Dismissed

Rakesh Pal Kaushik and Ors. v. Brish Bhan and Ors.

Punjab & Haryana HC1 Jul 2011CR/3923/2011

Case brief

AI extract

What is this about?

This High Court dismissed a civil revision petition challenging a trial court order framing issues in a suit for possession. The court held that defects in plaint verification were curable by amendment and that the plaintiffs did not conceal material facts, finding no merit in the plea to dismiss the suit.

What did the court decide?

The petition was dismissed; no additional relief was granted.

Rakesh Pal Kaushik and Ors. Vs Brish Bhan and Ors. — Property and Title | Punjab & Haryana HC (2011)

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Civil Revision No. 3923 of 2011

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Revision No. 3923 of 2011 Date of Decision: 1.7.2011

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Rakesh Pal Kaushik and ors

........petitioners

vs.

Brish Bhan and ors

.......respondents

Present: Mr. Dinesh Paul Kaushik- Petitioner No. 5, in person and for Petitioners No. 1, 3 to 10 and Mr. Narinder Paul Kaushik -Petitioner No. 2

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Hemant Gupta, J (Oral)

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Defendants are in revision aggrieved against an order passed by learned trial Court on 17.5.2010, whereby an application for recalling of an earlier order was dismissed.

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The case has a chequered history. Earlier, the predecessor-ininterest of the defendant-petitioners filed two suits for permanent injunction restraining the present plaintiffs from dispossessing the plaintiff from the plot, alienating, mortgaging or in any manner transferring the plot shown by letters ABCD in the site plan. The first suit bears No. 1235-T/93 dated 29.3.1989 and the second suit No. 999-T/93 dated 10.9.1988.

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In both the suits, one of the issues framed was whether the plaintiffs therein are the owners in possession of the suit property. Both the suits were decided on 23.4.1997, wherein on the basis of the possession, the suit for injunction was decreed. However, a finding was recorded that the

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Civil Revision No. 3923 of 2011

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plaintiffs are not the owners of the suit property. The defendants filed an appeal before the learned First Appellate Court. Both the appeals were dismissed on 26.7.2002. Defendants again filed two appeals i.e. RSA No. 36 of 2003 and 34 of 2003 before this Court which were withdrawn on 20.2.2004. Before the withdrawal of the appeals, plaintiffs filed the present suit for possession on December 23^rd , 2003. In the plaint, the present plaintiffs averred that two second appeals are pending at their instance before this Court. It was pointed out that the issue of ownership has not been challenged by the defendants, meaning thereby that the defendants admit that the plaintiffs are the owners of the suit property. In the said suit, defendant-petitioners filed the written statement. The learned trial Court initially framed certain issues, but the orders passed by learned trial Court on 20.11.2007 and 4.1.2008 became the subject matter of challenge before this Court in CR No. 1346 of 2008 which was decided on 20.7.2009 (Annexure P-3) when the following order was passed: -

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“The petitioners have filed this petition under Article 227 of the Constitution of India for setting aside the orders dated 20.11.2007 and 04.1.2008, passed by Civil Judge (Junior Division), Rajpura.

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After hearing learned counsel for the parties at length, it appears that the following issues necessarily arise out of the pleadings of the parties: -

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Whether the plaintiffs have no cause of action in view of the previously decided litigation? OPP

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Whether the suit is properly valued for the purpose of Court fee and jurisdiction?

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It has been submitted that the petitioners want to amend the written statement in order to take the specific pleas with regard to the res-judicata and estoppel etc.

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In these circumstances, this petition is disposed of with the direction to the trial Court to frame the issues with regard

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Civil Revision No. 3923 of 2011

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to cause of action as well as the Court fee. The petitioners would be at liberty to amend the written statement so as to raise any other pleas as they are advised or desired.”

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It is thereafter, the defendants filed the amended written statement which was a blend of pleadings of fact and of law. The plaintiffs filed the replication wherein, inter- alia, it has been pleaded that the order passed by this Court does not permit the defendants to file the amended written statement. In a long replication filed, by the plaintiffs asserted various facts. Subsequently, on 7.12.2009, learned trial Court substituted following issues No. 4 and 5: -

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“Issue No. 4: Whether the plaintiffs have cause of action in view of the previous decided litigation? OPD

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Issue No. 5: Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP

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It is thereafter on 17.5.2010, learned trial Court framed the

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following 6 additional issues on the basis of the pleadings of the parties: -

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“5-A Whether the plaintiffs have been stopped by their own act and conduct? OPD

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5-B. Whether the suit is barred by the principle of res judicata?OPD

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5-C Whether the suit of the plaintiffs is barred u/o 2 rule 2 (3) read with Section 11 CPC?OPD.

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5-D Whether the plaintiffs have not come to the court with clean hands and have concealed the material facts, if so its effect?OPD.

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5-E Whether the identity of the property is correct as per the site plan produced by defendants?OPD.

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5-F Whether the claim of the plaintiffs that there RSA's have become infructuous is fraudulent, if so, its effect?OPD.

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Thereafter, the petitioners filed an application on 11^th January,

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2010 to recall last order. The order passed thereon is the subject matter of challenge in the present revision petition, wherein the petitioners have claimed the following relief: -

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“In view of the above facts and circumstances, this Hon’ble Court may kindly be pleased to set aside the trial Court's order dated 7.5.2010 (sic) , dismiss the suit and impose on the respondents costs of not less than fifty lakh rupees but not before realizing from them the Court fee that would have been payable on a valuation of one crore rupee.”

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In support of the present petition, petitioner No. 2, has appeared for himself, whereas petitioner No. 5 has appeared for himself and for the other co-petitioners. The petitioner number 2 is a judicial officer in the National Capital Region.

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Present petitioners have inter-alia argued that the plaintiffs have not verified the plaint in terms of Order 6 Rule 15 of the Code of Civil Procedure (CPC) nor has filed any affidavit in support of such plaint as required by the provisions of sub-rule 4 of Order 6 Rule 15 of CPC. It is also argued that the pleadings raised by defendants in the written statement have not been specifically denied, therefore, there is no triable issues which can be framed by learned trial Court on the basis of which the parties can be permitted to lead evidence. It is thus argued that the plaint does not disclose any triable issues and thus the plaintiffs should be non-suited. The petitioners argued that before withdrawing the two appeals on 20.2.2004, in an application to advance the date of hearing, the plaintiffs have not disclosed that they have filed the suit for possession.

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Having heard petitioner Nos. 2 and 5 for some time I do not find any merit in the present petition. It appears that the petitioners are abusing the process of the Court by raising frivolous pleas.

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The argument that the verification is not proper or that the plaint is not supported by any affidavit does not require any consideration in as much as that even if the verification is not proper, the plaintiffs can seek amendment in the plaint so as to bring in conformity with the provisions of Order 6 Rule 15 of CPC. Apart from the said fact, a perusal of the record shows that the plaintiffs have appeared as a witness and deposed on oath and the defendant had the opportunity to cross examine the witnesses produced by the plaintiff. Therefore at this stage the plaintiff cannot be non suited for such lack of proper verification.

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I have called for the record of RSA Nos. 34 and 36 of 2003. A perusal of the record shows that the learned trial Court has framed the following issues: -

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“1. Whether the plaintiffs are owners in possession of the suit property? OPP

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1-A Whether the plaintiffs have become owners of the suit property by way of adverse possession?OPP

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Whether the defendants have purchased the suit property from Smt. Kampawati widow of Babu Ram vide registered sale deed dated 1.9.1987?OPD.

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2-A Whether the suit property is ancestral property of the plaintiffs and came to the share of the plaintiffs in family settlement?OPP

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Whether plaintiffs are entitled to the injunction prayed for?OPP

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Relief.”

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The learned trial court on first issue returned the following

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finding:-

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“So due to my above discussion, the plaintiffs have proved that they are in possession over the suit property, but they have failed to prove their ownership over the same. As the

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plaintiffs have specifically pleaded that their possession over the suit property is that of owner but as they have failed to prove their ownership over the suit property, so the plaintiff is entitled to injunction as prayed for. Accordingly, both these issues are partly decided in favour of the plaintiffs and partly in favour of the defendants.”

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In an appeal at the instance of the present plaintiff, the learned first Appellate Court in its judgment dated 26.7.2002, observed to the following

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effect: -

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“14. In the written argument various rulings have been mentioned but such rulings were not cited at bar. Even otherwise, I have gone through such rulings after making arrangement for such books. On the basis of rulings cited in written arguments of defendant-appellants, I am unable to find any fault in findings of the trial Court on any issue as well as final decision of suit.

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In written statement dated 7.9.1988, plaintiffs claimed themselves owner in possession of suit property without pleading any family partition or adverse possession. Though, by making amendment they pleaded their title due to family partition and adverse possession but when they omitted to plead so in initial plaint dated 7.9.1988 it is self speaking against their plea of title. It speaks that they were in bewilderness so far their possession over suit property is concerned. This is why they were beating about the bush by taking such pleas of title. In amended plaint dated 1.6.1996, date of family settlement who were parties to family settlement, whether it was oral or written have not been pleaded. When such are the pleadings, I am unable to find any force in plea of plaintiffs of family settlement. Plaintiffs did not remain confined to such pleadings even they further went to take up plea of adverse possession. Plaintiffs cannot sail in two boats at the same moment by taking pleas of family

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settlement and adverse possession. Their such pleas are selfcontradictory and also loudly speaking against bonafides of claim of plaintiffs about ownership of suit property. 16. Though, plaintiffs are in possession of suit property but ownership of it is vesting in defendants. Defendants have no right to forcibly dispossess plaintiffs from suit property. For making such view, I rely upon, Krishna Ram Mahale vs. Mrs. Shobha Vankat Rao-1989(2) Latest Judicial reports 495, Walter Louis Franklin (dead) through Lrs. vs. Singh (dead) through LRS, 1997(2) RCR 41 and Prataprai N. Kothari vs. John Braganza 1999(2)PLJ73. ”

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It is also well settled that the pleadings had to be construed by reading the entire plaint or written statement. One line or a word can be picked up out of context to raise any argument. The plaintiffs have filed a detailed replication to controvert the stand of the defendants in the amended written statement. Such detailed replication does not lead to any inference that any of the contention of the defendants in the written statement is being admitted. Therefore, learned trial Court was right in law in framing the issues which arose from the pleadings of the parties.

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The plaintiffs have filed the suit for possession on 23^rd December 2003. In such suit, the plaintiff has disclosed the pendency of the two second appeals before this Court. It is so apparent from the plaint, a copy of which has been appended with the present record as Annexure P-1. Though the suit was pending when the present plaintiffs filed applications in the second appeal to advance the date of hearing, but that cannot be ground to reject plaint. Such disclosure was not necessary either for the decision of the second appeal or the suit for possession. It cannot be said that the plaintiffs have concealed any material fact which may warrant rejection of plaint on the grounds mentioned in Order 7 Rule 11 of the CPC.

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It may be noticed that the evidence of the defendant stands closed by an order, as per the orders produced on record but such order has not been challenged.

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After the arguments were concluded and order dictated in open court, petitioner No. 5 sought permission to engage a local counsel. It may be stated that the said petitioner is an Advocate practicing at New Delhi. I find that the after arguing for almost one hour, the request of engaging a local counsel is only to over reach the Court and wriggle out of the order being passed.

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In view of the said facts, I do not find any merit in the present

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petition.

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Dismissed.

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[HEMANT GUPTA] JUDGE

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1^st July, 2011 Preeti/ds

Rakesh Pal Kaushik and Ors. v. Brish Bhan and Ors.

Case brief

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Rakesh Pal Kaushik and Ors. v. Brish Bhan and Ors.

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