Savita Jain & Anr vs Arun Kumar Jain & Ors
2015 Latest Caselaw 4046 Del

$~A-28
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Date of decision: 20.05.2015

+     CS(OS) 867/2014

      SAVITA JAIN & ANR                                      ..... Plaintiffs
                    Through:             Mr. Pravir K. Jain, Advocate

                           versus

      ARUN KUMAR JAIN & ORS              ..... Defendants
                  Through: Ms.Richa Kapoor, Advocate.

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

IA No. 6832/2015 in CS(OS) 867/2014

1. The present application is filed by the plaintiffs under Section 151 CPC for appointment of a Local Commissioner for recording the statement of Sh.Bhim Sain Jain on commission in terms of the prayer clause of the application at the earliest.

2. By the present application it is averred that the controversy in the present proceedings pertains to the properties left behind by late Sh.Nanhey Mal Jain, predecessor-in-interest of the parties. The controversy centres around, it is stated, a registered family partition of 1955, registered Will of Sh. Nanhey Mal Jain dated 10.03.1998 and family settlement dated 02.09.1981. It is urged that Sh.Bhim Sain Jain who is the youngest brother of late Sh.Nanhey Mal Jain, predecessor-in- interest of the parties is a signatory to the Family Settlement of 1955 as

also to the Wills dated 10.03.1998 and 22.04.1994 of late Sh.Nanhey Mal Jain and Smt.Maina Sundari Jain besides other documents which form part of the record. It is further urged that Sh.Bhim Sain Jain is at present 83 years old and not keeping well and he is a crucial witness. It is further pointed out that he was admitted in the National Heart Institute on 04.02.2015 and was discharged on 10.02.2015. Hence, it is urged that the said Sh.Bhim Sain Jain being an important witness, it is necessary that his evidence be recorded at this stage. It is stated that though the suit is at a preliminary stage and issues have not been framed but this court has the power under Order 18 Rule 16 CPC to take evidence of any witness where sufficient cause is shown in any manner.

3. The plaintiffs No.1 and 2 being sisters have filed the present suit for partition, declaration and rendition of accounts against defendant No.1, their brother and the wife and son of defendant No.1. It is the stand of the plaintiffs that the predecessor of the parties, namely, Sh. Nathan Lal Jain purchased properties No. 4498, 4499, 4500 at 7/35, Makhan Lal Street, Darya Ganj, New Delhi vide sale deed dated 19.11.1929. Sh. Nathan Lal Jain left behind his son Sh.Manohar Lal Jain and three grandsons including Sh. Nanhey Mal Jain, Sh. Narender Nath Jain and Sh.Bhim Sain Jain (proposed witness). Vide registered partition deed dated 01.08.1955 the property was partitioned amongst Sh.Manohar Lal Jain and his three sons. One share was received by Sh.Manohar Lal Jain and Sh.Nanhey Mal Jain, predecessor-in-interest of the parties. Sh. Manohar Lal Jain and Sh.Nanhey Mal Jain had a partition vide registered partition deed dated 17.04.1958. Sh.Manohar Lal Jain during his lifetime executed a registered Will dated 17.04.1958 whereby he bequeathed his

share of the said property bearing No.4499 and 4500 in Makhan Lal Street, Darya Ganj in favour of Sh. Nanhey Mal Jain. There is also a reference to an oral family settlement which was reduced in writing on 02.09.1981 between Sh. Nanhey Mal Jain and his family members i.e. plaintiff No.1 and 2, his daughters and defendant No.1, his son. Smt.Maina Sundari Jain, the wife of Sh.Nanhey Mal Jain had executed a Will dated 22.04.1994 whereas Nanhey Mal Jain had executed a Will dated 10.03.1998. On the death of Shri Nanhey Mal Jain and Smt.Maina Sunderi Jain share of the plaintiff was there pursuant to family settlement dated 2.9.1981 and Wills dated 22.4.1994 and 10.3.1998. Hence, share is sought in the property bearing No. 4498, Makhan Lal Street, Darya Ganj, New Delhi. Partition is also sought of property bearing No. 4499 & 4500, Makhan Lal Street, where plaintiff claims 1/3rd share each.

4. In the written statement it is urged that no title goes to the plaintiffs on the basis of the alleged unregistered memorandum of family settlement dated 02.09.1981 or the will dated 22.04.1994 and 10.03.1998 of late Smt.Maina Sundari Jain and late Sh.Nanhey Mal Jain. It is stated that the said property was an HUF property and the property could not have been willed away. It is urged that the said property being an HUF property, Sh.Nanhey Mal Jain was the karta. It comprised of three coparceners, namely, Sh.Nanhey Mal Jain and defendants No. 1 & 2. All income tax returns, balance sheets for the year 1998-2000 were filed accordingly. On the death of Sh.Nanhey Mal Jain, defendant No.1 became the karta and defendant No.2 became the coparcener. On 07.07.2004, it is averred that the surviving coparceners, namely, defendants No.1 and 2 have partitioned the said property and the said

deed has conclusively determined and declared the ownership and title of defendants no.1 and 2. This is a registered partition deed and legally binding and the suit is liable to be dismissed as it discloses no cause of action.

5. The defendants have raised the following salient points why the suit is liable to be dismissed:

(a)The suit, it is urged, is liable to be dismissed as it seeks enforcement of an unregistered memorandum of settlement which is never acted upon in the lifetime of Sh. Nanhey Mal Jain.

(b) It is further urged that by the present suit, the plaintiffs seek partition based on a right in a memorandum of family settlement that occurred on 02.09.1981. No relief of partition can be claimed after a delay of 33 years.

(c)It is further urged that the right to seek declaration of ownership had accrued on the death of the testator. The present suit filed 12 years after the cause of action accrued is barred and no relief of declaration can be granted.

(d)The partition having been taken place prior to 20.12.2004, it is urged that the plaintiffs cannot permitted in terms of provision of Section 6 of the Hindu Succession (Amendment) Act, 2005 to re-open or invalidate the partition that took place on 07.07.2004.

(e)Even otherwise the Will dated 10.03.1998 of Sh.Nanhey Mal Jain and 22.04.1994 of Smt. Maina Sundari Jain are not said to be voluntary deposition and are forged and fabricated documents.

(f) It is further urged that the present suit is nothing but a counter blast to a criminal complaint filed by defendant No.1 against the plaintiffs under

Section 420/467/468/471 /193 IPC.

6. Learned counsel appearing for the defendants has vehemently opposed the present application. She submits that the pleadings have not yet been completed in the case. In fact the plaintiffs have filed an application for amendment of the plaint under Order 6 Rule 17 CPC which is yet to be adjudicated upon. It is further stated that the present application is mala fide as the plaintiffs have moved the present application only to scuttle the hearing of IA No. 8334/2014 under Order 7 Rule 11 CPC filed by the defendants for rejection of the plaint. She vehemently and forcefully submits that the suit itself is liable to be dismissed and hence there can be no ground or reason whatsoever for this court to permit the said witness to be examined out of turn in this manner when the entire suit is at a preliminary stage. She further submits that even the documents are not available on the basis of which the evidence of the said witness can be recorded. It is urged that the plaintiffs have committed perjury by filling forged documents and has falsely stated on oath that the Will dated 10.03.1998 is the original registered Will of Sh.Nanhey Mal Jain and in this regard a criminal miscellaneous application being Crl. M.A.2524/2015 under Section 340 Cr.PC has been filed on 13.02.2015. Hence, she forcefully and vehemently submits that the there are no proper pleadings on record. There is no evidence/document on the basis on which the said witness Sh.Bhim Sain Jain can be examined and that the suit itself is not maintainable so the question of allowing the present application does not arise.

7. The Order 18 Rule 16 CPC reads as follows:-

"16. Power to examine witness immediately.- (1) Where a witness is about to leave the jurisdiction of the court, or other sufficient cause is shown to the satisfaction of the court, why his evidence should be taken immediately, the court may, upon the application of any party or of the witness, at any time after the institution of the suit, take the evidence of such witness in the manner hereinbefore provided. (2) Where such evidence is not taken forthwith and in the presence of the parties, such notice as the Court thinks sufficient, of the day fixed for the examination, shall be given to the parties."

8. Reference may also be had to the judgment of the Bombay High Court in the case of Daulat Jahangir Mehta vs. Miss Piloo Dadabhoy Broacha and Ors., 2005(1)MhLj623: MANU/MH/0901/2004 where paragraphs 4 to 6 read as follows:-

"4. The provision of law comprised under Order XVIII, Rule 16 of the Code of Civil Procedure deals with the powers of the Court to examine witnesses without waiting for the suit to reach the stage of recording the evidence of the parties. Sub-rule (1) thereof provides that where a witness is about to leave the jurisdiction of the Court, or other sufficient cause is shown to the satisfaction of the Court why his evidence should be taken immediately, the Court may, upon the application of any party or of the witness, at any time after the institution of the suit, take the evidence of such witness in manner provided in the said Code. It cannot be disputed that non-availability of a person at the time when the suit will be ripe for recording of evidence of the parties after framing of issues, could be a justifiable ground for recording the statement of such person even without waiting for the stage of recording of evidence in the suit. Obviously, non- availability of a person could be for various reasons, including the reason that the person may go beyond the jurisdiction of the Court and it may be difficult, if not impossible, to secure his presence before the Court at later stage. There can be

various other reasons including the old age coupled with serious illness. Obviously, the order allowing the party to record the statement cannot be passed in a casual manner. The party applying for the same has to make out a case for exercise of such powers by the Court and the order should be a reasoned order. The Court has to exercise its discretion in this regard judiciously.

5. In Ram Dhir Prasad and Anr. v. Ram Sewak Lal and anr, reported in MANU/BH/0046/1978MANU/BH/0046/ 1978 : AIR1978Pat218 , while considering the stage of Rule 16 of Order 18 of the Code of Civil Procedure, it was held that "the scope of Rule 16 is very wide and orders can be passed "at any time after the institution of the suit." This means that an application, in appropriate facts and circumstances, may be moved by the plaintiff even where the defendant has not filed his written statement and issues have not been framed. If the presence of the witnesses at a later stage, when the trial of the suit starts, is not going to be possible, steps may be taken under the Rule. Of course, an order for this purpose cannot be passed in violation of the principles of natural justice and provisions of service of notice by the Court in this regard is made under sub-rule (2)." I am in respectful agreement with the view taken by the Patna High Court in relation to Order 18, Rule 16 of the Code of Civil Procedure.

6. It is to be noted that the petitioner/original plaintiff has expressed an apprehension about her non-availability by the time the suit reaches the stage for recording of evidence. Considering age factor of the plaintiff, this is a fit case to exercise the powers under Order XVIII, Rule 16 of the Code of Civil Procedure for the purpose of recording her statement without waiting for the suit to reach the stage of recording of evidence. Besides, the respondents, who are the original defendants in the suit, have already filed their written statement. Being so, the

case of the plaintiff is well known to the defendants so also the case of the defendants is known to the plaintiff. In the circumstances, therefore, the trial Court would be well justified in exercising the powers under Order XVIII, Rule 16 of the Code of Civil Procedure to record the statement of the plaintiff, i.e. examination-in-chief as well as the cross-examination, without waiting for the suit to reach the stage of recording of evidence and at the earliest possible."

9. The witness in question Sh.Bhim Sain Jain is 83 years old which fact has not been denied by the defendants. He was admitted to National Heart Institute on 04.02.2015 and he appears to be suffering from various ailments including blood pressure, diabetes, renal problem and bronchial problems. He is, as per the plaintiff, of the generation of the father of the parties and a signatory to the wills of Sh.Nanhey Mal Jain and Smt.Maina Sundari Jain and also a signatory to the partition of 1958. It is urged that his evidence is necessary and important for the adjudication upon the dispute between the parties.

10. In my opinion, the entire submissions of the defendants are only targeted on two grounds, namely, the suit is at a preliminary stage and secondly that the suit itself is liable to be dismissed having been filed maliciously and completely devoid of merits. There is no attempt to show any prejudice likely to be caused in case the said Bhim Sain Jain's evidence is taken on record at this stage rather than waiting till the stage of framing of issues. Recording of such evidence at this stage will not prejudice any of the submissions of the defendant. In contrast, with passage of time, if the evidence of Mr.Bhim Sain Jain cannot be recorded grave prejudice will be caused to the plaintiff.

11. Further, there is no merit about the argument about pendency of an amendment application. IA No.22370/2014 only seeks to state that during pendency of the present suit defendants No.1 and 2 have taken unauthorised possession of the two godowns 4499 and 4500, Makhanlal Street, Darya Ganj, Delhi from the tenants and is using it as his office. The plaintiff by the application seeks to add the relief of mesne profit for their godown. Pendency of this application has no bearing on the present application.

12. In my opinion, given the nature of the controversy as stated above, the importance of the documents which are relevant for the case of the plaintiffs and the medical condition of Sh.Bhim Sain Jain, the plaintiffs have shown sufficient cause for forthwith examination of Sh.Bhim Sain Jain.

13. The application is allowed. Accordingly, I appoint Mr.Vivek Saharaya, Advocate, (Mobile No.9811156831) as a Local Commissioner to record the evidence of Sh. Bhim Sain Jain at his residence. His fees is fixed at Rs. 25,000/- per visit to the residence of Sh.Bhim Sain Jain. The fees of the Local Commissioner and out of pocket expenses shall be borne by the plaintiffs. The concerned record shall be provided by the Registry through a dealing assistant of the court who will accompany the Local Commissioner.

14. The application is disposed of.

CS(OS) 867/2014 List on 01.10.2015.

JAYANT NATH, J MAY 20, 2015/rb