Delhi High Court
Shakun Jaiswal vs Anand Pershad Jaiswal & Ors. on 3 February, 2016
Author: Sanjeev Sachdeva
*
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 02nd November, 2015
Judgment Delivered on: 03rd February, 2016
+ FAO(OS) 457/2014 & CM 18008/2015 & 11281/2015 (STAY)
SHAKUN JAISWAL ..... APPELLANT
VERSUS
ANAND PERSHAD JAISWAL & ORS. ..... RESPONDENTS
+ FAO(OS) 459/2014 & CM 18016/2015 & 11277/2015 (STAY)
KARAMJIT JAISWAL ..... APPELLANT
VERSUS
ANAND PERSHAD JAISWAL & ORS. ..... RESPONDENTS
Advocates who appeared in this case:
For the Appellant: Mr A.S. Chandhiok, Sr. Advocate with Ms Malini
Sood, Ms Harleen Singh, Ms Vaishnavi Rao and Ms
Nimisha Jain, Advocates.
For the Respondents: Mr Arvind K. Nigam, Sr. Advocate with Mr
Akshay Makhija, Mr Saurabh Seth and Mr Amisha
Bejroi for R-1
Mr Divyam Agarwal, Advocate for R-2
Ms Vidhi Goel, Advocate for R-3.
CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
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FAO(OS) 457 & 459/2014 Page 1 of 10
JUDGMENT
SANJEEV SACHDEVA, J
1. Both these appeals impugn the common order dated 22.09.2014
in CS(OS) 2064/2009. FAO (OS) 457/2014 is filed by the defendant
no. 1 in the suit and FAO (OS) 459/2014 is filed by the defendant no.
2 in the suit. Respondent no. 1 in both the appeals is the plaintiff in
the subject suit.
2. The plaintiff filed the suit for declaration and mandatory
injunction for declaring the transfer of funds amounting to £ Sterling
86,41.735.81, US $ 2.54.589.83 and € 10,000 from the accounts
belonging to late Shri L.P. Jaiswal in favour of defendant no. 1 to be
fraudulent transactions and therefore null and void and for reversing
the said transactions.
3. The two applications decided by the impugned order are
applications filed by the respondent no. 1 (plaintiff in the suit) being
IA No. 19226/2013 under Order 7 Rule 14 read with Order 13 Rule 1
Code of Civil Procedure (hereinafter referred to as CPC) seeking to
place additional documents on record and IA No. 5416/2014 under
Order 14 Rule 5 seeking to strike out issue no. (v) and to vary the
direction treating issues (i) and (ii) as preliminary issues.
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4. Originally the plaint by order dated 28.02.2011 was rejected
under Order 7 Rule 11 (d) of the CPC on an application filed by the
appellants herein. The order rejecting the plaint was challenged by the
respondent no. 1, which challenge was accepted and the order dated
28.02.2011 was set aside and the suit was restored. The said decision
was impugned by the appellant herein before the Supreme Court. The
Supreme Court while dismissing the petitions clarified that it was
open to the appellants herein to raise all available pleas in the written
statement including the pleas relating to limitation, court fees and
maintainability of the suit. It was directed that the trial be concluded
as expeditiously as possible and preferably within two years from the
date of the passing of the said order.
5. Thereafter, the written statement and replication were filed and
the following issues were settled on 14.02.2014: -
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) and (d)CPC?
iii) Whether the suit is barred by limitation? OPD.
iv) Whether the plaintiff has the locus to maintain the
present suit? OPD.
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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 estopped from filing the
present suit for declaration in view of the
undertaking given by the plaintiff before the
Company Law Board? OPD-1.
Issues no. (i) and (ii) were treated as preliminary issues.
6. By the impugned order, IA No. 19226/2013 under Order 7 Rule
14 read with Order 13 Rule 1 CPC seeking to place additional
documents on record has been allowed and IA No. 5416/2014 under
Order 14 Rule 5 seeking to strike out issue no. (v) and to vary the
direction treating issues (i) and (ii) as preliminary issues has been
partly allowed. While the prayer seeking deletion of issue (v) has been
dismissed, the direction treating issues (i) and (ii) as preliminary
issues has been recalled.
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7. By IA No. 19226/2013, the plaintiff sought to place on record
documents filed vide three sets of index dated 10.09.2013, 23.09.2013
and 30.10.2013. The documents filed along with the first index dated
10.09.2013 are stated to be certified copies of testimonies of various
witnesses recorded in testamentary cases, which testimonies were
recorded after the filing of the subject suits. The second set of
documents filed with the list of index dated 23.09.2013 are stated to
be medical history and record of late Shri L.P. Jaiswal and the third
set of documents are certified copies of the documents stated to be
already on record and the same were re-filed for the convenience of
the court. The learned Single Judge has allowed the said application
permitting the said documents to be taken on record. We may also
note that the documents were filed prior to the framing of issues. The
learned Single Judge has left the question of the relevance and validity
of the said documents to be considered at the stage of trial in
accordance with law.
8. We find no reason to interfere with the discretion exercised by
the learned Single Judge in permitting to take on record the said
documents. Though the documents were filed belatedly, however,
they were filed well before the framing of issues. The documents are
stated to be relevant for the purposes of disposal of the suits. The
evidence of the parties is yet to commence. No prejudice is likely to
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be caused in case the plaintiff is permitted to place the said documents
on record. The relevance and validity of the documents would in any
case be considered at an appropriate stage i.e., at trial.
9. The learned Single Judge while exercising the discretion has
burdened the plaintiff with costs of Rs. 50,000/- to be paid equally to
the defendants no. 1 and 5 i.e., appellants herein. We see no reason
to interfere with the discretion exercised by the learned Single Judge.
The appeal in so far as it relates to IA No. 19226/2013 is dismissed.
10. With regard to IA No. 5416/2014 (striking out issue no. (v) and
to vary the direction treating issues (i) and (ii) as preliminary issues),
the learned Single Judge has modified the order dated 14.02.2014 to
the extent that issues no. (i) and (ii) would not be treated as
preliminary issues and would be decided along with other issues. The
primary reason stated in the impugned order was that the order passed
by the Supreme Court had to be given effect to. The contention of the
respondent no. 1 that since the Supreme Court had directed the trial to
be conducted and expedited the same implied that the suit had to
proceed for trial under all circumstances was accepted by the learned
Single Judge.
11. The learned senior counsel for the appellant contended that the
said application was, in fact, an application seeking review of the
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order whereby the court while framing issues had directed that the
issues no. (i) and (ii) be treated as preliminary issues. In this
circumstances, it is contended that the issues involved in the appeal is
as to the jurisdiction of the learned Single Judge in passing the
impugned order and reviewing the order dated 14.02.2014 and not
placing the application before the same learned Judge who had passed
the order.
12. The learned counsel for the respondent no. 1 has raised
preliminary objection as to maintainability of the appeal on the ground
that the said order is not a judgment and is not an appealable order in
terms of the ratio as laid down by the Supreme Court in Shah Babulal
Khimji Vs. Jayaben D. Kania: (1981) 4 SCC 8.
13. We are of the view that the learned Single Judge has erred in
allowing the said application and varying the direction of treating the
issues (i) and (ii) as preliminary issues. Perusal of the order dated
14.02.2014 whereby issues were framed clearly shows that the court
had applied its mind and considered the contention of the parties that
no evidence was required to be led on issues (i) and (ii) and thus
issues (i) and (ii) were treated as preliminary issues. The fact that the
Supreme Court by order dated 23.03.2013 permitted the defendants to
raise all issues in the written statement and directed that the trial be
expedited, does not imply that the court has to necessarily undertake
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the process of the trial if the suit can be disposed of on a preliminary
issue. The direction of the Supreme Court that trial be concluded
expeditiously does not imply that the trial has to be conducted
irrespective of the fact that trial may not be necessary in the facts and
circumstances of the case. In case the suit can be disposed on a
preliminary issue, the court is not to necessarily set down the suit for
trial merely because the trial in the suit has to be expedited. The
direction that trial is expedited would come into force in case there is
a requirement of trial and the suit is set down for it. If there is no
necessity of a trial the direction of the Supreme Court would not be
applicable.
14. In view of the above, the impugned order to the said extent is
set aside. Issues (i) and (ii) are treated as preliminary issues as
originally directed by order dated 14.02.2014. The pendency of the
consideration of the said issues before the court does not entail that
the proceedings of trial that have been set in motion are to be stalled.
The trial shall proceed irrespective of the pendency of the decisions
on Issues (i) and (ii). In the event, the court decides Issues (i) and (ii)
in favour of the defendants, there would be no necessity of continuing
with trial any further and the suit can be disposed of based on the
decision of issues (i) and (ii).
15. The plea of the respondent, that the appeal is not maintainable,
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as the impugned order does not satisfy the test as laid down in Shah
Babulal Khimji (Supra), is not sustainable. On the contrary, the
Supreme Court in the said judgment has laid down "......Another
shape which a preliminary judgment may take is that where the Trial
Judge passes an order after hearing the preliminary objections raised
by the defendant relating to maintainability of the suit, e.g., bar of
jurisdiction, res Judicata, a manifest defect in the suit, absence of
notice under section 80 and the like, and these objections are decided
by the Trial Judge against the defendant, the suit is not terminated but
continues and has to be tried on merits but the order of the Trial
Judge rejecting the objections doubtless adversely affects a valuable
right of the defendant who, if his objections are valid, is entitled to get
the suit dismissed on preliminary grounds. Thus, such an order even
though it keeps the suit alive, undoubtedly decides an important
aspect of the trial which affects a vital right of the defendant and
must, therefore, be construed to be a judgment so as to be appealable
to larger Bench."
16. By order dated 14.02.2014, issues (i) and (ii) were treated as
preliminary issues and if the said issues are decided in favour of the
appellant, the suit can be disposed of and the proceedings terminated.
By the impugned order, the learned single judge has varied the order
treating the said issues as preliminary issues, which implies that the
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right of the appellant to have the suit dismissed on the preliminary
issues is adversely affected. The impugned order satisfies the test as
laid down in Shah Babulal Khimji (Supra) and the appeals are thus
held to be maintainable.
17. In view of the above, the appeals, in so far as they relate to IA
No. 19226/2013 (under Order 7 Rule 14 read with Order 13 Rule 1
CPC, seeking to place additional documents on record) are dismissed
and the appeals, in so far as they relate to IA No. 5416/2014 (under
Order 14 Rule 5 CPC, seeking to vary the direction treating issues (i)
and (ii) as preliminary issues) are allowed. I.A. No. 5416/2014 in
CS(OS) 2064/2009 is dismissed. The parties shall bear their own
costs.
SANJEEV SACHDEVA, J.
FEBRUARY 03, 2016 BADAR DURREZ AHMED, J.
rs
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