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Feroza Begam and ors. Vs. Dewan Daulat Rai Kapoor and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberSuit No. 702 of 1967 and I.As. Nos. 846, 847, 977 and 1022 of 1973
Judge
Reported inAIR1975Delhi1
ActsCode of Civil Procedure (CPC), 1908 - Sections 83 - Order 6, Rule 17; Limitation Act, 1908 - Schedule - Articles 142 and 144
AppellantFeroza Begam and ors.
RespondentDewan Daulat Rai Kapoor and ors.
Appellant Advocate M. Ahmad, Adv
Respondent Advocate S.C. Malik and ; Arun Mohan, Advs.
Excerpt:
.....as to who would be best suited to have the custody of the child. the high court has taken into consideration both the questions relating to the comity of courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child. - 3 gave notice to the municipal corporation of the gift made by him and on the basis of that notice the municipal corporation mutated the suit property in favor of plaintiffs 1 and 2. plaintiffs 1 and 2 filed an application under section 14 of the delhi rent control act against the defendants for their eviction from the suit property on the grounds that they had failed to pay the arrears of rent within two months of the notice of demand served on them and that they were..........radha kishan kapoor died on 29th october 1955, and thereafter his sons, who were residing in the suit property with their father, continued to occupy the suit property as tenants. on 2nd february 1963, plaintiff no. 3 through his general attorney gifted the suit property to plaintiffs 1 and 2 and the said gift was accepted by plaintiffs nos. 1 and 2. plaintiff no. 3 gave notice to the municipal corporation of the gift made by him and on the basis of that notice the municipal corporation mutated the suit property in favor of plaintiffs 1 and 2. plaintiffs 1 and 2 filed an application under section 14 of the delhi rent control act against the defendants for their eviction from the suit property on the grounds that they had failed to pay the arrears of rent within two months of the notice.....
Judgment:
ORDER

1. This order will disppose of I. As. Nos. 846, 847, 977 and 1022 of 1973 under Order 6, Rule 17 of the Code of Civil Procedure in Civil Original Suit No. 702 of 1967.

2. To appreciate the reliefs claimed in the applications it will be necessary to refer in some detail to the facts leading to the filing of the suit. According to the averments made in the plaint, Haji Mohd. Yousuf, plaintiff No. 3 (since dead and now represented by his legal representatives) was the sole and absolute owner of the property described, as Municipal No. XI/6147 (old) 4736/a-5 (new) and known as Kothi No. 23 situate at Ansari Road, Darvagani. Delhi. By a registered lease deed dated October 2. 1945. Haji Mohd. Yousuf leased out a portion (shown in red in the plan annexed to the lease deed) of the property in dispute to Radha Kishan Kapoor (father of defendants 1 and 2. grandfather of defendants Nos. 3, 4, 6 and 7 and father-in-law of defendant No. 5) at a rental of Rs. 600/- per month. He also permitted the tenant to use the portion shown in green in the plan. The lease was for a period of one year with a condition that it could be extended by another six months. As provided in the lease deed, the lease was extended for another period of six months. On the expiry of the extended, period of the lease, the tenant continued in possession of the demised premises and paid, rent to the landlord which was accepted by him. Radha Kishan Kapoor died on 29th October 1955, and thereafter his sons, who were residing in the suit property with their father, continued to occupy the suit property as tenants. On 2nd February 1963, plaintiff No. 3 through his general attorney gifted the suit property to plaintiffs 1 and 2 and the said gift was accepted by Plaintiffs Nos. 1 and 2. Plaintiff No. 3 gave notice to the Municipal Corporation of the gift made by him and on the basis of that notice the Municipal Corporation mutated the suit property in favor of plaintiffs 1 and 2. Plaintiffs 1 and 2 filed an application under Section 14 of the Delhi Rent Control Act against the defendants for their eviction from the suit property on the grounds that they had failed to pay the arrears of rent within two months of the notice of demand served on them and that they were utilising the property for purposes other than the purpose for which the property was let out to them. The defendants in their reply to the eviction petition denied that they or their predecessor-in-interest Radha Kishan Kapoor was a tenant in the suit property and claimed to be the owner of the suit property by adverse possession.

3. The plaintiffs prayed that plaintiffs Nos. 1 and 2 are the owners of the suit property by virtue of the gift by plaintiff No. 3 and a decree for possession of the suit property be passed in their favor against the defendants and in the alternative prayed that in case it is found that plaintiffs 1 and 2 have not become the owner of the suit property under the gift made by plaintiff No. 3 a decree for possession of the suit property be passed in favor of plaintiff No. 3.

4. The suit was resisted by the defendants. The defendants denied that Haji Mohd Yousuf was the owner of the property. They also denied that they or their predecessor-in-interest Radha Kishan Kapoor was in possession of the property as a tenant or license under Haji Mohd. Yousuf. In the alternative the defendants pleaded that the lease was for 18 months and on the expiry of the lease there was no fresh tenancy and the possession of the defendants and their predecessor-in-interest was adverse to the owner and that had ripened into full ownership. The defendants denied that there was any valid gift by plaintiff No. 3 of the suit property in favor of plaintiffs 1 and 2. The defendants further pleaded that plaintiff No. 3 had migrated to Pakistan in 1947 and he had become Pakistan National and as such he is not competent to sue for recovery of any property in this country. In addition to the pleas on merits one of the preliminary objections raised was that the suit is barred by limitations.

5. On the pleadings of the parties a number of issues were framed in the case. The parties closed their evidence on 8-9-1972. During the course of arguments on 4th February, 1973 the defendants filed the applications in question under Order 6 Rule 17 read with Section 151 Cpc for amendment of the written statement.

I. As. Nos. 846 & 847 of 1973.

6. The defendants in the applications titled above have stated that Haji Mohd. Yousuf was on the date of institution of the suit an alien enemy and was thereforee under a legal disability to sue under Section 83 of the Code of Civil Procedure. The defendants prayed that they might be permitted to insert the following paragraph as preliminary objection No. 5 in the written statement:

'(V) That the suit on behalf of plaintiff No. 3 is incompetent in law. The plaintiff No. 3 was not possessed of right to sue. The said plaintiff was at the time of the institution of the suit, and all along thereafter, a citizen and national of Pakistan and an alien enemy. The said 'Plaintiff was debarred from suing under Section 83 of C. P. C. In any event, assuming though denying that a suit by him was competent the plaintiff lost his right to sue as soon as Pakistan committed aggression against India on 3rd December 1971 and when both the countries were at war with each other. The said plaintiff acquired the status of an enemy alien on account of the said Indo Pakistan war and. Declaration of Emergency by the President of India on 3rd December 1971. Further all the legal representatives of the plaintiff No. 3 who have been brought on the record being citizens and nationals of Pakistan suffer from the same disability and incompetence as plaintiff No. 3. The suit on behalf of plaintiff No. 3 or his legal representatives is liable to be dismissed.'

7. The applications have been contested by the plaintiffs. On behalf of the plaintiffs it was contended that at the time of the institution of the suit the Government of Pakistan was not at war with India and, thereforee, Section 83 of the Code was no bar to the filing of the suit. It was further contended that the applications for amendment are highly belated and the defendants should not be permitted to raise this plea at this stage. It was also contended that the pleas now sought to be raised are not necessary for the determination of the real questions in controversy between the parties and, thereforee the applications deserve to be dismissed.

8. Section 83 of the Code of Civil Procedure is in the following terms:-

'Alien enemies residing in India with the permission of the Central Government, and alien friends, may sue in any Court otherwise competent to try the suit, as if they were citizens of India but alien enemies residing in India -without such permission or residing in a foreign country, shall not sue in any such court.

Explanationn: Every person residing in a foreign country, the Government of which is at war with India and carrying on business in that country without a license in that behalf granted, by the Central Government shall for the purpose of this section, be deemed to be an alien enemy residing in a foreign country.'

9. The expression 'alien enemy ' is not defined in the Code. But the Explanationn to Section 83 suggests that subject of a country which is at war with India would be an alien enemy within the meaning of Section 83. A judicial notice can be taken of the fact that Pakistan had committed aggression against India in August 1965. There was a ceasefire within about a month of the outbreak of the hostilities and both the countries had entered into an agreement known as 'Tashkent' agreement. Under that agreement both the sides had agreed to withdraw to the positions held prior to August 5, 1965. The suit was instituted by Haji Mohd. Yousuf on 20th October, 1967. Admittedly, at that time Pakistan Government was not at war with India.

10. Mr. Malik, learned counsel for the defendants contended that after Pakistan had committed aggression against India in 1965, the status of Plaintiff No. 3 continued to be one of an alien enemy and, thereforee. plaintiff No. 3 was not competent to sue in an Indian Court for the recovery of the property. Mr. Malik further contended that in any case there was a war between Pakistan and India in December 1971 and all the legal representatives of Haji Mohd Yousuf who are nationals of Pakistan, had become alien enemy and they are debarred from prosecuting the suit under Section 83 of the Code. According to the counsel the word 'sue' in Section 83 should be construed to mean not only the commencement of the proceedings but also the follow up to its proper termination.

11. I do not agree in the above contentions of the counsel. Section 83 only bars the right to sue in an Indian Court if the person concerned is a resident of a country, which is at war with India. As observed earlier, in 1967 there was no war between India and Pakistan and, thereforee there was no legal disability attaching to plaintiff No. 3 to file the suit.

12. The other contention of Mr. Malik is equal1y without merit. The expression, 'to sue' according to the Webster's Dictionary means to follow or to go to a court in order to obtain legal redress: to seek justice or right from (a person) by legal process: bring an action against: prosecute judicially: to proceed with a legal action and follow up to proper termination: gain by legal process.

13. The expression 'to sue', generally speaking means to bring an action in my view, the expression 'to sue' in Section 83 has not been used in the broad sense as contended to by the counsel. Here, the expression 'to sue' only means to institute or commence a proceeding. It has reference to the point of time when the suit is instituted and not to any subsequent stage in the suit. The suit having been validly instituted no subsequent event could affect the right of plaintiff No. 3 or his legal representatives to prosecute the suit to its culmination. In this view, I find that Haji Mohd. Yousuf was not an alien enemy when he instituted the suit and, thereforee, the suit is competent.

14. There is another reason also for rejecting the prayer of the defendants for amendment. The suit was instituted on 20th October 1967. The issues were framed in the case on 6th February. 1968. The parties concluded their evidence on 8th September, 1972. It was only during arguments that the defendants sought to raise the plea that Haji Mohd. Yousuf was not competent to sue under Section 83 of the Code of Civil Procedure. In my view there is a gross delay and laches on the part of the defendants in raising this plea. The real issue between the parties was whether the defendants have become owners of the suit property by adverse possession. The amendment sought by the defendants is not material for determining the real question in controversy between the parties. On that ground also the defendants' prayer for amendment must be rejected.

I. As. 977 and 1022 of 1973.

15. In these two applications the defendants wish to amend the written statement by adding the following preliminary objection as preliminary objection No. 2-A. The preliminary objection No. 2-A is:

'2-A. The Plaintiff discontinued tile possession of the property in dispute sometime in the year 1947 when he migrated to Pakistan and became an evacuee. The plaintiff brought an end to his constructive possession by his own voluntary act of discontinuance of his such possession. The suit is governed by Article 142 of the Limitation Act, 1908 read with Section 31 of the Limitation Act of 1963.'

16. The applicability of the Article would have to be determined on the allegations in the plaint. As stated in the earlier part of the order the case of the plaintiffs is that Radha Kishan Kapoor was a tenant in the suit premises and on his death the defendants had become tenants of the suit property. The suit is for possession on the basis of title. There is no allegation of possession and dispossession. The 1st column of Article 142 of the Limitation Act reads as:

'For possession of immovable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession.'

17. The word 'dispossession' implies some element of force or fraud. There is no allegation or evidence that plaintiff No. 3 was dispossessed of the suit property by force. The expression 'discontinuance of possession' implies a voluntary act. An abandonment of possession followed by the actual possession of another. This is also not the situation in the case in hand. There was no abandonment of possession by plaintiff No. 3. The predecessor-in-interest of the defendants had entered into possession of the property as a tenant. The case of the defendants is that on the expiry of the lease period they had become owners of the suit property by adverse possession. The suit will clearly fall within the ambit of Article 144 of the Limitation Act, 1908.

18. For the foregoing reasons I find no merit in the applications that are dismissed with costs. Counsel fee is assessed at Rs. 300/-. The arguments in the suit shall continue on January 11th 1974.

19. Applications dismissed.


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