* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS)Nos. 225/1998, 226/1998, 227/1998, 228/1998 &
229/1998
% December 04, 2012
+ CS(OS) 225/1998
K S BAKSHI ..... Plaintiff
Through: Mr. Anil Airi, Ms. Bindiya L.Airi and
Mr. Pratyush Sharma, Advs.
Versus
P M MATHRANI ..... Defendant
Through: Mr. Yakesh Anand, Mr. Murari
Kumar and Mr. Nimit Mathur, Advs.
for defendant No.2.
+ CS(OS) 226/1998
S S BAKSHI ..... Plaintiff
Through: Mr. Anil Airi, Ms. Bindiya L.Airi and
Mr. Pratyush Sharma, Advs.
versus
P M MATHRANI ..... Defendant
Through: Mr. Yakesh Anand, Mr. Murari
Kumar and Mr. Nimit Mathur, Advs.
for defendant No.2.
CS(OS)Nos.225/98, 226/98, 227/98, 228/98 & 229/98 Page 1 of 9
+ CS(OS) 227/1998
S S BAKSHI ..... Plaintiff
Through: Mr. Anil Airi, Ms. Bindiya L.Airi and
Mr. Pratyush Sharma, Advs.
Versus
P M MATHRANI ..... Defendant
Through: Mr. Yakesh Anand, Mr. Murari
Kumar and Mr. Nimit Mathur, Advs.
for defendant No.2.
+ CS(OS) 228/1998
SANJIT BAKSHI ..... Plaintiff
Through: Mr. Anil Airi, Ms. Bindiya L.Airi and
Mr. Pratyush Sharma, Advs.
Versus
P M MATHRANI ..... Defendant
Through: Mr. Yakesh Anand, Mr. Murari
Kumar and Mr. Nimit Mathur, Advs.
for defendant No.2.
+ CS(OS) 229/1998
MINU BAKSHI ..... Plaintiff
Through: Mr. Anil Airi, Ms. Bindiya L.Airi and
Mr. Pratyush Sharma, Advs.
Versus
CS(OS)Nos.225/98, 226/98, 227/98, 228/98 & 229/98 Page 2 of 9
P M MATHRANI ..... Defendant
Through: Mr. Yakesh Anand, Mr. Murari
Kumar and Mr. Nimit Mathur, Advs.
for defendant No.2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1.
These are 5 suits filed for specific performance by five plaintiffs/prospective purchasers who had entered into five agreements to sell with respect to the share of the defendant No.1/Shri P.M. Mathrani in the property 9, Kautilya Marg, Diplomatic Enclave, New Delhi. Originally the sister of the defendant No.1 Smt. Sarla Mishra was not a party, however, subsequently the defendant No.2 was made a party on her application because her case was that the defendant No.1(brother of the defendant No.2), could not sell his share in the property 9, Kautilya Marg, Diplomatic Enclave, New Delhi to the plaintiffs inasmuch as partition of the property had not taken place.
2. In the present suits for specific performance, the other co-owners of CS(OS)Nos.225/98, 226/98, 227/98, 228/98 & 229/98 Page 3 of 9 the property 9, Kautilya Marg, Diplomatic Enclave, New Delhi are not parties. All the co-owners of the suit property are however parties in CS (OS) 1370/2005 titled as 'Sarla Mishra v. P.M. Mathrani and others', and in which suit issues have already been framed, evidence has commenced as the plaintiff in the other suit (and who is the defendant No.2 herein) has filed affidavits by way of evidence, and the case is to be fixed for cross- examination of the witnesses.
3. Whereas the plaintiffs in the present suits for specific performance claim that there already existed a partition between co-owners of the suit property prior to entering into of their agreements to sell, and therefore, the agreements to sell are valid, the defendant No.2 however claims that there did not take place partition of the suit property and therefore, agreements to sell could not have been entered into by the co-owner/defendant No.1 with the plaintiffs. Only on the plaintiffs in the present suit succeeding in proving the principal issue of an existing partition prior to the entering into of the agreements to sell, the suits can be decreed. I note that there are no disputes between the plaintiffs and defendant no.1 (now represented by his LRs) as the defendant no.1 admits that the suits for specific performance be decreed. The only dispute requiring decisions in the present suits for specific CS(OS)Nos.225/98, 226/98, 227/98, 228/98 & 229/98 Page 4 of 9 performance, is of whether there did or did not take place a partition of the suit property before the agreements to sell were entered into.
4. The following issues have been framed in the other suit CS (OS) 1370/2005 on 16.09.2009:-
1. Whether the suit property is a dwelling house in joint individual ownership? OPP
2. Whether the judgment and decree dated 27th march, 1970 was a preliminary or a final decree? OPD
3. Whether the suit property has been partitioned by metes and bounds, if so, its effect? OPD
4. Whether the suit property, being leasehold, can be transferred and sold without proper sanction/permission of L&DO being the competent authority? OPD
5. Whether the Defendant No.1 can claim or sell any portion of the suit property as his own till such time actual physical partition/division of shares/portions of the house has taken place? OPD
6. Effect of probate issued by the court in Test Case.M.A.390/2006 on 16.10.06 by Civil Judge, Pune. OPD
7. Whether the purported agreements to sell dated 26.3.1996 are violative of the mandatory provision of Chapter XXC of the Income Tax Act & are also void, against public policy in terms of Section 23 of the Contract Act? OPD
8. Whether the agreement to sell dated 26.03.1996 are illegal, invalid, not enforceable and liable to be declared as void; OPD
9. Relief.CS(OS)Nos.225/98, 226/98, 227/98, 228/98 & 229/98 Page 5 of 9
Issue No.2 I am informed was re-casted on 22.01.2010.
5. The plaintiffs in the present suits (and who are also appearing as a successors in interest of the defendant No.1 in the other suit) are defendant Nos.5 to 9 in the other suit CS (OS) 1370/2005.
6. It is settled law that there should not be concurrent trials in two suits on the same issue inasmuch as it leads to wastage of time, money and energy of the parties, besides the fact that there is also wastage of judicial time and chances of conflicting decision in two separate matters where the issue is common.
7. I have repeatedly put to counsel for the defendant No.2 that in one suit this issue has to be decided that whether or not there was an inter se partition between the co-owners of the suit property for the defendant No.1 to have validly entered into agreements to sell with the present plaintiffs. This issue can be decided in the present suits or in CS(OS) 1370/2005. As I have already stated above the other co-owners are not parties to the present suits seeking specific performance of the agreements to sell. Counsel for defendant No.2 however, in my opinion, without basis and unreasonably, keeps on repeatedly insisting that not only CS(OS) 1370/2005 even these present suits must continue and the trial must take place in these suits. I have CS(OS)Nos.225/98, 226/98, 227/98, 228/98 & 229/98 Page 6 of 9 failed to understand this attitude inasmuch as surely the plaintiffs in the present suit can only succeed if there was an existing partition between the co-owners, and which issue may be decided in the present suits but more appropriately in the suit being CS (OS) 1370/2005 which is a suit between all the co-owners. The insistence of trial taking place not only in the present suits but also in CS (OS) 1370/2005 with respect to partition having taken place inter se the co-owners before the agreements to sell were entered into by the defendant No.1 in the present suit, is an argument which is difficult to understand because as already stated two trials concurrently on same issue should not take place.
8. Accordingly, in view of the fact that the principal issue and the crux of the matter as to whether or not the agreements to sell were entered into with the present plaintiffs after a partition was effected between the co- owners of the suit property is an issue at large in CS (OS) 1370/2005 between the co-owners, and therefore it is appropriate, as prayed for by the counsel for the plaintiffs, that the present suits are adjourned sine die with liberty to revive these suits on the final decision being passed pertaining to the issues which are subject matter of CS (OS) 1370/2005, and more specifically the issue as to whether or not there existed a partition among co- CS(OS)Nos.225/98, 226/98, 227/98, 228/98 & 229/98 Page 7 of 9 sharers of the suit property before the defendant No.1 has agreed to sell his share. I note that the counsel for the plaintiffs agrees that the decision in CS(OS) No.1370/2005 will operate as a res-judicata in the present suits.
9. Counsel for the defendant No.2 at this stage says that there is an order which has passed by the Supreme Court for disposal of the present suits within six months, and therefore, these suits should not be adjourned sine die. Prima facie there seemed to be merit in the submission, however, the issue of early disposal actually would only have arisen if the present suits were at a more advanced stage than the proceedings which are taking place in CS (OS) 1370/2005. In the present suit the issues however have yet to be framed, whereas trial has already commenced in CS(OS) No.1370/2005. Therefore, considering the fact that the decision in the suit CS (OS) 1370/2005 will in fact operate as a res judicata in the present suits, the defendant No.2 should bring the notice of the order of the Supreme Court dated 27.07.2012 in SLP (Civil) 20646/2012 in CS(OS) 1370/2005 as the counsel for the present plaintiffs agree that the said CS(OS) No.1370/2005 can be disposed of expeditiously in terms of the order of the Supreme Court for early decision.
10. The present suits are thus disposed of for the present with liberty to CS(OS)Nos.225/98, 226/98, 227/98, 228/98 & 229/98 Page 8 of 9 seek revival of the same (if so required) on the decision in CS(OS) No.1370/2005.
IA No. 20604/2012 in CS (OS) 225/1998
11. This application had sought the relief of adjournment of the suit sine die till the disposal of suit being CS (OS) 1370/2005. This application will stand disposed of in terms of the observations made above.
VALMIKI J. MEHTA, J DECEMBER 04, 2012 mm CS(OS)Nos.225/98, 226/98, 227/98, 228/98 & 229/98 Page 9 of 9