Friday, 31 July 2020

Whether the defendant can apply for his transposition if the plaintiff is neither withdrawing nor abandoning the suit?

 Having said that, in so far as plea of the legal heirs of Harmeet Singh Vohra for transposition as plaintiffs in the suits is concerned. Order XXIII Rule 1A of the CPC deal with the issue of transposition. The same is reproduced as under:

"1-A. When transposition of defendants as plaintiffs may be permitted. - Where a suit is withdrawn or abandoned by a plaintiff under R.1, and a defendant applies to be transposed as a plaintiff under R.10 of Or. 1, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants."

45. A perusal of Order XXXIII Rule 1-A reveal that an application for transposition can be filed in two contingencies; firstly when the plaintiff withdraws the suit or secondly the plaintiff abandons the suit. In other words, there is no question of transposition in the eventuality, the suit is neither withdrawn nor abandoned.

46. In the case in hand, we are concerned with two suits. A perusal of the application under Order XXIII Rule 3 which I have already reproduced above reveal that the suit being CS (OS) 872/2010 the plaintiff Manjeet Singh Kohli is seeking recording of compromise in terms of the compromise arrived at between him and the defendant Nos. 1 to 8 and 9. To put it differently Manjeet Singh Kohli is neither withdrawing or nor abandoning the suit. So, the application for transposition in CS (OS) 872/2010 is not maintainable.

IN THE HIGH COURT OF DELHI

CS (OS) 872/2010, 
Decided On: 11.06.2020

 Manjeet Singh Kohli   Vs.  Mirajuddin and Ors.

Hon'ble Judges/Coram:
V. Kameswar Rao, J.

Citation: MANU/DE/1234/2020


IAs. 18072/2019 (under Order XXIII Rule 3 read with Section 151 CPC) & 422/2020 (under Order I Rule 10 read with Section 151 CPC) in CS(OS) 872/2010

I.As. 18061/2019 (under Order XXIII Rule 1 & 3 read with Section 151 CPC) & 427/2020 (under Order I Rule 10 read with Section 151 CPC) in CS(OS) 1505/2012

1. Vide this order, I shall decide IA 18072/2019 filed under Order XXIII Rule 3 read with Section 151 CPC by the plaintiff (Manjeet Singh Kohli) and defendant nos. 1 to 9 & IA 422/2020, filed under Order I Rule 10 read with Section 151 CPC by the legal heirs of defendant no. 10 (Harmeet Singh Vohra) in CS(OS) 872/2010 & IA 18061/2019 filed under Order XXIII Rule 1 and 3 read with Section 151 CPC by the plaintiff (I.P. Estates) and defendant nos. 1 to 9 and IA 427/2020 filed under Order 1 Rule 10 read with Section 151 CPC by the legal heirs of defendant no. 10 in CS(OS) 1505/2012.

2. The aforesaid suits were directed to be consolidated by this Court vide order dated May 15, 2017 for the purpose of trial and Suit No. CS(OS)872/2010 was treated as a lead case. As we are concerned with the applications filed in two suits, it is important to give some of the facts related to the Suits.

3. The Suit No. CS(OS) 872/2010 has been filed by Manjeet Singh Kohli and Suit No. CS(OS) 1505/2012 has been filed by M/s. I.P. Estates. The subject matter of the suits is an open piece of land in Lajpat Nagar, admeasuring 54 Bighas 18 Biswas, which was owned by one Mohd. Ashfaq.

4. It is the case of plaintiff Manjeet Singh Kohli in CS(OS) 872/2010 that on June 7, 2004 Mohd. Ashfaq agreed to sell the said land to him and for specific performance of the agreement to sell, this suit has been filed. Mohd. Ashfaq has since died and the defendant nos. 1 to 8 in both the suits are the legal heirs of Mohd. Ashfaq. The plaintiff in CS(OS) 1505/2012 claims to have entered into an agreement dated March 29, 2008/compromise deed dated October 19, 2010 with defendant nos. 1 to 8 for purchase of the said land. The prayers made in the Suit CS(OS) 872/2010 are the following:

"It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to:-

(a) grant a decree of specific performance of agreement to sell dated 7.6.2004 and MOU against the defendants, their legal representatives, agents, assigns etc., the site plan shown as red colour.

(b) grant a decree of permanent injunction against the defendants, their legal representatives, agents, assigns etc., restraining them from creating third party interest for title and possession for the suit property;

(c) Pass any other and further orders as this Hon'ble Court may deem fit, just and proper in the facts and circumstances of the case"

5. The prayers in CS(OS) 1505/2012 are as under:

"In the aforesaid facts and circumstances of the case the Plaintiff most respectfully prays that this Hon'ble Court may be pleased to:

a) pass a decree of specific performance of the Agreement to Sell dated 29th March 2008 and the Compromise Deed dated 19th October 2010 executed between the Plaintiff and the Defendant Nos. 1 to 8 in Delhi thereby directing Defendant Nos. 1 to 8 to execute a Sale Deed/Conveyance Deed and get the same registered before the appropriate authority in accordance with the applicable regulations and in terms of the agreements mentioned hereinabove in favour of the Plaintiff thereby transferring the title of the suit property being Khasra No. 1531 admeasuring 14 Bigha 03 Biswas, Khasra No. 1534 admeasuring 12 Bighas 13 Biswas, Khasra No. 1539 admeasuring 06 Bighas 01 Biswas and Khasra No. 1949 admeasuring 21 Bighas 12 Biswas aggregating 54 Bighas 18 Biswas, being lying and situate at Ali Ganj, Nehru Nagar, Lajpat Nagar, New Delhi, in favour of the Plaintiff;

b) in case for any reason if the Defendant Nos. 1 to 8 are unable to do the above said acts in favour of the Plaintiff, then, direct the Registrar of this Hon'ble Court to execute and get the sale deed/conveyance deed registered before the appropriate authority in favour of the Plaintiff in accordance with the applicable regulations and in terms of the agreement to sell and compromise deed mentioned hereinabove thereby transferring the title of the suit property being Khasra No. 1531 admeasuring 14 Bigha 03 Biswas, Khasra No. 1534 admeasuring 12 Bighas 13 Biswas, Khasra No. 1539 admeasuring 06 Bighas 01 Biswas and Khasra No. 1949 admeasuring 21 Bighas 12 Biswas aggregating 54 Bighas 18 Biswas, being lying and situate at Ali Ganj, Nehru Nagar, Lajpat Nagar, New Delhi, in favour of the Plaintiff;

c) pass a decree of possession in favour of the Plaintiff and against the Defendant Nos. 1 to 8 thereby directing the Defendant Nos. 1 to 8 to hand over vacant and peaceful possession of the suit property being Khasra No. 1531 admeasuring 14 Bigha 03 Biswas, Khasra No. 1534 admeasuring 12 Bighas 13 Biswas, Khasra No. 1539 admeasuring 06 Bighas 01 Biswas and Khasra No. 1949 admeasuring 21 Bighas 12 Biswas aggregating 54 Bighas 18 Biswas, being lying and situate at Ali Ganj, Nehru Nagar, Lajpat Nagar, New Delhi to the Plaintiff;

d) if for any reason, this Hon'ble Court is of the view that a decree of specific performance cannot be granted in favour of the Plaintiff, in that event and not as an alternative to the above prayers, pass a decree in favour of the Plaintiff and against the Defendant Nos. 1 to 8 directing the said Defendants to pay to the Plaintiff a sum of Rs. 21 crores as damages along with interest at the rate of 18% per annum from the date of the suit till realization towards damages suffered by the Plaintiff as a result of the breaches committed by the Defendant Nos. 1 to 8;

e) pass a decree of declaration that the alleged agreement dated 7th June 2004 and the MOU dated 3rd August 2004 allegedly entered into by Defendant No. 9 with Mohd. Ashfaq, the late father of Defendant Nos. 1 to 8 and compromise 28th February 2012 are invalid, null, void, unenforceable and non-est in the eyes of law;

f) pass a decree of permanent injunction against the Defendant Nos. 1 to 8, their agents, servants and any person/s claiming through them restraining them alienating, encumbering, selling, dealing with, disposing off, transferring and/or creating any third party right, title or interest in respect of the suit property being Khasra No. 1531 admeasuring 14 Bigha 03 Biswas, Khasra No. 1534 admeasuring 12 Bighas 13 Biswas, Khasra No. 1539 admeasuring 06 Bighas 01 Biswas and Khasra No. 1949 admeasuring 21 Bighas 12 Biswas aggregating 54 Bighas 18 Biswas, being lying and situate at Ali Ganj, Nehru Nagar, Lajpat Nagar, New Delhi, in any manner whatsoever in favour of any third party or any part thereof;

g) award cost of the suit in favour of the Plaintiff and against the Defendants.

Any other order/direction as this Hon'ble court deem fit and circumstances of the present suit may also be passed and prayed."

6. The applicants in IAs. 422/2020 and 427/2020 are the legal heirs of one Harmeet Singh Vohra, defendant no. 10 (in both the Suits). It is the case of the legal heirs of Harmeet Singh Vohra that Harmeet Singh Vohra was a signatory to a memorandum of understanding dated August 3, 2004, whereby the land in question was transferred by Mohd. Ashfaq to him and to the plaintiff, i.e., the Manjeet Singh Kohli, in CS (OS) 872/2010 by superseding the agreement to sell dated June 7, 2004. Mohd. Ashfaq died on or about February 25, 2006 and defendant no. 1 Mirajuddin, who is the son of Mohd. Ashfaq, on defendant nos. 2 to 8 relinquishing their share in the suit property vide relinquishment deed dated March 14, 2005 entered into an agreement to sell with I.P. Estates, plaintiff in CS(OS) 1505/2012 on March 29, 2008 and compromise deed dated October 19, 2010 in respect of the suit land. Late Harmeet Singh Vohra, the predecessor-in-interest of the applicants in IAs was not made party in both the suits. An application being IA 19325/2012 was filed by the plaintiff i.e. I.P. Estates in CS(OS) 1505/2012 under Order 1 Rule 10 for impleading Harmeet Singh Vohra as one of the defendants. Harmeet Singh Vohra did not file any reply to the application. Defendant nos. 1 to 8 contested the said application on the ground that the alleged MOU dated August 3, 2004 is not binding nor enforceable as there is no sale consideration involved in the said MOU. Manjeet Singh Kohli, who is defendant no. 9 in CS(OS) 1505/2012 also contested the application on the ground that late Harmeet Singh Vohra on executing the power of attorney in his favour on April 7, 2008 was left with no claim whatsoever arising out of the MOU dated August 3, 2004. In any case vide order dated October 23, 2013, Harmeet Singh Vohra was impleaded as defendant no. 10 in CS (OS) 1505/2012. It is matter of record that Harmeet Singh Vohra did not file any written statement nor any counter-claim to the suit being CS(OS) 1505/2012. After the death of Harmeet Singh Vohra, his legal heirs moved an application for substitution, which was allowed vide order dated April 27, 2016 inasmuch as the legal heirs were allowed to be brought on record in place of defendant no. 10 with a clarification that allowing the said application will not in any manner mean that the court has given time to the legal heirs of defendant no. 10 Harmeet Singh Vohra to file written statement. Legal heirs of Harmeet Singh Vohra also filed an application for their impleadment in CS(OS) 872/2010. The learned Joint Registrar vide order dated July 27, 2016 impleaded the legal heirs of Harmeet Singh Vohra as defendants. In Suit (CS(OS) 872/2010) as well, neither any written statement nor any counter-claim has been filed by the legal heirs of Harmeet Singh Vohra and the opportunity to file written statement was closed on May 15, 2017, which order has attained finality. Evidence in both the Suit has been led by the parties.

Present applications:

7. Application being IA 18072/2019 under Order XXIII Rule 3 read with Section 151 CPC has been filed by the plaintiff and defendant nos. 1 to 9 in CS(OS) 872/2010 with the following prayers.

"It is therefore prayed that this Hon'ble court may be please to:-

a) record the compromise between the parties in terms of compromise dated 28.02.2012 and MOU dated 17.12.2019 and decree the suit for Specific Performance of the agreement to sell dated 07.06.2004 in favour of the plaintiff and against the defendants no. 1 to 8.

b) Pass any further order(s) which this Hon'ble court may deem fit and proper."

8. Application being IA 18061/2019 under Order XXIII Rule 1 & 3 read with Section 151 CPC has been filed by the plaintiff and defendant nos. 1 to 9 in CS(OS) 1505/2012 with the following prayers.

"It is therefore prayed that this Hon'ble court may be please to:-

a) allow the plaintiff to withdraw/abandon the entire claim of the suit in terms of MOU dated 17.12.2019.

b) Suit of the plaintiff be dismissed as withdrawn.

c) Pass any further order(s) which this Hon'ble court may deem fit and proper."

9. The relevant averments made in the application IA 18072/2019 in CS(OS) 872/2010 are, that the plaintiff and defendant Nos. 1 to 9 to bring to an end the ongoing litigation voluntarily had amicably settled all their claims against each other and signed a Memorandum of Understanding dated December 17, 2019. In terms of the said MoU and against all the claims of the defendant No. 9 i.e. IP Estates arising from agreement to sell dated March 29, 2008 and compromise deed dated October 19, 2010 in respect of the suit land, the plaintiff Manjeet Singh Kohli for and on behalf of defendant Nos. 1 to 8 agreed to pay a sum of Rs. 4.25 Crores to the defendant No. 9 (IP Estates). An amount of Rs. 4.20 Crores is payable by the plaintiff to defendant No. 9 before the Court at the time of recording of compromise in both the suits. On receipt of the aforesaid amounts, in terms of the MOU the defendant No. 9 has agreed to abandon its entire claim in CS(OS) 1505/2012 i.e., claim in suit for specific performance, possession, permanent injunction of the suit land.

10. It is stated that the balance amount of Rs. 5 Lacs shall be paid by the plaintiff Manjeet Singh Kohli to the defendant No. 9 by way of banker's cheque at the time of quashing of FIR bearing No. 12/2009 under Section 420/467/468/471/120B IPC registered against defendant No. 1 on the complaint of the defendant No. 9 (IP Estates). The defendant No. 9 has no objection in quashing of the said FIR and undertakes to appear before the concerned court and give no objection for quashing of the said FIR.

11. It is also stated that it is agreed that the plaintiff in Suit CS(OS)1505/2012 IP Estates shall move an application under Order XXIII Rule 1 and 3 CPC for abandoning its entire claim against defendant Nos. 1 to 8 and defendant No. 9 in the said suit, arising out of the Agreement to Sell dated March 29, 2008/compromise deed dated October 19, 2010 in respect to the suit land. I may state here that in accordance with the agreement an application, IA 18061/2019 has been filed by the plaintiff in Suit CS(OS) 1505/2012 with the prayers as already noted about.

12. It may stated here that in the reply to I.A. 18061/2019 in CS(OS) 1505/2012 by the legal heirs of Sh. Harmeet Singh Vohra, they have stated as under:

"(i) The Memorandum of Understanding dated August 03, 2014 is a registered document and it clearly reflects that the land rights of Manjeet Singh Kohli co exist with the right of Harmeet Singh Vohra and therefore with the same intention the bonafide applicant has not filed any separate suit. The parties to the deed are bound by the understanding and same was reflected to by the witness appeared on behalf of all the LRs of defendant No. 10 during the evidence in the suit.

(ii) The specific words of the MOU dated August 03, 2004 reflects that Mohd. Ashfaq assured to sell and transfer the said land to Manjeet Singh Kohli and Harmeet Singh Vohra.

(iii) The agreement to sell dated June 07, 2004 was superseded by the MOU dated August 03, 2004. Harmeet Singh Vohra had executed the GPA dated August 07, 2008 but the same ceases to exist after the death of Harmeet Singh Vohra. Harmeet Singh Vohra has no where relinquished his right, share and estate in any manner whatsoever. After his death his entire estate, share, right, title and interest that he had on the strength of the registered MOU dated August 03, 2004 automatically devolves upon his LRs.

(iv) Harmeet Singh Vohra came to know that a settlement deed was executed between Manjeet Singh Kohli and Mirazuddin on February 28, 2012 which also records that the parties to the agreement will honour the registered MOU dated August 03, 2004 entered by his Late father and executed between Mohd. Ashfaq and Manjeet Singh Kohli and Harmeet Singh Vohra.

(v) Manjeet Singh Kohli and Harmeet Singh Vohra were two partners and both are part and parcel of the entire transaction of the said property and the deceased defendant No. 10 Harmeet Singh Vohra was also one of the purchaser along with Manjeet Singh Kohli and had equal share in the land in question with Manjeet Singh Kohli.

(vi) The application for withdrawal of suit and enclosing the copy of settlement without disclosing the fact that the application under Order XXIII Rule 1 is already dismissed by this Court and no liberty was granted to the plaintiff to file the present application.

(vii) The defendant No. 1 and Manjeet Singh Kohli has preferred the suit in collusion with each other and taken a false stand qua the rights of defendant No. 10 Late Harmeet Singh Vohra without honoring the MOU dated August 03, 2004. The application moved by the parties which is contrary to MOU dated August 03, 2004 is totally untenable."

13. Insofar as, the applications of LRs of defendant No. 10 Late Harmeet Singh Vohra are concerned, the same have been filed under Order 1 Rule 10 in both the suits with the following prayers:

"It is, therefore, most respectfully graciously be please to-

a) Allow the Application and grant permission to the Applicant to transpose as the Plaintiff to the suit;

b) Settlement MOD dated 17.12.2019 entered in to between the parties to the list be kept in abeyance till the disposal of the present Application;

c) Pass such further or other order as the Hon'ble Court may deem fit and proper in the facts and circumstances of the suit."

14. It is the submission of Mr. Himanshu Upadhyaya, learned Counsel appearing for the legal heirs of Harmeet Singh Vohra that on August 03, 2004 Mohd. Ashfaq S/o. Sh. Riazuddin R/o. 1451, Farankhana, Delhi-110006 and S. Manjeet Singh Kohli S/o. Sh. H. Man Singh Kohli R/o J-11/97, Rajouri Garden, New Delhi and Harmeet Singh Vohra S/o. Sh. Harcharan Singh Balli R/o 7/13-14, Subhash Nagar, New Delhi signed a Memorandum of understanding for the land measuring 54 bigha and 18 biswas out of khasra No. 1531 (14 bighas-03 biswas), khasra No. 1534 (12 bighas-13 biswas), khasra No. 1539 (6 bighas-1 biswas) and khasra No. 1949 (21 bighas-12 biswas) situated at Aliganj and Nehru Nagar, Lajpat Nagar Delhi. The said Memorandum of Understating confers that the first party to the MOU i.e. Mohd. Ashfaq to transfer the right in the said entire land to the second party i.e. Harmeet Singh Vohra and Manjeet Singh Kohli.

15. It is also submitted that the specific words of the MOU dated August 03, 2004 reflects that Mohd. Ashfaq assured to sell and transfer the said property to Manjeet Singh Kohli and Harmeet Singh Vohra and the agreement to sell dated June 07, 2004 was superseded by the MOU dated August 03, 2004.

16. He further submitted that late Mohd. Ashfaq died on or about February 25, 2006 and the defendant No. 1 is the son of Mohd. Ashfaq; defendant Nos. 2 to 8 relinquished their shares in the suit property by virtue of relinquishment deed dated March 14, 2006 in favour of defendant No. 1. According to him, that this Court vide the order dated October 23, 2013 found the bona fide applicant/defendant No. 10 is necessary party and hence impleaded as defendant No. 10 in the Civil Suit CS(OS) 1505/212. It is further stated that defendant No. 10 Harmeet Singh Vohra was suffering from incurable decease from 2008 - 2009 which deteriorated and after 2012 he was confined to bed because of which he could not be able to watch the interest in the said property and Manjeet Singh Kohli took undue advantage of his condition and tried to take over all the rights over the property.

17. According to him, after the death of Harmeet Singh Vohra his LRs approached the Court stating that they are necessary and effective party for the adjudication of the disputes raised by the different parties in CS (OS) No. 1505/2012 and CS (OS) No. 872/2010 and the Court allowed the applications.

18. It is stated that vide order dated March 15, 2018 this Court framed the issues out of which issue No. 4 is as under:-

"Whether the compromise arrived at between Manjeet Singh Kohli defendant Nos. 1 to 8 on February 28, 2012 is to be treated as new agreement or an agreement relating back to agreement dated June 07, 2004? OPP"

19. He also stated that the compromise arrived and executed on February 28, 2012 between Manjeet Singh Kohli and Mr. Mirajuddin reproduced as under:-

"That the Defendant No. 1/Second Party has agreed, consented to honour the agreement dated 7.6.2004 and MOU dated 3.8.2004 entered by his father in favour of First Party/Plaintiff in respect of above said property......"

20. It was also his submission that on November 21, 2017 in CS(OS) No. 872/2010 the following documents filed by the plaintiff are admitted by the defendants and exhibited as under:


21. It is further submitted by Mr. Upadhyay that Memorandum of Understanding dated August 03, 2004 is a registered document and it clearly reflects that the right of Harmeet Singh Vohra co-exist with the right of Manjeet Singh Kohli and therefore with that intention, Harmeet Singh Vohra or his heirs have not filed any separate suit. The parties to the deed are bound by the understanding and same was reflected to by the witness appeared on behalf of all the legal heirs of Defendant No. 10 during the evidence in the Suit. Hence, the legal heirs/applicants filed the evidence and the witness of the applicants was cross examined by the other parties.

22. It is also stated that the application moved by the applicants/legal heirs of defendant No. 10 is bona fide and today the limitation shall come in the way of the legal heirs of defendant No. 10 filing the litigation for claiming their right. Mr. Upadhyaya has relied upon the judgment of the Supreme Court in R. Dhanusundari @ R. Rajeswari v. A.N. Umakanth & Ors., in Civil Appeal No. 7292/2009.

23. On the other hand, Mr. S.K. Sharma, learned counsel appearing for Manjeet Singh Kohli stated that Manjeet Singh Kohli and Mohd. Ashfaq the father of the defendant No. 1 entered into an agreement to sell dated June 07, 2004 in respect of the suit property. During the lifetime of Mohd. Ashfaq, Manjeet Singh Kohli paid substantial amount out of the sale consideration. On February 25, 2006 Mohd. Ashfaq died leaving behind defendant Nos. 1 to 8 as legal heirs. He submitted that on March 13, 2006 the defendant Nos. 2 to 8 executed a registered relinquishment deed in respect to suit land in favour of the defendant No. 1. On March 29, 2008 the defendant No. 1 entered into an agreement to sell with IP Estates in respect to the suit land.

24. According to Mr. Sharma, it is the case of Manjeet Singh Kohli, on execution of Power of Attorney by Harmeet Singh Vohra in favour of Manjeet Singh Kohli on April 07, 2008, Harmeet Singh Vohra was left with no claim whatsoever arising out of the MOU dated August 03, 2004. Harmeet Singh Vohra did not file any written statement or any counter claim, in spite of several opportunities.

25. It was his submission that after death of Harmeet Singh Vohra, his legal heirs moved an application for substitution but vide order dated April 27, 2016, the Court had directed that though legal heirs are brought on record in place of defendant No. 10 but allowing the said application will not in any manner mean that this Court has given time to the legal heirs of defendant No. 10 to file written statement. The legal heirs of Harmeet Singh Vohra filed an application for their impleadment as plaintiff in CS (OS) 872/2010. The learned Joint Registrar vide order dated July 27, 2016 impleaded the legal heirs of Harmeet Singh Vohra as defendant and refused to implead them as plaintiff.

26. He further submitted that the order dated April 27, 2016 closing the right to file written statement in CS(OS) 1505/2012 and the order dated May 15, 2017 in CS(OS) 872/2010 were never challenged by the defendant No. 10 or his legal heirs and they, thus attained finality. Both the aforesaid suits were taken up together by the Court and a detailed order was passed on March 15, 2018. The paras 8 and 9 of the said order are very important where the Court has recorded as under:-

"8. On enquiry, it is informed i) that the land subject matter of the suits is an open piece of land in Lajpat Nagar, New Delhi; ii) that the said land was owned by one Mohd. Ashfaq; iii) that according to Manjeet Singh Kohli, Mohd. Ashfaq, on 7th June, 2004 agreed to sell the said land to Manjeet Singh Kohli and for specific performance of which Agreement to Sell, CS(OS) No. 872/2010 has been filed; iv) that Mohd. Ashfaq has since died and the defendants no. 1 to 8 in both the suits are the heirs of the said Mohd. Ashfaq; v) that the defendant I.P. Estates claims to have entered into an Agreement dated 29th March, 208/19th October, 2010 with defendants no. 1 to 8 for purchase of the said land; vi) that under neither of the said Agreements, possession of the land was handed over to the agreement purchase and thus the defendant no. 1 to 8 as of today are in possession of the land; vii) the defendants no. 1 to 8, on 28th February, 2012 entered into a compromise with Manjeet Singh Kohli, agreeing to specific performance of Agreement dated 7th June, 2004 with Manjeet Singh Kohli upon Manjeet Singh Kohli enhancing the consideration thereunder; viii) that the only other party to the suits viz. Harmeet Singh Vohra (since deceased and substituted by his legal heirs) claims a Memorandum of Understanding with Manjeet Singh Kohli with respect to the said land; ix) that Harmeet Singh Vohra had applied for impleadment in the suits and which impleadment was permitted; and x) however the right of Harmeet Singh Vohra to file written statement was closed and there is no written statement on his behalf.

9. As far as Harmeet Singh Vohra is concerned even though he may been impleaded as party to the suit but his claim if any against Manjeet Singh Kohli is not to be adjudicated in these suits. The question thus framing any issue qua Harmeet Singh Vohra does not arise."

27. Accordingly, vide order dated March 15, 2018, this Court framed consolidated issues in both the suits and further passed detailed order as to how the evidence is to be recorded. This Court vide order dated March 18, 2018 in para 36 has held as under:

"36. While correcting the order it is felt that the issue no.(iv) may not require any evidence and if were to be decided against I.P. Estates, decree for specific performance can forthwith be passed in favour of Manjeet Singh Kohli and only the claim of I.P. Estates for damages need be put to evidence."

28. Further, in the order dated March 15, 2018 wherein in para 20 the following has been stated:-

"20. It is clarified that the counsel for legal representative of Harmeet Singh Vohra will have no right to cross-examine any of the witnesses and the legal representatives of Harmeet Singh Vohra shall also not be entitled to lead evidence of their own."

The legal heirs of Harmeet Singh Vohra filed an appeal being FAO 102/2018 challenging the closing of right to cross examine the witnesses. The Division Bench had dismissed the said appeal.

29. That apart, the order by which the cross examination was closed was challenged before the Supreme Court by the LRs of Harmeet Singh Vohra and the Supreme Court vide order dated April 24, 2019 in Civil Appeal No. 4035/2019 allowed the LRs of Harmeet Singh Vohra to cross examine the witnesses and to adduce evidence. The parties lead their respective evidence and after closing of evidence by all the parties, the matter was listed before this Court for final hearing on December 12, 2019.

30. It is further stated that the provisions of Order XXIII Rule 1(A) CPC gives powers to the Court for transposition of defendants only where an applicant has a substantial question to be decided as against any of other defendants. The applicants/legal heirs of defendant No. 10 cannot be transposed as plaintiffs on the following grounds:-

(i) With the settlement between Manjeet Singh Kohli, IP Estates and legal heirs of Mohd. Ashfaq, no issue remains to be decided by the Court.

(ii) There is no claim either in the form of written statement or counter claim by the LRs of Harmeet Singh Vohra which requires to be adjudicated.

(iii) Defendant Nos. 1 to 8 in their reply to the I.A. 19325/2012 in CS (OS) 1505/2012 dated April 30, 2013 clearly disputed the validity of MOU dated August 03, 2004 and therefore in the absence of any written statement, counter claim or a suit by Harmeet Singh Vohra in his life time or by his legal heirs, the legal heirs of Harmeet Singh Vohra cannot be transposed as plaintiff.

(iv) Admittedly, no written statement was filed by Harmeet Singh Vohra or his legal heirs and the consequence of non filing of the written statement is provided in Order VIII Rule 10 CPC which provide "where any party from whom WS is required under rule 1 or rule 9 fails to provide the same within the permitted time or fixed by the court shall pronounce judgment against him".

(v) The filing of affidavit in evidence and cross examination of witnesses does not give any right to the legal heirs of Harmeet Singh Vohra to seek transposition as it is settled law that evidence can be led only on the basis of pleadings and anything beyond pleadings are not to be read. He has relied upon two judgments of the Supreme Court.

Sr.

N.

Case Law

Proposition

1.

Anathula Sudhakar v. P. Bushi Reddy (Dead), MANU/SC/7376/2008 : 2008 (2) RCR (Civil) 879

That any amount of evidence beyond pleadings is not to be considered

2.

Vijay Pratap & Ors. v. Sambhu Saran Sinha 7 Ors., MANU/SC/0698/1996 : AIR 1996 SC 2755

Suit for specific performance of the contract-respondent in a suit entering into compromise deleting the name of the applicant from arrangement of parties - application by the petitioner's son of respondent under Order I Rule 10 to come on record it was observed that in a suit for specific performance they are not necessary party as the suit is not for title.

31. Reliance is also placed on the judgment passed by this Court in CM (M) 976/2007 dated January 19, 2010 wherein relying upon the two judgments of the Supreme Court in AIR MANU/SC/0008/1974 : (1975) 1 SCC 212; Harihar Prasad Singh & Ors. v. Balmiki Prasad Singh and AIR MANU/SC/0043/1987 : (1987) 2 SCC 555; Ram Sarup Gupta by LRs v. Bishun Narain Inter College & Ors., this Court has held as under:

"where it was reiterated that the evidence cannot travel beyond the pleadings."

32. Mr. Sharma also stated, the reliance placed on the judgment of R. Dhanasundari@ R. Rajeswari v. A.N. Umakanth & Ors. in Civil Appeal No. 7292/2009, is misplaced and the judgment is not applicable in the facts of the present case.

33. Further, Mr. Anil Sharma, learned counsel appearing for the defendant No. 9/plaintiff in CS(OS) 1505/2012 (IP Estates) has also made his submissions. According to him, I.P. Estates, who has since settled the dispute with the defendant Nos. 1 to 9 in CS (OS) No. 1505/2012 and being dominus litus, wishes to withdraw his suit.

34. He submitted that defendant No. 10, legal heirs of Harmeet Singh Vohra has filed an application under Order I Rule 10 read with Section 151 of the CPC to be transposed as plaintiff being averse to settlement. He on behalf of IP Estates being defendant No. 9 in CS(OS) 872/2010 opposes the application by stating as under:-

"a) That the Applicant i.e., defendant No. 10 (through Legal heirs) are strangers to the Agreement propounded by the defendant No. 9 as Plaintiff in CS (OS) No. 1505/2012.

b) There is no privity of contract between the applicant and the present defendant with regard to the subject matter of controversy pending adjudication. The applicants being strangers cannot be transposed as Plaintiffs in CS (OS) No. 1505/2012.

c) The suit filed by the defendant No. 9 is for specific performance of contract and during the course of trial, the answering defendant (plaintiff in CS(OS) 1505/2012) has not discharged its onus to prove the issues and have entered into a lawful settlement with the defendant Nos. 1 to 9 and there is no legal impediment therein.

d) The arrangement of Sh. Harmeet Singh Vohra with the plaintiff is not subject matter of suit in CS (OS) No. 872/2010, Harmeet Singh Vohra during his lifetime had not filed his written statement consequent upon his impleadment as a party nor had preferred any counter-claim, even otherwise, it is not the case of the Applicants that they are in a position to perform contractual obligation qua defendant Nos. 1 to 8

e) The suit filed by Sh. Manjeet Singh Kohli is for Specific performance of contract wherein the Specific performance of Agreement has been sought for and inter-se arrangement if any between the plaintiff and the defendant No. 10, would not make the compromise null and void.

f) In the absence of any equitable relief by the defendant No. 10, the transposition as plaintiff cannot be caused as defendant No. 10 was not party to agreement to sell dated June 07, 2004.

g) The Memorandum of understanding dated August 03, 2004 is wrongly being construed by the defendant No. 10 as the same was meant to facilitate the completion of formalities of the probate and interestingly, the said Memorandum of Understanding contains an arbitration clause and the defendant Nos. 1 to 9 are not party to the arbitration agreement and the application has been filed by the defendant No. 10 to protract the case."

35. He relied upon the judgment of the Apex Court of India in MANU/SC/0652/1995 : JT 95 Vol. 1 SC 273 Anil Kumar Singh v. Shiv Nath Mishra.

36. According to him, application of the applicants is in conflict with Order XXIII Rule 3 CPC as the applicants cannot place themselves at par with the plaintiff as it is not a suit for partition or title. Being a third party/stranger to the contract, cannot convert the character of the suit to a different character and if at all, a decree is passed by this Court, that would be for Specific Performance of Contract against the defendant Nos. 1 to 8 and would not bind the defendant Nos. 9 and 10, even otherwise, the title document if any which is to be executed consequent upon the compromise decree is not to be executed by the applicant i.e., defendant No. 10.

37. Learned counsel for defendant nos. 1 to 8 has adopted the submissions made by the learned counsel for the Manjeet Singh Kohli and IP Estates (plaintiffs in the suits).

38. Having heard the learned counsel for the parties, the prayers made in the suits have already been reproduced above.

39. From the prayers made in the suit filed by Manjeet Singh Kohli, it is clear that the Manjeet Singh Kohli is seeking specific performance of agreement to sell dated June 7, 2004 and MoU dated August 3, 2004 against the defendant nos. 1 to 8. Similarly, IP Estate has filed the Suit for the specific performance of the agreement dated March 29, 2008 and compromise deed dated October 19, 2010.

40. Vide order dated May 15, 2017 this court directed that both the suits be decided together in view of the fact that the same relates to same piece of land. The issues which have been framed in both the suits on March 15, 2018 are as under:

"In the aforesaid state of affairs, the following consolidated issues are framed in the suits:

(i) Whether I.P. Estates has been ready and willing to perform its part of Agreement to Sell dated 29th March, 2008/19th October, 2010 with defendants no. 1 to 8? OP IP Estates.

(ii) If the issue no.(i) is decided in favour of I.P. Estates, whether discretion implicit in the grant of relief of specific performance is to be exercised in favour of I.P. Estates? OP I.P. Estates.

(iii) If the issue No.(i) is decided in favour of I.P. Estates but issue no.(ii) is decided against I.P. Estates, to what damages, if any, is I.P. Estates entitled to and from whom? OP I.P. Estates

(iv) Whether the compromise arrived at between Manjeet Singh Kohli and defendants no. 1 to 8 on 28th February, 2012 is to be treated as a new agreement or an agreement relating back to the agreement dated 7th June, 2004? OPP

(v) Relief.

41. It may be stated here that case of Harmeet Singh Vohra, now his legal heirs is that they are entitled to a share in the suit land on the strength of the MoU dated August 3, 2004, which is a registered document. It is a conceded position, that Harmeet Singh Vohra now his legal heirs have neither filed the written statement nor any counter-claim seeking relief against the defendants 1 to 8 or Manjeet Singh Kohli or challenging the agreement/MoU executed by defendant nos. 1 to 8 with I.P. Estates. It can be argued when, the suit of Manjeet Singh Kohli incorporates a prayer for specific performance of MoU dated August 3, 2004, there was no requirement of filing a separate written statement or counter-claim. Such a plea is appealing on a first-blush but the fact is no issue has been framed by this court relating to entitlement of Harmeet Singh Vohra or his legal heirs to his/their share in the suit land.

42. Mr. Upadhyay has relied upon the following issue in support of his case:

"Whether the compromise arrived at between Manjeet Singh Kohli and defendant nos. 1 to 8 on February 28, 2012 is to be treated as a new agreement or an agreement relating back to agreement dated June 7, 2004?"

43. The said issue shall also not help the LRs of Harmeet Singh Vohra for the reason it does not refer to the MoU dated August 3, 2004 on which reliance has been placed by Mr. Upadhyay to lay a claim for share in the suit land. No doubt, the issue refers to the MoU dated February 28, 2012 which was executed by Manjeet Singh Kohli and defendant no. 1 and the same refers to defendant no. 1, honouring the MoU dated August 3, 2004, but that MoU contemplates the property further being transferred in the names of nominees of the Manjeet Singh Kohli. That apart, heavy reliance placed by Mr. S.K. Sharma, learned counsel for Manjeet Singh Kohli to an order passed by this court on January 18, 2018 inasmuch as this court vide the said order has in unequivocal terms stated that Harmeet Singh Vohra's claim against Manjeet Singh Kohli is not to be adjudicated in these suits is justified. In fact, the court has also stated that framing of issues qua Harmeet Singh Vohra does not arise. I may state here, this court had also stated that Harmeet Singh Vohra will have no right of cross-examination of any of the witnesses, but that right was restored by the Supreme Court in the SLP filed by legal heir of Harmeet Singh Vohra. In fact, legal heir of Harmeet Singh Vohra appeared in the witness box and was allowed to cross-examine the witnesses. The evidence, which has come on record, has to be noted/considered, for determining the issues framed, which does not include the right of Harmeet Singh Vohra or his legal heirs qua the land. Mr. Sharma is right in stating that the plaintiffs being dominus litis are within their right to settle their claim, in the manner they want including withdrawing the suit by I.P. Estates.

44. Having said that, in so far as plea of the legal heirs of Harmeet Singh Vohra for transposition as plaintiffs in the suits is concerned. Order XXIII Rule 1A of the CPC deal with the issue of transposition. The same is reproduced as under:

"1-A. When transposition of defendants as plaintiffs may be permitted. - Where a suit is withdrawn or abandoned by a plaintiff under R.1, and a defendant applies to be transposed as a plaintiff under R.10 of Or. 1, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants."

45. A perusal of Order XXXIII Rule 1-A reveal that an application for transposition can be filed in two contingencies; firstly when the plaintiff withdraws the suit or secondly the plaintiff abandons the suit. In other words, there is no question of transposition in the eventuality, the suit is neither withdrawn nor abandoned.

46. In the case in hand, we are concerned with two suits. A perusal of the application under Order XXIII Rule 3 which I have already reproduced above reveal that the suit being CS (OS) 872/2010 the plaintiff Manjeet Singh Kohli is seeking recording of compromise in terms of the compromise arrived at between him and the defendant Nos. 1 to 8 and 9. To put it differently Manjeet Singh Kohli is neither withdrawing or nor abandoning the suit. So, the application for transposition in CS (OS) 872/2010 is not maintainable.

47. Insofar as the suit being CS (OS) 1505/2012 is concerned, there the plaintiff is seeking, withdrawal/abandonment of the entire claim. As noted above the said suit has been filed for specific performance of the agreement to sell dated March 29, 2008 and compromise deed dated October 29, 2010. Admittedly, neither Harmeet Singh Vohra nor his legal heirs have any concern with both the documents. In other words, there is no commonality of claim of the plaintiff (IP Estates) and Harmeet Singh Vohra or his legal heirs which, if abandoned by IP Estates, would sprang up in favour of Harmeet Singh Vohra or his legal heirs.

48. Mr. Upadhyay has heavily relied upon the judgment of the Supreme Court in the case of R. Dhanasundari @ R. Rajeshwari v. A.N. Umakanth and Ors. Civil Appeal No. 7292/2009 decided on March 6, 2019. The relevant paragraphs of the judgment are Para 11 to 13, which are reproduced as under:

"11. The present one is clearly a case answering to all the basics for applicability of Rule 1-A of Order XXIII read with Rule 10 of Order I CPC. As noticed, the principal cause in the suit is challenge to the sale deed executed by defendant No. 1 in favour of defendant No. 2, with the original plaintiff asserting his ownership over the property in question. After the demise of original plaintiff, his sons and daughters came to be joined as plaintiff Nos. 2 to 8 with plaintiff No. 5 being the power of attorney holder of all the plaintiffs. After the suit was decreed ex parte, the plaintiff No. 5 transferred the property in question to the aforesaid three purchasers, who were joined as plaintiff Nos. 9 to 11 when the ex parte decree was set aside and suit was restored for bi parte hearing. In the given status of parties, even if the plaintiff Nos. 5 and 9 to 11 were later on transposed as defendant Nos. 3 to 6, the suit remained essentially against the defendant Nos. 1 and 2, that is, in challenge to the sale deed dated 23.03.1985, as executed by the defendant No. 1 in favour of the defendant No. 2. In regard to this cause, even if plaintiff Nos. 5 and 9 to 11 came to be transposed as defendant Nos. 3 to 6, their claim against defendant Nos. 1 and 2 did not come to an end; rather, the interest of the existing plaintiffs as also the defendant Nos. 3 to 6 had been one and the same as against the defendant Nos. 1 and 2.

12. In the given status of parties and the subject matter of the suit, when the plaintiffs entered into an arrangement with defendant Nos. 1 and 2 and sought permission to withdraw under Order XXIII Rule 1 CPC, the right of defendant Nos. 3 to 6 to continue with the litigation on their claim against defendant Nos. 1 and 2 immediately sprang up and they were, obviously, entitled to seek transposition as plaintiffs under Order XXIII Rule 1-A CPC.

13. It is also noteworthy that even if some question is sought to be raised as regards the rights of the subsequent purchasers (defendant Nos. 4 to 6), the right of the defendant No. 3 (earlier the plaintiff No. 5) to prosecute the suit as a plaintiff remains rather indisputable in view of his status as one of the legal representatives of the original plaintiff. The right of the said defendant No. 3 (earlier the plaintiff No. 5) to challenge the sale deed between defendant No. 1 and defendant No. 2 did not get annulled only by his earlier transposition as the defendant; and he cannot be considered bound by the arrangement between the existing plaintiffs and the defendant Nos. 1 and 2. In the given set of circumstances, the Trial Court had been justified in allowing the prayer for transposition and the High Court has rightly declined to interfere."

49. The above Judgment is clearly distinguishable. On a reading of the judgment, it is clear that initially the suit was filed by the predecessor-in-interest of defendant nos. 3 to 6 (who were earlier plaintiff nos. 5 and 9 to 11) challenging the sale of the property by defendant no. 1 to defendant no. 2. Even if the plaintiff nos. 5 and 9 to 11 who were later on transposed as defendant nos. 3 to 6 the claim against the original defendant nos. 1 and 2 did not come to an end and rather the claim of the existing plaintiff and defendant nos. 3 to 6 has been the same against the defendant nos. 1 and 2 and hence on the existing plaintiff entering into an arrangement with defendant nos. 1 and 2 and sought permission to withdraw the suit under Order XXIII Rule 3 CPC, the right of the defendant nos. 3 to 6 to continue with the litigation on their claim against defendant nos. 1 and 2 immediately sprang up and they were obviously entitled to seek transposition. Whereas in the case in hand, as stated above, the application for transposition is not maintainable in CS(OS) 872/2010 and whereas in view of the claim/prayer of I.P. Estates in CS(OS) 150582012, with which Harmeet Singh Vohra or his legal heirs have no concern, no right can said to have sprang up in their favour.

50. That apart, even if no compromise had taken place and applications under Order XXIII Rule 3 have not been filed by the plaintiff (Manjeet Singh Kohli) and I.P. Estates, still the matter would have been heard and decided on merit as per the issues framed; which do not include, determination of right of Harmeet Singh Vohra or his legal heirs based on the MOU dated August 03, 2004.

51. Having said that, I may also take note of an order passed by the Division Bench of this Court in A.K. Jain v. Vipin Wadhwa & Ors., CS (OS) 2310/2009, dated February 03, 2020, relied upon by Mr. S.K. Sharma in support of his submission wherein the facts are that the plaintiff instituted the Suit against the defendant Nos. 1 to 4 for specific performance of Agreements to Sell dated June 30, 1999 and dated January 11, 2000 for sale of three storeyed built up property together with the basement bearing No. 15, situated in Block A-1, measuring 324 sq. mtrs., Prashant Vihar, Delhi and in the alternative for refund of Rs. 65 Lacs and for recovery of damages in the sum of Rs. 2 Crores. The suit was entertained and vide order dated February 01, 2010 summons were issued and separate written statements filed by defendant No. 1, defendants Nos. 2 & 3 together and defendant No. 4.

52. On the pleadings certain issues were framed. The recording of evidence stood concluded and the suit posted for final arguments. The plaintiff and the defendant Nos. 2 & 3 have filed I.A. 1478/2020 under Order XXIII Rules 1, 3 & 3A of the Code of Civil Procedure, 1908, for disposal of the suit as compromised between the plaintiff and the defendant Nos. 2 & 3 and for withdrawal of the suit against defendant Nos. 1 & 4. In para 10 of the order, the Court noted the case of the plaintiff as under:

"10. The counsel for the plaintiff has stated/argued, (a) that the perpetual lease of the land underneath property No. 15, Block A-1, Prashant Vihar, Delhi was granted by defendant No. 4 DDA in favour of the defendants No. 2 & 3; (b) that the said lease was cancelled for misuse and non-payment of misuse charges and the application of defendants No. 2 & 3 for restoration of lease was pending; (c) that the defendants No. 2 & 3, vide Agreement to Sell dated 30th June, 1999 agreed to sell all their rights in the property to the defendant No. 1 and in pursuance to the said Agreement, the defendant No. 1 took possession of basement, ground floor and first floor of the property from the defendants No. 2 & 3 and the defendants No. 2 & 3 remained in possession of second floor and terrace above of the property; (d) that the defendant No. 1, vide Agreement to Sell dated 11th January, 2000 agreed to assign his rights under the Agreement dated 30th June, 1999 with the defendants No. 2 & 3, in favour of the plaintiff, for a consideration of Rs. 2,73,00,000/- and out of which Rs. 65,00,000/- was received by the plaintiff from the defendant no. 1; (e) that under the Agreements dated 30th June, 1999 as well as 11th January, 2000, the responsibility for getting the leasehold rights in the land underneath the property restored and converted to freehold was of the defendant No. 1, at his own costs; (f) that the defendant No. 1 could not get the leasehold rights restored in spite of various extensions granted by the plaintiff and the plaintiff ultimately instituted this suit; (g) that the defendants No. 2 & 3 were impleaded as parties to this suit because were confirming parties to the Agreement to Sell dated 11th January, 2000 executed by the defendant No. 1 in favour of the plaintiff; and, (h) that now the plaintiff and the defendants No. 2 & 3 have arrived at a settlement/compromise, as recorded in the application aforesaid, and want the suit to be disposed of in terms of the said settlement, insofar as against the defendants No. 2 & 3 and want to unconditionally withdraw the suit against the defendants No. 1 & 4."

53. It is also noted by the court that, it was the case of the defendant No. 1 that it has a substantial right to be decided in the suit. It was also argued that the defendant No. 1 was not given any opportunity to file pleadings in response to the pleadings of defendants Nos. 2 & 3. However, on enquiry, whether the defendant No. 1 at any time sought an opportunity therefore, the answer was in the negative.

54. This Court on perusing the compromise, found the same to be lawful and held that the rights of the defendant No. 1, even, if any, for adjudication in the suit, were at the instance of the plaintiff and not at the instance of the defendant No. 1 and the defendant No. 1 cannot come in the way of the plaintiff withdrawing the suit insofar as against the defendant No. 1 and if the defendant No. 1 has any entitlement in law to agitate any right, would have to institute independent action thereof and cannot stop the suit from being withdrawn qua him. The Court went on to hold that nothing contained in the compromise arrived at between the plaintiff and the defendant Nos. 2 & 3 shall bind or affect the defendant Nos. 1 & 4. This Court allowed the application being IA 1478/2020 and passed a consent decree in favour of the plaintiff therein and against the defendant Nos. 2 & 3 on the terms contained in the application.

55. Similarly, in this case as well, I find that the applications in both the suits have been filed by the plaintiffs, defendant Nos. 1 to 9 and accompanied by affidavits. The compromise being lawful, IA 18072/2019 in CS(OS) 872/2010 and I.A. 18061/2019 in CS(OS) 1505/2012 need to be allowed and a consent decree for specific performance of agreement dated June 7, 2004 need to be passed. The suit CS(OS) 872/2010 is decreed. The suit being CS(OS) 1505/2012 is dismissed as withdrawn. Decree sheet be drawn accordingly.

56. It is made clear that the legal heirs of Harmeet Singh Vohra, if have any entitlement in law as per MoU dated August 03, 2004, they are at liberty to agitate such right in an independent suit. It is also made clear that the consent decree shall not bind or affect the rights of the legal heirs of Harmeet Singh Vohra, the defendant No. 10 herein.

I.As. 18072/2019 in CS(OS) 872/2010 and 18061/2019 in CS(OS) 1505/2012

Disposed of.

I.As. 422/2019 in CS(OS) 872/2010 and 427/2019 in CS(OS) 1505/2012

Dismissed.


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