Delhi High Court
Sikha Properties Pvt. Ltd. vs S.D. Adlakha Trust And Anr. on 15 November, 2002
Equivalent citations: 101 (2002) DLT 478, 2003 (66) DRJ 117
Author: S Mukerjee
Bench: S Mukerjee
JUDGMENT
S. Mukerjee, J.
IA No. 99/2001
1. This application has been filed by the
plaintiff for treating issues No. 2, 3, 4 and 5 as
preliminary issues. At the outset when the learned
counsel started their submissions in the matter, it
was agreed by both counsel, that issue No. 4 no
longer survives for consideration and that neither
of the parties is pressing for this issue to be
decided.
2. The objections of the learned counsel for
the defendant, is primarily on the point that in
this case the issues were framed as far back as on
12th March, 1999 where after even dates of trial were
fixed for 12th and 13th December, 2000, and that
even though trial could not commence,yet this
request has come at a belated stage.
3. Learned counsel for the defendant also
refers to the dismissal as withdrawn of another
application filed by the plaintiff, for framing of
additional issues. He submits that after the case
has been posted for trial and regardless of whether
the trial has actually started or not, it is no
longer open to the plaintiff to ask for issue Nos.
2, 3, 4 and 5 to be treated as preliminary issues.
4. On the other hand reliance is placed by
learned counsel for the plaintiff upon the judgment
of the Apex Court in the case titled Mool Chand
Bakhru and Anr. v. Rohan and Ors., 2002 I AD (SC)
399, where it has been held that for applicability
of the equitable doctrine of part performance, the
existence of written agreement is sine-qua-non.
Learned counsel for the plaintiff has drawn my
attention to the stand of the defendant, in the
present case, that the lease deed in it's favor,
should be treated to be an agreement to sell, on the
basis of certain unwritten and oral understandings/deals
constituting the real "agreement" between the
parties.
5. Reliance has also been placed by the plaintiff
on the decision of the Supreme Court in Tamil Nadu
Electricity Board and Anr. v. N. Raju Reddiar and
Anr. 1996 IV AD SC 393 where it has been
categorically held that oral evidence is of no value
in interpretation of a written document, so long as
the writing is clear and unambiguous.
6. At this stage I am not called upon to
pronounce on the merits of the contentions of the
parties regarding these issues. However in view of
the reliance placed by the learned counsel for the
plaintiff upon the above said two authoritative
pronouncements of the Apex Court, I consider it
appropriate to direct that the issues No. 2, 3, 4
and 5 be treated as preliminary issues and the
matter be posted for arguments on the said issues.
7. During the course of the arguments it
will be open to the defendant to submit on the basis
of established Law, that any part of the decision on
these issues, requires oral evidence to be adduced
whereupon it can always be directed that the said
issues or issues, will be deferred and taken up
during the course of the trial Along with the other
such issues, depending on the situation which
ultimately emerges upon the hearing of these issues
as preliminary issues.
8. In the face of the two authoritative
pronouncements relied upon by the plaintiff, and the
over all interest and benefit of all concerned in
the earliest adjudication of the matter, I do not
find that the circumstances emphasized by the
learned counsel for the defendant viz the fixing of
date of trial or the fact of the fact of another
withdrawal of application for additional issues by
the plaintiff, would stand in the way of these
issues being treated to be preliminary issues.
9. With these observations IA No. 99/01 is
allowed to the extent that issues No. 2, 3, 4 and 5
shall be treated as preliminary issues. List for
arguments on these issues on 24.2.2002.
