Shri Harsharan Singh vs State

Shiv Narayan Dhingra, J.

IA No. 12729/2006

By this application u/s 151 CPC, the applicant has sought release of money towards fee, expenses and charges incurred in prosecuting criminal action for trespass in property C-8, NDSE Part-II, New Delhi which was the subject matter of the Probate Case.

This Court vide order dated 24th July 2006, while disposing of the IA No. 8738 of 2005 had permitted the applicant Sardar Gurcharan Singh to take appropriate steps against illegal trespass by Laxmi Narain Modi, Sidharth Modi and other directors of M/s Avanti Overseas Pvt. Ltd during pendency of the suit into the premises C-8, NDSE Part-II, New Delhi. This Court had allowed the applicant/respondent No. 2 to continue with the criminal action already undertaken in respect of trespass and had also observed that the applicant would be entitled to expenses incurred for the purpose of removal of trespass against the trespassers out of the rent amount being deposited in the joint account of the respondent No. 2. The applicant in the instant application has given the details of various expenses incurred by him on legal proceedings and had sought that amount of Rs. 2,09,500/- spent on the legal fee and other professional charges and an amount of Rs. 31,964/- spent on the court fees etc be refunded to him/ ordered to be given from joint account.

I consider that the applicant is entitled to have the amount incurred on the court fees and other actual expenses spent by him. Since no certificate of the counsel has been filed showing the different legal fees paid by the applicant to the counsel, it would be appropriate to allow to the applicant some ad hoc amount at this stage.

I, therefore, allow this application to the extent of Rs. 1,00,000/- towards professional fees and other charges and Rs. 31,964/- towards court fees etc. Thus, the applicant is allowed to recover Rs. 1,31,964/- out of the joint account No. 115805 at Punjab National Bank, Nizamuddin West, New Delhi.

This application stands disposed of in above terms.

IA No. 4755/2008

This application u/s 151 CPC has been made by the applicant Shri Harsharan Singh for recovery of a sum of 6026.26 US $ from the joint account on account of expenses incurred by the applicant in filing the suit for recovery of possession and mesne profits in respect of property bearing number C-8, NDSE Part-II, New Delhi against M/s Avanti Overseas Ltd and others.

This Court vide order dated 24th July 2006 had permitted the applicant to file the suit for recovery of the premises and also observed that the applicant would be entitled to the expenses. The applicant has not given the details of any expenses but has only placed on record the documents showing that the applicant wired from Canada an amount of 6000 US $ towards court fees and professional charges. The applicant has not placed on record the certificate of the advocate as to how much professional charges he has taken. Let applicant place a certificate from the advocate reflecting as to how much professional fees he has charged from the applicant and his Income Tax return showing this amount as professional charges. The applicant has stated that he has spent an amount of Rs. 39,775/- on the court fees. The applicant is allowed to have this amount of Rs. 39,775/- from the joint account number 115805, Punjab National Bank, Nizamuddin West, New Delhi. However, this Court shall decide about the professional fees, after the advocate files certificate showing receiving of amount on account of professional fees from the applicant and showing that same has been reflected in his income tax returns.

The application stands disposed of with above directions.

IA No. 263/2008

This application u/s 151 CPC has been made by the respondent No. 2 with a prayer to give directions for amending the Plaint of CS(OS) No. 725 of 2007 titled as Harsharan Singh v. Avanti Overseas Pvt. Ltd.

It is submitted by the applicant/respondent No. 2 that the petitioner had filed a suit against M/s. Avanti Overseas Pvt. Ltd for recovery of possession and mesne profits in terms of the order dated 24th July 2006 but the petitioner has failed to make compliance of the complete directions given by this Court in the order and the suit filed by the petitioner for recovery of mesne profits, damages was not a proper suit and the complete relief has not been sought. The petitioner was expeditiously required to take steps for claiming mesne profits or damages since it would become time barred. The suit has been filed simplicitor for recovery of mesne profits only in respect of the portion of the property trespassed upon. The claim of mesne profits is @ Rs. 89,800/- per month only was made whereas the area trespassed worked out to be 1890 sq ft and mesne profits @ Rs. 100 per square ft. would amount to Rs. 1,89,000/- per month and hence the claim of Rs. 89,000 per month was highly deficient claim. The total claim made in the suit was Rs. 32,32,080/- whereas the actual claim should have been of Rs. 68,04,000/-. It is submitted that the past of claim has already become time barred. In the suit no prayer has been made for recovery of the possession of the premises shown in the plan. Non filing of the correct suit by the petitioner was a deliberate and willful and calculated move to cause damages to the rights of the applicant. It is submitted that the petitioner lacks competence either to present the case or to prosecute the case or to do any act or to do prosecution. It is also submitted that in the suit filed (No. 725 of 2007) there were certain false averments. The overall conduct of the petitioner does not inspire confidence that he would prosecute the suit diligently and preserve the property and would not cause damage to the interest of the applicant.

The prayer made is that the petitioner be directed to carry out amendment of the plaint by impleading the applicant as plaintiff No. 2 to the suit and for adding relief of mesne profits to be Rs. 68,04,000/- and also to claim relief of possession and make correct averments of the facts.

The applicant, in the garb of this application, seeks the Court to become a litigant and to give directions to the petitioner as to how the litigation should be carried out by the applicant. In my view, this Court cannot pass directions telling the petitioner as to how he should have framed the suit nor can direct him to amend the suit. Since the interest of the applicant is also involved in the property and the applicant wants to protect his interest in the property, the applicant is at liberty to approach the Court concerned and take appropriate steps for protection of his interest.

The application stands disposed of.

IA No. 15150/2008

This application under Order VI Rule 17 read with Section 151 of CPC has been made by the petitioner. It is stated by the petitioner that the respondent has taken an objection in the written statement that the suit for letter of administration has been filed by the Attorney and it is the Attorney who has sought a letter of administration in respect of the Will. No letter of administration can be granted in favour of an attorney. On the basis of this objection, one issue was framed as to whether the petition was maintainable or not. The petitioner submits that he wants to place on record an amended petition signed by him personally stating all the facts as stated in the original petition with a prayer that the letter of administration be granted to the petitioner himself.

The application has been opposed by the respondent on the ground that this application for amendment has been made belatedly at the stage when evidence is going on.

The amendment as sought by the petitioner in this case is practically not an amendment but a reiteration of the facts that the authority given by the petitioner to the attorney was under petitioner's signatures and petitioner's stand by the authority given. Since the objection was raised about this, the petitioner wants to substitute himself in the petition against the attorney. There is no material change in the petition except that the petitioner has substituted himself in place of the attorney.

I consider that the petitioner has a right to come to the Court and substitute himself in place of the attorney and an amendment to this effect cannot be disallowed. I, therefore, allow this application. The amended petition be taken on record and be removed from Part-II and be placed on Part.

The application stands disposed of List this matter before the Joint Registrar for recording of remaining petitioner's evidence on 3rd March 2009, the date already fixed.