Delhi District Court
Rajeev Kumar vs Kishan Kumar on 17 February, 2016
IN THE COURT OF CIVIL JUDGE, SOUTH EAST DISTRICT,
SAKET COURTS COMPLEX, SAKET, NEW DELHI
Presiding Officer: Ms. Prabh Deep Kaur
CS 134/2013
Unique ID no. 02406C003462011
In the matter of :
1. Rajeev Kumar
S/o Late Sh. Kartar Chand
R/o 1046B, Industrial Area,
Jalandhar, Punjab
2. Sh. Pawan Kumar
S/o Late Sh. Kartar Chand
R/o 393/A, Shiv Nagar,
Industrial Area
Jalandhar, Punjab .........Plaintiffs.
Vs.
1. Kishan Kumar
S/o Late Sh. Kartar Chand
R/o B64, Rajendra Puram
Navana Road, Near Defence Colony,
Meerut, U.P.
2. Sh. Ashok Kumar
S/o Late Sh. Kartat Chand
R/o 1046B, Industrial Area,
Jalandhar, Punjab
3. Sh. Rakesh Kumar
S/o Late Sh. Kartar Chand
R/o 135, First Floor,
Shiv Nagar, Industrial Area
Jalandhar, Punjab
4. Sh. Rajender Kumar
S/o Late Sh. Kartar Chand
M No.134/2013 Rajeev Kumar & Anr. Vs. Kishan Kumar & Ors. 1 of 15
R/o 1046B, Industrial Area,
Jalandhar, Punjab ......Defendants.
Date of institution of application : 02.09.2009
Date on which order was reserved : 17.02.2016
Date of pronouncement of the order : 17.02.2016
ORDER
Vide this order, pronounced in the open court, 3 applications of defendant no.1 have been disposed off.
(I) Application of defendant no.1 Under Order 11 Rule 12 CPC.
1. Defendant no.1 has moved an application Under Order 11 Rule 12 CPC on the ground that the present suit has been instituted by the Plaintiffs against the defendants on the ground of the non submission of rent in the equal share to all coowners pertaining to suit property no.24, BlockZ, Industrial Area, PhaseII, Okhla, New Delhi since the last three years from the date of commencement of suit, with the excuse that the suit property is jointly owned all the parties to the suit.
The suit is basically against the defendant no.1 and only contesting defendant no.1 is contesting the suit whereas rest of the defendants are supporting the case of the plaintiffs only. In fact the property in question is owned by M/s Kiran Valves pvt. Ltd. since the year 1986 and management of the company was changed and the directorship of the company was changed and out going directors Mr.N.K. Jain and Mohan Sharma, who are owners of the property being M No.134/2013 Rajeev Kumar & Anr. Vs. Kishan Kumar & Ors. 2 of 15 the director of the company, resigned in favour of the Late Sh. Kartar Chand and defendant no.2 vide registration date 24.10.1998 duly registered with registrar if Companies Delhi and Haryana. In the meanwhile Defendant no.1 becomes the director of the company M/s Kiran Valves Pvt. Ltd. which was intimated to Registrar of Companies through from no.32 duly signed by the defendant no.2 Ashok Kumar in favour of the defendant no.1 on 07.07.1992.
Due to demise of Late Kartar Chand the shares of Late Kartar Chand was transferred to Mrs. Satyawati and she became director of the company. As the plaintiff no.2 for share holding of M/s Kiran Valves Pvt. Ltd. but his application was rejected and share application money was returned back plaintiff no.2. Similarly, the share application for allotment of the plaintiff no.1 and defendant no.4 was also rejected and share application money of plaintiff no. and defendant no.4 were also returned vide pay orders and details are as under:
a. Pay order no.349674/63/9495 dated 06.05.1994 of Rs. 45,000/ drawn on UCO Bank, Industrial Area, Jalandhar (Punjab).
b. Pay order no.349675/74/9495 dated 10.05.1994 of Rs. 5,000/ drawn on UCO Bank, Industrial Area, Jalandhar (Punjab).
c. Pay order no.349675/64/9495 dated 06.05.1994 of Rs. 45,000/ drawn on UCO Bank, Industrial Area, Jalandhar (Punjab).
d. Pay order no.349686/75/9495 dated 10.05.1994 of Rs. 5,000/ drawn on UCO Bank, Industrial Area, Jalandhar (Punjab).
The plaintiff no.1 and defendant no.4 after rejection of therir share M No.134/2013 Rajeev Kumar & Anr. Vs. Kishan Kumar & Ors. 3 of 15 application settled their claim ad executed affidavits. Thereafter, the defendant no.3 was allotted with 500 shares of the company M/s Kiran Valves Pvt. Ltd. and was made director of the company as well and the company filed from no.32 with ROC. Thereafter, the defendant no.3 resigned from the company M/s Kiran Valves Pvt. Ltd vide resignation dated 09.10.2002 and shares of the defendant no. 3 was transferred in favour of the defendant no.1 Krishan Kumar duly signed by the defendant no.3 and payment made through cheque no. 015450 dated 09.10.2002. In the year 2004 defendant no.2 was removed from the company from the directorship of the company and intimation was given to registrar of companies Delhi and Haryana dated 05.04.2004.
Thereafter, the defendant no.2 filed a petition before the company law board under Company Petition no. 10/111/04CLB titled as under
"Ashok Kumar Versus Satyawati" and challenged his removal from the directorship of the company and thereafter a compromise was arrived pertaining to his rights in the suit property and defendant no.2 taken four properties situated at Jhalandhar vide settlement dated 19.05.2004 and accordingly, company petition filed by defendant no.2 was withdrawn and thereafter defendant no.2 voluntarily resigned from the company and undertakes and relinquished all his rights, titled and interest from from the company and intimation of this effect was given to Registrar of Companies Delhi and Haryana vide registration dated 25.05.2004 and defendant no.2 further executed an affidavit before Executive Magistrate Jallandhar vide affidavit dated 27.12.2005 and also executed affidavit M No.134/2013 Rajeev Kumar & Anr. Vs. Kishan Kumar & Ors. 4 of 15 that he has got no concern with immovable property being no. 24 Block Z, Okhla Industrial Area, PhaseII, New Delhi. This fact were deliberately not disclosed by all the plaintiffs and defendant no.2 to 4 in favour of the defendant no.1 hence it is appropriate that as all the parties to the suit challenged their relation with M/s Kiran Valves Pvt. Ltd., hence it is appropriate that the parties to the suit should reply the fact disclosed in the application. It is,to pass order by allowing the application of the Defendant no.1 and direction be given to the plaintiffs and defendant no.2 to 4 to file reply in shape of affidavit of the present application.
2. Plaintiff has strongly opposed the application on the ground that the present suit is at the stage of the plaintiff evidence since 11.01.2013, As many as three witnesses of the plaintiff have already been examined and fixed for further cross examination of the official person from DDA officers. The documents are required to be filed before settlement of the issue and in present case issue has been framed on 09.1.2012. Once these documents will be allowed and to be taken on record then plaintiffs have to rebut the same and need to lace further evidence on these documents and a de novo trial will be started which is not permissible in the law.
Documents enclosed with the application are neither necessary nor proper for adjudication of the present matter which is nothing but Rendition of Accounts and permanent injunction qua suit property. It is merely old alleged correspondences between the parties in relation to M No.134/2013 Rajeev Kumar & Anr. Vs. Kishan Kumar & Ors. 5 of 15 one company and even authenticity of these old documents are in cloud and doubtful. Plaintiffs do not admit any such alleged documents. The document are sought under this application are related to the purchase of the share which was further declined by the company and amount deposited with the application was refunded back which has nothing to do with the present matter.
The defendant no.1 has not disclosed about recovery of these documents and how these documents were not available at earlier stage before framing of issue, and how suddenly these documents came n the possession of the defendant no.1. These forged and fabricated documents are being placed now after procuring/ making the same. Otherwise, sources of these documents should have been disclosed in the application. The defendant have filed the WS and even availed the opportunity of the cross examination of the plaintiff witness. Defendant no.1 with sole aim to grab the entire property alone, has moved the present application in order to delay the disposal of the suit. It is specifically denied for want of knowledge that Defendant no.1 become director of the company and any form no.32 was signed by defendant no.2 dated 07.07.1992. Even otherwise this averments for the adjudication of the present suit which was between brothers and one of the brother wrongly stopped paying the amount towards rent of the suit property to the plaintiffs.
Legal heir can only inherit the share after demised of the shareholder director. Hence, how and in which capacity Ms. Satyawati M No.134/2013 Rajeev Kumar & Anr. Vs. Kishan Kumar & Ors. 6 of 15 Became director after Late Kartar Chand is a question has not clarified by the defendant no.1. Even otherwise this is irrelevant for the purpose for the present suit. Plaintiff applied for share holding of company and application was rejected however rest of the contents are wrong and denied for want of knowledge. Defendant no.1 is making the alleged story in AIR without any substances, How, such plea is related is not relevant for the adjudication of the present matter of the plaintiffs. Defendant no. 1 allegedly trying to explain their transaction which has nothing to do with the plaintiffs. The suit property was owned by sh. N.K. Jain and Sh. Manmohan Sharma originally, who purchased the same from the DDA through perpetual lease deed. Sh. N.K. Jain and Sh. Manmohan Sharma have further sold the property in favour of the parties and defendant no.1 being one of the brother of the parties has only 1/6 share in the suit property.
3. Arguments heard. Record perused.
4. The present application has been moved at the stage of PE. With the application, Defendant no.1 has filed certain documents. As per CPC, the defendant no.1 cannot file new document at the stage of PE even by way of present application. Further, defendant no.1 is alleging certain facts which have not pleaded in WS. Now, at the stage of PE, defendant no.1 cannot be allowed to file new documents and plead new facts in the grab of present application. Further, defendant no.1 has argued that these documents and facts are related to preliminary objection no.7 mentioned in WS and defendant no.1 has every right to M No.134/2013 Rajeev Kumar & Anr. Vs. Kishan Kumar & Ors. 7 of 15 prove his contentions. Definitely, defendant no.1 has every right to prove his defence but defendant no.1 would be given this opportunity at the stage of DE and defendant no.1 cannot be allowed to prove his allegations during PE and that too by way of present application. Moreover, the facts and documents mentioned in the application are not necessary to adjudicate the controversy in hand, therefore, the application of defendant no.1 Under Order 11 Rule 12 CPC is hereby dismissed being devoid of mertis.
(II) Application of defendant U/s 73 of the Indian Evidence Act, 1872.
1. The defendant no.1 has moved an application Under Section 73 of Indian Evidence Act, 1872 on the ground that the present suit has been instituted by the Plaintiffs against the defendants on the ground of the non submission of rent in the equal share to all coowner pertaining to suit property no.24, BlockZ, Industrial Area, PhaseII, Okhla, New Delhi since last three years from the date of commencement of suit, with the excuse that the suit property is jointly owned by all the parties to the suit and the undersigned applicant is defendant no.1 in the present suit.
During the course of the trial the plaintiffs have placed on record the original agreement to sell dated 23.07.1986 allegedly to have been executed between Narender Kumar and Mr. Man Mohan Sharma with parties of the suit.
M No.134/2013 Rajeev Kumar & Anr. Vs. Kishan Kumar & Ors. 8 of 15 The said agreement to sell was dated 23.07.1986 and whereas the date of birth of the defendant no.1 is 27.08.1968 hence as per the record of the age of the defendant no.1 on the date of the signing of the agreement to sell was 17 years only. In addition to the same signature reflected in the agreement to sell Ex.PW1/3 dated 23.07.1986 does not belong to the defendant no.1 and are forged and are forged ad the same are manufactured.
The signatures in the agreement to sell dated 23.07.1986 Ex.PW1/3 has been done by the plaintiffs with malafide intention to take illegal benefit ad to grab the property of the defendant no.1 just prior to filing of the suit. The said fact cannot be proved without calling the FSL report on the aspect of the age of the ink containing the signature of the defendant no.1 and the signature which are forged to be compared with the signature of the XthXIIth class admit card of the defendant no.1 which has been placed on record alongwith this application. The ascertainment of the genuinety of the agreement to sell dated 23.07.1986 it is necessary for the just disposal of the present matter and without calling the expert opinion through the FSL it is not possible to determine the forgery done by the plaintiffs.
It is, therefore, prayed that the agreement dated 23.07.1986 containing the forged signature of the defendant no.1 be sent along with admit card of class XIIthe of defendant no.1 for calling hand writing expert opinion and for calling age of ink on the alleged signature appearing in Ex. PW1/3.
M No.134/2013 Rajeev Kumar & Anr. Vs. Kishan Kumar & Ors. 9 of 15
2. Plaintiff has opposed the application on the ground that the present suit is at the stage of the plaintiff's Evidence since 11.01.2013, As many as 3 witnesses of the plaintiffs have already been examined and fixed for further cross examination of the officials person from DDA officers. Now, defendant no.1 by way of present application wanted to place some irrelevant documents which is against the Order VIII Rule 1A of the civil procedure code. The documents are required to be filed before settlement of the issue and in the present case issue has been framed on 09.11.2012. Once these documents will be allowed and to be taken on record then plaintiff have to rebut the same and need to place further evidence on these documents and a de novo trial will be started which is not permissible in the law. Documents enclosed with the application of the present matter which is nothing but rendition of account and permanent injunction qua suit property. It is merely old alleged correspondences between the parties in relation to one company named as KIRAN VALVES PVT. LTD. and even authenticity of these old documents are in cloud and doubtful. Plaintiffs do not admit any such alleged documents. The documents are sought under this application are related to the purchase of the share which was further declined by the company and amount deposited with the application was refunded back which has nothing to do with the present matter. The defendant no.1 has not disclosed about recovery of these documents and how these documents were not available at earlier stage before framing of issue, ad how suddenly these documents came in the possession of the M No.134/2013 Rajeev Kumar & Anr. Vs. Kishan Kumar & Ors. 10 of 15 defendant no.1. These forged and fabricated documents are being placed now after procuring/ making the same, Otherwise sources of these documents should have been disclosed in the application. The defendants have filed the WS and even availed the opportunity of the cross examination of the plaintiffs witness. Defendant no.1 with sole aim to grab the entire properties alone, has moved the present application in order to delay the disposal of the suit. It is specifically denied for want of knowledge that defendant no. l become director of the company M/s. Kiran Valves Pvt. Ltd. and any Form no.32 was signed by defendant no.2 on dated 07.07.1992. Even otherwise this is irreverent for the adjudication of the present suit which is between the brothers and one of the brothers / defendants are wrongly stopped paying the amount towards rent on the suit property to the plaintiffs.
Legal heir can only inherit the share after demised of the shareholder/ director. Hence, how and in which capacity M/s Satyawati became director after Late Kartar Chand is a question has not clarified by the defendant no.1. Even otherwise this is irrelevant for the purpose for the present suit. Plaintiff applied for share holding of M/s Kiran Valves Pvt. Ltd. and application was rejected however rest of the contents are wrong and denied for want of knowledge. Defendant no.1 is making the alleged story in AIR without any substances. How, such plea is related to the present suit is beyond the understanding. Such plea is not relevant for the adjudication of the present matter of the plaintiffs. Defendant no.1 allegedly trying to explain their transaction. Which has M No.134/2013 Rajeev Kumar & Anr. Vs. Kishan Kumar & Ors. 11 of 15 nothing to do with the plaintiffs.
The suit property was owned by Sh. N.K. Jain and Sh.
Manmohan Sharma Originally, who purchased the same from the DDA through perpetual lease deed. Sh. N. K. Jain and Sh. Manmohan Sharma have further sold the property in favour of the parties and defendant no.1 being one of the brothers of the parties has only 1/6 share in the suit property.
3. Arguments heard. Record perused.
4. It is settled principle that the expert opinion as to age of ink is not a well developed science nor it is a substantive piece of evidence. Moreover, in the present case, the allegation of defendant no.1 that he was minor at the time of execution of Ex. PW1/3 i.e. the agreement to sell, can be proved by other evidence like birth certificate, matriculation certificate etc. which are substantive piece of evidence and defendant no. 1 has ample opportunity to prove his defence as matter is still at the stage of PE. Therefore, application of defendant no.1 Under Section 73 of Indian Evidence Act, is hereby dismissed being devoid of merits.
(III) Application of defendant no.1 Under Section 151 CPC for recalling PW1 for cross examination.
1. Defendant has moved abovesaid application on the ground that the present suit has been instituted by the plaintiff against the defendants on the ground of the non submission of rent in the equal share to all co owners pertaining to suit property no.24, BlockZ, Industrial, Area, M No.134/2013 Rajeev Kumar & Anr. Vs. Kishan Kumar & Ors. 12 of 15 PhaseII, Okhla, New Delhi since last three years from the date of commencement of suit, with the excuse that the suit property is jointly owned by all the parties to the suit and the undersigned applicant is defendant no.1 in the present suit.
The matter is at the stage of plaintiffs evidence and cross examination of PW1, Rajeev Kumar was conducted and ow matter is kept for remaining cross examination of other plaintiffs witness. The defendant no.1 intends to further cross examine the PW1 on the linited aspects, as in response to the application under order 11 rule 12 R/W section 30 of CPC filed by the defendant no.1 the plaintiff in response in para no.4 of the affidavit claimed as under: "...4. that I say that I ever settled all my claim after rejection of my share application or ever executed any affidavit in relation threreto. That the alleged affidavits are forged and fabricated and manufactured piece of evidence which has been created by the defendant no. 1 just to deprive me from my legal rights in the suit property. I have never executed alleged affidavits..."
for this limited aspect the defendant intends to further cross examination of the plaintiff as it is necessary to place on record and cross examine the plaintiff on this aspects as original documents are required to put for cross examine. The said aspects are necessary for the just and proper adjudication of the case. The cross examination on this aspects had left inadvertently by the counsel. No prejudice will be M No.134/2013 Rajeev Kumar & Anr. Vs. Kishan Kumar & Ors. 13 of 15 caused to the plaintiffs in case the plaintiff no.1 be put to cross examine further on this limited aspects.
It is, therefore, prayed that the defendant no.1 be permitted to further cross examine the PW1 on the limited aspects as stated in herein above in para no.3 of the application.
2. The defendant has opposed the application by way of written reply and arguments on the ground that the present matter was listed for cross examination of PW1 since, 25.07.2013 and the defendant no.1 has got number of opportunity to conduct the cross examination of PW1. The application is liable to be dismissed as the defendant no.1 has failed to show any cogent reason for his failure to cross examine the plaintiff no.1 on alleged affidavit. By way of the present application the defendant no.1 wants to prolong the proceedings without any resonable cause.
3. Arguments heard. Record perused.
4. In the present case, PW1 was cross examined in detail on 03.01.2014, 04.03.2014 and 02.05.2014 and no cogent reason for recalling PW1 has been mentioned in the application. The ground mentioned in the application does not seem to be appropriate and sufficient because if a witness is called for cross examination on the ground mentioned in the application, it will only open Pandora box and trial can never be concluded. Accordingly, application of defendant no.1 Under Section 151 CPC for recalling PW1 for cross examination is hereby dismissed being devoid of merits.
M No.134/2013 Rajeev Kumar & Anr. Vs. Kishan Kumar & Ors. 14 of 15 All the three applications are disposed off as dismissed.
Pronounced in the open court (Prabh Deep Kaur)
on 17.02.2016 Civil Judge, South East
Saket Courts, New Delhi
M No.134/2013 Rajeev Kumar & Anr. Vs. Kishan Kumar & Ors. 15 of 15