VIDYAWANTI WADHWA Vs. PARMESHWARI LAL

JUDGEMENT

(1.) THIS second appeal is filed against the concurrent judgments of the courts below; of the trial court dated 23.3.2012 and of the first appellate court dated 25.7.2013; by which the suit of the appellant/plaintiff stands rejected under Order 7 Rule 11 CPC. The subject suit is a suit seeking declaration, manadatory and permanent injunction with respect to the property No. A -18, Lajpat Nagar, New Delhi. Appellant/plaintiff claimed rights in this property by virtue of an agreement to sell dated 9.2.1971 executed in her favour by Sh. Durga Dass with late Sh. Girdhari Lal Wadhwa. Sh. Girdhari Lal Wadhwa died on 23.3.1981 leaving behind the appellant/plaintiff as his legal heir. Appellant/plaintiff thus claimed rights in the suit property on the basis of agreement to sell and the Will, both dated 9.2.1971, executed in favour of late Sh. Girdhari Lal Wadhwa by the original owner Sh. Durga Dass.

(2.) TRIAL court rejected the suit plaint by holding that appellant/plaintiff had only filed a suit for declaration valuing the suit at Rs. 200/ - for the relief of declaration and Rs. 130/ - for the relief of permanent injunction and since vacant peaceful possession was claimed, the suit without paying court fees was not maintainable. Trial court also relied upon Section 41(h) of the Specific Relief Act, 1963 to hold that the suit was not maintainable when equally efficacious remedy was available. Though, what is the equally efficacious remedy is not stated, however, actually it would mean filing of a suit for specific performance by the appellant/defendant and/or a suit for possession. Trial court has also rejected the plaint on account of an order passed by this Court on 19.5.1993 in CWP No.1274/1982 titled as Sohan Singh Vs. Union of India whereby the suit property was transferred in favour of Sh. Pritam Lal defendant no. 7, respondent no.2 herein way back in September 1994 by a conveyance deed being executed in favour of defendant no. 7/respondent no. 2.

(3.) IN my opinion, no substantial question of law arises for entertaining this appeal under Section 100 CPC, inasmuch as the suit as framed for declaration and injunction was not maintainable because rights were claimed in the suit property only on the basis of an agreement to sell and Will, though neither the appellant/plaintiff nor her predecessor -in -interest late Sh. Girdhari Lal Wadhwa came into possession of the suit property. In such circumstances, appellant/plaintiff had to file a suit for specific performance for the agreement to sell dated 9.2.1971 and in any case at least a suit for possession with respect to suit property. Not only the suit was not filed for specific performance or possession but also the suit was not properly valued for the purposes of court fees and jurisdiction. It is further to be noted that once a conveyance deed was executed in favour of defendant no. 7/respondent no. 2 unless and until the title in favour of defendant no. 7/respondent no. 2 was cancelled and a conveyance deed executed in favour of the appellant/plaintiff, the suit as framed would not be the correct suit for claiming the real relief which the appellant/plaintiff claims to be entitled to. In my opinion, the suit for specific performance of the agreement to sell dated 9.2.1971 would be barred by limitation as the subject suit was filed in the year 1997 i.e more than 26 years after entering into of the alleged agreement to sell. Even the claim on the basis of the Will dated 9.2.1971 would be barred by limitation inasmuch as the predecessor -in -interest of the appellant/plaintiff late Sh. Girdhari Lal Wadhwa died way back on 23.3.1981 and the suit was filed in the year 1997. Thus, looking at it from any angle; as to the form of the suit's appropriate cause of action not being pleaded and appropriate relief not being prayed; suit not being valued properly for the purposes of court fees and jurisdiction and appropriate court fees not being paid; and finally of the suit quite clearly barred by limitation, the courts below have correctly rejected the suit under Order 7 Rule 11 CPC. I would like to add that such a suit is liable to be dismissed by additionally exercising powers under Order 12 Rule 6 CPC on the admitted facts.