Manmohan Singh, J.@mdashBy this order, I propose to decide the abovementioned pending application, being I.A. No. 10071/2013, filed by the applicant/plaintiff under Order I Rule 10 read with Section 151 CPC.
2. Brief facts of the case are that the plaintiff filed the suit for declaration and mandatory injunction against the defendants namely Sh. Mohd. Yusuf and Sub-Registrar, Mehrauli. The following reliefs are prayed:
"a) declaring the statement made by the plaintiff before the learned Civil Judge, Delhi on 29.04.2003 in the suit titled as ''Mohd. Yusuf Vs. Kanwar Singh Saini'' and the order dated 12.05.2003 as null and void, not enforceable as being procured by misrepresentation of facts and the fraud played upon him,
b) declaring the Sale Deed dated 05.09.2002 as Null and Void, and declare the Plaintiff as the absolute owner of the properties No. 147-A and 148, Village Khirki, Malviya Nagar, New Delhi-110 017,
c) mandatory injunction in favour of the plaintiff and against the Defendant No. 2 to make an endorsement of cancellation of the Sale Deed in the records maintained in the office of the Defendant No. 2."
3. Originally, the present suit was filed in the year 2005 in the Court of Senior Civil Judge, Delhi, for declaration and mandatory injunction. By order dated 29th April, 2010, the plaint was returned under the provision of Order VII Rule 10 CPC in view of the reason that the suit was beyond the pecuniary jurisdiction of the Court. Thereafter the suit was transferred to this Court.
4. Issues in the matter were framed on 7th May, 2014. The plaintiff was directed to file the list of witnesses within four weeks and evidence by way of affidavit(s) within eight weeks.
5. In the meanwhile, the present application has been listed before Court for impleadment of Mr. Ved Prakash Saini as defendant No. 3 and Mr. Manohar Pal Singh as defendant No. 4.
6. The matter is now listed for plaintiff''s evidence on 28th November, 2014 before the Joint Registrar.
7. The plaintiff''s case, on merits, is that the plaintiff is the owner of property bearing No. 147-A and 148, Khirki Village, Malviya Nagar, Delhi, who was in need of funds. Mr. Ved Prakash Saini, a distant relative of the plaintiff, along with Mr. M.P. Singh represented to the plaintiff that he served the Vice-President of the Saini Co-operative Thrift & Credit Society Limited and since Mr. M.P. Singh was also a member of the said society, they would arrange for the disbursement of the said funds as loan to the plaintiff. The plaintiff accepted the said offer in good faith and was made to sign on several blank documents and cheques. The said proposed defendants in collusion with the defendant No. 1 got the loan sanctioned but misappropriated the money for themselves. They also got certain documents relating to the sale of property signed by the plaintiff who was not aware about the contents of the documents which he signed or understood the effect thereof. Later on it came to the knowledge of the plaintiff that he was duped into executing a document which was in fact a sale deed in favour of the defendant No. 1. Even the presence of the plaintiff before the Sub-Registrar and subsequently before the Court was secured by fraud and misrepresentation by the defendant No. 1 in conspiracy with the proposed defendants under the pretext of getting documents prepared before the office of Sub-Registrar for the purposes of sanctioning of loan to the plaintiff. The defendant No. 1 in collusion with the proposed defendants played a fraud upon the plaintiff in relation to the civil suit.
8. On the pretext of obtaining a loan for the plaintiff, Mr. Ved Prakash Saini had taken his signatures on various documents and without the knowledge of the plaintiff, the loan was in fact sanctioned and the funds unauthorisedly withdrawn from the accounts of the family members of the plaintiff by, inter alia, using blank cheques which had been signed by the plaintiff and given to the proposed defendant No. 3 in good faith. In this regard FIR No. 152/2005 dated 10th February, 2005 was registered at behest of the plaintiff in which the charge sheet has also been filed.
9. It is stated in the application that the proposed defendants, namely, Ved Prakash Saini and M. P. Singh also attempted to illegally take possession of the plots in question. However, later on with the interference of local persons, a settlement was reached. The submission of the plaintiff is that at the time of filing of the suit, since the proposed defendants were not the purchasers under the sale deed, he thought that actually an effective order of cancellation can be made in their absence. But, later on, it was felt that their presence is necessary for complete and final decision on the issue involved in the present proceedings as there are allegations of collusion between Mr. Ved Prakash Saini, Mr. M.P. Singh and defendant No. 1. It is submitted that their presence is necessary although there is no effective relief sought against the proposed defendants. In support of his submissions, learned counsel for the plaintiff has referred the decision of
10. The learned counsel also referred to the case of same line i.e.
11. The application is strongly opposed by the defendant No. 1 as well as the proposed defendants. The defendant No. 1 denied each and every statement made by the plaintiff in the plaint as well as in the present application. The case of defendant No. 1 is that he purchased the built up property bearing No. 148, Khirki Village, Malviya Nagar, Delhi from the plaintiff vide sale deed dated 5th September, 2002 duly registered with the Office of Sub-Registrar and the physical possession of the said entire property was handed over by the plaintiff to him. The said fact of handing over the possession of the suit property has been mentioned in para 4 of the sale deed. It is stated by the defendant No. 1 that the plaintiff subsequently became dishonest and he in collusion with other persons tried to dispossess the defendant No. 1 from the said property, however, he could not achieve his goal. In order to protect his legal right, the defendant No. 1 filed a civil suit for permanent injunction against the plaintiff seeking relief against the plaintiff restraining him from dispossessing the defendant No. 1 from the said property. The plaintiff was also served with the summons in the said suit who filed his written statement admitting the possession of the defendant No. 1 of the said property and on 29th April, 2003 he made a voluntary statement in the Court on oath to the following effect:
"Statement of Shri Kanwar Singh Saini, defendant On SA.
Neither I have threatened the plaintiff nor I will dispossess him as I have already sold the suit property vide sale deed. The suit of the plaintiff may kindly be dismissed as there is no merit on the same."
The order dated 12th May, 2003 of the Civil Judge reads as under:
"Statement of plaintiff is recorded in a separate sheet. Statement of defendant is already recorded. Keeping in view of the statements of parties, the suit of the plaintiff is disposed of. Parties are bound by their statements as given in the court. NO orders as to costs. File be consigned to Record Room."
12. It is contended by the defendant No. 1 that on 4th August, 2003, when he visited the said property, he noticed that the plaintiff in collusion with his family members including his sons and wife had broken open the locks and doors of the said property/premises and had forcibly taken the physical possession of the same thereby committing the contempt of the court. The defendant No. 1 also tried to take the assistance of the police but no help was provided to him. On 1st September, 2013, the defendant No. 1 moved to this Court by way of contempt of court, being CCP No. 501/2003, titled as Mohd. Yusuf vs. Kanwar Singh Saini & Ors. The Court passed the following order on 11th September, 2003:
"The matter has been passed over and even on the second call there is no appearance on behalf of the petitioner. The contempt that is alleged is in respect of order passed by the Civil Judge, Delhi, who was disposed off the suit of the parties on the basis of statement made before him. The petitioner to approach the Civil Judge who would look into the matter and send his recommendation if contempt is made out.
With these observations the petition stands disposed of."
13. In view of the above said order, the defendant No. 1 initiated the contempt proceedings against the contemnor before the civil court of Sh. Sanjay Bansal, which was disposed of as per the undertaking given by the present plaintiff praying that the culprits/accused should be punished for contempt of court for violating the statement/ undertaking given to the said civil Court.
14. By order dated 20th July, 2009, the plaintiff was held to be contemnor and he was awarded punishment of simple imprisonment for four months.
15. Subsequently, he filed a Criminal Appeal bearing No. 1798/2009 before the Supreme Court of India who was granted bail on furnishing the bail bonds by order dated 29th September, 2009.
16. As per the defendant No. 1, the plaintiff even got filed a false and frivolous suit by his son Vikram against Harjeet Singh wherein the plaintiff was made defendant No. 3, bearing Suit No. 57/2003, before the District Court, with regard to the said property. On 25th November, 2003 the defendant No. 1 came to know of the said civil suit when the plaintiff filed a formal reply in the contempt proceedings initiated by him against the plaintiff and his family members and defendant No. 1 immediately filed an application under Order I Rule 10 CPC apprising the Court about the facts and the fraud and manipulations played by the plaintiff through his son. The defendant No. 1 was impleaded as defendant No. 4 in the said civil suit. Thereafter, the suit was withdrawn on 23rd April, 2007.
17. It is denied by the defendant No. 1 that the proposed defendants Mr. Ved Prakash Saini was a distinct relative of the plaintiff and he used to visit him and became familiar with his family and he won over faith of the plaintiff. It was denied that there was any connivance between Ved Prakash Saini and M. P. Singh. All the allegations in fact are denied by the defendant No. 1 as mentioned in the plaint. It was denied by the defendant No. 1 that under the pretext that the alleged loan documents are to be prepared before the office of Sub-Registrar and that the plaintiff has to allegedly sign the alleged loan documents, the plaintiff was taken to the office of the defendant No. 2 as alleged and that without telling the contents of the document, the signatures were taken and the deed was registered on 5th September, 2002 in the manner as alleged in the plaint.
18. It was also denied that Mr. Ved Prakash Saini and Mr. M.P. Singh brought one Mr. Jai Narain to put the signatures on the said document and that the plaintiff was not told regarding the nature of the said document. It was denied that after some time, Mr. Ved Prakash Saini came to plaintiff along with one person at the alleged premises No. 147A-148, Khirki village, New Delhi, and disclosed that as the loan has been applied so the plaintiff has to appear before the Court and he has to receive the summons. It is alleged that the version of the plaintiff is concocted which is apparent from the fact that no complaint against the said Advocate was made by the plaintiff who took him to the Court and got signed the statement. It is also a matter of fact that the plaintiff who was the defendant No. 3 in the suit filed by his son made the voluntary statement in open Court in the presence of the Presiding Officer. It was denied that after recording the said statement Mr. Ved Prakash Saini, Mr. M.P. Singh, Mr. Iqbal Ahmad, Advocate and Mr. D.S. Sharma, Advocate allegedly told the plaintiff that now there is no necessity for him to come again.
19. In reply, the case of the proposed defendants is that they are neither necessary nor proper parties to the suit. All the issues involved in the suit can be effectively and completely adjudicated upon without impleading them.
20. I have heard the learned counsel for the parties in the present application and after having gone through the pleadings in the case as well as in the application, I am of the considered view that the prayer made in the application is liable to rejected on the following reasons:
a. The plaintiff has made specific allegations against the proposed defendants in various paras of the plaint. As per his own version, he was aware about them since 2003. The present application was filed before this Court in June, 2013 i.e. after expiry of more than 10 years. It is not denied by the learned counsel for the plaintiff that the plaintiff had full knowledge about the allegations made in the plaint at least from the year 2005 that he was duped by the proposed defendants and defendant No. 1. There is no explanation of any kind given by the plaintiff as to why the said application was filed after expiry of more than 10 years from the date of knowledge. The said delay is unexplained. It is not the case that the plaintiff had no knowledge about the proposed defendants. The plaintiff in his plaint has made averments about them and then kept quiet for at least eight years. It is settled law that the delay even defeats equity. The only answer given by the plaintiff''s counsel is that since no relief is sought against the proposed defendants, therefore, the application could have been filed at any stage in order to provide the complete justice to the plaintiff.
b. It is not denied by the plaintiff that he has not made the statement before the Civil Judge, Delhi, wherein the admission was made by him that he has already sold the property to the defendant No. 1. The statement was also made that he was not threatened by defendant No. 1. The signatures on the sale deed or any other document are also not denied by the plaintiff.
c. It is specifically mentioned in para 4 of the sale deed that the physical possession has been handed over to the defendant No. 1 at the time of execution of the same. During the course of hearing of the application, the learned counsel for the defendant No. 1 has informed that the plaintiff has forcibly taken the possession of the said property. The passing of the order in the contempt proceedings is also not denied by the plaintiff. He was also in judicial custody in the contempt proceedings initiated by the defendant No. 1 against him, though the case of the plaintiff is that he never handed over the possession of the said property to defendant No. 1.
d. It is also a matter of fact that the plaintiff had lodged FIR No. 152/2005 with Police Station Malviya Nagar against the proposed defendants under Section 420/ 467/ 468/ 471/ 120B IPC for procuring signatures of arranging loan for plaintiff for construction of house on the basis of blank papers/blank cheques from the plaintiff, his daughter and sons and assured them of sanction of loan within one month.
e. The case pertaining to the said FIR was being tried by Chief Metropolitan Magistrate (South). By order dated 18th March, 2014, the said proposed defendants were discharged in respect of alleged offences by the Court of Sh. Vivek Kumar Gulian, CMM (South) .
f. The matter is already listed for plaintiff''s evidence on 28th November, 2014. The affidavit(s) as evidence has been filed before this Court on 1st July, 2014.
g. It appears to the Court that in case the prayer made in the application is allowed, the further proceedings in the suit would be delayed. This Court does not want to make any comment on merit at this stage as the matter is already ripe for trial. However, it appears to the Court that the plaintiff was fully aware since 2003 about the proposed defendants at the time of filing of the suit as the plaintiff made all the allegations. The application filed at the belated stage is not maintainable. The same is being filed after-thought in order to delay the suit proceedings. The suit was filed in the year 2005 and the present application was filed in 2013. The plaintiff has failed to explain the delay. It would also prejudice the case of the defendant No. 1 who states that despite of admission made by the plaintiff in the Court and execution of various documents including the sale deed, he is not able to enjoy the fruits of the property which has been purchased from the plaintiff and who is now after selling the property is enjoying the possession as well as delaying the suit proceedings on one pretext or the other. Counsel for defendant No. 1 states that the plaintiff is in the habit of filing the false and frivolous cases by committing fraud upon various parties and in fact he has signed all the papers within his knowledge and the plaintiff is admittedly a postgraduate and he cannot say that he was not aware about the implication of signing all the papers and the statement made before the Judicial Officer. The fact about the qualification is not denied by the learned counsel for the plaintiff. Even otherwise the proposed defendants have no right in the said property and a decree can be passed in their absence.
h. Learned counsel appearing on behalf of the proposed defendants has made the statement that the proposed defendants have no objection if they may be summoned as witnesses in the present case. However, they do not want to get involved in the frivolous litigation initiated by the plaintiff without any default on their part.
21. In view above said reasons, the prayer made in the application cannot be granted as the application is misconceived and the same is hereby dismissed.
CS(OS) No. 3102/2012
List before the Joint Registrar for plaintiff''s evidence on 28th November, 2014 the date already fixed.
