Delhi High Court
K S Bakshi vs P M Mathrani on 4 December, 2012
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS)Nos. 225/1998, 226/1998, 227/1998, 228/1998 &
229/1998
% December 04, 2012
+ CS(OS) 225/1998
K S BAKSHI ..... Plaintiff
Through: Mr. Anil Airi, Ms. Bindiya L.Airi and
Mr. Pratyush Sharma, Advs.
Versus
P M MATHRANI ..... Defendant
Through: Mr. Yakesh Anand, Mr. Murari
Kumar and Mr. Nimit Mathur, Advs.
for defendant No.2.
+ CS(OS) 226/1998
S S BAKSHI ..... Plaintiff
Through: Mr. Anil Airi, Ms. Bindiya L.Airi and
Mr. Pratyush Sharma, Advs.
versus
P M MATHRANI ..... Defendant
Through: Mr. Yakesh Anand, Mr. Murari
Kumar and Mr. Nimit Mathur, Advs.
for defendant No.2.
CS(OS)Nos.225/98, 226/98, 227/98, 228/98 & 229/98 Page 1 of 9
+ CS(OS) 227/1998
S S BAKSHI ..... Plaintiff
Through: Mr. Anil Airi, Ms. Bindiya L.Airi and
Mr. Pratyush Sharma, Advs.
Versus
P M MATHRANI ..... Defendant
Through: Mr. Yakesh Anand, Mr. Murari
Kumar and Mr. Nimit Mathur, Advs.
for defendant No.2.
+ CS(OS) 228/1998
SANJIT BAKSHI ..... Plaintiff
Through: Mr. Anil Airi, Ms. Bindiya L.Airi and
Mr. Pratyush Sharma, Advs.
Versus
P M MATHRANI ..... Defendant
Through: Mr. Yakesh Anand, Mr. Murari
Kumar and Mr. Nimit Mathur, Advs.
for defendant No.2.
+ CS(OS) 229/1998
MINU BAKSHI ..... Plaintiff
Through: Mr. Anil Airi, Ms. Bindiya L.Airi and
Mr. Pratyush Sharma, Advs.
Versus
CS(OS)Nos.225/98, 226/98, 227/98, 228/98 & 229/98 Page 2 of 9
P M MATHRANI ..... Defendant
Through: Mr. Yakesh Anand, Mr. Murari
Kumar and Mr. Nimit Mathur, Advs.
for defendant No.2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1.
These are 5 suits filed for specific performance by five
plaintiffs/prospective purchasers who had entered into five agreements to
sell with respect to the share of the defendant No.1/Shri P.M. Mathrani in
the property 9, Kautilya Marg, Diplomatic Enclave, New Delhi. Originally
the sister of the defendant No.1 Smt. Sarla Mishra was not a party, however,
subsequently the defendant No.2 was made a party on her application
because her case was that the defendant No.1(brother of the defendant
No.2), could not sell his share in the property 9, Kautilya Marg, Diplomatic
Enclave, New Delhi to the plaintiffs inasmuch as partition of the property
had not taken place.
2. In the present suits for specific performance, the other co-owners of
the property 9, Kautilya Marg, Diplomatic Enclave, New Delhi are not
parties. All the co-owners of the suit property are however parties in CS
(OS) 1370/2005 titled as 'Sarla Mishra v. P.M. Mathrani and others', and
in which suit issues have already been framed, evidence has commenced as
the plaintiff in the other suit (and who is the defendant No.2 herein) has filed
affidavits by way of evidence, and the case is to be fixed for cross-
examination of the witnesses.
3. Whereas the plaintiffs in the present suits for specific performance
claim that there already existed a partition between co-owners of the suit
property prior to entering into of their agreements to sell, and therefore, the
agreements to sell are valid, the defendant No.2 however claims that there
did not take place partition of the suit property and therefore, agreements to
sell could not have been entered into by the co-owner/defendant No.1 with
the plaintiffs. Only on the plaintiffs in the present suit succeeding in proving
the principal issue of an existing partition prior to the entering into of the
agreements to sell, the suits can be decreed. I note that there are no disputes
between the plaintiffs and defendant no.1 (now represented by his LRs) as
the defendant no.1 admits that the suits for specific performance be decreed.
The only dispute requiring decisions in the present suits for specific
performance, is of whether there did or did not take place a partition of the
suit property before the agreements to sell were entered into.
4. The following issues have been framed in the other suit CS (OS)
1370/2005 on 16.09.2009:-
1. Whether the suit property is a dwelling house in joint individual
ownership? OPP
2.
Whether the judgment and decree dated 27th march, 1970 was a
preliminary or a final decree? OPD
3. Whether the suit property has been partitioned by metes and bounds,
if so, its effect? OPD
4. Whether the suit property, being leasehold, can be transferred and sold
without proper sanction/permission of L&DO being the competent
authority? OPD
5. Whether the Defendant No.1 can claim or sell any portion of the suit
property as his own till such time actual physical partition/division of
shares/portions of the house has taken place? OPD
6. Effect of probate issued by the court in Test Case.M.A.390/2006 on
16.10.06 by Civil Judge, Pune. OPD
7. Whether the purported agreements to sell dated 26.3.1996 are
violative of the mandatory provision of Chapter XXC of the Income
Tax Act & are also void, against public policy in terms of Section 23
of the Contract Act? OPD
8. Whether the agreement to sell dated 26.03.1996 are illegal, invalid,
not enforceable and liable to be declared as void; OPD
9. Relief.
Issue No.2 I am informed was re-casted on 22.01.2010.
5. The plaintiffs in the present suits (and who are also appearing as a
successors in interest of the defendant No.1 in the other suit) are defendant
Nos.5 to 9 in the other suit CS (OS) 1370/2005.
6. It is settled law that there should not be concurrent trials in two suits
on the same issue inasmuch as it leads to wastage of time, money and energy
of the parties, besides the fact that there is also wastage of judicial time and
chances of conflicting decision in two separate matters where the issue is
common.
7. I have repeatedly put to counsel for the defendant No.2 that in one suit
this issue has to be decided that whether or not there was an inter se partition
between the co-owners of the suit property for the defendant No.1 to have
validly entered into agreements to sell with the present plaintiffs. This issue
can be decided in the present suits or in CS(OS) 1370/2005. As I have
already stated above the other co-owners are not parties to the present suits
seeking specific performance of the agreements to sell. Counsel for
defendant No.2 however, in my opinion, without basis and unreasonably,
keeps on repeatedly insisting that not only CS(OS) 1370/2005 even these
present suits must continue and the trial must take place in these suits. I have
failed to understand this attitude inasmuch as surely the plaintiffs in the
present suit can only succeed if there was an existing partition between the
co-owners, and which issue may be decided in the present suits but more
appropriately in the suit being CS (OS) 1370/2005 which is a suit between
all the co-owners. The insistence of trial taking place not only in the
present suits but also in CS (OS) 1370/2005 with respect to partition having
taken place inter se the co-owners before the agreements to sell were entered
into by the defendant No.1 in the present suit, is an argument which is
difficult to understand because as already stated two trials concurrently on
same issue should not take place.
8. Accordingly, in view of the fact that the principal issue and the crux
of the matter as to whether or not the agreements to sell were entered into
with the present plaintiffs after a partition was effected between the co-
owners of the suit property is an issue at large in CS (OS) 1370/2005
between the co-owners, and therefore it is appropriate, as prayed for by the
counsel for the plaintiffs, that the present suits are adjourned sine die with
liberty to revive these suits on the final decision being passed pertaining to
the issues which are subject matter of CS (OS) 1370/2005, and more
specifically the issue as to whether or not there existed a partition among co-
sharers of the suit property before the defendant No.1 has agreed to sell his
share. I note that the counsel for the plaintiffs agrees that the decision in
CS(OS) No.1370/2005 will operate as a res-judicata in the present suits.
9. Counsel for the defendant No.2 at this stage says that there is an order
which has passed by the Supreme Court for disposal of the present suits
within six months, and therefore, these suits should not be adjourned sine
die. Prima facie there seemed to be merit in the submission, however, the
issue of early disposal actually would only have arisen if the present suits
were at a more advanced stage than the proceedings which are taking place
in CS (OS) 1370/2005. In the present suit the issues however have yet to be
framed, whereas trial has already commenced in CS(OS) No.1370/2005.
Therefore, considering the fact that the decision in the suit CS (OS)
1370/2005 will in fact operate as a res judicata in the present suits, the
defendant No.2 should bring the notice of the order of the Supreme Court
dated 27.07.2012 in SLP (Civil) 20646/2012 in CS(OS) 1370/2005 as the
counsel for the present plaintiffs agree that the said CS(OS) No.1370/2005
can be disposed of expeditiously in terms of the order of the Supreme Court
for early decision.
10. The present suits are thus disposed of for the present with liberty to
seek revival of the same (if so required) on the decision in CS(OS)
No.1370/2005.
IA No. 20604/2012 in CS (OS) 225/1998
11. This application had sought the relief of adjournment of the suit sine
die till the disposal of suit being CS (OS) 1370/2005. This application will
stand disposed of in terms of the observations made above.
VALMIKI J. MEHTA, J
DECEMBER 04, 2012
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