Mr. B.S. Oberoi vs Sh. P.S. Oberoi & Others
2009 Latest Caselaw 4830 Del

*                   HIGH COURT OF DELHI : NEW DELHI

              Judgment reserved on : November 16, 2009
              Judgment delivered on : November 25, 2009

+                          F.A.O. (OS) No. 103/2009

%       Mr. B.S. Oberoi                            ...  Appellant
                   Through:       Mr. Aman Lekhi, Senior Advocate
                                  with Mr. Vinay Sharma, Advocate.

                                   versus

        Sh. P.S. Oberoi & Others               ...   Respondents
                   Through: Mr. Sudhir Nandrajog, Senior
                              Advocate with Mr. Jasmeet Singh,
                              Advocate for Respondent No. 1.
                              Mr. H.S. Phoolka, Senior Advocate
                              with Mr. Kaneer Faisal and Mr.
                              Sharat Kapoor, Advocates for
                              Respondent No. 2 and 4.
                              Mr. Tejas Karia and Ms. Nisha,
                              Advocates for Respondent No. 9 to
                              12.

CORAM:

HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MR. JUSTICE SUNIL GAUR

1.      Whether the Reporters of local
        papers may be allowed to see
        the judgment?

2.      To be referred to Reporter or not?

3.      Whether the judgment should be
        reported in the Digest?

SUNIL GAUR, J.

1. Appellant is the Plaintiff, who is challenging order of 5th

February, 2009 of the learned Single Judge, directing the

Appellant to pay court fee on his share in the suit property in a F.A.O. (OS) No. 103/2009 Page 1 partition suit, as the Appellant is said to be in symbolic possession

of the suit property. Appellant claims that the aforesaid order of the

learned Single Judge, impugned in this appeal, also requires that

the plaint be amended by the Appellant to seek cancellation of the

Sale Deed.

2. The impugned order is an outcome of the hearing by the

learned Single Judge on the question of the maintainability of the

suit and he has found Appellant's suit to be very much

maintainable. Cross objections to the maintainability of the suit

were preferred in this appeal by the Respondents, which, vide

order of April 13, 2009 stand disposed of, by observing that

summons of the suit have not yet been issued to the Respondents

and therefore, it would be always open to the Respondents as

Defendants to raise all the objections in respect of maintainability

of the suit by filing an appropriate application before the learned

Single Judge.

3. Learned senior counsels for the parties were heard at length

by us. Learned senior counsel appearing for the Appellant had

stated, during the course of the arguments, that without prejudice

to his rights, the Appellant is ready to pay the court fees, as

directed by the learned Single Judge in the impugned order. On

this, learned senior counsel appearing for the Respondent

F.A.O. (OS) No. 103/2009 Page 2 asserted that the valuation of the suit property is much higher than

the one reflected in the impugned order.

4. In view of the aforesaid stand taken by learned senior

counsel for the Appellant, we need not to dwell upon this aspect

any further as it would be open to the Respondents to claim an

issue at the appropriate stage regarding the valuation of the suit

property.

5. It has not been disputed before us that one of the reliefs

sought by the Appellant in his suit is of declaration of the alleged

Agreement to Sell of June 2, 2006 being null and void and not

binding upon the Appellant/Plaintiff. It is also not in dispute and it

stands reflected in the impugned order that the Sale Deed in

pursuance to the aforesaid Agreement to Sell has been executed.

In this context, learned Single Judge in the impugned order has

noted as under:-

"Thus, this relief has become infructuous and in case, Plaintiff intends to proceed with the cancellation of the Sale Deed, he will have to amend the suit and pay the court fees at the entire value of the property involved in the Sale Deed. Plaintiff accordingly is given liberty to amend the suit and properly value the suit and pay the court fees within four weeks from today. "

F.A.O. (OS) No. 103/2009 Page 3

6. Learned senior counsel for Respondents rightly contends

that the aforesaid concluding paragraph of the impugned order is

not a positive direction to the Appellant/Plaintiff to amend his suit

and if Appellant wants to continue with his suit, without amending

it, he can do so, as other reliefs are also claimed by the Appellant

in his plaint.

7. In view of the foregoing narration, impugned order cannot be

faulted with. Appellant is granted four weeks to pay the court fees

in terms of the impugned order and to correspondingly amend the

plaint with regard to court fees within the above said time frame.

8. This appeal is disposed of in the above terms.

Sunil Gaur, J.

Vikramajit Sen, J.

November 25, 2009
pkb /n




F.A.O. (OS) No. 103/2009                                              Page 4