Full Text
Translation output
-+
t2
% 29.09.20rt
Present: Mr. Biswajit Das, Advocate for the Appellants
Mr. C. Mohanrao, Advocate for R-6 to B
Mr. T.K. Tiwari, Advocate for R-9 & 10
Mr, Brijesh Oberoi, Advocate for R-l1
Mr. Anil Sapra, Senior Advocate with Mr. Nishant and Mr. Mr. Sanjay Goswami, Advocate for R-12
+ FAO(OS) No.1i6-38/2011 & CM No.53B6/2011
* The appeal is directed against the impugned order dated
07.05.2010 and the order dated 10.02.2011.
The controversy in the suit relates to the property owned by late Sh. Gurbaksh Singh. lt is the say of his sons that when he passed away on 10.11.1961, he left behind a registered will dated
26.04.1960. The will was probated in probate case no.111962. The property in question bearing no.D-16, Nizamuddin East, New Delhi
(in short the said property) was mutated in favour of the grand sons who were the beneficiaries underthe will. lt may be stated at this stage that in terms of the will, children of the sons were the beneficiaries while the children of the daughters were excluded.
The property had thereafter been sold to respondent no.12 i.e., BDR Builders and Developers Pvt. Ltd.
The daughters alongwith their children have filed the instant suit seeking partition of the said property on the plea that the
FAo(oS) No. 136-38/2011
*t
2011:DHC:11019-DB a
,lo property in suit is an ancestral property and sought interim injunction. Alongwith the suit filed in the year 2009, an application for interim relief under Order XXXIX Rule 1 & 2 of the Code of Civil
Procedure, 1908 was also filed. The interim order was granted in favour of the appellants vide order dated 18.09.2009. The applications were thereafter filed by respondent no.12 for impleadment as they were not party to the suit and thus wanted to be impleaded in the suit. Simultaneously, they also filed an application seeking vacation of stay. The impleadment application was allowed vide order dated 23.L2.2009. The application for stay was disposed of by the impugned order dated 07.05.2010 in terms whereof an ad-interim exparte order granted on 18.09.2010 was modified to the extent that respondent no.12 was permitted to raise the construction subject to an undertaking stated to have been given by it that it will not create qny third party interest in respect of the construction which was built on the said property without obtaining the permission of the court. Simultaneously,
% 29.09.20rt
Present: Mr. Biswajit Das, Advocate for the Appellants
Mr. C. Mohanrao, Advocate for R-6 to B
Mr. T.K. Tiwari, Advocate for R-9 & 10
Mr, Brijesh Oberoi, Advocate for R-l1
Mr. Anil Sapra, Senior Advocate with Mr. Nishant and Mr. Mr. Sanjay Goswami, Advocate for R-12
+ FAO(OS) No.1i6-38/2011 & CM No.53B6/2011
* The appeal is directed against the impugned order dated
07.05.2010 and the order dated 10.02.2011.
The controversy in the suit relates to the property owned by late Sh. Gurbaksh Singh. lt is the say of his sons that when he passed away on 10.11.1961, he left behind a registered will dated
26.04.1960. The will was probated in probate case no.111962. The property in question bearing no.D-16, Nizamuddin East, New Delhi
(in short the said property) was mutated in favour of the grand sons who were the beneficiaries underthe will. lt may be stated at this stage that in terms of the will, children of the sons were the beneficiaries while the children of the daughters were excluded.
The property had thereafter been sold to respondent no.12 i.e., BDR Builders and Developers Pvt. Ltd.
The daughters alongwith their children have filed the instant suit seeking partition of the said property on the plea that the
FAo(oS) No. 136-38/2011
*t
2011:DHC:11019-DB a
,lo property in suit is an ancestral property and sought interim injunction. Alongwith the suit filed in the year 2009, an application for interim relief under Order XXXIX Rule 1 & 2 of the Code of Civil
Procedure, 1908 was also filed. The interim order was granted in favour of the appellants vide order dated 18.09.2009. The applications were thereafter filed by respondent no.12 for impleadment as they were not party to the suit and thus wanted to be impleaded in the suit. Simultaneously, they also filed an application seeking vacation of stay. The impleadment application was allowed vide order dated 23.L2.2009. The application for stay was disposed of by the impugned order dated 07.05.2010 in terms whereof an ad-interim exparte order granted on 18.09.2010 was modified to the extent that respondent no.12 was permitted to raise the construction subject to an undertaking stated to have been given by it that it will not create qny third party interest in respect of the construction which was built on the said property without obtaining the permission of the court. Simultaneously,
learned Single Judge also adjourned the suit "sine die" with liberty same as and when they were able to of grant of probate which will enable
to the appellants to revive the obtain an order of revocation them to proceed with the suit.
FAO(OS) No. 136-38/2011 a
[\
It is the say of the learned counsel for the appellants that there are material contradictions between the orders passed on 07.05.2010 and that passed earlier, and that there was no such undertaking given by the appellants as noticed in the impugned order. On the other hand, learned counsel for respondent no.12 states that they have already filed a review application, albeit post filing of the present appeal, ds according to them, the interim order was vacated and only direction that ought to have been passed was that in case the constructed portion was sold, intimation would be given to the prospective purchasers. In this behalf, he places reliance on earlier order dated 25.01.2010 and the undertaking given by respondent no.12 was thus stated to be in consonance with that order.
The order dated 07.05.2010 is stated to be an oral order and the reasoning followed later. lt is averred in the review application that there was delay between the date when the oral order was passed and the reasoning which is recorded in the order dated
07.0s.2010. ln our considered view, it is thus, for the learned Single Judge to take a view on this aspect of the matter. We are presently placed in a fluid situation with the review of order dated
FAO(OS) No.136-38/2011
-f a
\?/
07.05.2010 still pending consideration. ln these circumstances we are of the considered view that it would be appropriate for the learned Single Judge to decide the application for review filed by respondent no.I2 and only thereafter we would have a clearer picture as whether the order of the learned Single Judge requires our intercession. We are informed that the review application is listed before the learned Single Judge on 21.10.201-I and we will thus expect the learned Single Judge to consider that application on the date fixed.
We see no further point in keeping the present appeal alive as the final picture would emerge only after the order is passed on the review application. We thus grant liberty to all the parties, who may be aggrieved with the position emerging on the passing of the order in the review application, to assail that order read with order dated 07.05.2010, and thus, if the grievance of the appellants persists or is enlarged, it will be open to the appellants as well to assail the order comprehensively.
In our considered view, the aforesaid safeguards the rights and interests of all the parties.
Similarly, the prayer seeking rejection of undertaking given by way of affidavit dated 27.0I.2010 will suffer the necessary
.l a t consequences of the decision that may be taken by the learned
Single Judge in the review application. For the reasons given above, we do not wish to comment on this prayer. The appellant will of course have liberty to agitate this issue before us if the undertaking is accepted.
That brings us to the other aspect with which learned counsel for the appellants is aggrieved arising from the suit being adjourned sine die. /
The second impugned order dated 10.02.20II in fact does not issue any direction but only takes on record written statements filed stating that the suit has already been adjourned sine die by the order dated 07.05.2010.
Learned counsel for the appellants state that trial of the suit should not be delayed and though he has filed an application for revocation of the probate, he would like to proceed with the suit and take the consequences thereof.
In view of the aforesaid position, learned counsel for the respondents do not seriously dispute that the order adjourning the suit sine die ought to be set aside and the suit be tried in accordance with law and on its own merits.
We thus set aside the direction adjourning the suit sine die.
FAO(OS) No.136-38/2011
A rY
The suit will be listed before the learned Single Judge on
15.11.20IL when the contempt petition is stated to be listed before n^'r.
Learned counsel for the appellants insists that this appeal should be decided and this court should not await the decision on the review application, tfe are not inclined to accept this plea for the reasons disclosed hereinabove where we have recorded why in the peculiar facts of this case, a decision on the review application is necessary to decide whether the appellate court should interfere with the impugned order or not. As to what shape the interim order will ultimately take, would be dependent on the fate of the review application.
The appeal and the applications accordingly stand disposed of with aforesaid liberty.
CM No.17 20LL (for substituted service on R-1
No orders for substituted service on responde\ no.1 required as the controversy is really between the appellants on hand and the respondent no.12 on the other hand.
The application stands disposed of. e-
SEPTEMBER 29, 2OIIlyg
#-
SANJAY KISHAN KAUL, J.
-/ t/ ll ll / l\q,-lld"Jt"/
-
RATIV SHAKDHER, J.
FAO(OS) No. 136-38/2011 a
[\
It is the say of the learned counsel for the appellants that there are material contradictions between the orders passed on 07.05.2010 and that passed earlier, and that there was no such undertaking given by the appellants as noticed in the impugned order. On the other hand, learned counsel for respondent no.12 states that they have already filed a review application, albeit post filing of the present appeal, ds according to them, the interim order was vacated and only direction that ought to have been passed was that in case the constructed portion was sold, intimation would be given to the prospective purchasers. In this behalf, he places reliance on earlier order dated 25.01.2010 and the undertaking given by respondent no.12 was thus stated to be in consonance with that order.
The order dated 07.05.2010 is stated to be an oral order and the reasoning followed later. lt is averred in the review application that there was delay between the date when the oral order was passed and the reasoning which is recorded in the order dated
07.0s.2010. ln our considered view, it is thus, for the learned Single Judge to take a view on this aspect of the matter. We are presently placed in a fluid situation with the review of order dated
FAO(OS) No.136-38/2011
-f a
\?/
07.05.2010 still pending consideration. ln these circumstances we are of the considered view that it would be appropriate for the learned Single Judge to decide the application for review filed by respondent no.I2 and only thereafter we would have a clearer picture as whether the order of the learned Single Judge requires our intercession. We are informed that the review application is listed before the learned Single Judge on 21.10.201-I and we will thus expect the learned Single Judge to consider that application on the date fixed.
We see no further point in keeping the present appeal alive as the final picture would emerge only after the order is passed on the review application. We thus grant liberty to all the parties, who may be aggrieved with the position emerging on the passing of the order in the review application, to assail that order read with order dated 07.05.2010, and thus, if the grievance of the appellants persists or is enlarged, it will be open to the appellants as well to assail the order comprehensively.
In our considered view, the aforesaid safeguards the rights and interests of all the parties.
Similarly, the prayer seeking rejection of undertaking given by way of affidavit dated 27.0I.2010 will suffer the necessary
.l a t consequences of the decision that may be taken by the learned
Single Judge in the review application. For the reasons given above, we do not wish to comment on this prayer. The appellant will of course have liberty to agitate this issue before us if the undertaking is accepted.
That brings us to the other aspect with which learned counsel for the appellants is aggrieved arising from the suit being adjourned sine die. /
The second impugned order dated 10.02.20II in fact does not issue any direction but only takes on record written statements filed stating that the suit has already been adjourned sine die by the order dated 07.05.2010.
Learned counsel for the appellants state that trial of the suit should not be delayed and though he has filed an application for revocation of the probate, he would like to proceed with the suit and take the consequences thereof.
In view of the aforesaid position, learned counsel for the respondents do not seriously dispute that the order adjourning the suit sine die ought to be set aside and the suit be tried in accordance with law and on its own merits.
We thus set aside the direction adjourning the suit sine die.
FAO(OS) No.136-38/2011
A rY
The suit will be listed before the learned Single Judge on
15.11.20IL when the contempt petition is stated to be listed before n^'r.
Learned counsel for the appellants insists that this appeal should be decided and this court should not await the decision on the review application, tfe are not inclined to accept this plea for the reasons disclosed hereinabove where we have recorded why in the peculiar facts of this case, a decision on the review application is necessary to decide whether the appellate court should interfere with the impugned order or not. As to what shape the interim order will ultimately take, would be dependent on the fate of the review application.
The appeal and the applications accordingly stand disposed of with aforesaid liberty.
CM No.17 20LL (for substituted service on R-1
No orders for substituted service on responde\ no.1 required as the controversy is really between the appellants on hand and the respondent no.12 on the other hand.
The application stands disposed of. e-
SEPTEMBER 29, 2OIIlyg
#-
SANJAY KISHAN KAUL, J.
-/ t/ ll ll / l\q,-lld"Jt"/
-
RATIV SHAKDHER, J.
JUDGMENT