* HIGH COURT OF DELHI AT NEW DELHI
+ C.S. (OS) No.266/2012
Decided on : 28.01.2014
VED PRAKASH ..... Plaintiff
Through: Mr. J.C. Mahindroo, Advocate.
versus
USHA VERMA & ANR ..... Defendants
Through: Mr. R.L. Bhatia, Advocate.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
IA No.8118/2013
1. This is an application filed by the defendant under Section 151 CPC for modification of the order dated 01.04.2013 with regard to restoration of issue No.6. The reply to the application has been filed.
2. I have heard the learned counsel for the parties and have gone through the record.
3. The plaintiff has filed a suit for possession and recovery of mesne profits/damages against defendant No.1/Smt.Usha Verma and her son Mr.Ajay Kumar Verma/defendant No.2.
4. The case which has been set up in the plaint is that the plaintiff is the owner of the property bearing No.D-13/4, Model Town, Delhi 110009 having purchased a plot of land from Sh.Jagdish Chander Chopra through a registered sale deed dated 04.10.1967. It was stated in the plaint that the plaintiff out of natural love and affection for his younger brother Sh.Gyan Prakash, who is the husband of defendant No.1 and father of defendant No.2, had also included his name as a co-owner in the sale deed when Sh.Gyan Prakash was a student. It has been alleged that the plaintiff constructed a building comprising of ground floor, first floor and a barsati floor and obtained electricity and water connections in his own name. The plaintiff after construction retained the ground floor of the suit property under his lock and key while as the first floor and the barsati floor was let out by the plaintiff exclusively for security of the house and the plaintiff recovered the rent from the tenants. It is further alleged that the parents of the plaintiff who were living at 92A, Kamla Nagar, Delhi were being pressurized by their landlord to vacate the tenanted premises and consequently the plaintiff allowed his parents and his younger brother Sh.Gyan Prakash to shift to the suit property as a gesture of good will without charging any licence fee. It has been stated that the plaintiff shifted to the first floor and the barsati subsequently while as the ground floor was given Sh.Gyan Prakash. It has been alleged that the parents of the plaintiff expired and so did his younger brother Sh.Gyan Prakash in the year 2000. It has been alleged that the defendants have no right, title or interest in the suit property and therefore, they must vacate the premises. The suit for possession in respect of the ground floor of the suit property which is under the occupation of the defendants, was accordingly filed.
5. The defendants have filed their written statement contesting the claim. It has been stated by them that the suit is barred by Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 inasmuch as Sh.Gyan Prakash, who is husband and father of defendant Nos.1 and 2 respectively, was the co-owner of the property as his name is recorded in the sale deed dated 04.10.1967. Apart from this, various other objections were taken. The court vide order dated 04.12.2010 framed six issues and one of the issues being issue No.6 was "Whether the suit is hit by Benami Transactions (Prohibition) Act, 1988?" The onus of the same was put on the defendant. So far as issue No.3 is concerned, the same was with regard to the pecuniary jurisdiction of the court to decide as to whether the court had the competence to entertain the said suit.
6. It may be pertinent here to mention that the suit at the relevant time was pending in the court of Addl.District and Sessions Judge and on 01.04.2013, nearly two and half years later, the counsel for the plaintiff appeared before the transferee court that is High Court and he made a statement that so far as issue of pecuniary jurisdiction of the court to try and decide the suit is concerned, that has become redundant and therefore be treated as deleted. With regard to issue no.6, which was regarding maintainability of the suit on account of the Benami Transactions (Prohibition) Act, 1988, the court deleted that issue. The counsel for the defendant did not object. The counsel for the defendant No.2 has now filed the present application contending that the said issue No.6 is the main issue which goes to the root of the matter and, therefore, the same may be restored. This has been contested by the learned counsel for the plaintiff on the ground that at the time when the suit property was purchased the father of defendant No.2, who happens to be the husband of defendant No.1, was a minor and a school going child with no independent income and, therefore, the said issue need not be revived.
7. There is no dispute about the fact that the sale deed of the suit property is jointly in the name of the plaintiff and his younger brother late Sh.Gyan Prakash. No doubt the percentage of ownership is not mentioned in the sale deed dated 04.10.1967, but in such a eventuality where the percentage of ownership is not mentioned both the plaintiff and his younger brother late Sh.Gyan Prakash will be the co-owners in equal proportion.
8. In the light of this, the question of maintainability of the suit in view of Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 is only a legal issue which ought not to have been deleted and in any case, the onus with regard to the proof of the said issue has been put on the defendant and therefore in my considered opinion no prejudice is going to be caused to the plaintiff in case the said issue is revived.
9. Apart from this, the issue of suit being hit by Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 is essentially an issue of law and even if the said has been deleted, there is no estoppel on the part of the counsel for the defendants in having the said issue revived. Thus in the totality of the circumstances, I feel that the application of the defendant/applicant be allowed and the issue no.(vi) pertaining to maintainability of the suit in the light of the bar of Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 deserves to be revived as was originally framed vide order dated 04.12.2010. Ordered accordingly. CS(OS) No.266/2012
1. The plaintiff is directed to file the list of witnesses and the evidence by way of affidavit, if not already done, within four weeks from today.
2. List before the Joint Registrar on 06.05.2014.
V.K. SHALI, J.
JANUARY 28, 2014/dm