Parvesh Gaur v. Ranbir Singh

1. This petition, under Article 227 of the Constitution of India, contains the following prayer clause: “It is, therefore, most respectfully prayed that this Hon‟ble Court may kindly be pleased to: a. Call for the records pertaining to the Civil Suit No. 268/2012 (New CS No. 82503/16); b. Set aside the impugned order dated 11.12.2018 passed by Ms. Tyagita Singh, Ld. SCJ-cum-RC, (South) Saket Court, New Delhi in Civil Suit No. 268/2012 (New CS No. 82503/16); c. Direct the Ld. Trial Court to decide the preliminary issues first and to comply with and proceed in accordance with the order dated 17.05.2013 passed by Sh. Manish Yaduvanshi, SCJ-cum-RC, (South), Saket Court, New Delhi; d. Pass any other or further order(s) as this Hon‟ble Court may deem fit and proper in the facts and circumstances of the present case.” 2022:DHC:2365

2. The order dated 11th December, 2018, which forms subject matter of prayer „b‟ in this petition, reads thus: “CS No. 82503/16 Ranbir Singh v. Parvesh Gaur & Ors. 11.12.2018 Pr.: Sh. Sanjeev Soni, Ld. counsel for plaintiff alongwith plaintiff. Defendant No.1 in person. He is also appearing for defendants No. 2 and 3 Ms. Promila Kapoor, Ld. counsel for defendant No.4/MCD Sh. Rajiv Bhardwaj, Ld. counsel for defendant No.7/ Delhi Fire Service None for remaining defendants. The case fixed for PE but defendant No.l has requested that main counsel Sh. Medhanshu Tripathi is out of station, due to some family function and he cannot appear today for PE. No affidavit of evidence has been filed on record by the plaintiff till date despite the, fact that issues were framed on 06.12.2017. Plaintiff is directed to supply advance copy of affidavits of private witnesses to the defendants against proper receipt at least one week before the next date of hearing. Ld. Counsel for plaintiff has stated that certain construction was raised by Defendants No. 1 to 3 in the suit property after filing of the suit. Heard. SDMC is directed to file fresh status report in respect of the suit property with coloured photographs by the next date of hearing. Be fixed for PE on 25.02.2012. Tyagita Singh SCJ-cum-RC (South) Saket Courts, New Delhi/11.12.2018”

3. On a query from the Court as to the error which exists in the order dated 11th December, 2018, learned Counsel for the petitioner submits, quite fairly, that though there is no specific error in the order dated 11th December, 2018, the Court ought to have decided the preliminary issues which had been framed by the Court vide its order dated 17th May, 2013, which had been passed by the learned Trial Court: “CS No. 268/12 Rambir Singh v. Pervesh Gaur & Ors. 17.05.2013 Pr. None Vide separate order, the application of the plaintiff under Order

39 Rules l and 2 CPC dated 20.11.2012 stands dismissed. Following preliminary issues are framed, viz: a) Whether the suit of the plaintiff is bad on account of non- service of statutory notice under Section 80 CPC and under Section 160 Delhi Police Act upon defendants No.5 and 6 and upon non-service of notice under Section 80 CPC upon the defendant No.7? b) Whether the plaintiff is guilty of suppression of material facts and therefore, not entitle to the equitable relief of injunction due to bar of Section 41(i) of the Specific Relief Act, 1963? c) Whether any cause of action subsists in favour of plaintiff and against the defendant No.4 in view of demolition action under Section 343 of the DMC Act, 1957? No evidence is required on these issues as they are based on pleadings and documents. Come up for arguments on 29.08.2013. (Manish Yaduvanshi) SCJ-cum-RC (South) Saket Courts, New Delhi 17.05.2013”

4. As such, there is no real substance in the challenge, by the petitioner, to the order dated 11th December, 2018, which is merely a innocuous order and contains no substantive directions, prayer „b‟ in the petition accordingly is completely misconceived and is accordingly rejected.

5. The grievance of the petitioner, as ventilated by Mr. Medhanshu Tripathy appears to be that, having framed preliminary issues as far back as on 17th May, 2013, the learned Trial Court has yet to pass any order on the said issues, though the matter was listed for arguments, thereafter, on 29th August, 2013. He merely seeks a direction from the Court to the learned Trial Court to pass an order on the aforesaid preliminary issues.

6. Learned Counsel for the respondent, arguing per contra, submits that the prayer of learned Counsel for the petitioner is not bona fide. He submits that much water has flown since the passing of the order dated 17th May, 2013. Without adverting to specifics, learned Counsel for the respondent submits that certain orders were passed, by the learned ADJ, on applications which had been preferred by him, as a consequence whereof no substance remains in the aforesaid preliminary issues which were framed on 17th May, 2013.

7. He also submits that he has moved an application on 29th August, 2013 under Order XIV Rule 5, read with Section 151 of the CPC, for amending the aforesaid preliminary issues which were framed on 17th May, 2013, which is still awaiting consideration.

8. In my opinion, the Court is not required in these proceedings to enter into any findings on the aforesaid submissions. Suffice it to state that, as preliminary issues were framed on 17th May, 2013 and an application for amendment of the preliminary issues stands filed by the respondent on 29th August, 2013, the Court would necessarily have to decide the said application, and, thereafter, proceed to pass an order on the preliminary issues either as they were originally framed or as amended in accordance with the application filed by the respondent.

9. Once preliminary issues are framed by a Court, the Court is restricted to pass an order on the preliminary issues before proceeding trial in the matter.

10. As such, I deem it appropriate to dispose of this petition, with a direction to the learned Trial Court, (i) to hear and decide the application filed by the respondent on 29th August, 2013, seeking amendment of the preliminary issues framed on 17th May, 2013, and,

(ii) pass an order on the preliminary issues as originally framed or as amended in accordance with the prayer for amendment contained in the application filed by the respondent.

11. Needless to say, the decision in this regard would be passed in accordance with law and after following the principles of natural justice and fair play.

12. All contentions of the respondent, in opposition to the preliminary issues framed on 17th May, 2013, and on the basis of which he contends that there is no substance in the issues which have necessarily to be decided against the appellant, would remain open to be urged before the learned Trial Court in the aforesaid proceedings.

13. The petition stands disposed of in the aforesaid terms.