J.D. Jain & Ors. vs M/S. Sharma Associates & Ors.
2012 Latest Caselaw 4026 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Decision: July 10, 2012

+                        RFA(OS) 57/2010

       J.D. JAIN & ORS.                            ..... Appellants
              Represented by: Mr.Sudhanshu Batra, Sr. Advocate
                              instructed by Mr.D.R.Bhatia and
                              Mr.Kapil Kher, Advocates.

                                versus

       M/S. SHARMA ASSOCIATES & ORS.              ....Respondents
            Represented by: None.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE MANMOHAN SINGH


PRADEEP NANDRAJOG, J. (Oral)

1. Learned counsel for the appellants urges that the observations and findings of the learned Single Judge in para 18 of the impugned judgment dated February 02, 2012 proceeds on an erroneous assumption; as if the suit filed by the appellant was seeking a decree for possession. Learned counsel urges that the relief prayed in the suit was to cancel the partnership deed dated November 18, 1987; to declare that under the said deed no rights were conferred upon defendant No.1 i.e. M/s.Sharma Associates, the stated partnership firm; and lastly, it be declared that the plaintiffs are in possession of the land comprised in Khasra No.597 and Khasra No.600 situated in the revenue estate of village Devli; requiring SHO of the concerned police station to deliver possession of the property to the plaintiffs and as a

consequence thereof, to restrain the defendants to create third party interest in the property.

2. However, learned counsel concedes that in view of the fact that the instant suit was the fourth, in succession, being litigated with respect to the suit property, in full or in part, the property remedy for the appellants would be to seek amendment in Suit No.194/1988 filed by three of the plaintiffs as also to file an application under Order 1 Rule 10 CPC for impleadment of the remaining plaintiffs as plaintiff in the said suit; the amendment being sought to include claim and hence a decree in the said suit pertaining to land comprised in Khasra No.600 as well inasmuch as claim in said suit is restricted to only land comprised in Khasra No.597.

3. To appreciate the backdrop facts under which aforesaid submission has been made, it needs to be highlighted that the appellants represent one family i.e. J.D.Jain, his five sons and three daughters, claiming to be the owner of 8 bigha and 11 biswa land comprised in Khasra No.597 and Khasra No.600 in the revenue estate of village Devli.

4. Defendant No.1, a stated partnership firm, had filed Suit No.384/1988, in which it was alleged that J.D.Jain, his two sons Raj Kumar and Pawan Kumar and one Mrs.Mithilesh Jain W/o V.K.Jain had entered into a partnership with one Kumari Kusum Sharma as per Deed of Partnership dated November 18, 1987. It was pleaded in the said suit that as per the partnership deed the partnership was authorized to sell a part of land comprised in Khasra No.600 to one Manoj Kumar. It was pleaded that Satya Prakash Goel, impleaded as defendant No.1 in said suit was trying to interfere with the partnership's

possession in the land comprised in Khasra No.597 and Khasra No.600 and thus a decree to permanently restrain defendant No.1 from interfering in the possession was prayed for.

5. It is apparent that J.D.Jain, Raj Kumar Jain and Pawan Kumar Jain, impleaded as defendants No.2 to 4 in said suit were made aware of a claim of a partnership deed as afore-noted, when they received summons in Suit No.384/1988.

6. J.D.Jain, Pawan Kumar and Raj Kumar retaliated by filing a suit for permanent injunction which was registered as Suit No.194/1988 in which they impleaded Manoj Kumar, P.P.Sharma, Suraj Mal and the unregistered partnership firm M/s.Sharma Associates as defendants. A decree of permanent injunction was prayed for, but limited to the land comprised in Khasra No.597 and relevant would it be for us to highlight that pertaining to the partnership dated November 18, 1987, and on which the unregistered partnership firm was relying as per its pleadings in Suit No.384/1988, in para 10 of the plaint filed by J.D.Jain, Pawan Kumar and Raj Kumar it was pleaded as under:-

"10. That now it has been represented to the plaintiffs by the defendant No.4 that defendant No.1 entered into an agreement cum partnership with them on 18.11.1987. The terms and conditions of the said agreement cum partnership deed were neither delivered nor divulged nor made known to the plaintiffs so far, as such the plaintiffs are not in a position to say anything about the exact return of dealing between the defendant No.1 and defendant No.4"

7. It only needs to be highlighted that as far back as the year 1988, J.D.Jain and his two sons Raj Kumar and Pawan Kumar, were aware of M/s.Sharma Associates, the stated

partnership firm, staking a claim to the subject property and they being aware of they being required to question the deed of partnership, if they had an issue therewith.

8. A third suit registered as Suit No.75/2000 was filed by the un-registered partnership firm, M/s.Sharma Associates, in which Satya Prakash Goel was impleaded as defendant No.1, J.D.Jain and his two sons Raj Kumar and Pawan Kumar as defendants No.2, 3 and 4 respectively. Mrs.Mithilesh Jain was impleaded as defendant No.5. The unregistered partnership firm staked a claim under partnership deed dated 18.11.1987. It claimed a decree for permanent injunction with respect to the land comprised in Khasra No.597 and Khasra No.600 against defendant No.6.

9. The fourth in succession was the instant suit, out of which the instant appeal arises. Relief claimed wherein have already been extracted by us in para 1 above.

10. View taken by the learned Single Judge is that, limitation to seek declaration with respect to a document is three years when cause of action accrues. On the assumption that relief of possession was claimed, the learned Single Judge has opined that cause of action would accrue in the year 1988 when the first suit i.e. Suit No.384/1988 was instituted by the partnership firm, alleging to be in possession.

11. What appears to have escaped the notice of the learned Single Judge is the fact that the multifarious litigation in which the parties got embroiled, led them to riotous situation, resulting in proceedings being initiated under Section 145 Cr.P.C. The subject property i.e. lands comprised in Khasra Nos.597 and 600 went under the receivership of the SHO of the concerned Police Station, which situation continues

to enure even today. In any case, when the instant suit was filed the property was in possession of the SHO concerned under orders of a Court.

12. We are informed by learned counsel for the appellant that Suit No.384/1988, Suit No.194/1988 and Suit No.75/2000 are still pending. The subject matter of Suit No.194/1988, filed by J.D.Jain, Pawan Kumar and Raj Kumar is land comprised in Khasra No.597, but a meaningful reading of the averments made in the plaint would reveal that J.D.Jain, Pawan Kumar and Raj Kumar are staking ownership rights with respect to lands comprised in Khasra No.600 as well; to which reference has been made in para 8 of the plaint while questioning Manoj Kumar's claim to a part of the suit property. There are pleadings to the effect that since Manoj Kumar failed to comply with his obligations under an agreement to sell dated January 19, 1987, his rights stood forfeited. It is asserted in the said plaint that the stated partnership firm M/s.Sharma Associates cannot stake a claim to the lands owned by J.D.Jain, Pawan Kumar and Raj Kumar. The suit filed by the partnership firm i.e. Suit No.384/1988 has been debunked as a frivolous suit.

13. With the Courts facing docket explosion, and this Court being a Court of Record, cannot permit its processes to be abused. What we intend to convey is that parties must be relegated to litigate in one suit with respect to all reliefs which flow out of a particular cause of action and not file suit after suit with respect to a cause of action in relation to different reliefs which may flow. The provisions of Order 2 of the Code of Civil Procedure are aimed at compelling parties to exhaust all remedies pertaining to a cause of action in one suit. Even

otherwise, it is desirable for the parties, as also the society that multifarious litigation is avoided.

14. Noting the facts aforesaid, it is apparent that as regards observations and the findings returned by the learned Single Judge in para 18 of the impugned decision, the same are premised on an erroneous assumption that a relief for possession is claimed in the instant suit; but, that would not make any difference to the end result of the plaint being held to be not maintainable in view of the fact that previously instituted suits on the same subject are pending in which three of the instant plaintiffs, as plaintiffs in a suit have raised the same issue as has been raised in the instant suit and by way of written statements in two suits have questioned the rival claim projected under the deed of partnership dated 18.11.1987. Suffice would it be to state that appropriate issues would be settled in said suits with respect to the deed of partnership dated 18.11.1987.

15. With respect to the inappropriate relief prayed for in Suit No.194/1988 and all parties impleaded as plaintiffs, learned counsel for the appellant has rightly conceded that the remedy would be to amend the plaint registered as Suit No.194/1988 and join as plaintiffs or proforma defendants other family members of J.D.Jain and for which an application under Order 1 Rule 10 read with Order 6 Rule 17 CPC can be filed, in which application subsequent events which have transpired after said suit was filed i.e. possession of the property being with the SHO of the concerned police station can be disclosed.

16. Declaring observations made and findings returned by the learned Single Judge in para 18 of the impugned

decision to be premised on a wrong presumption i.e. as if instant suit claimed relief of possession, noting that no such relief was claimed; we declare the observations and findings returned in para 18 of the impugned decision as being set aside.

17. At this stage learned counsel for the appellant states that vide order dated July 11, 2011, statement of learned counsel for the respondent was noted that the respondent would not transfer the suit property. The said statement was re-noted in order dated July 15, 2010.

18. Since the appeal stands disposed of we direct that for a period of 6 weeks from today the respondent would not transfer or create any third party rights in lands comprised in Khasra No.597 and Khasra No.600 in the revenue estate of village Devli; the appellants are advised to move an application in Suit No.194/1988 seeking interim orders during the pendency of the said suit.

19. The appeal stands disposed of without there being any order as to costs.

(PRADEEP NANDRAJOG) JUDGE

(MANMOHAN SINGH) JUDGE JULY 10, 2012 dk