MANU/DE/0940/2011

IN THE HIGH COURT OF DELHI

C.S. (OS) No. 1657/2007
Decided On: 22.03.2011
Appellants: Arun Khanna
Vs.
Respondent: Vinod Kumar Khanna and Ors.
Hon'ble Judges/Coram:
V.K. Jain, J.
Counsels:
For Appellant/Petitioner/Plaintiff: N. Prabhakar, Adv.
For Respondents/Defendant: M.G. Dhingra and Gita Dhingra, Advs. for D-1, Rahat
Bansal, Adv. for D-2/MCD
JUDGMENT
V.K. Jain, J.
I.A. Nos. 9150/2010 (Order 14 Rule 5 Code of Civil Procedure by Plaintiff) and
8536/2010 (Order 14 Rule 5 Code of Civil Procedure by D-1)
1. The issues in this case were framed on 11th April, 2008 and read as under:
1 . Whether the Plaintiff is entitled to a decree of declaration, declaring the
Plaintiff No. 1 the owner of the undivided 1/6th share in plot bearing No.
39/71, West Punjabi Bagh, Delhi, as prayed for in prayer (A)? OPP.
2 . Whether the Plaintiff is entitled to a decree of specific performance against
the Defendant No. 1 by enforcement of MOU dated 29.6.2006, as prayed for in
prayer (B)? OPP.
3 . In the alternate, whether the Plaintiff is entitled to a decree of damages of
Rs. 1.00 crore against the Defendant No. 1?OPP.
4 . Whether the Plaintiff is entitled to a decree of perpetual injunction against
the Defendant No. 1 in respect of the portion "C' of the suit property, as prayed
for in prayer "C'? OPP.
5. Whether the Plaintiff is entitled to a decree of mandatory injunction against
the second Defendant, as prayed for in prayer "D'? OPP.
6. Whether the suit is barred by limitation? OPD1
7 . Whether the plaint does not disclose any cause of action against the
Defendant No. 1? OPD1
8. Relief.
2. The Plaintiff and Defendant No. 1 are brothers. There is dispute between the parties

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with respect to ownership of the portion C in property bearing No. 39/71, West Punjabi
Bagh, New Delhi. The case of the Plaintiff is that this portion of the property was owned
by his parents and vide Will dated 25th February, 1985, half of the portion marked C in
the aforesaid property was bequeathed to him by his father, late Shri Hira Lal Khanna.
The case of the Defendant No. 1 on the other hand is that the entire portion marked C
was purchased by him, by way of a sale deed executed on the basis of a general power
of attorney executed by their parents in favour of his wife and brother-in-law. The case
of the Plaintiff in the replication is that the power of attorney relied upon by the
Defendant No. 1 is forged and fabricated document. Now in I.A. No. 9150/2010 the
Plaintiff wants an additional issue to be framed in respect of his allegation that the
aforesaid power of attorney is a forged and fabricated document. The contention of
learned Counsel for Defendant No. 1 is that since there was no allegation of forgery and
fabrication in respect of the power of attorney dated 18th July, 1994 in the plaint, he
had no opportunity to rebut the allegation made in this regard and, therefore, no issue
can be framed on the basis of such an averment. I, however, find no merit in this
contention. Order 8 Rule 9 of the Code of Civil Procedure, to the extent it is relevant,
provides that no pleadings subsequent to the written statement of a Defendant other
than by way of defence to set-off or counter-claim shall be presented except by the
leave of the Court. This Rule, therefore, does permit filing of a subsequent pleading
including a replication with the prior permission of the Court. Hence, the replication, if
permitted by the Court, becomes a part of the pleadings and, therefore, a plea taken in
the replication even if for the first time, needs adjudication by the Court. This
proposition of law was accepted by this Court in Moti Ram v. Baldev Krishan
MANU/DE/0177/1978 : 15(1979) DLT 90. In that case, the service of a notice
terminating the tenancy was pleaded in the replication. It was contended by the
Defendant that the Plaintiff having not pleaded the service of notice, the suit was
defective on this ground. The contention was, however, rejected by this Court, since the
notice was found pleaded in the replication. Therefore, in this case also, since forgery in
respect of power of attorney dated 18th July, 1994 has been pleaded in the replication,
it cannot be said that the challenge to power of attorney does not emanate from the
pleadings of the parties. The Defendant No. 1 had full notice of the fact that the validity
of the sale deed alleged to have been executed in his favour was being assailed by the
Plaintiff on the ground that power of attorney on the basis of which the sale deed was
executed in his favour was a forged and fabricated document. Therefore, it cannot be
said that if evidence is allowed to be led on this aspect, he would be taken by surprise
and will not be in a position to rebut the case of the Plaintiff. In Maheshwar Dayal v.
Amar Singh AIR 1983 P and H 197, the Court was of the view that to see as to whether
a fact has been pleaded by the Plaintiff by the Plaintiff, the Court is not to confine its
gaze to the plaint, but has to extend it to the replication as well since replication and
plaint together constitute pleadings of the Plaintiff. In taking this view, the High Court
placed reliance on its earlier decision in Jag Dutta v. Smt. Savitri Devi
MANU/PH/0016/1977 : AIR 1977 P&H 68 where the landlady had pleaded two essential
ingredients of eviction in the replication, which was held to be sufficient pleadings in
this regard. In fact, in Salig Ram and Anr. v. Shiv Shankar and Ors.
MANU/PH/0066/1971 : AIR 1971 P&H 437, a Division bench of the High Court was of
the view that since replication is a part of the pleadings, anything which is specifically
stated therein for the first time needs to be controverted and if not controverted, it is
assumed that the plea raised is accepted. The Defendant No. 1, on filing of replication,
came to know of the plea taken by the Plaintiff with respect to the aforesaid power of
attorney. No permission was sought by him to file a reply to the replication in order to
controvert the aforesaid averment. Be that as it may, since the case of the Plaintiff is
that the power of attorney dated 18th July, 1994 is a forged document whereas the case

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of the Defendant No. 1 is that this document was validly executed by their parents on
18th July, 1994, this issue needs adjudication during trial. An issue has already been
framed with respect to ownership of 1/6th share in property No. No. 39/71, West
Punjabi Bagh, New Delhi. While deciding this issue, the Court will necessarily have to
adjudicate on the validity or otherwise of power of attorney dated 18th July, 1994
because if this document was executed by their parents and later the portion C was sold
to Defendant No. 1, by a sale deed executed by the attorneys, the Will bequeathing this
portion to the Plaintiff would not of any consequence and would not confer ownership
on him. It is, therefore, made clear that while leading evidence on issue No. 1, the
Plaintiff would be entitled to lead evidence to prove that the power of attorney dated
18th July, 1994 is a forged document. Of course, Defendant No. 1 would be entitled to
lead evidence to rebut the case of the Plaintiff in this regard. As requested by the
learned Counsel for Defendant No. 1, it is made clear that at the time of final
arguments, it will be open to Defendant No. 1 to take a plea that the validity of the
power of attorney cannot be challenged, by way of replication filed in January, 2008.
The learned Counsel for Defendant No. 1 wants permission to file documents in this
regard. There is no objection to his request and hence, the parties are permitted to file
additional documents, if any, with respect to the execution of the power of attorney
dated 18th July, 1994.
3. Coming to the application of Defendant No. 1 (I.A. No. 8336/2010), I find that one
of the reliefs claimed by the Plaintiff is mandatory injunction directing Defendant No. 2
MCD not to sanction any plan with respect to property in question. The contention of
the learned Counsel for Defendant No. 1 is that there is no averment in the plaint,
necessitating such a relief against MCD. As noted earlier, the case of the Plaintiff is that
he is the owner of 1/6th share in property No. 39/71, West Punjabi Bagh, New Delhi. If
the plea taken by him is correct, the MCD cannot sanction any plan unless he also joins
the other co-owners in applying for sanction of the building plan. Of course, the relief,
which can be granted to the Plaintiff would be by way of perpetual injunction and not by
way of mandatory injunction. I, therefore, find no merit in the application filed by
Defendant No. 1. However, issue No. 5 needs to be recast and is framed as under:
Whether the Plaintiff is entitled to perpetual injunction against MCD as claimed
by him.
4. Both the applications stand disposed of in terms of this order.
I.A. No. 8171/2009
5 . As noted earlier, there is dispute between the parties with respect to ownership of
portion C in property No. 39/71, West Punjabi Bagh, New Delhi.
6 . Vide order dated 10th September, 2007, the Court directed Defendant No. 1 to
maintain status quo with regard to title, possession and state of construction of the
property bearing No. 39/71, West Punjabi Bagh, Delhi. This order was modified on 11th
April, 2008 to confine it to title, possession and status of construction of the portion
marked "C in the plan. Vide another order dated 13th April, 2009, this order was
modified to the extent that the Defendant was directed to maintain status quo with
respect to title, possession and state of construction of portion mark "C to the extent of
1300 sq.ft.
7. The learned Counsel for Defendant No. 1 states that on account of status quo order
passed by this Court, the MCD is not sanctioning the plan in respect of portions A and B
of the aforesaid property to the ownership of which there is no dispute between the

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parties. 8. It is, therefore, made clear that the status quo orders passed by this Court
from time to time will not come in the way of Defendant No. 2 MCD sanctioning a plan
for construction on portions A and B in property No. 39/71, West Punjabi Bagh, New
Delhi, if such construction is otherwise permitted under building bye-laws and there is
no legal impediment in sanctioning of the plan with respect to portions A and B of the
property No. 39/71, West Punjabi Bagh, New Delhi. This, however, would not amount to
a direction to MCD to sanction the plan. MCD will have to take its own decision in the
matter, uninfluenced by the status quo orders passed in this case.
The application stands disposed of.
CS(OS) No. 1657/2007
8 . The parties shall appear before the Joint Registrar on 20th April, 2011 for
admission/denial of additional documents, if any, which may be filed by the parties and
for fixing the dates for cross-examination of the witnesses of the Plaintiff.

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