Delhi High Court
O P Saini & Ors. vs Kailash Sharma & Ors. on 14 January, 2015
Author: Jayant Nath
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:14.01.2015
+ CS(OS) 1850/2012
O P SAINI & ORS. ..... Plaintiffs
Through: Mr. S. M. Tripathi, Advocate
versus
KAILASH SHARMA & ORS. ..... Defendants
Through: Ms. Urvashi Singh, Adv. for D-1 &2
Mr. Rishabh Mehta, Adv. for D-4
CORAM:HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
IA No.16207/2012
1. This is an application filed by defendant No.1 under Order 39 Rule
4 CPC for seeking vacation of the interim order dated 04.07.2012. On
04.07.2012, this Court had restrained defendant No.1, servants, assignees
etc from demolishing the suit property or creating any third party right or
transferring the possession in favour of any third person till further
orders. The suit property herein is E-111, Jeevan Nagar, (Bhagwan
Nagar), Ashram, New Delhi.
2. Learned counsel appearing for defendant No.1 submits that the
said interim order which has been passed by this Court on 04.07.2012
has been passed on account of suppression of material facts inasmuch
as the defendant No.1 had purchased this property pursuant to an
order of this Court dated 10.04.2012. Hence the order is liable to be
vacated. It is further urged that the plaintiffs did not comply with the
provisions of Order 39 Rule 3 CPC and hence even otherwise the ex
parte stay granted to the plaintiffs is liable to be vacated forthwith.
3. The present suit is filed by the plaintiff seeking a decree of
declaration that the order dated 10.04.2012 passed by this court in
CS(OS) No. 2120/1998 is obtained by a fraud and sale deed dated
14.05.2012 be cancelled and for a decree of possession of the suit
premises.
4. The background facts are that the suit property bearing No. 111 E,
Jeevan Nagar, Ashram, New Delhi was said to be owned by Late Sh.
Puran Chand. The defendants are the legal representatives of the
deceased Sh. Puran Chand. Suit No. 2120/1998 was filed inter se the
legal heirs of Sh.Pran Chand for partition of the present suit property and
another property at 10, Church Road, Bhogal, New Delhi (This suit i.e.
Suit No.2120/1998 is herein after referred to as Previous Suit). In the
said suit on 02.05.2007 a settlement was arrived at between the parties. A
preliminary decree was passed in terms of the settlement. The present
suit property was agreed to be auctioned and the sale proceeds were to be
equally divided. In the meantime, it appears that the plaintiff entered into
an agreement to sell on 06.07.1998 pertaining to 3/4th share in the said
suit property and paid a sum of Rs.9 lacs as an advance to some of the
legal heirs of Puran Chand. The total agreed consideration was
Rs.14,20,000/-.
5. Learned counsel appearing for the plaintiffs submits that the
plaintiffs have taken possession of the suit property pursuant to the
Agreement to Sell executed on 06.07.1998, which was entered into
between Smt. Krishna Sahni, who is now represented by the plaintiffs
with defendant Nos. 3 & 4 and Smt. Jhando Devi, wife of Late Puran
Chand, who has also died and whose legal heirs are defendants. He
submits that pursuant to disputes with the defendants , the plaintiff had
filed Suit No.330/2009 titled 'Krishna Saini versus Chameli Devi'
before the ADJ. Vide order dated 06.08.2009 in Tr. P. (C) No.5/2009 this
Court directed this suit to be heard with Suit No.2120/1998 (Previous
Suit). He further submits that suppressing order dated 06.08.2009 in Tr.
P. (C) No.5/2009 and the Agreement to Sell dated 06.07.1998 the suit
property was sold pursuant to a consent order of this Court dated
10.04.2012 in the said CS (OS) 2120/1998 (Previous Suit). It is stated
that defendant No.1 and the other defendants have taken permission to
purchase the suit property from the Court by moving an application
without notice to the plaintiff, which application was disposed of on
10.04.2012. He submits that a review petition against order dated
10.04.2012 has been filed and is pending.
6. As per agreement to Sell dated 06.07.1998, the plaintiff had
purchased 3/4th share of the suit property for a total consideration of
Rs.14,20,000/-. Rs.9 lac were paid by the plaintiff and possession of
3/4ths was also delivered by the vendors.
7. In Transfer Petition being Tr. P.(C) No.05/2009, as per the order
dated 06.08.2009, the suit filed by the plaintiff being Suit No.330/2009
was to be heard with CS(OS)2120/1998 (Previous Suit). On 17.03.2011
in CS(OS) 2120/1998 (Previous Suit), this Court further passed an order
that the District Courts Suit filed by the plaintiff be registered in the High
Court and that the suit will be heard along with CS(OS)2120/1998
(Previous Suit).
8. Despite these orders, defendants appear to have moved an
application under Order XXIII Rule 3, CPC in CS (OS)
2120/1998(Previous Suit) where both the parties in the said suit have
recorded a settlement agreeing that they have found a buyer Sh. Kailash
Sharma i.e. defendant No.1 herein and that he has agreed to pay Rs.33
lac out of which the defendant No.1 has already paid Rs.6 lac as earnest
money. In view of the settlement between the parties to that suit, suit
No.CS(OS) 2120/1998 (Previous Suit) was disposed of qua the present
suit property i.e. E-111, Jeevan Nagar, Ashram, New Delhi.
9. Prima facie, order dated 10.04.2012 allowing the application under
Order XXIII Rule 3 CPC in CS(OS)2120/1998 (Previous Suit), has been
passed bypassing the orders in TRP No.05/2009 and without notice to
the plaintiff.
10. In my opinion, the contention that defendant No.1 has bought the
property pursuant to permission of the Court dated 10.04.2012 in
CS(OS)2120/1998(Previous Suit) has prima facie no merits. The consent
order has been passed prima facie suppressing the material facts
including the order dated 06.08.2009 in Tr. P. No.05/2009. The plaintiffs
have made out a prima facie case. They have paid valuable consideration
to the defendant for which most of the defendants have executed
appropriate documents. Balance of convenience is also in favour of the
plaintiffs.
11. Learned counsel for the plaintiff submits that an affidavit of
service has been filed whereby on 06.07.2012 and 07.07.2012
compliance of Order 39 Rule 3 was made. The affidavit of service
showing the postal receipts have been placed on record and was filed
vide the filing No.865/2014.
12. In the light of the above submissions, there is no merit in the
second contention of the learned counsel for defendant No.1 regarding
non-compliance of provisions of Order 39 Rule 3 CPC. In any case, I
have heard matters on merits.
13. The present application is dismissed. Accordingly, the interim
order dated 04.07.2012 is confirmed.
JAYANT NATH, J
JANUARY 14, 2015
An
