Harmeet Singh vs Dalip Singh & Ors
2012 Latest Caselaw 3311 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                   Date of Judgment:17.05.2012

+     CM(M) 1570/2007 & CM No.4748/2012

      HARMEET SINGH                               ..... Petitioner
                  Through            Petitioner with his counsel Mr.
                                     Rajesh Srivastava, Adv.
                       versus

      DALIP SINGH & ORS.                    ..... Respondents
                    Through          Mr R.S. Sahni, Adv.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1 Impugned order is dated 14.08.2006. The application filed by the

respondent Dalip Singh under Section 151 of the Code of Civil

Procedure (hereinafter referred to as the 'Code') had been allowed;

correspondingly the application filed by the petitioner under Order IX

Rule 8 of the Code was dismissed; the Court was of the view that the

suit has become infructuous.

2 This is an unfortunate dispute between a son and a father. Record

shows that the plaintiff Harmit Singh had filed a suit for partition

against his father; contention was that the suit property bearing No.

2429, Tilak Street, Paharganj, New Delhi is co-owned by him;

accordingly suit was filed. In the course of the proceedings, an

application under Order 23 Rule 1 of the Code was filed; this was on

19.08.1998. This application was pending when on behalf of the

plaintiff a statement was made by his counsel Mr. P.K. Bhardwaj dated

27.08.1998 seeking permission of the Court to withdraw the suit which

permission was granted to him and the suit had accordingly been

withdrawn.

3 Contention of the plaintiff is that this authority was not vested in

the Advocate Mr P.K. Bhardwaj to withdraw the suit on 27.08.1998 and

he had committed a wrong; accordingly the present application had been

filed by him under Order IX Rule 8 of the Code seeking a restoration of

the suit. This application has been disposed of by the impugned order;

the second application filed by the defendant during the pendency of the

suit which was an application under Section 151 of the Code averring

that the suit has become infructuous had been allowed.

4 Record shows that an earlier suit i.e. Civil Suit No. 581/1990 had

been filed by the father namely Dalip Singh which was a suit for

possession which suit had been decreed on 06.03.2000 by the then Civil

Judge Mr. S.S. Rathi. The first appeal filed against this judgment and

decree was dismissed on 11.07.2001; this was in proceedings i.e. RCA

No. 7/2000. The second appeal filed against the said judgment and

decree dated 11.07.2001 was dismissed by the second appellate Court on

04.05.2006. SLP was also dismissed on 10.07.2006. Relevant would it

be to state that this was a suit for possession of one room in a part of the

property No. 2429, Tilak Street, Paharganj, New Delhi; the present suit

which has been filed by Harmit Singh (Son) was also a suit for partition

qua another room of the same property i.e. property bearing No. 2429,

Tilak Street, Paharganj.

5 As noted supra, suit No. 581/1990 had been disposed of on

06.03.2000. The categorical finding returned in this suit is that the

subject matter of the suit property is not co-owned by Harmit Singh as is

his contention vehemently argued even today. In fact the whole case of

the petitioner is that his suit which he had filed for partition which had

been withdrawn on 27.08.1998 was unauthorisedly withdrawn;

submission is that the property is co-owned by him.

6 At the cost of repetition, the facts as noted supra have recorded a

categorical finding on 06.03.2000 (in suit No. 581/1990) that this

property is not co-owned by Harmit Singh/son as is his contention and

this fact in issue has been up-held right up to the Apex Court who had

dismissed the SLP on 10.07.2006. The contention of the petitioner

before this Court is that in the first appellate Court i.e. before the Court

of M.s Aruna Suresh, a compromise had been entered into between the

parties which is dated 03.10.1998 and 26.10.1998 an in terms of that

compromise, the father and the son had arrived at an understanding

wherein the petitioner Harmit Singh was entitled to a share in the suit

property. Both the first appellate Court on 11.07.2011 as also the second

appellate Court on 04.05.2006 had noted the dates of the aforenoted

compromises i.e. 03.10.1998 and 26.10.1998 and had noted that these

compromise documents allegedly entered into between the parties were

never filed before the Court; although an application under Order XXIII

Rule 1 of the Code was filed before the first appellate Court to place

these documents on record but these so called compromises never

formed a part of the record of any Court and as such these documents

cannot be looked into. This finding was affirmed by the second appellate

Court on 04.05.2006 and thereafter by the dismissal of the SLP on

10.07.2006.

7 Thus the controversy about the alleged aforenoted compromises

dated 03.10.1998 and 26.10.1998 have also been set to rest and the

controversy is now no more alive. These facts were noted in the correct

perspective in the impugned order dated 14.08.2006. The Court had

rightly returned a finding that the suit for partition filed by Harmit Singh

has come infructuous and his application under Order IX Rule 8 of the

Code was dismissed; correspondingly the prayer made by the defendant

praying that the suit be declared as infructuous was allowed.

8 In this background, the impugned judgment suffers from no

infirmity. The petitioner is vehemently continuing with his arguments

on the points which already stands decided; the so called compromises

dated 03.10.1998 and 26.10.1998 had admittedly not been filed and as

such cannot be looked into and this has been affirmed up to by the Apex

Court. This petition is an abuse of the process of the Court. It is

dismissed with costs of Rs.25,000/-.

                                              INDERMEET KAUR, J
MAY       17, 2012
A