Shri Anand Pershad Jaiswal vs Smt. Shakun Jaiswal & Ors.
2014 Latest Caselaw 4684 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                      Judgment pronounced on: September 22, 2014

+             I.A. No. 19226/2013 & I.A. No. 5416/2014
              in CS(OS) No. 2064/2009

SHRI ANAND PERSHAD JAISWAL                    ..... Plaintiff
                Through Mr. Arvind Nigam, Sr.Adv. with
                         Mr.Akshay Makhija, Mr. Saurabh
                         Seth & Ms. Amisha Gupta, Advs.

                        versus

SMT SHAKUN JAISWAL & ORS                     .....Defendants
                 Through Mr. A.S.Chandhiok, Sr.Adv. with
                          Ms.Malini Sud,Mr.Amit Agrawal,
                          Ms. Aditi Sharma & Ms.
                          Harleen,Advs. for D-1 & D-5.
                          Mr. Amar Gupta, Adv. with Mr.
                          Divyam Agarwal, Adv for D-2.
                          Ms. Bhumika Menon, Adv for D-3.
    CORAM:
    HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By way of this order I propose to decide two applications filed by the plaintiff, being I.A. No. 19226/2013 under Order VII Rule 14 read with Order XIII Rule 1 and Section 151 CPC seeking to place additional documents on record and I.A. No. 5416/2014 under Order XIV Rule 5 read with Section 151 CPC seeking to strike out issue (v) settled vide order dated 14th February, 2014 and for necessary directions.

2. The plaintiff has filed the present suit for declaration and mandatory injunction against the defendants.

3. Admittedly, by order dated 28th February, 2011 the plaint was earlier rejected under the provision of Order VII Rule 11 (d) of the CPC when the application filed by the defendants No.1 & 5 was allowed. The said order was challenged by the plaintiff before the Division Bench of this Court by filing of an appeal, being RFA (OS) No.46/2011. The appeal was allowed by the judgment dated 16th February, 2012 and order dated 28th February, 2011 was set aside. Certain directions were also issued. The suit was restored and the matter was sent back to the Single Judge to consider various pending interim applications. The said judgment passed by the Division Bench was challenged by the defendants No.1 and 5 in the Supreme Court which disposed of the Special Leave Petition by order dated 23rd April, 2013. The extract of the said order is reproduced hereinbelow:

"We have heard Mr.S. Ganesh, learned senior counsel for the petitioners, and Mr.Arvind Nigam, learned senior counsel for the respondent No.1.

Special leave petitions are dismissed. However, it is clarified that it will be open to petitioner- defendant No.1 - Shakun Jaiswal - and petitioner - defendant No.5 - Karamjit Jaiswal - to raise all available pleas in the written statement, including pleas relating to limitation, court fee and maintainability of the suit. We record and accept the statement of Mr.S. Ganesh, learned senior counsel for the petitioners-defendants, that written statement shall be filed within eight weeks from today.

We expect the trial Judge to conclude the trial as expeditiously as may be possible and preferably within two years from the date of production of the order of this

Court. The parties are directed not to seek unnecessary adjournments.

Needless to say that observations made by the Division Bench in the impugned order concerned only consideration of the application made under Order VII Rule 11 of the Code of Civil Procedure, 1908 and these observations shall have no bearing in consideration of the pleas that may be raised by the petitioners-defendants in the written statement which obviously will be decided in accordance with law on the basis of evidence and the submissions that may be made at the time of hearing of the suit."

4. In case the said order is read in a meaningful manner, it appears that the Supreme Court granted eight weeks time to the defendants No.1 and 5 to file the written statement. The trial in the matter was expedited. The directions were passed that the trial be concluded preferably within two years from the date of production of the order of the Supreme Court. It was also directed to the parties not to seek unnecessary adjournments. It was observed that the objections raised in the application under Order VII Rule 11 CPC may be raised in the written statement.

5. There is hardly any progress in the trial in view of various applications pending and fresh applications filed by the parties.

I.A. No.5416/2014

6. In the first application, being I.A. No.5416/2014 under Order XIV Rule 5 read with Section 151 CPC filed by the plaintiff, the following prayer is made:

"a) Pass an order thereby deleting Issue No.(v), which reads as "Whether the suit as framed is maintainable in view of the proviso to Section 34 of the Specific Relief Act, 1963? OPD"

b) Pass an order thereby varying the direction contained in the order dated 14.02.2014 to treat Issue No.(i) and (ii) as Preliminary Issues and specifically place the onus of proving the said issues on the Defendants."

7. The following issues were framed in the matter on 14th February, 2014:

"i) Whether the suit as framed by the plaintiff is properly valued for the purpose of court fees?

ii) Whether the suit is liable to be rejected under Order 7 Rule 11(a) & (d) CPC?

iii) Whether the suit is barred by limitation? OPD

iv) Whether the plaintiff has the locus to maintain the present suit? OPD

v) Whether the suit as framed is maintainable in view of the proviso to Section 34 of the Specific Relief act, 1963? OPD

vi) If the answer to issue Nos. (i) to (v) or any of them is in the negative, whether the plaintiff is entitled to a declaration, as prayed for?

vii) Whether the plaintiff is entitled to a decree of mandatory injunction, as prayed for?

viii) Whether the suit is barred by principles analogous to res judicata? OPD-1

ix) Whether the plaintiff is stopped from filing the present suit for declaration in view of the undertaking given by the plaintiff before the Company Law Board? OPD-1"

8. At the time of framing of issues, an order was also passed that the issues No. (i) and (ii) would be decided as preliminary issues.

9. As regard onus of proving the said issues No.(i) and (ii), the same is on the defendants. This Court agrees with the submission made by the learned counsel for the plaintiff for the reason that it is

the defendants who raised the objection, the onus should be upon the party who raised the objection. The prayer to this extent is allowed.

10. With regard to next prayer made in the application for deleting issue No.(v), Mr. Arvind Nigam, learned Senior counsel appearing on behalf of the plaintiff states that as the defendants No.1 and 2 did not raise the issue about the suit being barred under Section 34 of the Specific Relief Act, 1963 (hereinafter referred to as "the Act") coupled with the fact that the said issue is decided by the Division Bench, therefore, the issue No.(v) is liable to be deleted. Even the defendants No.1 and 5 are not entitled to raise the objection under the said provision in the absence of any pleading.

Mr.A.S. Chandhiok, learned Senior counsel appearing on behalf of defendants No.1 and 5 states that it is a legal issue and in the written statement the said defendants have clearly stated that the suit filed by the plaintiff is not maintainable. Therefore, it is irrelevant whether the provision of Section 34 of the Act is specifically mentioned in the written statement or not. He also argued that the Supreme Court while passing the direction has in fact revisited the order passed by the Division Bench, therefore, issue No.(v) is not liable to be deleted.

I find force in the submission of Mr.Chandhiok in view of the fact that in the written statement, a specific plea is raised by the defendants No.1 and 5 that the suit filed by the plaintiff is not maintainable. Even otherwise, it is a legal issue and thus this Court is not inclined to delete issue No.(v). Hence, the prayer in this regard is rejected.

11. The last prayer made by the plaintiff is that direction passed on 14th February, 2014 to treat the issues No.(i) and (ii) as preliminary issues be modified or varied.

Mr.Nigam, learned Senior counsel appearing on behalf of the plaintiff submits that in case the Supreme Court's order is read carefully, it is clear that the trial in the matter has to be conducted and the Supreme Court had expedited the trial. He further submits that when the order was passed by the Supreme Court, all the objections raised by the defendants No.1 and 5 were already available. Therefore, the direction passed by the Supreme Court is to go for trial and all the pleas raised in the application under Order VII Rule 11 CPC be raised in the written statement. Since the written statement is already filed, therefore, the said issues No.(i) and (ii) are to be considered along with the issues already framed on 14th February, 2014.

Per contra, Mr.Chandhiok, learned Senior counsel appearing on behalf of the defendants No.1 and 5, argues that since the plaintiff has not paid proper court fees, the plaint is liable to be rejected as no evidence is required in view of the preliminary objection raised by the defendants No.1 and 5 in the written statement. He has also referred the order passed by the Division Bench in this regard. He argued that when the plaint can be rejected in view of the objection raised by the defendants as well as on the basis of preliminary issues framed by the Court, the question of trial does not arise, it would unnecessarily waste time and costs of the parties. He submits that objections

raised by his clients are legal issues and those can be disposed of without trial.

12. Having heard the learned counsel for the parties, no doubt, the defendants No.1 and 5 have raised various objections in the written statement. The said defendants may or may not succeed in their contention. But the fact of the matter is that the order passed by the Supreme Court has to be given effect to. It is the admitted position that when the Supreme Court had passed the order, the objection raised by the defendants No.1 and 5 in the application was already available. Rather the direction was issued to this Court to conclude the trial within two years and parties were directed not to take unnecessary adjournments. The said order was passed in the presence of the parties.

The observation in the said order was also made that the pleas raised by the defendants No.1 and 5 in their application under Order VII Rule 11 CPC may be taken in the written statement and the said pleas would be decided in accordance with law on the basis of evidence and the submissions that may be made at the time of hearing of the suit. Thus, the order dated 14th February, 2014 is varied to the extent that issues No.(i) and (ii) not be treated as preliminary issues and be decided alongwith other issues.

I.A. No. 19226/2013

13. Let me now consider second application under Order VII Rule 14 CPC, being I.A. No. 19226/2013. It is stated in the application that the plaintiff being one of the sons and heir of Late L.P. Jaiswal, on attaining knowledge of the illegal transfer of funds, filed the present

suit seeking for declaration that the impugned transfer of funds was illegal and further sought a mandatory injunction against the defendant No.1 to restore the funds back to the account of Late L.P. Jaiswal along with the accretions thereto. Further, defendant No.5 has also filed proceedings registered as Test Case No.22/2006, Test Case No. 23/2006 and CS(OS) No. 650/2006 seeking declaration to the effect that the plaintiff herein is not the son of Late L.P. Jaiswal, thus attempting to fraudulently exclude the plaintiff from the intestate estate of Late L.P. Jaiswal. Vide order dated 23rd April, 2013, the Supreme Court dismissed the plea of the defendant No.1 and 5, while granting them liberty to take all such legal obligations in their written statement. It further issued time bound directions to this Court to dispose of the present suit within a period of 2 years. Thereafter, the defendant No.1 and 5 filed their written statements before this Court in June, 2013, beyond the time granted by the Supreme Court. The plaintiff, however, did not object to the same and filed his replication to the written statements on 26th August, 2013. With a view to expedite the matter, and in view of certain allegations made in the written statements by the defendant No.1 and 5, the plaintiff filed certain additional documents for the purposes of conducting admission/denial of documents in terms of the order dated 18th September, 2013 and the defendants refused to carry out admission/denial of the said documents. The record would reveal that certain additional documents were filed on separate dates vide different indices;

a) List of documents filed vide index dated 10th September, 2013 ("1st additional documents").

b) List of documents filed vide index dated 23rd September, 2013 ("2nd additional documents").

c) List of documents filed vide index dated 30th October, 2013 ("3rd additional documents").

14. With regard to the 1st additional documents, the plaintiff states that he has filed certified copies of the testimonies of various witnesses recorded in the testamentary cases, which has admittedly taken place after the filing of the present suit. The testimonies clearly show that Late L.P.Jaiswal was kept under confinement and did not have the capacity to consent to the impugned transfers. The plaintiff has also annexed the medical records of Late L.P.Jaiswal which were maintained by Dr. Myers, which show his gravely deteriorated mental and physical state at the relevant time. The medical records pertaining to Late L.P.Jaiswal have been filed as far as back in the year 2006 in testamentary cases pending between the parties. Therefore, the defendants are aware of the documents and are cross examining Dr.Myers on the basis of the said documents in the testamentary cases. The said medical record was not filed earlier due to an oversight on the part of the counsel and the plaintiff should not be prejudiced on account of the same.

15. As far as 2nd additional documents are concerned, plaintiff states that these documents also contain the medical history and records of Late L.P.Jaiswal which show the frail mental and physical health of Late L.P.Jaiswal. These documents were also filed way

back in the year 2007 in the testamentary cases by the plaintiff and such documents have always been in the knowledge of the defendants. The said medical record was not filed earlier due to an oversight on the part of the counsel and the plaintiff should not be prejudiced on account of the same.

16. With regard to 3rd additional documents, the plaintiff states that these documents are merely copies/certified copies of the documents already filed on record by the plaintiff with the present suit. The copies of such documents have been re-filed for the convenience of this Court, as exhibit numbers have been assigned to each document in the testamentary cases. Further, the defendant cannot have any objection to the filing of these documents as they already form part of the record in the present suit.

17. It is argued by Mr.Nigam, learned Senior counsel appearing on behalf of the plaintiff that the above said documents are vital for the adjudication of the present suit and thus, no prejudice would be caused to the defendants if the said documents be taken on record.

18. Reply on behalf of the defendant Nos. 1 and 5 to the said application has been filed denying the contents of the application. It is stated that the application filed by the plaintiff is misconceived and baseless and is liable to be dismissed. It is also stated that the majority of documents sought to be placed on record have been in the power and possession of the plaintiff at the time of filing of the present suit. The plaintiff admittedly did not file the said documents along with the plaint and therefore at this stage, is precluded from placing on record the said documents, which run into more than

1,000 pages. The purported reason that the said documents were not filed due to an oversight on the part of the counsel is not a sufficient or good reason for taking on record these documents at this stage.

It is further stated that the plaintiff has failed to explain the relevancy of the additional documents sought to be placed on record. Instead, the entire focus of the application is on making false, unsubstantiated and baseless allegations against the defendants. It is alleged that the plaintiff has made vague and ambiguous allegations that the said purported documents show frail physical and mental state of Late L.P.Jaiswal. It is alleged that in the absence of any reasons explaining the relevancy of the documents, the plaintiff is not entitled to invoke Order VII Rule 14 CPC seeking to place on record the said documents. It is stated that the documents sought to be placed on record are irrelevant for the purpose of the suit and the entire objective of the plaintiff.

19. Having heard the learned counsel for the parties in the matter, I am of the considered view that though, it is true that the said documents ought to have been filed by the plaintiff at the earlier stage, which have been filed after the direction of the Supreme Court, the reasons stated in the application seem to be bonafide. The application for filing the additional documents was filed prior to the date of framing of issues. Therefore, prayer made in the application is allowed, subject to cost of Rs.50,000/- to be paid by the plaintiff to the defendants No.1 and 5 in equal proportions. The additional documents filed by the plaintiff are taken on record. The objections raised by the defendants No.1 and 5 about their validity shall remain

intact which would be considered at the time of trial in accordance with law by the Court.

20. Both the applications are disposed of accordingly.

CS(OS) No. 2064/2009

21. The plaintiff to file affidavit(s) as evidence within eight weeks from today. List the matter before the Joint Registrar for tendering the affidavits on 28th November, 2014. This Court expects that the Joint Registrar to fix an early date for the purpose of cross- examination in view of the order passed by the Supreme Court.

22. List before Court on 27th January, 2015 for consideration of the pending applications.

(MANMOHAN SINGH) JUDGE SEPTEMBER 22, 2014