Delhi High Court
Sital Dass Jain And Another vs Sushma Jain And Others on 8 July, 2011
Author: J.R. Midha
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1014/2008
Reserved on : 6th May, 2011
% Date of Decision: 8th July, 2011
SITAL DASS JAIN AND ANOTHER ..... Plaintiffs
Through : Mr. Pawan Mathur, Adv. with
Mr. Sital Dass Jain and
Ms. Swaran Kanta Jain
versus
SUSHMA JAIN AND OTHERS ..... Defendants
Through : Mr. Subhash Bansal, Adv.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may NO
be allowed to see the Judgment?
2. To be referred to the Reporter or not? NO
3. Whether the judgment should be NO
reported in the Digest?
JUDGMENT
I.A.No.5115/2011
1. The defendants have filed this application for
amendment of the issues under Order XIV Rule 5 of the
Code of Civil Procedure. The plaintiffs have filed the reply
to the application.
2. The plaintiffs have filed this suit for possession,
mesne profits and permanent injunction in respect of the
property bearing No.49 Hanuman Road, Connaught Place,
New Delhi.
3. The plaintiffs are the parents of defendant No.1.
Defendants No.2 to 5 are the husband and children of
defendant No.1.
4. The defendants have filed this application seeking
additional issues inter alia whether the suit property was
purchased by the plaintiffs out of the self-acquired fund
and whether defendant No.1 is a coparcener in the suit
property.
5. Vide order dated 12th September, 2008, this Court
observed that the defence of defendant No.1 in the written
statement that the suit property was a HUF property was
ambiguous and, therefore, defendant No.1 was examined
on oath under Order X of the Code of Civil Procedure
before framing of issues on 15th December, 2008. After
recording the statement of defendant No.1, this Court
observed that from the statement of defendant No.1, the
only defence of the defendants to the plaintiffs claim for
possession and mesne profits that the suit property was
ancestral and HUF property does not appear to have been
made out. It was further held that the defendants
otherwise have no claim to the suit property, title whereof
is admittedly in the name of the plaintiff. This Court
thereafter framed the issues on 15th December, 2008.
Issue No.1 was treated as a preliminary issue. This Court
further observed that no other issue arises or is pressed.
6. Vide order dated 28th October, 2010, this Court
directed the defendants to first lead the evidence as the
onus of preliminary issue No.1 was on the defendants.
The case is pending at the stage of cross-examination of
defendant No.1.
7. This Court framed the issues on 15th December, 2008
after recording the statement of defendant No.1 under
Order X of the Code of Civil Procedure and holding that the
only defence of the defendants that the suit property was
ancestral and HUF does not appear to be made out. This
Court has framed a comprehensive issue as to whether the
defence of the defendants coupled with the statement of
defendant No.1 recorded under Order X of the Code of
Civil Procedure discloses any right, title or interest of
defendant No.1 in the suit property.
8. The aforesaid order dated 15th December, 2008 has
attained finality having not been challenged by any of the
parties.
9. This Court is of the opinion that no additional issue
arises in this matter in view of the findings of this Court
recorded in the order dated 15th December, 2008 and the
statement of defendant No.1 recorded by this Court on
15th December, 2008.
10. There is no merit in the application which has been
filed just to delay and defeat the trial. In the facts and
circumstances of this case, the application is dismissed
with cost of Rs.10,000/- to be paid by defendant No.1 to
the plaintiff within a period of two weeks.
J.R. MIDHA, J.
JULY 08, 2011
