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1, HIGH COURT OF DELHI C.R.P.No.35/2016,CM No.7366/2016(for stay),CM No.7367/2016, CM No.7368/2016(both for exemption)and CM No.7369/2016(for condonation of5 days delay in re-filing).
PRAKASH GRAND Petitioner
Through: Mr.ManojLohat,Adv.
Through: None.
11.07.2017 This Revision Petition under Section 115 of the Code of Civil
Procedure, 1908(CPC)impugns the order(dated 28^^ October,2015 ofthe
Additional District Judge) of dismissal of an application preferred by the petitioner/defendant under Order VII Rule 11 ofthe CPC.
ORDER
2. Though this petition came up first before this Court on 29^*^ February, 2016 but has been adjourned on several dates on the request ofthe counsel for the petitioner.
3. I have enquired from the counsel for the petitionerthe stage ofthe suit from which this Revision Petition arises.
4. The counsel for the petitioner states that the suit is pending at the stage ofrespondents'/plaintiffs'evidence.
5. The suitfrom which this petition arises was filed for declaration that a compromise decree to which the fathers ofthe respondents / plaintiffs, and who were impleaded as defendants to the suit, were party, is null and void and for further declaration that the plaintiffs are the co-owners / co-sharers in possession ofthe property. C.R.P.No.35/2016 pageIof[3] 2017:DHC:8798
6. The petitioner / defendant applied under Order VII Rule 11 of the CPC on the grounds thatthe suit was barred by Section 47 and Order XXIII Rule 3A ofthe CPC and which grounds have been rightly rejected by the learned Additional District Judge observing that since the plaintiffs were not a party to the earlier suit qua decree wherein relief was claimed, the said provisions did not barthe plaintiffs.
7. The counsel for the petitioner/defendant before this Court today has urged that on the averments in the plaint the plaintiffs did not disclose any rightto the property.
8. As per the averments in the plaint, the property belonged to paternal grandfather of the plaintiff and the earlier suit for partition qua decree wherein relief was claimed in the suit was between the natural heirs ofthe paternal grandfather ofthe plaintiffs.The plaintiffs in the plaint have merely stated that the suit property was their ancestral property and since they were not parties to the earlier suit for partition,they were not bound by the decree therein.
9. Primafacie it appears that the plaintiffs on the said averments did not disclose any right in the property to maintain the suit for setting aside the earlier decree for partition or for being declared as co-owners/co-sharers of the property. Reference in this regard can be made to series ofthejudgments in Commissioner of Wealth Tax,Kanpur Vs. Chander Sen(1986)3 SCC 567 and Yudhishter Vs. Ashok Kumar(1987) 1 SCC 204 by the Supreme Court and thereafter repeatedly by this Court in Master DaljitSingh Vs. S. Dara Singh AIR 2000 Delhi 292,Neelam Vs.Sada Ram 2013 SCC OnLine Del 384,HarvinderSingh Chadha Vs.Saran Kaur Chadha 2014 SCC C.R.P. No.3S/20I[6] page2of[3] OnLine Del 3413(DB),Sunny (Minor) Vs. RajSingh (2015)225 DLT 211,Mukesh Kumar Vs.Pavitra 2016 SCC OnLine Del4907and Surender Kumar Vs.DhaniRam AIR 2016 Del 120.
10. However admittedly the said ground was notraised by the counsel for the petitioner/ defendant in the application under Order VII Rule 11 ofthe CPC though he states that such an objection has been taken in the written statement.
11. Without urging the said ground in the application under Order VII Rule 11 ofthe CPC,no error can be found in the order ofthe Additional District Judge.
12. I have considered the option ofissuing notice and considering the said aspect before this Court but on further consideration I am ofthe view that it may not be proper for this Court in exercise of its revisional jurisdiction, when there is no finding ofthe Trial Court on the said aspect, to adjudicate the same.
13. The Revision Petition is thus dismissed with liberty to the petitioner/ defendantto file another application under Order VII Rule 11 ofthe CPC for urging the said and any other ground which may be available and which application shall be decided by the Suit Courtin accordance with law. No costs.
RAJIV SAHAIENDLAW,J JULY 11,2017 PP