Delhi District Court
Sh. Anil Kumar Gupta vs Sh. Sushil Kumar Gupta (Since Deceased) on 2 May, 2017
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE -13 : CENTRAL DISTRICT : TIS HAZARI COURTS :
DELHI
MCA NO. 21/17
In re:
Sh. Anil Kumar Gupta
S/o Late Sushil Kumar Gupta
R/o 14/8, Shakti Nagar,
Delhi-110007 ................. Appellant
VERSUS
Sh. Sushil Kumar Gupta (since deceased)
Through Sunil Kumar Gupta
S/o Late Sushil Kumar Gupta
R/o 14/8, Shakti Nagar,
Delhi-110007 ............... Respondent
Date of institution of present appeal : 02.05.2017
Date of hearing arguments : 02.05.2017
Date of Judgment : 02.05.2017
Appeal against the order dated 20.03.2017
passed by Ld. Civil Judge
JUDGMENT
1. Present appeal has been filed Under Section 341 of the Cr. PC aggrieved by the order dated 20.03.2017 passed by Ld. Civil Judge whereby application filed by the appellant under Section 340 Cr. PC was dismissed by the Ld. Court below. The grievances of the appellant is that impugned order is patently illegal and factually incorrect as the Ld. Trial Court has misread and misinterpreted the order dated 20.01.2014 passed by the Hon'ble High Court in arriving at conclusion of treating the suit as suit for partition.
MCA No. 21/17 Anil Kumar Gupta Vs. Sunil Kumar Gupta (since deceased) Page No. 1 of 9
2. Briefly stated facts of the case is that father of the appellant and the respondent had filed a suit for mandatory and permanent injunction and possession and damages against his son Anil Kumar Gupta (appellant herein) in respect of two rooms with attached store, kitchen and bath situated on the ground floor of the property bearing No. 14/8 Shakti Nagar, Delhi and said suit was disposed of vide judgment and decree dated 20.02.2008 in favour of plaintiff therein. It has been further mentioned that appellant thereafter preferred appeal but said appeal was also dismissed by the then ADJ vide judgment and decree dated 30.11.2002. It has been further mentioned that aggrieved by the judgment and decree dated 30.11.2002, appellant herein preferred Regular Second Appeal before the Hon'ble High Court and during the pendency of the said appeal parties arrived at a settlement and resolved the disputes through compromise and the Hon'ble High Court was pleased to record the terms of settlement vide order dated 20.01.2014. Thereafter matter was sent back to the Ld. Trial Court for disposal in accordance with law and in accordance with the consent/compromise terms as recorded therein.
3. It has been further mentioned that in terms of settlement arrive at between the parties in Hon'ble High Court, the parties were in the process of finding and finalizing a builder. However, on the unfortunate demise of Sh. Sushil Kumar Gupta on 29.04.2014, the appellant moved an application U/o 22 Rule 3 CPC for bringing on record the legal representative of deceased Sushil Kumar Gupta. It has been further mentioned that after the demise of father of the parties, Sunil Kumar Gupta respondent herein sought modification of the order dated 20.01.2014 passed by the Hon'ble High Court, relying on a Will dated 21.02.2014 MCA No. 21/17 Anil Kumar Gupta Vs. Sunil Kumar Gupta (since deceased) Page No. 2 of 9 purportedly executed by late Sh. Sushil Kumar Gupta in his favour, however, the Hon'ble High Court was not inclined and thus disposed of the said application vide order dated 05.09.2014.
4. It has been further mentioned that respondent thereafter moved an application U/o XX Rule 18 R/w Section 151 CPC before the Ld. Trial Court for passing preliminary decree malafidely stating himself to be plaintiff no. 2 and it is submitted that in para no. 22 of the said application, falsely, maliciously and in perjury claimed that the Hon'ble High Court on 20.01.2014 impleaded him as plaintiff no. 2 with Sh. Sushil Kumar Gupta (since deceased). It has been further stated that appellant was constrained to file an application u/s 340 Cr. PC for initiation of prosecution against the respondent and pleaded in the application that respondent in the application under Order 20 Rule 18 r/w Section 151 CPC had made false assertions and patent lies with clear intention to commit perjury and had not even file the said order dated 20.01.2014 and instead only filed the Order dated 05.09.2014 passed by the Hon'ble High Court. It has been further stated that it was also pleaded in the application U/s 340 Cr.P.C. that the respondent had made false assertions to gain illegal benefits and intentionally sworn false affidavit with an intention to mislead the court.
5. Ld Trial Court vide impugned order dismissed the application under Section 340 Cr.P.C which appellant has challenged the same on following grounds:-
• The impugned order is bad in law and has been passed in haste without considering the facts, law and material available on record in a right perspective manner.
• That Ld. Trial Court has miserably failed to appreciate the arguments MCA No. 21/17 Anil Kumar Gupta Vs. Sunil Kumar Gupta (since deceased) Page No. 3 of 9 adduced by the appellant as well as judgments relied upon by the appellant.
• That the impugned order passed by the Ld. Trial Court is contradictory because on the one hand, Ld. Trial Court itself held that I am of the view that on the first glance there is merit in the submission of the defendant/applicant's counsel that there was no formal judicial order impleading Sh. Sunil Kumar Gupta as plaintiff no. 2 and therefore, he ought not to have represented himself as plaintiff no. 2 in the application U/o 20 Rule 8 CPC but on the other hand, the Ld. Trial Court dismissed the application U/s 340 Cr. PC filed by the appellant on the vague and unfounded ground that the conduct of Sh. Sunil Kumar Gupta does not smack of ill will or oblique/malafide intent per se.
• That it was the appellant herein who had moved application U/o 22 Rule 3 and not the respondent and therefore it was the appellant who had to be transposed as plaintiff. It is submitted that the respondent has till date not moved application under Order 22 Rule 3 CPC. • That Ld. Trial Court failed to appreciate that the respondent had himself in para 2 of reply to the application of the appellant U/s 340 of Cr. PC admitted that vide order dated 26.03.2014, the predecessor of this Hon'ble Court was pleased to add Sh. Sunil Kumar Gupta as defendant No. 2 in the present suit which was not borne from record and thus this claim was false, contrary to record and cast aspersions on the proceedings of the Court and conduct of the predecessor court. It is submitted that Ld. Trial Court should have allowed the application U/s 340 Cr.P.C on this ground alone as the said deliberate and capriciously false statement was made on a material aspect. • That Ld. Trial court failed to appreciate that the falsity on the part of MCA No. 21/17 Anil Kumar Gupta Vs. Sunil Kumar Gupta (since deceased) Page No. 4 of 9 the respondent is also writ large from bare perusal of para 3 of the reply of the respondent wherein the respondent had admitted that though not part of record of the case file, during the hearing of the case, it transpired during discussion in presence of the defendant that it would be proper and convenient if defendant no. 2, Sh. Sunil Kumar Gupta shifts to the other side.
• That Ld. Trial Court erred in holding that this misrepresentation on the part of the respondent Sh. Sunil Kumar Gupta does not smack of ill will or oblique/malafide intent per se is patently incorrect and not based on any evidence on record.
• That Ld. Trial Court ignored the conduct of the respondent in filing false application and making false statement on oath which is a grave and glaring case of deliberate falsehood and as the respondent has sought to get relief by making false averments on the order of the Hon'ble High court, therefore, there are high chances of his conviction in the matter as the same was expedient in the interest of justice.
• That Ld. Trial Court itself observed that there is no doubt that the statement made by Sh. Sunil Kumar Gupta in the application under Order 20 Rule 18 CPC was an irresponsible statement and was not in consonance with the judicial orders but on the other hand, the Ld. Trial Court committed a grave error in dismissing the application of the appellant.
• That Ld. Trial Court has also erred in holding that the oversight on the part of the respondent and his counsel is something which ought to be avoided.
• Ld. Trial Court traveled beyond the pleading by holding that there is a possibility that the respondent's counsel construed this order and MCA No. 21/17 Anil Kumar Gupta Vs. Sunil Kumar Gupta (since deceased) Page No. 5 of 9 read it as one transforming the original suit into a partition suit as it is only in the latter category of suits that preliminary and final decrees are generally passed. It is submitted that impugned order is based on conjectures and surmises and against the settled law that ignorance of law is no excuse.
• That Ld. Trial Court erred in holding that portraying of the respondent as a plaintiff in the application under Order 20 Rule 18 CPC, can be read as an erroneous representation made on account of a varied construction and interpretation on the Hon'ble High Court's order dated 20.01.2014.
• That it is settled law that court of probate has exclusive jurisdiction to adjudicate upon proof or validity of Will propounded by the executor.
• That Ld. Trial Court further erred in holding that it cannot be said that Sh. Sunil Kumar Gupta has practiced fraud and deception upon the Court. It is submitted that the impugned order is based on assumption and presumption.
• That Ld. Trial Court also erred in appreciation the judgments cited by the respondent whereas the judgments relied upon by the appellant were not considered by Ld. Trial Court in a right perspective manner.
• That Ld. Trial Court has failed to exercise the discretion judicially and the impugned order has been passed without application of judicial mind.
6. Ld Counsel for the appellant was heard at length. Need was not felt to issue notice to respondent. Similarly, material placed along with appeal also was sufficient enough to dispense with requirement to call for MCA No. 21/17 Anil Kumar Gupta Vs. Sunil Kumar Gupta (since deceased) Page No. 6 of 9 the Trial Court record. Appellant was given option to withdraw the present appeal as this court after hearing counsel for appellant found it to be without any merit but appellant has invited order on merit.
7. Ld Trial Court has discussed the relevant case laws and the reason in detail for dismissing the application, which reason this court need not discuss again as this court is in agreement with it.. Nonetheless this Court is of the view that there was no need to call for any explanation from respondent Sunil Kumar Gupta for asserting in the application under Order XX Rule 18 CPC that vide order dt 20.01.2014, he was impleaded as plaintiff No.2.
8. For better appreciation relevant portion of the order dt 20.01.2014 is quoted here which is as under:-
"(v) It is clarified that instruction for the present order on behalf of the respondent are given through its counsel and also by Sh Sunil Kumar Gupta who is present in Court, and at the joint request of the parties Sh Sunil Kumar Gupta is added as a pary to the present and the suit proceedings as his share has also been agreed and delineated in terms of the present compromise order."
9. Thus, there is no dispute that respondent herein was impleaded as a party not only in the RSA then pending before the Hon'ble High Court but also to the suit from which said second appeal has arisen. From the above order it is also clear that it was not clarified as to whether respondent herein was impleaded as appellant or respondent in the RSA or whether as plaintiff or defendant in the suit. However, since respondent herein and plaintiff Sushil Kumar (who was father of the parties and original plaintiff in the suit and respondent in RSA) were to jointly receive 70% of the MCA No. 21/17 Anil Kumar Gupta Vs. Sunil Kumar Gupta (since deceased) Page No. 7 of 9 proceeds/consideration which builder may/will give with respect to second floor and the basement if any, therefore it was very natural for respondent herein to construe that respondent herein was impleaded to the side of original plaintiff Shushil Kumar Gupta i.e. as respondent No.2 in the RSA and as plaintiff No.2 in the suit. Thus, by asserting that vide order dt 20.01.2014 he (respondent) was impleaded as plaintiff No.2, respondent neither committed perjury nor made any false claim nor tried to misled the court. Thus, Ld Trial Court rightly dismissed the application albiet for different reason.
10. It has been further contented by the Ld. Counsel for appellant that if this court comes to the conclusion that no action under 340 CrPC was required to be initiated, then at least observation of the Ld Trial Court that vide Order dt 20.01.2014 suit was impliedly converted into suit for partition be rectified. But this Court feel constrained to entertain this plea of the appellant for the reason that in present appeal appellant has challenged the order dt 20.03.2017 only to the extent it dismissed the application under 340 Cr.P.C.
11. Vide impugned order dt 20.03.2017 Ld Trial Court dismissed the application under Section 340 Cr.P.C. filed by the appellant herein, further dismissed the application under Order XX Rule 18 CPC filed by the respondent herein and further formally arrayed the respondent herein as plaintiff No.2, therefore touching upon the observation of the Court below that suit before it was impliedly converted into suit for partition would amount to interfering in the realm which is not under challenge before this Court, though in strict sense of the term proceeding pending before the Court below cannot be termed as suit but ancillary proceeding in pursuance MCA No. 21/17 Anil Kumar Gupta Vs. Sunil Kumar Gupta (since deceased) Page No. 8 of 9 to compromise recorded before the Hon'ble High Court for delineating detail terms of compromise agreed to between the parties.
12. In view of the above discussion appeal of the appellant is hereby dismissed with cost of Rs 25,000/- to be deposited with Prime Minister National Relief Fund and receipt thereof be placed with Trial Court which shall ensure compliance.
Copy of this order be sent to the Court below through proper channel for its record.
Appeal file be consigned to Record Room after necessary compliance.
(Harish Kumar)
Announced in open Court ADJ-13(Central)/THC
(Judgment contains 09 pages) Delhi/02.05.2017
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