Sandeep Kohli & Anr vs Vinod Kohli & Ors.
2016 Latest Caselaw 7365 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of decision: 9th December, 2016.

+         CS(OS) No.42/2016 & IAs No.1486/2016 (u/O 39 R-1&2 CPC),
          10450/2016 (u/O 39 R-2A CPC), 13837/2016 (u/O 12 R-6 CPC) &
          15306/2016 (for condonation of 9 days delay in filing replication)

          SANDEEP KOHLI & ANR                               ..... Plaintiff
                      Through:          Mr. Aaditya Vijaykumar and Ms.
                                        Rupam, Advs.

                                     Versus

          VINOD KOHLI & ORS.                                ..... Defendants
                       Through:         Mr. Molvi Ajaj Hussain, Adv. for
                                        D-1.
                                        Mr. Tusar Singh, Adv. for D-2&3.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.        The two plaintiffs namely Mr. Sandeep Kohli and Mr. Sheetal Kohli

being the sons of late Sh. S.C. Kohli have filed this suit for partition of Shop

No.81 situated in Central Market, Lajpat Nagar, New Delhi and for

permanent injunction restraining the defendant No.1 Mr. Vinod Kohli from

alienating, encumbering, mortgaging or creating any third party rights

therein.      The defendants No.2&3 Smt. Namrata Wahi and Smt. Shikha

Nischal are the sisters of the two plaintiffs, being daughters of Sh. S.C.

Kohli.

2.        The suit was entertained and while issuing summons thereof, vide ex-

     CS(OS) No.42/2016                                                Page 1 of 17
 parte ad-interim order dated 1st February, 2016, the defendant No.1 was

directed to maintain status-quo qua possession and title of Shop No.81

Central Market, Lajpat Nagar, New Delhi.

3.        It is the case of the plaintiffs:

          (i)     that Sh. M.L. Kohli was the owner of Shop No.81 admeasuring

          243 sq. ft. Central Market, Lajpat Nagar, New Delhi vide Lease and

          Conveyance Deed dated 25th April, 1968 executed in his favour by the

          President of India;

          (ii)    that thought the said shop originally comprised of ground floor

          only and portions thereof demarcated as 81A, 81B and 81C were let

          out by Sh. M.L. Kohli to Mrs. Veena Chugh, Mr. Amrit Lal and Mrs.

          Naresh Kumari respectively but in the year 1996-1997, a basement to

          the property was also made and as on the date of institution of the

          suit, the shop comprised of basement, ground floor along with three

          independent shops i.e. 81A, 81B and 81C;

          (iii)   that the parties to this suit are some of the legal heirs of Sh.

          M.L. Kohli;

          (iv)    that after the demise of Sh. M.L. Kohli, in a settlement between

          all the legal heirs of Sh. M.L. Kohli, Shop No.81, Central Market,
     CS(OS) No.42/2016                                                  Page 2 of 17
      Lajpat Nagar, New Delhi fell to the share of his sons Mr. S.C. Kohli

     (being the predecessor-in-interest of the two plaintiffs and defendants

     No.3&4) and defendant No.1 Mr. Vinod Kohli;

     (v)    that in accordance with the family settlement, other legal heirs

     of Sh. M.L. Kohli executed and registered Relinquishment Deed of

     their rights in the said shop as heirs of Sh. M.L. Kohli in favour of

     Mr. S.C. Kohli and Mr. Vinod Kohli;

     (vi)   that thus on the demise of Sh. M.L. Kohli and execution of

     Relinquishment Deed supra, Mr. S.C. Kohli, being the predecessor of

     the two plaintiffs and defendants No.3&4, and the defendant No.1 Mr.

     Vinod Kohli became owners of equal share of Shop No.81, Central

     Market, Lajpat Nagar, New Delhi;

     (vii) that Shop No.81, Central Market, Lajpat Nagar was also

     substituted in the record of the Land & Development Office in the

     name only of Mr. S.C. Kohli and defendant No.1 Mr. Vinod Kohli;

     (viii) that Mr. S.C. Kohli and defendant No.1 Mr. Vinod Kohli

     instituted proceedings under the Delhi Rent Control Act, 1958 for

     eviction of the tenants from the portions 81A, 81B and 81C of the

     aforesaid Shop No.81, Central Market, Lajpat Nagar, New Delhi;

CS(OS) No.42/2016                                                 Page 3 of 17
           (ix)   that the two plaintiffs have been carrying on business from the

          basement portion and the defendant No.1 has been carrying on his

          business from the ground floor of the property;

          (x)    that eviction orders were passed against the tenants in Shops

          No.81A, 81B and 81C and possession recovered from them but the

          defendant No.1 Mr. Vinod Kohli only is in possession of the said

          shops also;

          (xi)   that since then, the relationship between the plaintiffs and the

          defendants No.3&4 on the one hand and the defendant No.1 on the

          other hand has become acrimonious, as the defendant No.1 has been

          attempting to usurp the portions got vacated from the tenants;

4.        The defendants No.2&3 have supported the plaintiffs and filed

affidavits of no objection also stating that they give up their shares in the

property in favour of the two plaintiffs and do not want any share in the

property.

5.        The defendant No.1 has filed a written statement pleading:

          (a)    that in the settlement arrived at amongst all the legal heirs of

          Sh. M.L. Kohli, since the part of the asset of Sh. M.L. Kohli which

          had fallen to the share of the other legal heirs was lesser in value than
     CS(OS) No.42/2016                                                   Page 4 of 17
      Shop No.81, Central Market, Lajpat Nagar, Mr. S.C. Kohli and

     defendant No.1 Mr. Vinod Kohli were required to pay the difference

     in value; though the defendant No.1 Mr. Vinod Kohli paid

     Rs.75,000/- in cash being his share of the said difference, Mr. S.C.

     Kohli being a Clerk in Central Public Works Department (CPWD)

     was unable to pay his share and requested defendant No.1 to pay his

     share of difference also stating that he will not claim any right in

     Shops No.81, 81A, 81B and 81C;

     (b)    that in the year 1990, at the time of marriage of his daughter,

     Mr. S.C. Kohli was again in need of money and asked the defendant

     No.1 for financial help; at that time, the Shops No.81, 81A, 81B and

     81C, Central Market, Lajpat Nagar were finally partitioned between

     Mr. S.C. Kohli and defendant No.1, in which it was agreed that

     defendant No.1 will construct basement under Shop No.81, Central

     Market, Lajpat Nagar and give the same to Mr. S.C. Kohli and Shops

     No.81, 81A, 81B and 81C will fall to the share of defendant No.1;

     (c)    that since there was a great cordiality between Mr. S.C. Kohli

     and defendant No.1 Mr. Vinod Kohli need to record the partition in

     writing was not felt;

CS(OS) No.42/2016                                                 Page 5 of 17
      (d)    that since then Mr. S.C. Kolhi and defendant No.1 have been

     enjoying their respective portions of the property without any claim

     against each other;

     (e)    that the tenants also deposited rent in the Court in the name of

     defendant No.1 Mr. Vinod Kohli only;

     (f)    that the defendant No.1 has sales tax and Delhi Shops and

     Establishments Act, 1954 registration of Shop No.81, Central Market,

     Lajpat Nagar in his sole name only‟;

     (g)    that at the time of filing of the petitions for eviction against the

     tenants in Shops No.81A, 81B and 81C, Mr. S.C. Kohli executed

     General Power of Attorney in favour of the defendant No.1 knowing

     that he had no right, title or interest in the said shops;

     (h)    that eviction petitions were filed on the ground of bona fide

     requirement of the son of defendant No.1;

     (i)    denying that the plaintiffs and the defendants are in joint

     ownership of the property and pleading that they are owners of their

     respective portions;

     (j)    that the mother of the plaintiff No.2 and defendant No.3 and the


CS(OS) No.42/2016                                                     Page 6 of 17
           stepmother of the plaintiff No.1 and the defendant No.2 is still alive

          but has not been made a party;

          (k)    that the property having already been partitioned, the question

          of the plaintiffs being entitled to partition thereof does not arise.

6.        The plaintiffs have filed a Replication along with I.A. No.15306/2016

for condonation of nine days delay in filing thereof.

7.        The delay is condoned and the Replication has been requisitioned

from the Registry. However, the need to refer thereto is not felt.

8.        Suffice it is to state that in the Replication, with respect to the mother

/ stepmother of the plaintiffs and the defendants No.2&3, it is stated that the

defendant No.1 is not concerned therewith.

9.        The plaintiffs filed IA No.13837/2016 under Order XII Rule 6 of

Code of Civil Procedure, 1908 (CPC) pleading:

          (i)    that the eviction proceedings against the tenants in Shops

          No.81A, 81B and 81C, Central Market, Lajpat Nagar were instituted

          on the behalf of both defendant No.1 and Mr. S.C. Kohli, pleading

          that they were the co-owners thereof;

          (ii)   that eviction orders against the tenants in Shops No.81B and


     CS(OS) No.42/2016                                                      Page 7 of 17
      81C were obtained on the said basis;

     (iii)   that the aforesaid pleadings in the eviction proceedings of the

     defendant No.1 himself falsify the defence of the defendant No.1 of

     the property having been partitioned in the year 1995 i.e. prior to the

     institution of the eviction proceedings;

     (iv)    that had the property been so partitioned, it would not have

     been so pleaded in the eviction petitions;

     (v)     that the plaintiffs along with application have filed certified

     copies of the pleadings in the eviction proceedings which show that

     the eviction petition was filed by defendant No.1 against the tenants

     impleading Mr. S.C. Kohli as the respondent;

(vi) that against the column "Name and Address of the Landlord" in

the eviction petitions, the names and addresses of defendant No.1 as

well as Mr. S.C. Kohli were given;

(vii) that in the body of the eviction petition, it was stated:

(a) that the defendant No.1 and Mr. S.C. Kohli are the

owners / landlords of the shops;

(b) that the tenancy premises were required for the business

purposes of the son of the defendant No.1, as he has no other

reasonably suitable business accommodation;

(c) that Mr. S.C. Kohli was impleaded as pro-forma

respondent as "co-owner".

(viii) that no mention of the partition between Mr. S.C. Kohli and

defendant No.1 as pleaded herein was made;

(ix) that the notices preceding the eviction petitions were also got

issued under instructions from Mr. S.C. Kohli as well as defendant

No.1;

(x) that the eviction orders also described Mr. S.C. Kohli and

defendant No.1 as co-owners / landlords of the property including the

tenancy premises;

(xi) that the eviction orders do not record the plea of the tenants, of

the defendant No.1 at any time having claimed partition between

himself and Mr. S.C. Kohli of the property;

(xii) that the eviction orders record mutation of the property in the

names of defendant No.1 and Mr. S.C. Kohli.

10. IA No.13837/2016 under Order XII Rule 6 CPC came up first before

this Court on 8th November, 2016 when the defendant No.1 or his counsel

though served with advance copy thereof failed to appear. Accordingly,

notice thereof had to be issued to the defendant No.1 for today.

11. The defendant No.1 appears with counsel today. The counsel for the

defendant No.1 has no explanation for absence on 8 th November, 2016

despite receipt of advance copy. Today also he seeks adjournment to file

reply to the application under Order XII Rule 6 CPC.

12. I have enquired from the counsel for the defendant No.1, as to need

for the reply to the application under Order XII Rule 6 CPC. Order XII Rule

6 CPC empowers the Court to, where the admissions of fact have been

made, either in the pleadings or otherwise, whether orally or in writing to,

either on the application of any party or of its own motion, without

determination of any other question between the parties, make such order or

give such judgment, as it thinks fit having regard to such admissions. It thus

appears that there is no need for giving adjournment to enable the defendant

No.1 to file reply to the application under Order XII Rule 6 CPC. The

plaintiffs in the said application have not said and cannot say anything new.

All that the plaintiff does by such application is to draw the attention of the

Court to the admissions made by the opposite party and calls upon the Court

to pass an order / judgment / decree on the basis of the said admissions.

When such an application only draws attention of the Court to what is

already on record, there is no need to call for a reply thereto.

13. Though the conduct of the defendant No.1 of not appearing on 8th

November, 2016 and today seeking adjournment is clearly dilatory and

vexatious but I have nevertheless enquired from the counsel for the

defendant No.1 as to what he intends to state in reply thereto.

14. The counsel for the defendant No.1 inspite of confabulating with the

defendant No.1 is only able to say that opportunity to file reply to the

application be given.

15. I have enquired from the counsel for the defendant No.1, whether not

the defendant No.1 in the eviction proceedings pleaded and contended as has

been recorded by me hereinabove.

16. The counsel for the defendant No.1 though unable to reply in the

negative chooses to remain quiet.

17. I have further enquired from the counsel for the defendant No.1 that

the defendant No.1 having in the eviction petitions signed and verified on

18th October, 2008 and 20th October, 2008 and duly supported by affidavit

having pleaded himself and the predecessor-in-interest of the two plaintiffs

and defendants No.2&3 to be co-owners of the entire Shop No.81, Central

Market, Lajpat Nagar of which the tenancy premises are a part of the

property of which partition is claimed, on what basis is now in the written

statement, signed and verified on 2nd July, 2016 and again supported by an

affidavit is pleading of partition of co-ownership of Mr. S.C. Kohli and

defendant No.1 way back in the year 1995 pleaded.

18. Again, no answer is forthcoming.

19. I have yet further enquired from the counsel for the defendant No.1, to

make an election, which of the two affirmations on affidavit, whether of 18th

October, 2008 and 20th October, 2008 or of 2nd July, 2016 are false.

20. No election also is being made.

21. This Court has to come down heavily on litigants as the defendant

No.1 who have no regard for truth and who concoct the facts to suit their

need for the time being. The defendant No.1 cannot be permitted to, for the

purposes of evicting a tenant from a portion of the property describe himself

and the predecessor of the plaintiffs and defendants No.2&3 as co-owners of

the property and when faced with the demand of the plaintiffs and

defendants No.2&3 for partition, deny and dispute such co-ownership and

aver an oral partition of a date prior to the date on which co-ownership was

pleaded.

22. Though undoubtedly a plea of oral partition is required to be put to

trial but when it is pitted against documents executed on oath and on solemn

affirmation by the person taking the said plea of co-ownership, in my view

to still put such plea to trial would amount to the Court allowing its process

to be abused by the person taking such a plea and assisting him to abuse the

process of the Court and the implicit delays in trial to reap unfair advantage

to himself and to the prejudice of the other party. Not only has the counsel

for the defendant No.1 failed to state as to what the defendant No.1, even if

given an opportunity to lead evidence can prove to renege out of the

situation but I am also unable to fathom any get away for the defendant

No.1, even if granted such an opportunity.

23. Though undoubtedly there is no admission of the defendant No.1 in

his written statement filed in this suit of co-ownership and rather the

defendant No.1 in the written statement in this suit has pleaded a prior oral

partition but Courts have in Uttam Singh Duggal & Co. Ltd. Vs. United

Bank of India (2000) 7 SCC 120, Vivek Narayan Pal Vs. Sumitra Pal

(2010) 169 DLT 443 (DB), C.N. Ramappa Gowda Vs. C.C. Chandregowda

(2012) 5 SCC 265 and Maj. (Retd.) Sukesh Behl Vs. Koninklijke Phillips

Electronics 2014 SCC OnLine Del 2313 (DB) invoked the provisions of

Order XII Rule 6 CPC to negate such improbable pleas which have no

chance of succeeding on the face of the admitted material on record and

which pleas are taken merely to lengthen litigation and to use the said time

to coerce the plaintiff into settling for less than his due.

24. Not only Order XII Rule 6 CPC but Order XV CPC also requires and

empowers the Court to put a suit to trial only if a material proposition of fact

or law is submitted by one party and denied by the other. The plea of the

defendant No.1 of oral partition of the property, though if proved can

certainly defeat the claim of the plaintiffs of partition but is not found to be a

material one, since the defendant No.1 who has taken the said plea has in an

earlier statement on oath stated contrary thereto. Rather, the defendant No.1

has in the petitions for eviction of tenants filed by him admitted the co-

ownership of the predecessor-in-interest of the plaintiffs and defendants

No.2&3 and though the plaintiffs in their plaint pleaded the said admission

of the defendant No.1 of co-ownership in the eviction proceedings but the

defendant No.1 in his written statement has not given any explanation

thereof. I have in Ashoka Estate Pvt. Ltd. Vs. Dewan Chand Builders Pvt.

Ltd. 2009 (113) DRJ 193, P.S. Jain Co. Ltd. Vs. Atma Ram Properties (P)

Ltd. (2013) 205 DLT 302, M/s. Precision Steels Vs. Reeta Salwan (2013)

205 DLT 695, M/s Sikka Promoters Pvt. Ltd. Vs. National Agricultural

Cooperative Marketing Federation of India Ltd. (2013) 202 DLT 49 and

Shashi Garg Vs. M/s Shitiz Metals Ltd. 2014 SCC OnLine Del 2730

invoked Order XV of CPC to decree or dismiss the suit forthwith. The

defendant No.1 cannot be permitted to play hookey in the Court.

25. IA No.13837/2016 of the plaintiffs under Order XII Rule 6 CPC is

accordingly allowed and the plaintiffs are found to be entitled to the relief

claimed of partition on admissions.

26. The counsel for the defendants No.2&3 today also states that the

defendants No.2&3 do not claim any share in the property.

27. I have enquired from the counsel for the plaintiffs, whether the two

plaintiffs wants separation of their share.

28. The counsel for the plaintiffs replies in the negative.

29. A preliminary decree for partition is accordingly passed, declaring the

two plaintiffs together to be having 50% undivided share and the defendant

No.1 to be having the other 50% undivided share in Shop No.81, situated at

Central Market, Lajpat Nagar, New Delhi including Shops No.81A, 81B and

81C carved out therefrom.

30. The parties are left to bear their own costs.

31. Decree sheet be drawn up.

32. I have enquired from the counsel for the plaintiffs and the counsel for

the defendant No.1, whether there is any possibility of division of shops by

metes and bounds.

33. Both state that a Court Commissioner be appointed for the said

purpose.

34. Accordingly, Mr. D.K. Rustagi, Advocate (Mob.9810033559) is

appointed as a Court Commissioner to, in consultation with the parties and

by visiting the property and having a plan measured to scale thereof

prepared, explore and suggest the possibilities of division of the property

aforesaid by metes and bounds between the two plaintiffs on the one hand

and the defendant No.1 on the other hand with each having share of equal

value therein.

35. The Court Commissioner to submit the report on or before 31 st

January, 2017.

36. The fee of the Court Commissioner is tentatively fixed at

Rs.1,50,000/- besides out of pocket expenses to be borne equally by the two

plaintiffs on the one hand and the defendant No.1 on the other hand.

37. List for consideration of the report of the Court Commissioner on 14th

February, 2017.

RAJIV SAHAI ENDLAW, J.

DECEMBER 09, 2016 „bs‟ (corrected & released on 28th December, 2016)