Delhi High Court - Orders
Kiran Bala vs Sh. Subhash Sahni & Ors on 10 May, 2024
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
$~64
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 542/2022
KIRAN BALA ..... Appellant
Through: Mr. H.S. Phoolka, Sr. Advocate with
Mr. Deepak Vohra, Mr. Jai Shankar,
Ms. Nandita Rao and Ms.Surpreet
Kaur, Advocates
versus
SH. SUBHASH SAHNI & ORS. ..... Respondents
Through: Mr. Jitin Sahni and Mr. Rohit Puri,
Advocates for R-1, 3, 4 and 9
Mr. Rajat Bawaniwal, Advocate for
R-5, R-6, R-7 and R-8
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
% 10.05.2024 CM APPL. 27469/2024 (Exemption from filing certified copy) Exemption allowed subject to just exceptions.
The application stands disposed of.
CM APPL. 27468/2024 (Seeking stay/direction to respondents to not create third party interest on the property in question)
1. The instant application has been filed by the appellant/applicant seeking stay of the impugned judgment and decree dated 12th September, 2022 passed by learned Additional District Judge-09, Central, Tis Hazari, Delhi (hereinafter "Trial Court") in Civil Suit bearing No. 322/2020.
2. Mr. H.S. Phoolka, learned senior counsel appearing on behalf of the 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 14/05/2024 at 22:23:15 appellant/applicant submitted that vide the impugned judgment and decree, the above said civil suit filed by the appellants/applicant was dismissed under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter "CPC") on the ground that the plaint did not disclose any cause of action.
3. It is submitted that on an earlier occasion, another suit bearing no. 184/2018, which is a suit filed for partition among three brothers excluding the sister, was filed by the respondents herein without making the present appellant a party. It is also submitted that the respondents and the appellant are brothers and sister.
4. It is further submitted that in the suit bearing no. 184/2018, the appellant filed an application under Order I Rule 10 of the CPC seeking impleadment of the appellant as a party. It is submitted that the said application was dismissed vide order dated 28th May, 2019 and the same was challenged before this Court in CM (M) 1253/2019 which was also dismissed vide order dated 24th November, 2021.
5. It is submitted that whilst dismissing the above said petition, it was categorically observed by this Court in paragraph no. 14 of the order dated 24th November, 2021 that "it is made clear that the observation made in the impugned Order dated 28th May, 2019 or by this Court in the present proceedings would not in any way prejudice the petitioner in the proceeding which she may avail in respect of her right claimed by her in the business of M/s. Peshawar Sweet Bhandar".
6. Learned senior counsel appearing on behalf of the appellant/applicant submitted that in the meantime, the appellant had filed a civil suit bearing no. 322/2020 seeking cancellation of a sale deed dated 9 th December, 1998 qua property bearing no. 114, Shankar Road Market, New Rajender Nagar, 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 14/05/2024 at 22:23:15 New Delhi-110060 (hereinafter "suit property").
7. It is submitted that in the above said civil suit, the defendant therein/respondents herein filed an application under Order VII Rule 11 of the CPC seeking dismissal of the same on the ground of lack of cause of action.
8. It is also submitted vide the impugned judgment and decree dated 12 th September, 2022 the application under Order VII Rule 11 of the CPC was decided in favour of the defendant therein/respondents herein, thereby, dismissing the above said suit.
9. It is further submitted that whilst adjudication the above said application, the learned Trial Court took into consideration the observations made by this Court in the application filed under Order I Rule 10 of the CPC. With regard to the said submission, learned senior counsel has referred to paragraph no. 18 of the order dated 12 th September, 2022 which is as follows:
"18. As far as the admitted position, by the plaintiff, the father of the plaintiff started a partnership with his two elder sons. After the death of father, again a new partnership firm was made with all three brothers being partners. Admittedly, as per the plaintiff she attested the Will of her father by which her father had bequeathed his share of business in favour of his three sons in equal parts. So, with these admissions, admittedly she recognized that her three brothers are the owners of the business of M/s Peshwar Sweet Bhandar. So, in these circumstances, the amount/earning from the business of M/s. Peshwar Sweet Bhandar was from the partnership, initially of father and two elder sons and thereafter of three brothers. The plaintiff did not had any concern with that business or the property which is bought out of the money earned from that business.
This expression is also given by Han. High Court in CM 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 14/05/2024 at 22:23:16 (M) 1253/2019, filed by plaintiff herself. In order dated 02.11.2020 in paragraph 6 onwards had discussed the position of the plaintiff vis-a-vis the suit property. In paragraph 12, court had held "considering the aforementioned facts, the petitioner, who does not have any rights in the suit property, cannot be allowed to be impleaded in the suit before the trial court as she is neither a necessary and proper party in the suit for partition"
10. It is submitted that this Court had passed clear and categorical direction in the application filed under Order I Rule 10 of the CPC to the effect that any observation made in the order dated 24 th November, 2021 Court shall not affect any right of the appellant herein with respect to the suit property.
11. It is submitted that there is a strong apprehension that the respondents might sell the suit property and create a third party interest thereto. It is further submitted that the appellant shall suffer irreparable loss if the respondents herein are not restrained from creating any third party interests on the suit property. Therefore, it is prayed that this Court may grant status quo on the suit property, otherwise, the instant appeal shall itself become infructuous.
12. Per contra, learned counsel appearing on behalf of the respondents vehemently opposed the submissions made by the learned senior counsel appearing on behalf of the appellant.
13. It is submitted that while deciding the application under Order VII Rule 11of the CPC, there were several admitted facts and documents available on record before the learned Trial Court and the impugned judgment and decree was passed after taking into consideration the said admitted facts as well as the documents of admission by the parties.
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 14/05/2024 at 22:23:16
14. It is submitted that by referring to the observations made by this Court in order dated 24th November, 2021, the appellant is attempting to mislead this Court. In the said order, the only reference was made for the purpose of business and not for the suit property. It is further submitted that the appellant has no right on the said suit property and the same has been rightly observed by the learned Trial Court while deciding the application under Order VII Rule 11 of the CPC.
15. It is further submitted that in the garb of the instant application, the appellant is trying to get the stay order on the final decree passed in the partition suit and accordingly, the instant application may be dismissed as being devoid of any merits.
16. At this juncture, learned senior counsel appearing on behalf of the appellant/applicant submitted that there is no basis of the above submission made by learned counsel appearing on behalf of the respondents that passing of any status quo order by this Court shall result in staying the decree passed by the learned Trial Court in the partition suit.
17. Heard learned counsel appearing on behalf of the parties and perused the record.
18. This Court has perused the contents made in the instant application as well as the orders referred by the learned counsel appearing on behalf of the parties.
19. This Court is prima facie satisfied that the matter requires consideration as the notice has also been issued to the respondents. Therefore, considering the above facts and circumstances, and in the interest of justice, this Court is inclined to grant status quo on the suit property till the next date of hearing.
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 14/05/2024 at 22:23:17
20. Accordingly, till the next date of hearing, the parties are directed to maintain the status quo.
21. The application stands disposed of.
RFA 542/2022List on 19th July, 2024 before Court.
The date already fixed i.e. 19th July, 2024 before Registrar stands cancelled.
CHANDRA DHARI SINGH, J MAY 10, 2024 gs/ryp Click here to check corrigendum, if any 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 14/05/2024 at 22:23:17