Seema Thakur and Others vs Panchi Devi and Others

G.S. Sistani, J.—The plaintiffs have filed the present suit seeking a decree of possession of the entire ground and second floor of property bearing No. 46/12, East Patel Nagar, New Delhi. A decree of permanent injunction has also been against the defendants. During the pendency of the suit, it was agreed between the parties that the plaintiffs collectively will have 20% share in the properties owned by one Sh. Kanshi Ram Thakur who was the father-in-law of plaintiff No. 1 and grand-father of plaintiffs No. 2 and 3. It was also agreed that the plaintiffs'' share to the extent of 20% shall be handed over to them by the defendants. A local commissioner/valuer was also appointed for determining the value of the properties, as detailed in order dated 16.11.2005 passed by this Court, who vide his report dated 1.2.2006 valued all the properties in dispute at Rs. 4.00 Crores. It would be useful to reproduce the ordered dated 16.11.2005 at this stage, the relevant portion of which is as under:-

In order to put an end to the family dispute, it is agreed as under:-

(i) The estate of late Sh. Kanshi Ram Thakur consists of the following properties:

(a) 46/12, East Patel Nagar, New Delhi;

(b) Shop No. 121, Shankar Road Market, New Rajinder Nagar, New Delhi.

(c) 12 acres of land located in Sonipat, Haryana;

(d) Tenancy rights in Shop No. 122 and 136, Shankar Road Market, New Rajinder Nagar New Delhi

(ii) The plaintiffs collectively have 20 per cent share in all these properties. The plaintiff no. 1 is the widow and plaintiffs no. 2 & 3 are the sons of late Sh. Bansi Lal, who has passed away and was the son of Sh. Kanshi Ram Thakur. Defendants no. 1 is the widow of late Sh. Kanshi Ram Thakur while defendant no. 2 is the son and defendants no. 3 and 4 are the daughters.

(iii) The mode of division/valuation has to be arrived at whereby the share of the plaintiffs to the extent of 20 per cent in the estate as mentioned above can be handed over to the said plaintiffs.

(iv) In view of the settlement arrived at the criminal cases filed against the attorney of the plaintiffs shall be withdrawn by the defendants. Probate case no. 207/2005 filed by the plaintiffs shall also be withdrawn.

(v) The parties shall not create any third party interest or part with possession in respect of the properties forming part of the estate of Sh. Kanshi Ram Thakur as mentioned above.

(vi) The local commissioner/valuer be appointed for purposes of determination of the value of the aforesaid properties who will do so after hearing of the parties.

On 02.02.2006, the attorney of the plaintiffs and the counsel for the defendants stated that in view of the valuation report they would try to work out as to how the share of the plaintiffs'' can be satisfied.

On 3.4.2006, learned counsel for the defendants sought and was granted 50 days time to deposit 20% of the value of the total properties as assessed by the valuer. While granting 50 days time it made clear in the order that in case the amount is not deposited in Court within the said period the court will be left with no option but to take steps for the sale of the properties for the plaintiffs to be paid their shares. Since the defendants failed to deposit the amount within 50 days, an application being I.A. No. 6213/2006 was filed seeking extension of time and this Court vide order dated 31.5.2006 extended the time till 3rd July 2006. It is noticed that, although, time was extended upto 03.07.2006, the prayer of the defendants for extending the time up till 03.09.2006 was declined being unreasonable. However, again the defendants failed to deposit 20% of the value of the properties.

By means of I.A. No. 7313/2006, the defendants pray that they may be permitted to deposit Rs. 20.00 lakhs in terms of order dated 3.4.2006. The defendants have filed I.A. No. 7312/2006 seeking further time to deposit the balance amount of Rs. 60,00,000/- on or before 31.8.2006. On 5.7.2006, learned counsel for the plaintiffs stated that he does not wish to file separate reply and I.A. No. 7314/2006 filed by the plaintiffs be treated as reply to these applications.

Learned counsel for the defendants state that the defendants have entered into an agreement to sell their agricultural land under which the prospective vendees have paid an earnest money of Rs. 20.00 lakhs and shall pay Rs. 60.00 lakhs on or before 26.8.2006.

The applications have been opposed by the plaintiffs. It is stated that the valuation of the property had been arrived at on the basis of the value/prices as existing on the date of the valuation. Since then, there has been tremendous increase in the value of the properties and the plaintiffs are entitled to a share as existing on the present-day valuation of the properties. The application for extension of time is liable to be dismissed and the properties are liable to be sold by auction. It is also stated that the plaintiffs are ready and willing to make payment of the sum of Rs. 3.20 crores to the defendants being the 80% of the valuation of the properties.

The plaintiff has also filed I.A. No. 7314/2006 for re-valuation of the properties. It is stated that the valuation was done seven months back; since then the market price of properties has increased; thus the compromise arrived at between the parties is not acceptable to the plaintiff as the compromise was based on the assurance that the defendants will pay 20% share within 50 days of the valuation. Although this period of 50 days were to expire on 22.5.2006, the court granted further time to the defendants to pay the amount by 3.7.2006. On the same grounds, the plaintiffs have filed another application, being I.A. No. 8727/2006, for sale of the properties by public auction.

In reply to I.A. No. 8727/2006, the defendants have stated that by virtue of the settlement, the plaintiffs have relinquished their rights, title and interest in the properties; the plaintiffs are entitled to 20% of the total value and cannot be permitted to wriggle out of the settlement on the plea of increase in the value of the property. Time for deposit of the amount was extended by this Court till 3.7.2006. On 4.10.2006, the defendants brought the entire amount of Rs. 80.00 lakhs but the plaintiffs refused to accept the same.

The plaintiffs have also filed I.A. No. 1783/2007 seeking to recall the order dated 16.11.2005 and declaring the compromise as null and void as the market prices of the properties have increased. The plaintiffs are entitled to 20% of the share in the properties as per the valuation made today. The application has been opposed by the defendants.

Learned counsel for the defendants has relied upon Hari Shankar Singhania and Others Vs. Gaur Hari Singhania and Others, and particularly on para 44 to canvass the point that family arrangement or settlement should be treated differently from any other formal commercial settlement. The issue involved was the commencement of period of limitation, although the broad principle as laid down by the Supreme Court is certainly applicable to the facts of this case. Counsel for the defendant has also relied upon the decision in Uma Devi Yadav and Another Vs. Lt. Col. Gaj Singh Yadav (Retd.) and Others, . Counsel further relied upon the judgment in Chinnamarkathian alias Muthu Gounder & Anr. (in CA No. 2197 of 1969), Chinnamarkathian alias Muthu Gounder and Others Vs. Ayyavoo alias Periana Gounder and others, to show that where a time period has been fixed by the court, the court may in its discretion, from time to time, enlarge such period. Learned counsel relied upon the following para of this judgment.

It is a well accepted principle statutorily recognised in Section 148 of Civil P.C. - an analogous provision - that where a period is fixed or granted by the court for doing any act prescribed or allowed by the Code, the court may in its discretion from time to time enlarge such period even though the period originally fixed or granted may expire. It a Court in exercise of the jurisdiction can grant time to do a thing, in the absence of a specific provision to the contrary curtailing, denying or withholding such jurisdiction, the jurisdiction to grant time would inhere in its ambit the jurisdiction to extend time initially fixed by it. Passing a composite order would be acting in disregard of the jurisdiction, in that while granting time simultaneously the court denies to itself the jurisdiction to extend time. The principle of equity is that when some circumstances are to be taken into account or fixing a length of time within which a certain action is to be taken, the Court retains to itself the jurisdiction to re-examine the alteration or modification of circumstances which may necessitate extension of time. If the court by its own act denies itself the jurisdiction to do so, it would be denying to itself the jurisdiction which in the absence of a negative provision, it undoubtedly enjoys.

Counsel has also relied upon the judgment in Smt. Periyakkal and Others Vs. Smt. Dakshyani, , relevant portion of which reads as under:-

Where in an appeal arising out of an application under Order 21, R. 90, the parties entered in to a compromise and invited the Court to make an order in terms of the compromise which the court did, the time for deposit stipulated by the parties became the time allowed by the court and this gives the court the jurisdiction to extend time in appropriate cases. Of course, time would not be extended ordinarily, nor for the mere asking. It would be granted in rare cases to prevent manifest injustice. True, the court would not rewrite a contract between the parties but the court would relieve against a forfeiture clause; and where the contract of the parties has merged in the order of the court, the court''s freedom to act to further the ends of justice would surely not stand curtailed.

I have heard learned counsel for the parties.

The basic argument of learned counsel for the plaintiffs is that the share of the plaintiffs is fixed at 20% In terms of the order of the Court dated 16.11.2005, a valuer was appointed who valued all the properties at Rs. 4 crores. Based on this valuation, the share of the plaintiff was assessed at Rs. 80 lakhs. Time was fixed by the Court to make the payment within 50 days. These were the broad terms of settlement arrived at between the parties. The order dated 16.11.2005 also made it clear that in case the payment was not made within 50 days, the Court will be left with no option but to take further steps for sale of the properties for the plaintiffs to be paid their share. The argument of Mr. Rajiv Khosla, learned counsel for the plaintiffs is thus:-

(1) 50 days period expired. No payment was made.

(2) Defendants asked for extension, time was extended upto 3.7.2006. No payment was made.

(3) Defendants sought further extension upto September, 2006 which was refused.

(4) Value of the properties have increased manifold. Thus 20% should be granted based on today''s valuation.

This Court in terms of the order dated 31.5.2006 not only granted extension upto 03.07.2006 but prayer for grant of extension upto 30.09.2006 was categorically declined. Still the defendants did not make the payment. Learned counsel for the defendants further submits that only course which was left open is, an envisaged in the order dated 16.11.2005, i.e., that the properties should be put to sale and 20% of the sale proceeds should be paid to the plaintiffs. According to learned counsel for the plaintiffs, there has been a drastic rise in the value of the suit properties. Therefore, while 20% share of the plaintiffs is fixed, they cannot be forced to accept the same valuation as of January, 2006 while the defendants will get a much higher price than Rs. 4 crores. as per the valuation report.

Learned counsel for the defendants has submitted that once an order of 16.11.2005 has been passed, this Court not only had the power to enlarge the time but, in fact, the Court must enlarge the time and direct the plaintiff to receive Rs. 80 lakhs.

Mr. S.K. Bhalla, learned counsel for the defendants has, in fact, drawn the attention of the Court to an order dated 04.10.2006, wherein it has been categorically recorded that he had brought a bank draft in Court but learned counsel for the plaintiffs refused to accept the same. Learned counsel for the defendant has pointed out that once the parties have arrived at a settlement, the Court should not change the terms of settlement and wherever there is delay, the Court should be very liberal in extending the time. Learned counsel for the defendants has relied on various judgments.

There is no quarrel to the proposition that the court has ample power to extend the time, which was originally granted. However, the basic question which would arise is whether time should be extended by the mere asking of the person, the answer has to be in the negative. Time can never be extended if the extension works to the disadvantage of the other side. The fact of extension of time and asking the plaintiff to accept the bank draft of Rs. 80 lacs at this stage would certainly put the plaintiffs into great financial disadvantage, and especially in view of the fact when the prayer for extension of time beyond 3.7.2006 was specifically rejected. Strictly speaking the consequence which is to follow is that the property must be put to sale as clearly spelt out in the order of the court dated 16.11.2005. No appeal has been filed against this order.

On the bare reading of the relevant orders the following situation emerges:

(1) Plaintiff is entitled to 20% share out of the suit properties.

(2) Evaluation was done. Based on the valuation of Rs. 4 crores the share of the plaintiff is fixed at Rs. 80 lakhs.

(3) Payment to be made to the plaintiffs within 50 days.

Fifty days time was granted as the defendants did not make the payment within the prescribed period. The defendant filed the application for extension of time. The Court extended the time upto 03.07.2006. In the same order to extend the time till September, 2006 was declined. The defendants accepted this order. Payments were not made until the bank draft was brought to Court and as recorded in the order dated 04.10.2006.

There is no doubt that once the parties have entered into a compromise, the Court should be rather slow in interfering with the compromise. I am in absolute agreement with this proposition. The only issue which arises at this stage is to balance the equities. Learned counsel for the plaintiffs submits that the properties should be put to sale. Learned counsel for the defendants submits that time should be enlarged.

After giving my thoughtful consideration to the entire matter to meet the ends of justice, the Valuer who was appointed by the Court on 16.11.2005, i.e., Mr. E.S. Mehta, Architect, R/o D-54, Malcha Marg, New Delhi, Mobile No. 9810043374, is directed to file a fresh evaluation report within two weeks from today. On his filing the report, the defendants will be given 50 days time to pay 20% of the valuation. In case, the payment is not made to the plaintiffs within 50 days, the suit properties will be sold and 20% of the sale price will be paid to the plaintiffs. Since the delay has occurred on account of the defendants, the fee of the Valuer, which is fixed at Rs. 25,000/- tentatively, shall be paid by the defendants. In view of these directions IA Nos. 7312-14/2006, 8727/2006 and 1783/2007 stand disposed of.

CS(OS) No. 2211/2003

List on 28.5.2007 for further directions.