Full Text
HIGH COURT OF DELHI
Date of Decision: 04.08.2022
BALVINDER KAUR BRAR ..... Appellant
Through: Ms Simran Brar with Ms Gayatri Nandwani, Advs.
Through: Ms Amita Sehgal with Mr Saurabh Pandey, Advs. for R-1 & R-6.
HON'BLE MS. JUSTICE TARA VITASTA GANJU [Physical Hearing/Hybrid Hearing (as per request)]
RAJIV SHAKDHER, J. (ORAL):
JUDGMENT
1. This appeal is directed against the order dated 15.11.2019 passed in Rev. Pet. 265/2019, preferred in CS(OS) 1213/2012. To be noted, the said review petition was directed against the order dated 17.05.2019, which, in turn, was passed in I.A. 900/2019, moved in CS(OS) 1213/2012.
1.1. The said interlocutory application i.e., I.A. 900/2019 was filed by respondent no.6/defendant no.6, who is the nephew of the appellant/plaintiff and the son of respondent no.1/defendant no.1.
1.2. It is not disputed that I.A.900/2019 is pending adjudication. We are told that the said application is now posted on 13.10.2022.
2. When the instant appeal had come up for hearing for the first time before a coordinate bench i.e., on 22.01.2020, the Court had observed that 2022:DHC:3051-DB FAO(OS) 9/2020 2 of 11 since the issue concerning the release of 50% of the money deposited in this Court was pending consideration before the Learned Single Judge, no orders were required to be passed in the appeal.
2.1. This position has continued up until now.
3. On 11.07.2022, when the appeal came up for hearing before us, we had issued notice in the matter and recorded, briefly, the grievance of the appellant/plaintiff. For the sake of convenience, the relevant part of the order dated 11.07.2022 is reproduced hereafter: “1. Insofar as the impugned order dated 15.11.2019, passed by the Learned Single Judge, is concerned, there are two grievances expressed by Ms Simran Brar, who appears on behalf of the appellant.
1.1. First, there is no admission by the appellant i.e., the original plaintiff, that respondent no. 1/defendant no. I has 50% share in the amount which stands deposited in the Court, pursuant to the order dated 05.05.2015.
1.2. Second, while the appellant/ plaintiff has agreed, on humanitarian grounds, to the release of 50% of the amount deposited with this Court in favour of respondent no.1/defendant no. 1, this stand has got obfuscated in view of the observation of the Learned Single Judge that there was an admission, that the said person had 50% share in the amount deposited in the Court.”
4. Ms Simran Brar, who appears on behalf of the appellant/plaintiff, says (something that she had stated before us on 11.07.2022) that there was no admission on the part of the appellant/plaintiff, that respondent no.1/defendant no.1 had a 50% share in the amount that had been deposited with the Registry.
4.1. Ms Brar further submits that the appellant/plaintiff had agreed to release 50% of the money in favour of respondent no.1/defendant no.1, only FAO(OS) 9/2020 3 of 11 on humanitarian grounds.
5. On the other hand, Ms Amita Sehgal, who appears on behalf of respondent nos.[1] & 6/defendant nos.[1] & 6, says that there is no challenge laid in the instant appeal to the order dated 17.05.2019.
5.1. It is Ms Sehgal’s contention that the appellant/plaintiff assails only the order passed in the review petition i.e., the order dated 15.11.2019.
5.2. Furthermore, it is Ms Sehgal’s contention that the direction to release 50% of the money deposited with the Registry of this Court was not predicated on the admission of the appellant/plaintiff and that the order was passed on merits.
5.3. It is also Ms Sehgal’s contention that the instant appeal is not maintainable, as it concerns rejection of the review petition. As noted above, the review petition was rejected via order dated 15.11.2019.
6. We have heard learned counsel for the parties for some time.
6.1. According to us, what is important to bear in mind is that the application i.e., I.A. No. 900/2019, in which the order dated 17.05.2019 was passed, was moved by respondent no.6/defendant no.6. The reliefs claimed in the application read as follows: “(a) Modify interim status quo orders dated 28.03.2014 and 12.05.2014 and order dated 05.05.2015, whereby a Receiver was appointed to the extent that the following property/lands, which are the individual and self owned lands/property of defendant no.6 be released from their scope and ambit and defendant no. 6 is allowed to utilize/cultivate/gave on rent the following lands/property, subject to final orders of this Hon'ble Court:i) Land admeasuring 6 Kanal and 10 Marla in village Kanniyawali stands registered and mutated in the exclusive name of defendant no.6 (transferred by way of a registered gift FAO(OS) 9/2020 4 of 11 deed by defendant no.1 as General Power of Attorney Holder of defendant no.2) (as described in prayer IX (viii) of the prayer clause in the plaint) (ii) 5 Acres of land out of the total 10 acres land approx from Khewat 1360 Khatoni 1972 in Distt. Muketsar-III, Punjab. (Land bequeathed to defendant no.6 by way of Will dated 20.05.2009 of Late Shri Harpal Singh Gill)
(iii) Land admeasuring 9 Kanal 19 Marlas or 1.25 Acre comprised in Khewat No. 1484 Khatoni No. 2167 situated in the revenue estate of Muktsar-III, Punjab. (Land bequeathed to defendant no. 6 by way of Will dated 20.05.2009 of Late Shri Harpal Singh Gill) (iv) 1/3rd share, i.e. 4 ½ acres land out of the total land admeasuring 14 acres or 113 Kanal 18 Marla in Khewat 325/282/325, Khatoni 553, 555 in Village Kannyawali, Distt. Sri Muktsar, Punjab. (Land bequeathed to defendant no. 6 by way of Will dated 20.05.2009 of Late Shri Harpal Singh Gill) (as described in prayer IX (vii) of the prayer clause in the plaint) (v) 1/2 (half) share in office 221, Kirti Shikhar Building Distt. Centre, Janak Puri, New Delhi. (Property bequeathed to defendant no. 6 by way of Will dated 20.05.2009 of Late Shri Harpal Singh Gill) (b) Release the total amount received from the cultivation of crop of the said agricultural land, deposited by the Receiver with the Registrar General of Delhi High Court, as per order dated 05.05.2015, to defendant no. 6/applicant.”
6.2. A perusal of the prayers made in the application shows that respondent no.6/defendant no.6 had, inter alia, sought modification of status-quo orders passed by this Court on 28.03.2014 and 12.05.2014, as also order dated 05.05.2015, whereby a Receiver was appointed by this Court vis-à-vis certain properties which are the subject matter of the suit action.
6.3. Furthermore, as would be noticed from the prayers extracted FAO(OS) 9/2020 5 of 11 hereinabove, respondent no. 6/defendant no. 6 had also sought the release of the amount received from the sale of crop cultivated on the subject agricultural land, which under the order of the Court, stood deposited with the Registry, in terms of the order dated 05.05.2015.
7. A perusal of the order dated 17.05.2019 shows that the order of the Learned Single Judge is founded on the fact that respondent no.6/defendant no.6 had to take care of his father i.e., respondent no.1/defendant no.1, who, apparently, was bed-ridden, since May 2014, due to a paralytic stroke. The medical condition of respondent no.1/defendant no.1 was noticed by the Learned Single Judge in the said order.
7.1. Thus, having regard to respondent no.1/defendant no.1’s medical condition and given the fact that respondent no.6/defendant no.6 portrayed that he had exhausted his savings and was unable to generate any income, a direction was issued to release 50% of the amount lying with the Registry of this Court, in the name of respondent no.1/defendant no.1 and not respondent no.6/ defendant no.6. These aspects emerge upon perusal of the following paragraph of the order dated 17.05.2019: “6. It is stated that in the Application that Defendant no. 6 is/Applicant is also taking care of his father, i.e. Defendant NO. 1 herein, who is bedridden due to paralytic stroke since May
2014. Due to the said medical condition, Defendant No.1 has already spent all his savings towards his treatment and care and is not in a position to generate any further income since then. Copy of the medical certificate issued by Max Super Specialty Hospital dated 22nd May 2017 and photographs of Defendant No.1 showing his medical condition are placed on record. In view of the above stated facts, Defendant no.6/applicant has now exhausted all his savings and is not in a position to generate any income due to the circumstances created by the Plaintiff and due to the mental condition of FAO(OS) 9/2020 6 of 11 Defendant No. 2.”
7.2. However, while issuing such a direction, another aspect was adverted to by the Learned Single Judge, which is alluded to in paragraph 8 of the order dated 17.05.2019. In the said paragraph, the Learned Single Judge observed that it is an admitted case of the plaintiff (i.e., the appellant in the instant appeal) that defendant no.1 (i.e., respondent no.1 in the instant appeal) has a 50% share in the said amount, which is lying deposited with the Registry of this Court.
7.3. For a clearer understanding of the observations made in the said paragraph, the same is extracted hereafter: “8. It is an admitted case of the Plaintiff that Defendant No.1 has 50 percent share in the said amount. Learned Counsel for the Plaintiff has expressed an apprehension that if the amount is released to Defendant No.6, the same would be frittered away, and would not be utilized for the benefit of Defendant No.1. Learned counsel for Defendant No. 1 states that her client is in a position to operate the bank account. Accordingly till further orders, it is considered appropriate that 50 percent of the amount lying with the Court shall be released in the name of Defendant No. 1 by a Demand Draft.” [ Emphasis is ours.]
7.4. Paragraph 8 was followed with observations in paragraph 9, which concerned the appellant/plaintiff’s plea for release of the remaining amount. Insofar as the said plea was concerned, the Learned Single Judge observed that a direction with respect to the same would be considered on the next date of hearing.
8. Ms Brar, as noticed above, says that the appellant/plaintiff is aggrieved as the observations made in paragraph 8, to the effect that it is the FAO(OS) 9/2020 7 of 11 admitted case of the appellant/plaintiff that respondent no.1/defendant no.1 has 50% share in the said amount, is likely to impact the reliefs that are claimed in the suit.
8.1. Ms Brar says that although, according to the case set up in the suit, there are only two coparceners, the division with respect to the coparcenary assets would not take place in the ratio indicated by the Learned Single Judge, as there has been an alienation of the assets since 2011, contrary to the orders issued by the suit court.
8.2. In sum, it is Ms Brar’s case that if the plaintiff/appellant is able to establish her case, after the trial is concluded, an account will have to be given, which may not exactly be in the ratio of 50:50.
8.3. It is in this context, that Ms Brar says that the appellant/plaintiff had filed a review petition and since the review petition was dismissed, the appellant/plaintiff approached this Court, by way of the instant appeal.
9. Ms Brar has also indicated that in order to cut short the controversy, at present, the appellant/plaintiff would be quite happy if the balance amount which is 50% of the amount that was deposited in the Court, is, in the interregnum, released in favour of the appellant/plaintiff.
9.1. We have put to Ms Sehgal, as to whether she is agreeable to such a direction.
9.2. Ms Sehgal has flatly refused to accept any such suggestion made on behalf of the appellant/plaintiff.
9.3. Therefore, what is obvious to us is that the rights of the parties need to be preserved, till the trial is completed.
10. Clearly, the Learned Single Judge did not get into the merits of the applications preferred by respondent no.6/defendant no.6. FAO(OS) 9/2020 8 of 11
10.1. It is evident, upon reading the order dated 17.05.2019 passed by the Learned Single Judge that it was based on the medical condition of defendant no.1/respondent no.1 (although an attempt is made by Ms Sehgal to draw us into the merits of application i.e., I.A. No. 900/2019.)
10.2. Therefore, we are left with a situation where 50% of the amount deposited with the Registry of this Court has been released in favour of respondent no.1/defendant no.1, which was not even the prayer made in the application. As alluded to above, the prayer made in I.A no. 900/2019, by respondent no.6/ defendant no.6, was to release the entire amount in his favour.
10.3. The fact that the Learned Single Judge has specifically directed that the demand draft should be drawn in favour of respondent no.1/defendant no.1, only fortifies our view that the Learned Single Judge has not dealt with the merits of the application because release of the amount in the favour of respondent no.6/defendant no.6 would have required returning a finding on merits, if nothing else, qua rights in the subject agricultural land, which was the source of the funds deposited with the Registry of this Court.
11. We are, thus, faced with a situation where money has already been released.
11.1. We are also conscious of the fact that the Learned Single Judge, for good reasons, released 50% of the amount deposited with this Court in favour of respondent no.1/defendant no.1, having regard to his medical condition.
11.2. Thus, we find it difficult, at this stage, to direct disgorgement of the money which has already been released for the medical needs of respondent no.1/defendant no.1. FAO(OS) 9/2020 9 of 11
11.3. However, if no direction is issued for the release of money in favour of the appellant/plaintiff, in our view, it would be unfair.
12. Since the Learned Single Judge is seized of the application, the application would have to be decided, one way or the other.
12.1. However, we are inclined to set aside the observations made in paragraph 8 of the order dated 17.05.2019, whereby an observation is made that it is the admitted case of the appellant that respondent no.1/defendant no.1 has a 50% share in the amount deposited in this Court.
12.2. We may note, at one stage, Ms. Sehgal had offered redaction of this observation [i.e., the observation concerning admission of share by appellant/plaintiff] provided that the direction issued for release of money in favour of respondent no.1/ defendant no.1 was not disturbed.
12.3. Thus, the observations made to that effect in paragraph 8 of the order dated 17.05.2019, are set aside.
13. As indicated hereinabove, if the appellant/plaintiff were to succeed in the suit, accounts would have to be taken, as to whether 50% of the amount would fall to the share of respondent no.1/defendant no.1, which will depend on whether the appellant/plaintiff is able to establish the case that there has been alienation of coparcenary property.
14. This brings to us to the argument advanced by Ms Sehgal that since there is no challenge to the order dated 17.05.2019, no directions can be issued.
14.1. According to us, this submission is untenable. Once an application on that specific point for reviewing the order dated 17.05.2019 was moved, the rejection of the review application has opened that aspect in appeal before us. The fact that this aspect was raised in the review application, is evident FAO(OS) 9/2020 10 of 11 from a bare perusal of paragraph 5 of the order dated 15.11.2019. For the sake of convenience, the said paragraph is extracted hereafter: “5. Mr. Aneja, further states that the observations made by the Court in paragraph No.8 to the effect that it is an admitted case of the plaintiff that defendant No.1 has 50% share in the said amount is incorrect in as much as, the plaintiff does not admit to such a position in fact.”
15. The other submission of Ms Sehgal is that the instant appeal is not maintainable, as the review petition preferred against the order dated 17.05.2019 was dismissed, in view of the provisions of Order XLVII of the Code of Civil Procedure, 1908 [ “Code”]
15.1. The point to be noted is that instant appeal has been filed under Section 10 of the Delhi High Court Act, 1966 and not under the Code. Furthermore, given the peculiar facts obtaining in the case, whereby the Learned Single Judge, even while not dealing with the merits of the matter, has affected the interest of the appellant/plaintiff—one can possibly take recourse to the residuary prayer made in the appeal [i.e., prayer clause (b)]. Both, the order which is directly impugned i.e., order dated 15.11.2019 whereby the Learned Single Judge declined to exercise his jurisdiction to recall/review the order dated 17.05.2019 and the said order itself, in our view, would impact the interests of the appellant/plaintiff and therefore, in our opinion, the appeal can be entertained in the very least, against the earlier order, as it has attributes of a judgement. [See Gurmauj Saran Baluja vs. Mrs. Joyce C. Salim & Ors., passed in FAO(OS) 9/1987, on 22.11.1988 and Shah Babulal Khimji vs. Jayaben D. Kania and Another, (1981) 4 SCC 8]. Thus, once the edifice falls, the latter order would axiomatically collapse. FAO(OS) 9/2020 11 of 11
16. As noted above, since I.A.900/2019 in CS(OS) 1213/2012 is pending adjudication before the Learned Single Judge, we request the Learned Single Judge to take up the application at the earliest convenient date.
16.1. The appellant/plaintiff will have the liberty to approach the Learned Single Judge, for this purpose, by way of an appropriate application.
16.2. At this stage, we are told that I.A.7628/2022 has been moved by the appellant/plaintiff for expediting hearing in I.A.900/2019.
17. The appellant/plaintiff is also given liberty to move the Learned Single Judge for release of 50% amount lying with the Registry of this Court, by way of a separate application.
17.1. If such an application is moved, the Learned Single Judge will pass appropriate orders as deemed fit.
18. The appeal is disposed of, in the aforementioned terms.
RAJIV SHAKDHER, J TARA VITASTA GANJU, J AUGUST 4, 2022 Click here to check corrigendum, if any