Delhi District Court
Deen Mohammad vs Mohd. Azad on 13 May, 2015
IN THE COURT OF Ms. TANVI KHURANA, CIVIL JUDGE01 (South)
SAKET COURTS NEW DELHI
In the Matter of:
Civil Suit No.1199/14
Deen Mohammad
S/o Late Shri Nooruddin
R/o 337/C, Gali No.4
Batla House, Jamia Nagar
New Delhi25. ..........Plaintiff
Versus
1. Mohd. Azad
S/o Late Shri Nooruddin
R/o 139, Gaffar Manzil Extension
Gali No. 13& 14, Jamia Nagar, N. D.25
2. Smt. Husna Bano
W/o Mohd. Azad
R/o 139, Gaffar Manzil Extension
Gali No. 13 & 14, Jamia Nagar, N. D.25 .........Defendants
SUIT FOR DECLARATION OF RIGHT TO HAVE SHARE BY PARTITION/
DIVISION IN THE PROPERTY AND PERMANENT INJUNCTION
Re:Application under Section 151 of the Code of Civil Procedure, 1908
filed by
defendant.
Present: None.
ORDER:
By the present order, this court shall proceed to dispose of the application filed by defendants under Section 151 of the Code of Civil Procedure, 1908 seeking appropriate directions and treating issue no. 6 and 8 as preliminary issues.
Suit No.1199/14 Deen Mohd. Vs. Mohd. Azad & Ors. Page 1 of 8
2. It has been averred in the present application that issues in this matter were framed on 20.12.2012 and were amended on 05.02.2013. Issue no. 6 relates to maintainability of the suit simplicitor for declaration without the relief of partition and possession of the suit property. Whereas issue no. 5 relates to nonjoinder of LRs of Mr. Nooruddin. It is further averred that issue no. 8 relates to suit being barred by law of limitation. It is submitted that issue of limitation was treated as a preliminary issue however later on the same issue was considered to be mixed question of law and fact and matter was fixed for arguments on issue no.5 and 6. Thereafter defendant had amended the written statement which clarifies the objection against the suit being not maintainable as being barred by law of limitation. It is therefore prayed that issue no. 8 be treated as preliminary issue.
3. Reply was not filed rather Ld. Counsel for respondent/plaintiff chose to advance oral submissions as well as filed written arguments upon the application as well as issue in question.
4. I have heard the arguments at length and I have perused the written arguments filed along with various citations referred. I have also gone through the entire case record relevant for disposal of the present application.
5. On perusal of the order sheet, it was observed that issues were framed on 20.12.2012 wherein issue no. 5, 6 and 8 are reproduced as follows:
Issue no.5 Whether the suit of the plaintiff is bad for non joinder of LRs of Sh. Nooruddin?OPP Suit No.1199/14 Deen Mohd. Vs. Mohd. Azad & Ors. Page 2 of 8 Issue no. 6 Whether the suit of the plaintiff for simplicitor declaration is liable to be rejected?OPD Issue no. 8 Whether the suit of the plaintiff is barred by limitation?OPD
6. Vide order dated 05.02.2013 the issue no. 5 and 7 were reframed as below:
Issue no. 5 Whether the suit of the plaintiff is bad for non joinder of LRs of Sh. Nooruddin? OPD Issue no.8 Whether the suit of the plaintiff is within the period of limitation?OPP
7. Vide order dated 02.05.2013 Ld. Predecessor had order:
"Perusal of record reveals that on 05.02.2013 the issue of limitation was reframed putting the onus on the plaintiff. Since the issue of limitation is a issue of law the same be decided before the deciding the other issues.
Accordingly, list for arguments on 05.06.2013..."
8. Further, vide order dated 14.10.2013 it was order as below:
"Today the matter is listed for orders on the preliminary issue of limitation. However the same appears to be a mixed question of law and fact as the present suit as framed is one for simplicitor declaration and injunction".
In these circumstances, issue of limitation is left open to be decided after evidence has been led.
Perusal of the record also reveals that issue has been framed in respect to the maintainability of the suit itself.
Accordingly list for arguments on issue no. 5 and 6/ further proceedings on 13.11.2013..."
9. Thereafter, written statement was amended and amended replication was also filed. The present application was filed on 07.05.2014 seeking that issue no. 6 and 8 i.e. issues pertaining to the maintainability of the suit as well Suit No.1199/14 Deen Mohd. Vs. Mohd. Azad & Ors. Page 3 of 8 as limitation be treated as preliminary issue.
10. At the very out set, it is important to point out that this court is not sitting in review of order of the Ld. Predecessor dated 14.10.2013. No grounds are made out for reviewing the order as well.
11. It can be noted that in the present case, the entire dispute to the suit being barred by limitation is dependent upon the knowledge attributed to the plaintiff. Plaintiff asserts his knowledge from the point wherein the appeal which was preferred by his mother was dismissed. Defendant claims that plaintiff had knowledge throughout the pending litigation filed by his mother i.e. since 2002. The defendants also claims that the plaintiff also had knowledge since 2004 as defendant (in this suit) had instituted a suit wherein plaintiff herein was also made a party. Hence, the entire dispute boils down to the factum of the knowledge.
12. It clearly reflects that Ld. Predecessor had rightly observed that question of limitation is mixed question of fact and law which requires evidence.
13. Coming to the issue no. 6 which is that the present suit is liable to be rejected as it is suit simplicitor for declaration. Applicant/ defendant has contested this issue on the point that neither partition nor possession has been sought as consequential relief. There are various citations which point out the fact that relief of partition is essential and similarly, there are judgments which also point out to fact that plaintiff can not be compelled to severe his Suit No.1199/14 Deen Mohd. Vs. Mohd. Azad & Ors. Page 4 of 8 relationship by seeking partition. In the present case, the parties involved are Muslims and therefore Muslim Personal Law would govern the parties. At this stage, without evidence throwing any light upon the matter, it is not in interest of justice as well as in interest of rights of the parties to adjudicate this issue. Further, it can not be forgotten that Muslim Law per se does not recognize the concept of ancestral property. Issue requires due deliberation which can be done once evidence is led on the point. Therefore this issue can also not be treated as preliminary issue.
14. Moreover, there are plethora of judgments which have settled law in respect to the preliminary issues. The Hon'ble Apex Court has already held in many judgments that treating an issue as preliminary issue is matter of discretion and not matter of right. Hence, this court does not find any merit in the present application. The application is accordingly dismissed. Both the issues can not be treated as preliminary issues.
(TANVI KHURANA) Civil Judge01 (South) Saket Courts/New Delhi 13.05.2015 Note: All the five pages of this order have been checked and signed.
(TANVI KHURANA) Civil Judge01 (South) Saket Courts/New Delhi 13.05.2015 Suit No.1199/14 Deen Mohd. Vs. Mohd. Azad & Ors. Page 5 of 8 IN THE COURT OF Ms. TANVI KHURANA, CIVIL JUDGE01 (South) SAKET COURTS NEW DELHI In the Matter of:
Civil Suit No.1199/14
Deen Mohammad S/o Late Shri Nooruddin R/o 337/C, Gali No.4 Batla House, Jamia Nagar New Delhi25. ..........Plaintiff Versus
1. Mohd. Azad S/o Late Shri Nooruddin R/o 139, Gaffar Manzil Extension Gali No. 13& 14, Jamia Nagar, N. D.25
2. Smt. Husna Bano W/o Mohd. Azad R/o 139, Gaffar Manzil Extension Gali No. 13 & 14, Jamia Nagar, N. D.25 .........Defendants SUIT FOR DECLARATION OF RIGHT TO HAVE SHARE BY PARTITION/ DIVISION IN THE PROPERTY AND PERMANENT INJUNCTION Re:Application under Order XII Rule 2 read with Section 151 of the Code of Civil Procedure, 1908 filed by defendants.
Present: None. ORDER:
By this order, this court shall now proceed to decide the application filed by defendants under Order XII Rule 2 read with Section 151 of the Code of Civil Procedure, 1908 seeking admission/ denial of documents filed by the defendants.
2. By this application, the defendant has averred that defendant no. 1 had Suit No.1199/14 Deen Mohd. Vs. Mohd. Azad & Ors. Page 6 of 8 already filed a suit bearing no. 170/2004 (renumbered as 421/13) which is pending before Ld. Civil Judge, Tis Hazari Court. Certified copies of the plaint and written statement filed by plaintiff herein (defendant no. 7 in that suit) is placed on record. Defendants have called upon the plaintiff to admit/deny the certified copies.
3. Reply was not filed by the respondent/plaintiff. Oral submissions on the present application were heard. The relevant case records for disposal of the present application were perused.
4. It is the imperative on this court to reproduce the Order XII Rule 2 CPC:
Notice to admit documents Either party may call upon the other party to admit, within seven days from the date of service of the notice any document saving all just exceptions and in case of refusal or neglect to admit, after such notice, the cost of proving any such document shall be paid by the party so neglecting or refusing whatever the result of the suit may be unless the court otherwise directs, and no costs of proving any document shall be allowed unless such notice is given, except where the omission to give the notice is in the opinion of the Court, a saving of expense.
5. At this stage, it is also important to note that the provision call for issuance of notice and not for filing any application in court. Further the Code has also provided for form of notice in Order XII Rule 3 which shall be as per Form 9 in Appendix C. None of the procedural compliances have been made by defendants to issue the notice. Merely filing application will Suit No.1199/14 Deen Mohd. Vs. Mohd. Azad & Ors. Page 7 of 8 definitely not be akin to issuance of notice in this matter.
6. Further, the application has been stated to be filed by defendants but has been only signed by Ld. Counsel for defendants and affidavit has been filed by defendant no. 2 only. Even, if it is ignored still material compliances of issuance of notice is not fulfilled. Therefore, it is clear that the application does not have any merit. Application is dismissed.
7. Before parting with the application, it is important to also mention that the present documents were produced after the written statement was amended. These documents appear to be certified copies. Necessary reply has already been given in form the replication to the amended written statement which is in form of an addenda to the replication filed previously. Hence, the plaintiff is given this opportunity to admit/deny of the documents exercising the power provided under Order XII Rules 2A and 3A of the Code of Civil Procedure, 1908. At the same time, it is important that even otherwise the plaintiff would have an opportunity to cross examine the defendant on the documents filed. Application is accordingly disposed of.
Note: All the three pages of this order (TANVI KHURANA) have been checked and signed. Civil Judge01 (South) Saket Courts/New Delhi 13.05.2015 Suit No.1199/14 Deen Mohd. Vs. Mohd. Azad & Ors. Page 8 of 8