* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 27.10.2009
Date of Order: November 03, 2009
IA No. 7590/2009 in CS(OS) No. 482/2006
% 03.10.2009
Shri Daljeet Singh Anand ... Plaintiff
Through: Mr. S.K.Taneja, Sr. Advocate with
Mr. Puneet Taneja, Advocate
Versus
Shri Harjinder Singh Anand ... Defendant
Through: Mr. Peeyosh Kalra, Advocate
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
ORDER
This application has been made under Section 24 read with Section 151 CPC by the defendant of this case for transfer of a suit pending before the District Court being suit no. 583/09 (Rohini) to this Court on the ground that the issues in the suit before this Court were substantially similar to the issues of suit pending before the District Courts filed by the father of the parties and in both the suits, common issues and common question of law arise for consideration. The application is opposed by the plaintiff who is the other defendant in suit no. 583/2009 pending in Rohini Courts. IA No. 7590/2009 in CS(OS) No. 482/2006 Shri Daljeet Singh Anand v. Shri Harjinder Singh Anand Page 1 of 3
2. A perusal of plaint filed by the plaintiff in suit no. 583/2009 pending before the District Courts Rohini and the perusal of pleadings in this case would show that two suits are altogether different. While in suit no. 583/09, father of parties has made a specific plea of fraud played upon him due to his old age and being uneducated by his sons (Daljeet Singh & Harjinder Singh). The suit before this Court is a simple suit for partition wherein it is claimed that the property in question was owned by Daljeet Singh and Harjinder Singh. The father of parties had made an application under Order 1 rule 10 CPC to be impleaded as a party in the present suit. He was given liberty to file an independent suit and he withdrew the application and filed the independent suit (Suit No. 583/2009). It is settled law that a plea of fraud can be taken by making specific allegations of fraud and has to be decided on the basis of evidence of fraud. This plea of fraud has been raised by father against sons in suit no. 583/09 while in the present case, the plea of fraud has not been raised by the plaintiff and only defendant has raised this plea in defence. Moreover, plaintiff did not make his father as a party to the suit.
3. The subject matter of the two suits is also altogether different. The subject matter of suit pending before the District Courts is whether the defendants played fraud upon the father i.e. plaintiff in that suit, taking benefit of his old age and got executed documents from him for transfer of the property in question in their names instead of getting it freehold, which was the purpose for which they were to help the father. Father is of 85 years old. The subject matter of suit pending in the High Court is partition of the property.
4. I consider that there is no commonality of issue and suit pending in the District Court cannot be transferred to this Court because of whims and fancies of the IA No. 7590/2009 in CS(OS) No. 482/2006 Shri Daljeet Singh Anand v. Shri Harjinder Singh Anand Page 2 of 3 applicant. The power of transferring a suit is a discretionary power vested in the Court and cannot be exercised in a casual manner. It has to be exercised with due care, caution and circumspection. I consider that what is needed in the present case is that the trial of the present suit should be stayed till the suit before the District Court where the trial of the suit of the father is taking place is decided. It is no gainsaying that the trial of cases, recording of evidence in High Court takes longer time while the cases are decided more expeditiously in District Courts. That seems to be the reason that the defendant herein wants the suit lying at District Courts to be transferred to the High Court.
I find no merits in the application. The application is hereby dismissed. CS (OS) No. 482/2006 To come up for arguments as to why this suit should not be stayed till suit pending in the District Courts is decided.
List on 16th February, 2010.
November 03, 2009 SHIV NARAYAN DHINGRA, J.
vn
IA No. 7590/2009 in CS(OS) No. 482/2006 Shri Daljeet Singh Anand v. Shri Harjinder Singh Anand Page 3 of 3