RAMCHAND SOBHRAJ KIMATRAI Vs. L S MONGA

JUDGEMENT

(1.) THE petitioner is aggrieved by an order dated 28th April 2007 passed by the learned trial court whereby an application under Order 6 Rule 17 of CPC filed by respondent No. 1 seeking amendment of the plaint and adding relief of specific performance and possession was allowed. The contention of the petitioner is that the similar application made under Order 6 Rule 17 of CPC filed by the plaintiff was earlier dismissed by the predecessor of learned Civil judge and the learned Civil Judge wrongly allowed the second application made for the same purpose and that the second application for the same purpose was not permissible under law.

(2.) THE plaintiff filed a suit before the trial court for declaration and permanent injunction. In the suit, the plaintiff pleaded that the defendant No. 1 sold him a flat bearing No. H-38, Sarita Vihar, New Delhi-110023 allotted to him by the DDA (defendant No. 2 ). The transaction of sale and purchase was arrived at between the parties for a consideration of Rs. 4,10,000/ -. The plaintiff paid the entire consideration by way of a bank draft of Rs. 4 lac dated 27th December 1995 and Rs. 10,000/- in cash on 28th December 1995. Defendant No. 1 executed documents of transfer namely agreement to sell and purchase, receipt of Rs. 4,10,000/-, indemnity bond, Will, Special Power of Attorney and General Power of Attorney on 28th December 1995. The documents were attested by Notary Public in favour of the plaintiff and defendant No. 1 also handed over allotment papers in original to the plaintiff along with the payment challans regarding deposit of the cost of the said flat. Defendant No. 1 also executed rent agreement in respect of the flat in question and two affidavits that he will not revoke or cancel or withdraw the power of attorney. He also executed an affidavit that the flat in question was free from all encumbrances. In these documents it was stated that the defendant No. 1 had given vacant peaceful possession of the said flat to the plaintiff on the spot along with documents concerning thereto. The plaintiff, however, contended that vacant, peaceful possession of the flat was actually not given and he was orally told that the possession of the flat was yet to be given by the DDA to defendant No. 1 and same shall be handed over to him whenever the same is delivered to defendant No. 1. The plaintiff in paragraph 14 of the plaint stated that the defendant No. 1 has sold and transferred his right, title and interest in the property to the plaintiff and it was plaintiff who was entitled to possession of the property being owner thereof. He wanted a declaration that the plaintiff be declared to be the owner of flat No. H-38, Sarita Vihar by virtue of the documents executed in his favour and a decree of permanent injunction be passed in favour of the plaintiff and against the defendant.

(3.) SINCE the defendant No. 1 was the allottee of the flat, the possession of the flat in due course would have been handed over to him by DDA, defendant no. 2. Due to some dispute regarding payment of amount to DDA, defendant No. 1, approached the Consumer Redressal Forum. The complaint of defendant No. 1 was allowed partly by Consumer Redressal Forum and against that decision, defendant no. 2 filed an appeal before State Consumer Redressal Commission. On coming to know of the appeal and the proceedings in November 1999, the plaintiff filed an application before State Commission in the appeal, to be impleaded as a party and he also filed an application for stay of delivery of possession. The plaintiff also lodged a complaint dated 2nd December 1999 before DCP South that he has been cheated by defendant No. 1 and requested DCP South to take action defendant No. 1 since defendant No. 1 having sold the flat to plaintiff, was seeking possession illegally.