Sushil Goel vs Naresh Kumar And Ors

Anu Malhotra, J

As per the report on the record, all the respondents have been served.

Submissions have been made on behalf of the petitioner and on behalf of the respondent Nos. 4 & 5. On behalf of the respondent No. 3 time is sought for presence of the arguing Counsel. It is not considered appropriate to grant any adjournment for the same.

The petitioner assails the impugned order dated 24.7.2018 of the learned Trial Court of the SCJ-cum-RC (North) in CS No. 150/2017 (New No. 847/2017) vide which an application under Order 11 Rule 14 of the CPC filed by the petitioner as plaintiff of the suit seeking directions to the defendant No. 5 arrayed as the respondent No. 5 to the present petition to produce original conversion file of the suit property, was declined with it having been observed to the effect that it was for the plaintiff to prove his own case and that the defendant Nos. 1 & 2 had filed their documents in relation to the suit plot on the record and that the Court could not be made a tool to collect the evidence and that the plaintiff i.e. the petitioner herein could always move an appropriate application before the DDA to get the certified copy of the required documents or could file an application under the RTI Act seeking the requisite information and that the plaintiff was at liberty to summon the said record at the time of evidence.

It has been sought to be contended on behalf of the petitioner herein i.e. the plaintiff of the suit that the suit that had been filed by the petitioner herein against the defendant Nos. 1 to 7 arrayed therein, is one for declaration, permanent injunction and mandatory injunction with inter alia the prayers made to the effect:

(i) a decree of Permanent Injunction in favour of the plaintiff and against the defendant Nos. 1 to 4 and they may be & their associates, attornies, agents, employees etc. restrained to possess over the suit property bearing No. 8, H-4, Sector-11, Rohini, Delhi-110085 or to try to create any third party interest;

(ii) a decree of Permanent Injunction in favour of the plaintiff and against the defendant No. 4 and he may be restrained to handover the original documents or chain of title deeds of suit property bearing No. 8, H-4, Sector-11, Rohini, Delhi-110085 to any third person other than the plaintiff;

(iii) a decree of Permanent Injunction in favour of the plaintiff and against the defendant No. 4 and he may be restrained to use those original documents or chain of title deeds of suit property bearing No. 8, H-4, Sector-11, Rohini, Delhi-110085, for transferring, selling, alienating, mortgaging etc;

(iv) a decree of Mandatory Injunction in favour of the plaintiff and against the defendant Nos. 5, 6 & 7, and they may be directed not to do change in name of title deeds, conversion from leasehold into freehold, mutation in house tax or to pass sanction site plan of suit property bearing No. 8, H-4, Sector-11, Rohini, Delhi-110085 till the final conclusion of the case;

(v) a decree of Declaration may be passed in favour of the plaintiff and against the defendant Nos. 1 & 5, and declare the document/letter No. F-11(282)/86/LSB (R)/1770 dated 30.5.2014 issued by defendant No. 5 in favour of defendant No. 1 in respect of mutation of suit property and another letter No. F-11(282)/86/LAB(R)/4360, dated 23.12.2014 for extension of time for completion of the construction on the suit property bearing No. 8, H-4, Sector-11, Rohini, Delhi-110085 on concealment of facts to defendant No. 5 being null & void ab-initio;

(vi) a decree of Declaration may be passed in favour of the plaintiff and against the defendant Nos. 1 & 7, and declare the relinquishment deed dated 21.8.2013 vide registration No. 5225, addl. Book No. I, volume No. 5824, bn pages 136 to 139, registered on 23.8.2013 with Sub-Registrar VI-C, Rohini, Delhi as mentioned in para No. 10 of Civil Suit No. 87/17, titled as Naresh Kumar v. Sushil Goel, respect of suit property bearing No. 8, H-4, Sector-11, Rohini, Delhi-110085 on concealment of facts to defendant No. 7 being null & void ab-initio;

(vi) cost of the suit may also be awarded in favour of the plaintiffs and against the defendants.

(vii) any other or further relief which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case may be passed in favour of the plaintiffs and against the defendants.".

It has been submitted on behalf of the petitioner that he is the owner of plot bearing No. 8, H-4, Sector-11, Rohini, Delhi and had purchased the property from one Shri Sat Prakash Bansal and a site plan of the property had been prepared and that the defendant No. 4 who is stated to be the brother of the petitioner, does business of property dealing and in the month of December 2006, the respondent No. 4 i.e. the defendant No. 4 fraudulently and dishonestly induced and contacted the plaintiff for getting original documents of the suit property, as the plaintiff i.e. the petitioner herein was running from pillar to post to convert the suit plot from leasehold into freehold from the DDA and that the defendant No. 4/respondent No. 4 herein had taken the plaintiff into confidence and assured that he could get work done from the DDA and thus pursuant to the said inducement, the petitioner herein had entrusted the original document of the suit property for conversion from leasehold to freehold in the month of December 2006 but rather than changing the conversion of the property from leasehold into freehold, the original documents were not even returned by the defendant No. 4/respondent No. 4 herein to the plaintiff/the petitioner herein despite several reminders and despite the respondent No. 4/defendant No. 4 being the real brother of the plaintiff/petitioner herein.

Inter alia as per averments made through the plaint, it has been averred to the effect that the plaintiff i.e. the petitioner herein had learnt from reliable sources that the defendant No. 4/respondent No. 4 intended to sell the said property and during the course of proceedings in CS 87/2017 which was a suit filed by the defendant No. 1/respondent No. 1 herein, titled as Naresh Kumar v. Sushil Goel and Ors., pending in the North District, Rohini Courts, it was learnt through the said suit by the plaintiff/petitioner herein that the defendant No. 1/respondent No. 1 had got the mutation document No. F-11(282)/86/LSB(R)/1770 dated 30.5.2014 from the defendant No. 5 in respect of suit property bearing No. 8, H-4, Sector-11, Rohini, Delhi on concealment of facts to defendant No. 5 and thus, the petitioner/plaintiff sought that the documents be declared null and void ab initio and that further that the defendant No. 1 was trying to convert the status of the property from leasehold into freehold and that there was another letter No. F-11(282)/86/LSB(R)/4360 dated 23.12.2014 for extension of time for completion of the construction of the suit property that had been filed.

It has been submitted on behalf of the petitioner whilst placing reliance on the written statement filed by the defendant No. 5/respondent No. 5 i.e. DDA that it had been averred vide para 10 in the parawise reply of the said written statement to the effect:

"It is further submitted that Shri Naresh Goel has applied for conversion of aforesaid plot vide application No. 0212232 dated 23.3.2017 and submitted required documents."

and that Shri Naresh Goel who is stated to be the same person as Naresh Kumar arrayed as the respondent No. 1 to the present petition had applied for conversion of the aforesaid plot vide application No. 0212232 dated 23.3.2017 and had submitted the required document.

It has been submitted on behalf of the respondent No. 4 i.e. the defendant No. 4 to the said suit that the respondent No. 4 has been unnecessarily dragged into the litigation in the instant case.

Reliance is inter alia placed on behalf of the petitioner on the verdict of the Hon'ble Supreme Court in Malia Margarida Sequeira Fernandes & Ors. v. Erasmo Jack De Sequeira (Dead) Thr. LRs., II (2012) SLT 753 : (2012) 5 SCC 370 with specific reference to observations in paras 41 & 42 which read to the effect:

"41. In civil cases, adherence to Section 30, CPC would also help in ascertaining the truth. It seems that this provision which ought to be frequently used is rarely pressed in service by our judicial officers and judges.

Section 30, CPC reads as under:

Power to order discovery and the like-Subject to such conditions and limitations as may be prescribed, the Court may, at any time either of its own motion or on the application of any party,--

(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;

(b) issue summons to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;

(c) order any fact to be proved by affidavit."

to contend that the provision of Section 30 of the CPC ought to be brought into play. Reliance has also been placed on behalf of the petitioner on the verdict of this Court in A.K. Aggarwal v. Shanti Devi, 1996 RLR 60; Jagson International v. Raghunandan Saran, 2002 RLR (Note) 49; Ved Prakash Kharbanda v. Vimal Bindal, 198 (2013) DLT 555 to submit and contend that the prayer made by the petitioner herein through the application under Order 11 Rule 14 of the CPC that had been made before the learned Trial Court seeking the defendant No. 5 to produce the entire original conversion file of the suit property ought to be granted.

In the circumstances of the case, it is considered appropriate to grant the prayer made by the petitioner putting forth that there has been a fraud exercised even in submission of the application seeking conversion of the suit property that is pending before the DDA. Thus the copies of the conversion file in relation to the application No. 0212232 dated 23.3.2017 be placed on the record of the learned Trial Court with an affidavit of the authorized representative of the respondent No. 5 herein i.e. the defendant No. 5 before the learned Trial Court within a period of four weeks with a copy thereof being supplied to the petitioner. Nothing stated hereinabove however, shall amount to any expression on the merits or demerits of the case before the learned Trial Court nor in relation to the assertions or allegations that have been made in the said proceedings.

The petition is disposed of.