PRADEEP SHARMA  Vs RAJIV GARG -Judgment by Delhi High Court

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 07 December 2023
Judgment pronounced on : 23 January 2024
+ FAO 190/2023 & CM APPL. 39074/2023
PRADEEP SHARMA ….. Appellant
Through: Mr. A.K. Singla, Senior
Advocate with Mr. Akash
Jandial, Adv.
versus
RAJIV GARG ….. Respondent
Through: Mr. Supriya Juneja and Mr.
Raghev Anthwal, Adv.
CORAM:
HON’BLE MR. JUSTICE DHARMESH SHARMA
J U D G M E N T
DHARMESH SHARMA, J.

1. This judgment shall decide an appeal preferred by the appellant,
who is the plaintiff in the main suit pending before the District Court,
under Order XLIII Rule 1 (r) of The Code of Civil Procedure, 19081
read with Delhi High Court Rules, 2018 assailing impugned order
dated 05.07.2023 passed by the learned Additional District Judge-07,
West District, Tis Hazari Courts, Delhi, in Civil Suit No. 13143/2016
titled �Pradeep Sharma v. Rajiv Garg”.

1 CPC

IMPUGNED ORDER:

2. The impugned order allowed an application under Order
XXXIX Rule 4 read with Section 151 of the CPC, moved on behalf of

the respondent, who is defendant in the main suit, for vacation of ex-
parte injunction dated 24.03.2015. Shorn off unnecessary details, the
appellant/plaintiff filed the above-noted civil suit seeking declaration,
to the effect that he is the owner of Flat No. 201, J-1/162, Rajouri
Garden, New Delhi by virtue of a registered Sale Deed dated
22.04.1996 and sought recovery of possession besides mesne damages
claiming that the respondent/defendant was never in actual or physical
possession of the said property at any point of time. The
appellant/plaintiff, in order to substantiate his pleas, inter alia relied
upon the contents of FIR No. 822/2001 lodged under Section
448/380/34 of the Indian Penal Code, 18602, with the PS Rajouri
Garden, Delhi as well.
3. Per contra, it was the case of the respondent/defendant that he
has been the lawful owner of the property in question which had been
purchased by him by virtue of an Agreement to Sell dated 12.07.1999
and other sale documents in the nature of General Power of Attorney,
Receipt, etc. and that he was forcibly dispossessed on 28.08.2001
from the suit property by the appellant/plaintiff in connivance with his
wife, who was a Sub-Inspector in Delhi Police, besides the then SHO
Sh. Rajender Sharma and SI Ashish Tyagi of Police Station Rajouri
Garden, Delhi.
4. Evidently, the respondent/defendant had instituted a suit for
permanent injunction for restraining the appellant/plaintiff and his
associates from forcibly dispossessing him from the suit premises and
he also filed another Civil Suit No. 98/2003 seeking recovery of

2 IPC

possession under Section 6 of the Specific Relief Act, 19643. The
proceedings under the SRA, which were initially contested by the
appellant/ plaintiff, but as he failed to appear and lead evidence, it
resulted in an ex-parte decree in favour of the respondent/defendant
vide judgment and decree dated 03.04.2007.
5. It is pertinent to indicate that the ex-parte judgment-cum-decree
dated 03.04.2007 hinged on the fact that the FIR No. 822/2001 under
Section 448/380/34 of the IPC with PS Rajouri Garden, Delhi,
registered on 28.08.2001 at the behest of the appellant/plaintiff
showed that respondent/defendant was in actual possession of the suit
property as on 28.08.2001.
6. To cut the long story short, the said decree was challenged by
the appellant in revision before this Court which was dismissed vide
order dated 23.04.2012. Thereafter, this judgment was challenged
before the Supreme Court but in vain as the SLP was dismissed vide
order dated 03.11.2014. The respondent/defendant/Decree holder
accordingly instituted an application for execution of ex-parte decree
dated 03.04.2007 and warrants of possession in respect of the suit
property were issued by the learned Trial Court/Executing Court vide
order dated 21.02.2015.
7. It was at that juncture that Civil Suit (OS) 697/2015 was then
instituted by the appellant/plaintiff on 12.03.2015, seeking relief of
declaration of title, recovery and injunction qua the suit property
against the respondent/defendant and an ad-interim ex-parte injunction
was granted in favour of the appellant/plaintiff, by a co-ordinate bench

3 SRA

of this Court vide order dated 24.03.2015. On the
respondent/defendant getting served with the notice of the present suit
and filing reply besides application under Order XXXIX Rule 4 of the
CPC, learned Trial Court passed the impugned order dated 05.07.2023
, which is assailed in the present appeal.

ANALYSIS AND DECISION:

8. Having given my thoughtful consideration to the submissions
advanced by learned counsel for the rival parties at the Bar and on
perusal of the entire record of this appeal, at the outset, I find that the
present appeal is bereft of any merits.
9. First things first, it would be relevant to reproduce the
observations made by learned Trial Court while rendering the
impugned decision/order; which reads as under:-

�6. It is the contention of the defendant that the plaintiff has made
false and misleading facts in relation to the address of the
defendant and also made several other misleading facts in the
present case. It is the contention of the defendant that the plaintiff
despite knowing the correct present address of the defendant has
intentionally not served the defendant on the said address but has
served on the address which was not in existence at the date when
the present suit was filed with a view to obtain injunction order
from the Court. It is submitted that the address i.e. B-163, SBM
Colony, New Delhi where the defendant was served was already
demolished in 2004-05 and the defendant used to live at the said
address up till 2003-04. The contention of the defendant that the
said colony has been demolished many years back is substantiated
with the report of the process server dated 30/04/2015. It is the
contention of the defendant that the plaintiff was having the
knowledge of the present address of the defendant as in the year
2007 he has filed the civil revision petition (CRP No.157/2007)
before the Hon”ble High Court of Delhi wherein the memo of
parties was filed and the correct prevailing address of the defendant
i.e. I-286, Karampura, New Delhi was mentioned by the plaintiff. It
is further submitted that the plaintiff thereafter has filed the review
petition before the Hon”ble High Court of Delhi and the SLP

before the Hon”ble Supreme Court wherein the correct present
address of the defendant of Karampura, New Delhi was mentioned.
It is further submitted that in the year 2012, the plaintiff has filed
the complaint u/s 156(3) CrPC was against the defendant and in the
said complaint, the plaintiff has mentioned current address of the
defendant i.e. A-240, Sudarshan Park, New Delhi and the said
address was also verified by the police in a status report filed in the
aforesaid complaint case. The defendant has also filed the copy of
the complaint filed by the plaintiff against the defendant wherein
the address of Sudarshan Park, New Delhi was mentioned.
Therefore, the aforesaid facts clearly show that the plaintiff was
aware about the current address of the defendant as he has already
mentioned the said address in the aforesaid subsequent proceedings
initiated by him against the defendant. This fact that the plaintiff
has intentionally filed the wrong address of the defendant for the
compliance of provision u/o 39 Rule 3 CPC is also proved by the
fact that after the summons were sent at the wrong address, the
plaintiff was directed to file fresh and complete address of the
defendant and thereafter the plaintiff in compliance of the said
order has filed the correct address of the defendant of Karampura,
New Delhi which further shows that the plaintiff intentionally
earlier has not filed the correct current address despite having
knowledge of the same.
7. It is the case of the plaintiff that the defendant was never in
possession of the suit property. On the other hand, it is the case of
the defendant that he was in possession of the suit property and on
28/08/2001, he was forcibly dispossessed from the suit property by
the plaintiff in conspiracy with his wife who was Sub-Inspector in
Delhi Police and the then SHO Sh. Rajender Sharma and SI Ashish
Tyagi of police station Rajouri Garden, Delhi and the plaintiff has
falsely lodged a complaint in police station Rajouri Garden and the
FIR No.822/01 under Section 448/380/34 IPC was registered. The
plaintiff has also filed the copy of the status report, wherein the fact
of lodging of the aforesaid FIR by the plaintiff has also been
mentioned. The registration of the aforesaid FIR by the plaintiff
itself shows that the defendant was earlier in physical possession of
the suit property. In the civil suit filed under Section 6 of the
Specific Relief Act, the judgment and decree dated 03/04/2007 was
passed in favour of the defendant and it was held therein that the
defendant was in possession of the suit property. The said
judgment and decree was challenged by the defendant up to the
Hon”ble Supreme Court but he has remained unsuccessful.

8. It is the contention of the defendant that he has filed a complaint
with the vigilance department against SI Ashish Tyagi and SHO
Sh. Rajender Sharma and the inquiry was conducted against them
by the vigilance department and the same was concluded and it was
found that the aforesaid police officials have connived with the
plaintiff and his wife which further supports the contention of the
defendant.
9. In view of my above discussions, it is seen that the plaintiff has
filed the present suit by misleading facts in relation to the address
of the defendant as well as with regard to the other facts as
discussed above. Therefore, the present application is allowed and
the direction given vide order dated 24/03/2015 for the parties to
maintain status quo with regard to title and possession of the suit
property is vacated. The stay in the proceedings in the execution
petition no.138/2007 also stands vacated. It is clarified that the
proceedings in the execution petition be carried out as per law.�

10. On a careful perusal of the aforesaid observations passed by the
learned Trial Court, it is evident that vide judgement dated 03.04.2007
in Civil Suit No. 98/2003 titled �Rajiv Garg v. Pradeep Sharma”, the
address of the present respondent i.e., Rajiv Garg was described as B-
163, SBM Colony, New Delhi-110015. It is also evident on perusal of
the above-noted judgment that three issues were framed based on the
pleadings of the parties, which read as under:-

�1. Whether the suit property was duly purchased by the plaintiff
from the defendant.? OPP
2. Whether the plaintiff was in possession of the suit property
before 28.8,01? OPP
3. Whether the plaintiff was dispossessed from the suit property by
the defendant on 28.8.01? OPP
4. Whether the plaintiff is entitled to be kept in possession of the
suit property? OPP
5. Relief.�

11. Without going into the discussion on merits in the above-noted
case, it is suffice to state that all the issues were decided in favour of
the respondent/defendant in the instant appeal i.e., Rajiv Garg. The

said order was challenged by the appellant/plaintiff Pradeep Sharma in
C.R.P. No. 157/2007, CM No. 12281/2007 and CM No. 16600/2010
before this Court and the civil revision petition was dismissed vide
detailed judgment dated 28.03.2012, and the appellant/plaintiff then
preferred a Special Leave Petition (Civil) No. 14781-14782/2012
before the Supreme Court which also came to be dismissed, wherein
the following order was passed:-

�Issue notice.
Subject to petitioner”s depositing a sum of Rs. 10,000/- per
month from the date of the passing of the decree by the trial court
i.e. 03.04.2007, the execution of the impugned judgment and order
shall remain stayed pending further orders.
Current monthly use and occupation charges shall also be
deposited by the petitioner before the trial court at the rate
mentioned above. Upon deposit, the amount shall be invested by
the trial court in a term deposit to ensure for the benefit of the
successful party. Arrears to be deposited within two weeks from
today.�

12. It is an admitted fact that the aforesaid directions of the
Supreme Court have not been complied with by the appellant/plaintiff.
Further, there was a calculated and well-conceived manoeuvre on part
of the appellant/plaintiff, who on filing CS(OS) No. 13143/2016
impleaded the respondent/defendant by citing his previous address viz.
B-163, SBM Colony, New Delhi-110015, which to the knowledge of
the appellant/plaintiff stood demolished long time back; and thereby
deliberately omitted or concealed the fresh address or the new address
to which respondent had moved viz. as I-286, Karampura, Delhi,
which address had been mentioned in all previous legal proceedings
between the same parties, even up to the Supreme Court, and thereby
securing ad-interim ex-parte injunction dated 24.03.2015. The

appellant/plaintiff falls foul of common law principle suppressio veri,
suggestio falsi i.e., wilful concealment of the truth when one is bound
to reveal it and such concealment is construed as an expression of
falsehood. Be that as it may, even on merits he has no case since he
has failed to comply with the directions of the Supreme Court and
therefore, there could be no stay of the execution of the decree dated
03.04.2007 in Civil Suit No. 98/2003.

RELIEF:

13. In view of the foregoing discussion, this Court is unable to find
any illegality, perversity or incorrect approach adopted by the learned
Trial Court in vacating the ad-interim ex-parte injunction dated
24.03.2015 and thereby allowing the application of the
respondent/defendant under Order XXXIX Rule 4 of the CPC. Hence,
the present appeal is dismissed with the cost of Rs. 25,000/-. All
interim orders stand vacated accordingly.
14. The appeal is disposed of accordingly. The pending application
also stands disposed of.

DHARMESH SHARMA, J.
JANUARY 23, 2024
SP