Full Text
C.R.P.221/2017 y
RITUKAPILA Petitioned
Through: Mr.RajeshPandey,Adv.
Through. Mr. I.J.S. Mehra & Ms. Tabbassum Firdause,Advs.
11.10.2017
ORDER
1. This orderisin continuation ofyesterday's order.
2. The counsel for the petitioner states that he has now studied the provisions of Section 115 ofthe CPC and agrees that the same has been wrongly invoked.
3. On his assurance that he will in future not make such mistake while filing the petition, the petition is entertained as under Article 227 of the Constitution ofIndia.
4. The petition impugns the orders dated S"" March, 2017 and 24'^ August,2017offraming ofadditionalissue in the suitfiled bythe petitioner /plaintiffand ofrefusal to delete the same.
5. Though I am ofthe view that this petition can be disposed of with clarifications without even issuing notice thereofbut finding that owing to orders,in earlier C.R.P.No.44/2017 arising from thesame suit,having been made without issuing notice have caused some confusion, it is deemed appropriate to issue notice. C.R.P.221/2017 „, Page 1 of[6] 2017:DHC:8585
6. Issue notice.
7. At this stage, Mr. I.J.S. Mehra, advocate for the respondent / defendantappears and acceptsnotice.
8. The counsels have been heard.
9. The suit from which this petition arises has been filed by the petitioner / plaintiff against the respondent / defendant inter alia for recovery ofpossession ofimmovable property and for recovery of mesne profits. The following issues were framed inthe suit: "(i) Whether the sale deed dated 24.09.2015 in favour ofthe plaintiffhas beenexecuted byincompetentpersonbyafraud and cheating?OPD
(ii) Whether the plaintiffis entitled to a decree ofpossession in respect of the suit property,as prayed? OPP.
(iii) Whether the plaintiffis entitled to a decree for recovery ofan amount ofRs.5,64,000/- plus pendente lite andfuture usage and occupation charges / damages / mesne profits, as prayed if so, at what rate and for which period? OPP.
(iv) Whether the plaintiff is entitled to decree against the defendant for a sum ofRs.17,000/- per month asrental expensesand damages,expensesetc. as prayed for? OPP.
(v) Whetherthe plaintiffis entitled to a decree ofpermanentinjunction,as prayed? OPP.
(vi) Whetherthe plaintiffis entitled to a decree to mandatory injunction,as prayed for? OPP. (vii)Whetherthe plaintiffis entitledto decreefordamages,asprayed?OPP. (viii)Relief."
10. Therespondent/defendantappliedtothe SuitCourtforframing ofan additional issue as imder: C.R.P.221/2017 D Page2of[6] (ii)Whether the alleged transaction i.e. sale deed dated 24.09.2015 executed by Sh. Sharvan Kumar in favour of plaintiff is a Benami transaction,Avithoutany actualsale consideration,ornot?OPD." and which application wasdismissed videorderdated 6^^February,2017
11. The respondent/ defendant preferred C.R.P. No.44/2017 againstthe orderdated6'^February,2017. Thesaid C.R.P.No.44/2017cameup before this Courtfirston 20^'^February,2017,when withoutissuing noticethereof, thesame wasdisposed ofbysetting asidethe order dated 6""February,2017 and by directing the suit Court to decide afresh the application of the respondent/defendantforframing ofthe aforesaid additional issue.
12. The suit Courtvideimpugned order dated 8^^ March,2017framed the additional issue as aforesaid.
13. The petitioner/plaintifffiled Review Petition No.152/2017in C.R.P. No.44/2017 and which was vide order dated 21'^ July,2017 disposed ofin thepresenceofthecounselfortherespondent/defendantbygrantingliberty to the petitioner / plaintiffto challenge the order dated March,2017 in accordance with law.
14. The petitioner/plaintiffthereafter applied to the Suit Courtfor recall ^ ofthe order dated 8 March,2017 framing the additional issue and which application has been dismissed vide impugned order dated 24^'' August,
2017.
15. Hence this petition impugning the order dated 8"" March, 2017 framingthe additionalissue aforesaid as well asthe order dated 24^''August, 2017refusingto recall the order dated 8'^ March,2017. C.R.P.221/2017 D 7 Page 3of[6]
16. The averments ofthe respondent/defendant on which the additional issue aforesaid has been framed are,thati)the respondent/defendantis the. wife ofone Sharvan Kumar;ii)the respondent/defendanthad given a sum of Rs.[2] lacs to her husband Sharvan Kumar for purchase ofthe subject property in the name ofthe respondent/defendant;iii)on acquisition ofthe subjectpropertythe respondent/defendantand her husband Sharvan Kumar started residing in the same; iv) subsequently, the respondent / defendant realized thatSharvan Kumar,instead ofpurchasingthepropertyinthe name ofthe respondent/defendant,had purchased the property in his own name; v)Sharvan Kumar has also since abandoned the respondent/defendantand is not residing in the subject property and the respondent / defendant -continues to reside there with herson;vi)Sharvan Kumar hasthereafter sold the subject property to the petitioner/plaintiffwho,on the basis ofthe said title^has filed the suit from which this petition arises; vii)the respondent/ defendanthas filed asuitagainst Sharvan Kumar and in whichthe petitioner / plaintiff has also been impleaded as a defendant, for declaration in this regard.
17. The counsel for the respondent / defendant has also argued that the bar contained in Section 4 of the Prohibition of Benami Property Transaction Act,1988 does not applyto therespondent/defendantas athird party is always entitled to challenge the title ofanother as held benami for another. Reliance in this regard is placed on ChandraSekharSamanta Vs. Commissioner, Sanchaita Investments AIR 1998 Calcutta 70 (DB),C. Gangacharan Vs. C. Narayanan AIR 2000 SC 589 and P.V. Sankara Kurup Vs.Leelavathy Nambiar AIR 1994 SC 2694. C.R.P.221/2017 D ^ Page 4of[6]
18. WhileP.V.SankaraKurup and C. Gangacharan supra are notfound to berelevantforthe aforesaid controversythough mayhavesomerelevance in the suit filed by the respondent/ defendant against Sharvan Kumar and the petitioner / plaintiff, Chandra Sekhar Samanta supra though holding that a plea ofbenami raised by a third party is not hit by Section 4 ofthe BenamiActisfound toturn on its own peculiarfacts.
19. Be that as it may,I am ofthe view that the said legal question need not be decided in the presentpetition.
20. I have enquired from the counsel for the respondent/ defendant that till the respondent/defendantsucceeds in the suitfiled by her and it is held that purchase ofthe property by Sharvan Kumar in his own name was for the benefit ofthe respondent/ defendant and till the respondent/defendant thereby acquires title to the property, what is the right ofthe respondent/ defendant to continue in possession ofthe property, when according to the respondent / defendant also, at the moment the petitioner / plaintiff is holding the title thereof.
21. The counsel for the respondent/defendant has not come up with any response.
22. While this order is being dictated, the counsel for the respondent / defendantstates that matter be adjourned to enable him to consider.
23. Hearing once concluded thesheaimg,the matter cannot be adjourned atthis stage.
24. I may also record thatthe plea ofthe respondent/defendanton which the additional issue aforesaid has been framed must be in issue in the suit filed by the respondent/defendant and even otherwise cannot be in issue in C.R.P.221/2017 Page50/6 ■C\ "N -. j the suit from which this petition arises as well as in the suit filed by the respondent / defendant. The suit from which this petition arises is simply a suit for recovery of possession and mesne profits on the basis of title. As aforesaid, as and when the respondent / defendant succeeds in her suit, she would be entitled to claim any relief. Not only so, since the petitioner / plaintiff is also stated to be defendant in the suit filed by the respondent / defendant, if the respondent / defendant is entitled to any interim protection against dispossession, the respondent / defendant can apply therefor in her suit.
25. For the aforesaidreasons, the framing of the additional issue aforesaid in the suit filedby the petitioner / plaintiff for recovery ofpossession cannot be sustained.
26. Resultantly, the petition is allowed. The additional issue aforesaid added as issue no.(ii) in the issues aforesaid framed in the suit, with the consequent change in number of the following issues, is ordered to be deleted.
27. The counsel for the respondent / defendant at this stage states that the two suits be consolidated.
28. That is no in the domain of this petition.
29. The petitionis disposed of. No costs. Dastiunder signature of Court Master.
OCTOBER 11,2017 'gsr'.. C:R.P. 221/2017 Pa RAJIV SAHAIENDLAW, J •.e6qf[6]