said relief and in prosecution of this appeal are writ large. At each and every stage, repeated

adjournments/opportunities were availed of. Such a litigant is not entitled to any indulgence from the Court.

I am therefore of the opinion that no case for allowing the amendment of the plaint at this stage is made out and resultantly no case for granting

the relief claimed in this appeal by way of amendment is made out. The appeal and the application for amendment are accordingly dismissed. No

costs.

Decree sheet be drawn up.