Dinesh Aggarwal & Ors. v. Kamlesh Gupta & Ors.

1. For the reasons stated in the applications the delay of 3 days and 10 days in filing the appeal is condoned.

2. Applications are disposed of. FAO(OS) 617/2015 FAO(OS) 619/2015

1. Though service report is awaited qua R-6 to R-8 and R-2 is unserved, but counsel as above appear for all the respondents and we note that Mr.Anil Sharma, Advocate is the counsel for R-5 to R-8 in the suit.

2. Two suits: CS (OS) No.1604/2005 and CS (OS) No.1485/2004 were pending on the original side of this Court when an order each was passed in the two suits on September 09, 2015.

3. CS (05) No.1604/2005 has been instituted by respondent Nos.[1] and 2 in the appeal: Kamlesh Gupta and Rakesh Kumar Gupta. The three defendants impleaded were: Bishan Chand Agarwal, Manoj Agarwal and Meenu Agarwal. Manoj is the son of Bishan Chand Agarwal, Meenu is Manoj's wife.

4. Kamlesh Gupta and Rakesh Kumar Gupta claimed to be owners of property bearing No.G-92, Preet Vihar, New Delhi and sought multifarious reliefs. The sum and substance was a declaration that they are the owners of the suit property. They claimed possession and mesne profits.

5. They pleaded in the plaint that Mukesh Kumar Gupta, husband of Kamlesh Gupta and brother of Rakesh Kumar Gupta, had been handling their affairs and Bishan Chand Agarwal and Manoj Agarwal negotiated FAO(OS) 617/2015 and 619/2015 J through a property dealer with Mukesh to purchase the suit property. Sale price agreed to was 15 lakhs, pursuant whereto 5 lakhs were paid. 10 lakhs had to be paid by November 30, 2001. Kamlesh Gupta and Rakesh Kumar Gupta handed over the original title documents as well as possession of the basement and the first floor of the property to Bishan Chand Agarwal and Manoj Agarwal. They pleaded that thereafter three cheques totalling 9 lakhs were received out of which one cheque in sum of 2 lakhs was dishonoured. Thus, 3 lakhs remained payable. It was pleaded that being in dire need of money, the plaintiffs executed General Power of Attorney and Wills in favour of Bishan Chand Agarwal and Manoj Agarwal. It was pleaded that thereafter 1 lakh was further received by the plaintiffs and thus only 2 lakhs remained.

6. It was pleaded that the plaintiffs received a notice from the Income Tax authorities attaching the property and learnt that Bishan Chand Agarwal had lodged a complaint against his son Manoj Agarwal. It was pleaded that Bishan Chand Agarwal filed CS (OS) No.1485/2004 against his son and his daughter-in-law impleading Shri Rakesh Kumar Gupta, Smt.Kamlesh Gupta, the Tax Recovery Officer and the Commissioner of Income Tax.

7. It was in the backdrop of the aforesaid pleadings that reliefs were claimed in the suit.

8. Bishan Chand Agarwal died during the pendency of the suit instituted by Kamlesh Gupta and Rakesh Kumar Gupta. Needless to state he died during the pendency of the suit filed by him.

9. Issue of substitution cropped up. In both suits, his son Manoj Agarwal, a natural heir was already a party and therefore his wife, another son and two daughters were impleaded as defendants in the suit filed by Kamlesh Gupta and Rakesh Kumar Gupta. They were impleaded as plaintiffs in the suit filed by Bishan Chand Agarwal.

10. Thereafter, the appellants who are the brothers and nephews of Bishan Chand Agarwal filed applications one each in the two suits under Order XXII Rule 10 of the Code of Civil Procedure predicating a stand under a Will dated February 19, 2009 statedly executed by Bishan Chand Agarwal.

11. Giving detailed reasons, the application filed in CS (OS) No.1485/2004 has been dismissed by the learned Single Judge observing that since the applicants had already sought probate of the Will their right would be subject to said decision. The learned Single Judge has held that if issue of the Will was decided in the suit, the same would be putting the suit on a path taking it at a tangent.

12. Adopting the reasoning in CS (OS) No.1485/2004 application filed in CS (OS) No.1604/2005 has been dismissed.

13. In the aforesaid backdrop we have put it to learned counsel for the parties whether they would be agreeable to the suggestion that in both suits, the brothers and nephews of Bishan Chand Agarwal be impleaded as parties with the direction that in CS (OS) No.1604/2005 they would first crossexamine witnesses of Kamlesh Gupta and Rakesh Kumar Gupta and thereafter the witnesses would be cross-examined by Vimla Gupta, Jyoti Agarwal, Shipra Patel and Deepak Aggarwal and thereafter by Manoj Agarwal and Meenu Agarwal. The reason being any suggestions put to the witnesses detrimental to Manoj Agarwal and Meenu capable of being taken care of during cross-examination.