Delhi High Court
Parmod Kumar Jain vs Satish Jain And Ors on 23 August, 2017
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA(OS) 39/2017, CM APPL. 25411/2017 and CM APPL. 27756/2017
PARMOD KUMAR JAIN ..... Appellant
Through: Mr Tanmaya Mehta, Adv.
Versus
SATISH JAIN AND ORS ..... Respondents
Through: Appearance not given.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MS. JUSTICE DEEPA SHARMA
ORDER
% 23.08.2017
1. The appellant, who is not a party in CS(OS) No.462/2017
instituted by his brother the respondent no.1, is aggrieved by a
preliminary decree passed on 04.05.2017 and has filed the present
appeal stating inter alia that he is adversely affected by the said order.
2. It is submitted by Mr Mehta, learned counsel for the appellant that
the learned Single Judge has passed a preliminary decree of partition, in
a suit instituted by his brother/respondent No.1, apportioning therein the
shares of the parties to the captioned suit, in respect of an immovable
property situated at 14, Alipur Road, Civil Lines, New Delhi, as material
information has been withheld from the Court to the effect that the
appellant herein, being a sibling of the respondent No.1 has also laid a
claim to a fraction of share in respect of a part of the 25% share in the
suit property. As a result, the Court has erroneously proceeded to declare
the respondent No.1 (plaintiff in the suit) as the owner of the entire 25%
share to the detriment of the appellant. He states that subsequent to the
said suit for partition being instituted by the respondent No.1 on
14.09.2016, the appellant has instituted a separate suit for declaration,
cancellation of Gift Deed and permanent injunction, registered as
CS(OS) No. 182/2017, wherein he has averred that he is entitled to a
share within the 25% share of the suit premises that has now been
apportioned exclusively in favour of the respondent No.1, under the
preliminary decree.
3. We have enquired from learned counsel for the appellant as to
whether the appellant had taken any steps to seek impleadment in
CS(OS) No. 462/2016. The reply is in the negative. We have next
enquired as to whether the appellant has filed a stay application along
with the suit instituted by him against the respondent No.1 and others for
seeking interim protection qua the fractional share claimed by him in the
suit premise. Learned counsel concedes that no such steps have been
taken by the appellant on an assumption that the doctrine of lis pendens
shall apply.
4. We have also asked learned counsel for the appellant to state as to
whether any steps were taken by the appellant to seek consolidation of
CS(OS) No. 462/2016 instituted by the respondent no.1with CS(OS) No.
182/2017, instituted by him, to avoid passing of any contradictory
orders, to which again, the reply is in the negative. In other words, the
predicament that the appellant finds himself in, is of his own making.
5. In such circumstances, we are not impressed by the submission of
learned counsel for the appellant that even if the appellant is not a party
in the suit proceedings in which the preliminary decree has been passed,
he can still approach the Appellate Court directly for seeking leave to
file an appeal. We are not inclined to grant leave to the appellant to
assail the preliminary decree passed in the suit instituted by respondent
no.1 as we are of the opinion that he had instituted a suit for partition
prior in time, claiming inter alia 25% exclusive share in the suit
premise, and as a vigilant litigant, the appellant ought to have taken
immediate steps on his own, to seek impleadment the said suit to protect
his interest or in the alternative, applied to the Court for consolidation of
both the suits
6. Having failed to exercise his rights by opting for either of the
aforesaid two courses available to him, the appellant's plea that
irrespective of the above, the present appeal ought to be entertained
against the impugned order dated 04.05.2017, is found to be devoid of
merits. Instead, it is deemed appropriate to grant liberty to the appellant
to approach the learned Single Judge in CS(OS) No.462/2016 and
apprise it of the institution of his suit and the scope thereof and raise a
grievance against the preliminary decree passed to the extent of 25%
share in the suit premises apportioned exclusively in favour of the
respondent No.1 (plaintiff in the suit) on the ground that he is legally
entitled to claim a fraction of the said share, along with his other
siblings. This is not to foreclose the option available to the appellant of
seeking appropriate interim orders in the pending suit instituted by him
against the respondent No.1 herein and others, so as to safeguard his
interest. However, the present appeal, as filed is not maintainable and
is accordingly disposed of along with the pending applications.
HIMA KOHLI, J
DEEPA SHARMA,
AUGUST 23, 2017/bg
