VANEETA KHANNA Vs. RAJEEV GUPTA

JUDGEMENT

(1.) BY this order, I shall dispose of the above two IAs moved by the defendants under Order 7 Rule 11 CPC.

(2.) THE plaintiffs in the instant suit are husband and wife. They had filed a suit before learned Additional District Judge under Section 5 and 6 of Specific Relief Act contending therein that in pursuance of sale transaction with defendant No.2, who was a G.P.A holder of defendant No.1, they became owner of property No. 8/289, Sunder Vihar, Paschim Vihar, New Delhi after payment of full sale consideration and execution of agreement to sell, GPA, Special Power of Attorney by defendant No.2 in favour of plaintiffs. The vacant physical possession of suit property was delivered to the plaintiff on 12th May 2004 and plaintiffs after taking possession had put their locks on the property. It was contended that after entering into the sale transactions and handing over the possession, defendant No.1 and 2 colluded with each other and they also colluded with sisters of defendant No.1 and in order to deprive the plaintiffs of the property so purchased, trespassed the property. Plaintiffs discovered this trespass when plaintiffs visited the property on 24th July, 2004 Plaintiffs filed a suit for passing of a decree directing defendants to vacate the suit property and to restore back the possession of the suit property to the plaintiffs. Simultaneously, prayers were also made for passing a decree for specific performance of the agreement to sell dated 12th May, 2004 on the ground that the sale consideration has already been paid to the defendant. Along with this prayer, a prayer for mesne profits @ Rs. 15,000/-per month for unauthorized use and occupation of the property by the defendants was also made and another prayer for passing a decree of permanent injunction restraining defendants and their agents, family members from selling, alienating or parting with the possession of the property was made. This suit of the plaintiff was dismissed at initial stage on an application of defendants made under Order 7 Rule 11 by the learned Additional District Judge on the ground that the plaintiffs had not disclosed to the Court about execution of a collaboration agreement dated 18th May 2004 between defendants No.2 and the plaintiff. Statement of plaintiff was recorded by the learned ADJ under Order 10 CPC. The plaintiff had stated that the signatures on the agreement dated 18th May 2004 appeared to be his, but he was not aware how the defendant obtained his signatures on the documents. Learned Additional District Judge further observed that the plaintiffs by not producing and disclosing the execution of collaboration agreement had tried to overreach the Court and was guilty of withholding the information of this document and thus played fraud on the Court and dismissed the suit on this ground. Against this order, the plaintiff had approached this Court by way of an RFA No. 631 of 2004 This Court observed that since the suit was filed by the plaintiff under Section 6 of the Specific Relief Act to recover the possession on the ground the respondents were trespassers, no appeal would lie from the order or decree passed in such a suit in view of Section 6(3) of Specific Relief Act. This Court, however, considered the appeal on merits and held that appellant approached the trial court with uncleaned hands and suppressed the material and relevant facts and dismissed the appeal. Against the dismissal of the appeal, the plaintiff preferred an SLP before the Hon'ble Supreme Court and the Supreme Court passed following order :

(3.) IN the application by defendant No.1, he has taken the stand that plaintiffs had not disclosed any cause of action against him and the transaction relied upon by the plaintiffs was between plaintiffs and defendant No.2. Defendant No.1 had not executed any document in favour of the plaintiffs. Defendant No.1 was always in physical possession of the property. It is further stated that earlier defendant No.1 had a deal with defendant No.2 and executed a GPA and S.P.A. dated 12th May 2004 in favour of defendant No.2. However, this GPA and SPA were subsequently cancelled by defendant No.1 vide deed of cancellation dated 19th August, 2004 Since GPA/SPA were duly registered, the deed of cancellation was also got registered. Defendant No.2 also gave a declaration in favour of defendant No.1 that all disputes have been settled between him and defendant No.1 qua suit property and defendant No.2 have no right over the suit property. It is submitted that defendant No.1 received no consideration from the plaintiff, however, defendant No.1, subsequent to cancellation of G.P.A. and S.P.A. In favour of defendant No.2 sold the property in question to defendants No.3, 4 and 5 and executed a registered agreement to sell GPA etc. and received full consideration from defendants No.3, 4 and 5 and handed over the possession to them. It is also submitted that since the earlier suit of the plaintiff under Section 5 and 6 of the Specific Relief Act has been dismissed, the subsequent suit was not maintainable. Another ground taken is that in earlier suit, plaintiff had valued the suit property at Rs. 5 lac and had also entered into an agreement to sell with defendant No.2, who is also a builder to develop the suit property. In fact, a fraud was played by defendant No.2 in collusion with plaintiffs upon defendant No.1. The suit filed by the plaintiffs was not maintainable under Section 11 of the CPC since the matter has been directly in issue in the former suit.