Rajasthan High Court - Jaipur
Rajendra Sharma S/O Late Shri Rameshwar ... vs Surendra Kumar Sharma Sharma S/O Late ... on 11 September, 2018
Author: Alok Sharma
Bench: Alok Sharma
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No.20034/2018
Rajendra Sharma S/o Late Shri Rameshwar Lal Sharma, Aged
About 52 Years, R/o 194, Barodia Scheme, Banipark, Jaipur.
----Petitioner
Versus
1. Surendra Kumar Sharma Sharma S/o Late Shri
Rameshwar Lal Sharma, R/o 194, Barodia Scheme,
Banipark, Jaipur At Present Ward No.27, Near Gayatri
Mandir, Sadabhar Mohalla, Laxmangarh, District Sikar.
2. Shri Sharad Kumar Sharma S/o Late Shri Rameshwar Lal
Sharma,(Since Deceased) Through His Legal Heirs
2/1. Smt. Sanju Devi W/o Late Shri Sharad Kumar Sharma,
Aged About 54 Years
2/2. Krishan Kant S/o Late Shri Sharad Kumar Sharma, Aged
About 31 Years
2/3. Dipika D/o Late Shri Sharad Kumar Sharma, Aged About
26 Years
All Are Resident Of R/o 194, Barodia Scheme, Banipark,
Jaipur At Present Ward No. 27, Near Gayatri Mandir,
Sadabhar Mohalla, Laxmangarh, District Sikar.
----Respondents
For Petitioner(s) : Mr.Ashish Sharma Upadhyay.
HON'BLE MR. JUSTICE ALOK SHARMA
Order
11/09/2018
Heard counsel for the petitioner and perused the impugned
order dated 04.07.2018, whereby the trial court has dismissed the
petitioner-defendant's (hereinafter 'defendant') application to
decide issue no.6 i.e as to whether the respondent-plaintiff's
(2 of 4) [CW-20034/2018]
(hereinafter 'plaintiff') suit barred by law as a preliminary issue in
terms of Order 14 Rule 2 CPC.
The facts of the case are that plaintiffs filed a suit inter alia
for permanent injunction regarding seeking his possession in part
of house no.194, Barodia Scheme, Banipark, Jaipur albeit in the
name of the defendant-Rajendra Sharma--his real brother. It was
submitted that the defendant aforesaid was only the formal
purchaser as per the purchase of the house in issue he had also
contributed certain sums. It was stated that yet the defendant-
Rajendra Sharma taking advantage of the property being
registered in his name was seeking to prevent the plaintiff his
brother, from enjoying the possession in the suit property and
taking steps to exclude him. Injunction from obstruction and user
of the house to the extent of the plaintiff's possession was sought.
On service of summons in the suit defendant-Rajendra Sharma
filed a written statement of denial. He asserted that the suit
property was purchased by him alone in his name by a registered
sale deed after availing a loan from the bank. The other defendant
in the suit one Sharad Kumar Sharma; the brother of the plaintiff
however supported the plaintiff's case but in part stated that
instead of a suit for permanent injunction, the appropriate remedy
was for filing a suit for partition. Subsequent to defendant-Sharad
Kumar Sharma's death the same stand was taken by his legal
representative-defendant no.2/2-Krishan Kant Sharma.
On the pleadings of the parties, the trial court framed 6
issues as under:-
1- vk;k okni= ds en la[;k 2 esa of.kZr lEifRr i{kdkjku ds lg
LokfeRo dh gS ftl ij i{kdkjku esa Lej.k i= 13-01-2008 fu'ikfnr
fd;k x;k ftlesa vafdr oknh ds fgLls ds mi;ksx miHkksx esa
(3 of 4) [CW-20034/2018]
izfroknh la[;k 2 }kjk ck/kk mRiUu fd;s tkus ls of.kZr LFkkbZ
fu'ks/kkKk izkIr djus dk vf/kdkjh gS\
----
--oknh 2- vk;k oknh dk okn fe;kn ckgj gS\
-----izfroknh la[;k 2 3- vk;k oknh dk oknh Ik;kZIr U;k; "kqYd ij izLrqr u gksus ds dkj.k [kkfjt fd;s tkus ;ksX; gS\
-------izfroknh la[;k 2 4- vk;k okni= ds en la[;k 2 esa of.kZr lEifRr izfroknh la[;k 2 ds LokfeRo dh gS ftlesa oknh ds mi;ksx miHkksx dh vuqefr lekIr dj fn;s tkus ls dkmaVj Dyse esa of.kZr dejs dk dCtk izkIr djus dk vf/kdkjh gS\
-------izfroknh la[;k 2 5- vk;k okni= esa en la[;k 2 esa of.kZr lEifRr dk Lokeh izfroknh la[;k 2 gS ftlds mi;ksx miHkksx esa oknh U;wlsUl dkfjr dj ck/kk mRiUu djus ls okf.kZr LFkk;h fu'ks/kkKk izkIr djus dk vf/kdkjh gS\
-------izfroknh la[;k 2 6- vk;k okn Barred by law gksus ls [kkjht fd;s tkus ;ksX; gS\
-------izfroknh la[;k 2 7- vuqrks'k\ Issue no.6 specifically related to question as to whether the suit was barred by law i.e. by Section 4 of the The Benami Transactions (Prohibition) Act, 1988 (hereinafter 'the Act of 1988').
At this stage, the defendant filed an application under Order 14 Rule 2 CPC praying that issue no.6 be tried as a preliminary issue. The trial court vide order dated 04.07.2018 noted that on the case set up by the plaintiff he had in effort pleaded a fidicuary relationship with the defendant Rajendra Sharma his brother in respect of the suit property and whether therefore the provisions of Section 4 of the Act of 1988 attracted was a matter of evidence. Hence issue no.6 would be decided on the basis of the evidence of (4 of 4) [CW-20034/2018] the contesting parties along with other issues, held the trial court by its impugned order.
Order 14 Rule 2 CPC on its plain language confer a discretion on the trial court to decide an issue struck as the preliminary issue. In the instant case the trial court has refused to exercise its discretion for the reasons recorded above--with which there can be no good ground to disagree.
I am of the considered view that in the facts of the case the impugned order is neither vitiated by any error of jurisdiction, misdirection in law or capriciousness to warrant interference therewith at the hands of this Court under Article 227 of the Constitution of India.
I find no force in the petition. Dismissed.
(ALOK SHARMA),J Karan/119 Powered by TCPDF (www.tcpdf.org)