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Mrs. Kiran Khanna vs Sh. Rakesh Kapoor & Ors on 10 January, 2019

Author: Prathiba M. Singh

Bench: Prathiba M. Singh

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+                                      CS (OS) 11/2018
       MRS. KIRAN KHANNA                                           ..... Plaintiff
                    Through:                Mr. Vidit Gupta and Mr. Prakash
                                            Pandey, Advocates. (M:9910995511)
                              versus

       SH. RAKESH KAPOOR & ORS.                 ..... Defendants
                    Through: Ms. Sonali Malhotra and Mr. Anant
                               Bhardwaj, Advs. (M:9818024129)
       CORAM:
       JUSTICE PRATHIBA M. SINGH
                    ORDER

% 10.01.2019 I.A. 253/2019

1. For the reasons stated in the application, the delay in filing the O.A., if any, is condoned, subject to payment of Rs.5,000/- as costs.

2. I.A. is disposed of.

3. This appeal has been filed challenging the order dated 10th October, 2018 passed by the Joint Registrar. In the application, the Plaintiff sought directions against the Defendants to discover on oath the following documents:

"(i) registered Relinquishment Deed dated 09.07.2008,

(ii) copy of title document in respect of Shop No. 99, Gaffar Market, New Delhi in favour of Sh. Khem Chand Kapoor and;

(iii) copy of complete chain of document in favour of Smt. Kusum Kapoor dated 19.06.1986, document dated 22.03.1999 in favour of Sh. Deen Dayal Kapoor and document dated 19.02.2001 in favour of defendant nos.

1 and 2 in respect of Stall No.2, DDA LIG Market, Rajouri Garden, New Delhi."

4. The application was taken up for hearing and the Ld. Joint Registrar, passed a detailed order on 10th October, 2018, in which it was directed as under:

"11. Accordingly, with these observations, the present application is allowed. The defendants are directed to produce the documents mentioned at Sl. Nos. (i) and

(iii) in para 10 of present application within four weeks from today. So far as documents at Sl. No. (ii) of para 10 of present application is concerned, it has already been replied by defendants with supporting affidavit that the same is not their possession. The necessary implication shall follow in this regard.

The defendants are further directed to answer the interrogatories served alongwith this application by filing an affidavit in terms of Order XI CPC within four weeks from today with advance copy to Ld. counsel for plaintiff."

5. Learned counsel for the Defendants submits that the application was merely for production of documents and not to answer interrogatories. She submits that insofar as the document at serial no.1 is concerned, it is a registered relinquishment deed and her client has already taken steps for obtaining certified copy of the same. They are willing to file the said documents on record.

6. Insofar as the documents at serial no.2 are concerned, the same are not in possession of the Defendants. Insofar as the documents at serial no.3 are concerned, she submits that the same have already been filed on record.

7. Mr. Vidit Gupta, learned counsel for the Plaintiff submits that the Defendants have categorically claimed rights in shop no.99, Gaffar Market, CS (OS) 11/2018 Page 2 of 4 Karol Bagh, New Delhi and have made averments to this effect in paragraph 4 of the written statement. Accordingly, the Defendants should be directed to place on record the documents on the basis of which the ownership is claimed by them.

8. After hearing parties, it is clear that insofar the documents at serial nos.1 & 3 are concerned, the controversy has been put to rest. Insofar as documents at serial no.2 are concerned, the averments of the Defendants in paragraph 4 are as under:

"4. That it is submitted that, the shop no.99 Gaffar Market, Karol Bagh, New Delhl-110005 was owned by Shri Khem Chand Kapoor, father of Shri Din Dayal Kapoor, and grand father of the Plaintiff and Defendant nos.1 and 2. Shri Din Dayal Kapoor was working with his father, Shri Khem Chand Kapoor. Shri Khem Chand Kapoor died in the year 1960 and after his death, Shri Din Dayal Kapoor became the owner of the said shop no.99, Gaffar Market, Karol Bagh. New Delhi-110005. It is submitted that, the property WZ-246, Plot no.16-B, Mpl. no.E-31, measuring 100 sq. yds. out of Khasra nos. 654 and 661, Village Basai Darapur, abdai Sudershan Park, New Delhi was owned by Smt. Kusum Kapoor. Smt. Kusum Kapoor purchased the property bearing no.WZ- 246, Plot no.16-B, Mpl, no.E-31, measuring 100 sq. yds, out of Khasra nos. 654 and 661, Village Basai Darapur, abdai Sudershan Park, New Delhi vide registered sale deed dated 07.10.1971 registered document no,8236, Volume no.2669, on pages no. 99 to 101, registered on 11.10.1971 before the Sub- Registrar, District-I, Kashmere Gate, Delhi, It is submitted that, stall no.2, DDA LIG Market, Rajouri Garden, New Delhi was purchased by Smt. Kusum Kapoor, mother of the Plaintiff and Defendant nos,1 and 2. It is further submitted that, Shri Din Dayal CS (OS) 11/2018 Page 3 of 4 Kapoor had made an application to the Delhi Development Authority ['DDA'] under Rohini phase IV residential scheme, Shri Din Dayal Kapoor had been allotted Plot no,220. Pocket C-2, Sector-28, measuring 60 sq. mtrs., in Rohini Residential Scheme, Rohini, Delhi and the entire consideration, demanded by the DDA, was paid by Shri Din Dayal Kapoor to the DDA. The possession of the aforesaid plot was taken by Shri Din Dayal Kapoor in the year 23,03.2005 and Shri Din Dayal Kapoor was the owner of the said plot. The suit, therefore, is not maintainable and the same merits dismissal,"

9. A perusal of the plaint also shows that the stand of Plaintiff is that the shop was allotted to Shri Din Dayal Kapoor. Taking on record the submissions of the Defendants that they do not have any documents, it is directed that both the parties have the onus to prove their respective stands in trial. Since the documents are stated not to be in possession of the Defendants, no orders for discovery can be made. However, inference, on the basis of the evidence led, if any, shall be drawn at the stage of final hearing.

10. With these observations, the appeal is disposed of. CS (OS) 11/2018 & I.A. 15392/2018 (u/O XXXIX Rules 1 & 2 CPC)

11. Replication be filed within four weeks. The dispute is between siblings. Parties are directed to be present in Court on the next date.

12. List on 29th April, 2019.

PRATHIBA M. SINGH, J.

JANUARY 10, 2019/dk CS (OS) 11/2018 Page 4 of 4