Delhi High Court - Orders
Nitin Saxena vs Amit Saxena on 16 October, 2023
Author: Dinesh Kumar Sharma
Bench: Dinesh Kumar Sharma
$~73
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 649/2023
NITIN SAXENA ..... Plaintiff
Through: Mr. Nalin Kohli, Mr. Madhu Sudan,
Mr. Vikhyat Oberoi, Mr. Ankit
Kakkar, Ms. Jagriti Pandey, Mr.
Omnichor Ramsar, Advs.
versus
AMIT SAXENA ..... Defendant
Through: Mr. Chetanya Madan, Ms. Srishti
Banerjee, Mr. R. Vigneshwar, Mr.
Aman Dhall, Advs.
CORAM:
HON'BLE MR. JUSTICE DINESH KUMAR SHARMA
ORDER
% 16.10.2023
CS(OS) 649/2023
1. The present suit has been filed for declaration, cancellation, partition, permanent injunction and recovery of money.
2. Mr. Nalin Kohli, learned counsel for the plaintiff submits that the subject matter of the property bearing No. WZ-300A, built-up on Plot No.GL-11, part of Khasra No.839-840 situated in the area of Village Tihar, New Delhi now known as G-Block, Hari Nagar, New Delhi admeasuring total area of 200 sq. yds. was owned by the deceased parents of the plaintiff and defendant equally.
3. Learned counsel submits that the father of the plaintiff late Sh.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 18/10/2023 at 22:21:14 Shamsher Bahadur Saxena (father) expired on 01.08.2005 and late Smt. Kanta Saxena (Mother) expired on 18.12.2013 respectively.
4. Mr. Nalin Kohli, learned counsel for the plaintiff submits that during their lifetime, the property in question was bequeathed between the plaintiff and the defendant by the parents in equal share. Learned counsel further submits that the plaintiff who is the younger brother on the misrepresentation made by the defendant executed two release deeds dated 13.08.2014 in favour of the defendant. However, learned counsel submits that though the release deed was executed but the amount in the sum of Rs. 27,50,000/- each was not paid to the plaintiff.
5. Learned counsel further submits that even the plaintiff has spent some money on the construction and the rent earned out of the property was paid to the plaintiff till November 2018. However, thereafter the rent was not paid.
6. Mr. Nalin Kohli, learned counsel for the plaintiff submits that in 2022 the plaintiff requested for the partition of the suit property which was also declined by the defendant.
7. Issue notice.
8. Mr. Chetanya Madan, learned counsel for the defendant has appeared on the advance notice and has accepted the same.
9. Learned counsel for the defendant submits that the present suit is badly barred by delay and latches. It has been submitted that the relinquishment deed is of 2014 and is now being claimed to have been got executed by the defendant under undue influence.
10. Learned counsel further submits that even as per the plaint the rent was paid up to 2017.
This is a digitally signed order.
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11. Learned counsel submits that from 2017 till today there has been no whisper from the side of the plaintiff for demanding the rent amount. Learned counsel submits that the assertion of the partition made by the plaintiff is totally vague and no notice has ever been served upon the defendant.
12. Learned counsel for the defendant also submits that he has not been supplied with the complete set of plaint and documents.
13. Let the copy of the plaint and documents be supplied to the learned counsel for the defendant.
14. Let the written statement be filed within 30 days with an advance copy to the other party.
15. The defendant is directed to file affidavit of admission/denial against the documents filed by the plaintiff, failing which the written statement shall not be taken on record
16. List before Joint Registrar (Judicial) on 20.11.2023.
I.A. 20450/202317. Exemption granted subject to all just exceptions.
18. Application stands disposed of.
I.A. 20451/202319. The present application has been filed under Order XXXIX Rules 1 and 2 read with Section 151 CPC seeking Ex-parte ad-interim orders with the following prayer:
"A. Pass an Ad-Interim Order restraining the Defendant, his agents, attorneys, assignees from alienating, disposing, selling off or part with possession with the immovable property mentioned in Schedule „A‟ to the Plaint till the pendency of the present Suit;
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 18/10/2023 at 22:21:14 B. Pass Ex-Parte Ad-Interim relief as in Prayer a) above;"
20. Learned counsel for the plaintiff submits that the defendant may be restrained from creating any third-party interest till the next date of hearing.
21. Issue notice.
22. Mr. Chetanya Madan, learned counsel for the defendant has accepted the notice.
23. Learned counsel for the defendant has vehemently opposed the grant of any relief to the plaintiff on the ground that the suit itself is barred by delay and latches.
24. Learned counsel has further submitted that there is a misrepresentation of facts and as per his instructions, the defendant has no intention to create any third-party interest till the next date of hearing.
25. List before Joint Registrar (Judicial) on 20.11.2023.
DINESH KUMAR SHARMA, J OCTOBER 16, 2023/AR/SJ..
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 18/10/2023 at 22:21:14