Sh. Sewa Singh vs Smt. Satnam Kaur & Ors.
2009 Latest Caselaw 2422 Del

*          HIGH COURT OF DELHI: NEW DELHI

+            IA No.11060/2008 in CS (OS) No.671/2004

%                     Judgment reserved on:           28th April, 2009

                      Judgment pronounced on:          2nd July, 2009

SH. SEWA SINGH                                     ..... Plaintiff
                      Through: Mr. K.R. Gupta, Adv. with Ms. Kiran
                               Dharam, Adv.

                      Versus

SMT. SATNAM KAUR & ORS.                      ..... Defendants
               Through: Mr. S.K. Dubey, Adv. with Mr. Amit
                        Bhatia Adv. for Def Nos. 1 to 3
                        Mr. Ajay Verma, Adv. for DDA

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                               No

2. To be referred to Reporter or not?                            No

3. Whether the judgment should be reported                       No
   in the Digest?

MANMOHAN SINGH, J.

1. By this order, I propose to dispose of I.A No.11060/2008

filed by the defendant no.1 under Order 14 Rule 5 read with Section 151

CPC praying therein that Issue nos.7 and 8 may be treated as

preliminary issues.

2 Originally the suit has been filed by the plaintiff for

declaration and injunction in respect of property bearing No.J-41, Saket

[Malviya Nagar Extension], New Delhi. As per the plaint, this property

was purchased by the plaintiff out of his own funds and he is the owner

of the said property, therefore, the plaintiff has filed the present suit

seeking a declaration that he is the owner of the property in question.

3. The defendant no.1 is the wife of the plaintiff and defendant

nos.2 and 3 are his daughter and son respectively. The contention of the

defendants in the written statement is that the property stands in the

name of the defendant no.1 and even the mutation has been done saying

that the defendant no.1 is the recorded owner of the same. It is also

contended by the defendant no.1 that the property was actually

purchased by the defendant no.1 out of the sale of her jewellery and

other sources and the same entirely belongs to the defendant no.1

therefore, the suit is not maintainable in view of Section 4 of the Benami

Transactions [Prohibition] Act, 1988. Prior to filing of the present

application, the defendant no.1 earlier filed the application under Order

7 Rule 11 CPC being IA no.890/2005 for dismissal of the suit on the

very same ground and the said application was dismissed vide order

dated 27.02.2006. Learned Judge while dismissing the said application

referred to a decision of the Supreme Court in Nand Kishore V/s.

Sushila, AIR 1995 SC 2145. The defendant no.1 thereafter filed an

appeal against the said order before the Division Bench of this Court

being FAO [OS] no.688/2006 and the said appeal was disposed of vide

order dated 10.01.2008 with the following observation :-

"Since an issue is raised by the appellant as to whether or not the suit itself is maintainable in view of the provisions of Sections 3 and 4 of the Benami Transactions [Prohibition] Act, 1988, an issue to this effect shall be framed by the learned Single Judge and

decided in accordance with law as expeditiously as possible. We also observe that whatever opinion and views are expressed by the learned Single Judge in the impugned order dated 27th February, 2006 shall be considered only as prima facie conclusions and views, which shall have no bearing at the time of deciding the issue by the learned Single Judge."

4. In view of the order passed in the appeal on 10.01.2008, the

issues in the matter were framed on 16.05.2008 including the following

two issues as directed by the Division Bench :-

"[vii] Whether the suit is barred by Section 14 of the Hindu Succession Act, 1956? OPD.

[viii] Whether the suit is barred by Section 4 of the Benami Transactions [Prohibition] Act, 1988? OPD"

5. After framing of the issues, the present application has been

filed by the defendant no.1 that since it is mentioned in the order passed

by the Division Bench that the issues in this regard shall be framed and

decided as expeditiously as possible, it makes clear that issue on

maintainability of the suit may be treated as Preliminary Issue and

should be decided separately of the other issues. In view of the

aforesaid statement, the present application has been filed by the

defendant no.1.

6. On the other hand, the plaintiff has filed the reply to this

application contending that the suit is not barred by the provisions of

Benami Transactions [Prohibition] Act, 1988 and the order of the

learned Single Judge has been confirmed in appeal, therefore even if the

said issues are to be treated as preliminary issues, the result after the

hearing would be the same. It is stated that in order to decide the issues

in question, is required for the proper decision. It is denied that the

suit is barred by Section 14 of the Hindu Succession Act, 1956. Learned

counsel for the plaintiff has also argued that while going through the

order passed by the Division Bench in FAO [OS] no.688/2006 passed

on 10.01.2008, nowhere any directions were issued that the issues

framed by the court in this regard would be treated as preliminary

issues, except that it is mentioned that the learned Single Judge would

frame the issues and those would be decided in accordance with law as

expeditiously as possible. Learned counsel for the plaintiff further

submits that the plaintiff has no objection if the trial of the suit is

expedited.

7. I have considered the rival submissions of both the parties

and I agree with the submissions made by the learned counsel for the

plaintiff as it is a matter of fact that vide order dated 27.02.2006 passed

in the application filed by the defendant no.1 under Order 7 Rule 11

CPC, the court has already given its findings that the suit is not barred

by the provisions of Benami Transactions [Prohibition] Act, 1988 and

the said order has not been set aside in appeal. Therefore, whether the

said issue nos.7 and 8 are to be treated as preliminary issues or not,

prima facie finding in this regard was already made in the order dated

27.02.2006. Therefore, the present application of the defendant no.1

cannot be accepted except that the trial of the suit is expedited.

8. The matter is already listed on 16.07.2009 for

admission/denial of additional documents, if filed by the parties. The

issues in this matter have already been framed. Although, the direction

for evidence was issued vide order dated 16.05.2008 and the plaintiff's

application for amendment of the plaint has already been allowed vide

order dated 28.04.2009, the plaintiff is directed to file his affidavit by

way of evidence within six weeks with advance copy to the other side.

Both the parties shall ensure to complete the admission/denial of

documents on the date already fixed i.e. 16.07.2009.

9. The matter shall now be listed for cross-examination of

plaintiff's witnesses on 10.09.2009.

10. The present application is accordingly disposed of.

MANMOHAN SINGH, J JULY 02, 2009 SD