Delhi High Court
Archana Gaur & Anr vs Sunny Gupta on 16 April, 2018
$~4,5 and 6
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:- 16th April, 2018
+ CM(M) 705/2015 and CM 13744/2015 and 1773/2016
ARCHANA GAUR & ANR ..... Petitioners
Through: Mr. Prem Kumar and Mr. Rakesh
Kumar, Advocates
Versus
SUNNY GUPTA ..... Respondent
Through: Mr. Sidharth Aggarwal, Adv.
+ CM(M) 155/2016 and CM 5700/2016
ARCHANA GAUR & ANR ..... Petitioners
Through: Mr. Prem Kumar and Mr. Rakesh
Kumar, Advocates
Versus
SUNNY GUPTA ..... Respondent
Through: Mr. Sidharth Aggarwal, Adv.
+ TR.P.(C.) 4/2016 and CM 1031/2016
ARCHANA GAUR & ANR ..... Petitioners
Through: Mr. Prem Kumar and Mr. Rakesh
Kumar, Advocates
Versus
SUNNY GUPTA ..... Respondent
Through: Mr. Sidharth Aggarwal, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
CM(M) 705/2015 and conn. Page 1 of 5
ORDER (ORAL)
1. These petitions arise out of the proceedings relating to civil suit
(suit no.967/2014) which was filed by the petitioners against the
respondent, it being presently pending in the court of the Civil Judge-
05, Central District. The subject matter of the civil suit is property
described as S-248, Greater Kailash, Part-1, New Delhi. The property
was originally owned by Ram Lal Gakar upon whose death it
devolved upon his legal representatives Ram Gakar and Pushpa Gakar
who entered into a collaboration agreement with a builder M/s Sai
Developers on 08.05.1983. The builder raised a new structure on the
said property and, as per the terms and conditions of the collaboration
agreement, it (the builder) was entitled to the right, title and interest in
the basement and ground floor portion, the first and second floor
falling to the share of the owners. The plaintiffs claim to have
purchased the right, title and interest in the ground floor portion of the
subject property, by sale deed dated 16.09.1999, from Gautam Kaul
and Siddharth Kaul who, in turn, had purchased the said portion from
the builder by sale deed dated 08.05.1985.
2. On the other hand, the respondent (defendant) is the owner in
occupation of the first floor portion, he having purchased it from the
owners of the property by sale deed dated 17.11.1994. The
controversy surrounds the parking space on the premises of the
property, the plaintiffs claiming exclusive rights thereto, the
respondent / defendant, on the other hand, asserting his right to a
portion of its use.
3. The suit was dismissed by the trial Court by judgment dated
23.01.2012. The petitioners took out appeal (RCA 1/2012) which was
allowed by the first appellate Court by judgment dated 19.11.2013. It
may be mentioned here that alongwith the said appeal, the petitioners
had also moved an application under Order XLI Rule 27 read with
Section 151 of the Code of Civil Procedure, 1908 (CPC) seeking
liberty to adduce additional evidence. The request of the petitioners
for additional evidence was not granted. But, the first appellate court
found the judgment dismissing the suit suffering from infirmities and
not based on proper appraisal of the evidence which was available. It
allowed the appeal setting aside the judgment and decree remanding
the matter to the trial court, though with observations that, if required,
the trial court could take further evidence as may be necessary at its
discretion.
4. Against the above backdrop, the petitioners as the plaintiffs of
the suit, moved two applications, one under Order VII Rule 14 (3) of
the CPC and the other application under Section 151 CPC. The thrust
of both these applications is identical. By the first application, the
petitioners wanted to bring on record four additional documents, viz.
general power of attorney dated 11.01.1994; memorandum of
collaboration dated 30.05.1993; articles of collaboration dated
08.05.1993; and, sanctioned site plan of the subject property as issued
by the municipal corporation. The prayer in the second application
essentially was for liberty to examine certain witnesses (Harish Mehta,
Gautam Kaul and Mukul Gaud and official witness from the
Municipal Corporation) to prove on record that the land described as
parking space is an integral and indivisible part of the ground floor
which cannot be described as parking space available for all occupants
of the different portions and that the said area exclusively belongs to
the petitioners. Both the applications were dismissed, first by order
dated 08.04.2015 and the second by order dated 23.11.2015.
5. The aforesaid orders are under challenge by CM (M) 705/2015
and CM (M) 155/2016 respectively.
6. The argument on the basis of which the respondent resists these
petitions is that the first appellate Court had disallowed the prayer
under Order XLI Rule 27 CPC and, therefore, such further evidence
cannot be permitted to be brought on record. The submission, to say
the least, is wholly devoid of substance. The jurisdiction of the first
appellate court to allow additional evidence for adjudication upon the
appeal was circumscribed by the provision contained in Order 41 Rule
27 CPC. The reasons which weighed with the first appellate court
cannot continue to restrict the field for the plaintiff of the suit after the
matter has been remanded to the trial court for further trial. The
documents and the evidence referred to above are found by this court
to be essential for complete and effectual determination of the
controversy between the parties.
7. In the above facts and circumstances, the orders impugned in
the above mentioned petitions are set aside. The applications which
were decided by the said respective orders stand allowed. The
petitioners, as the plaintiffs of the suit, shall be entitled to bring on
record the documents referred to above and also prove them in
accordance with law by summoning the aforesaid witnesses
additionally. The trial court will give appropriate opportunity for such
purposes to the petitioners.
8. The petitioners have also brought transfer petition - Transfer
Petition (Civil) 4/2016 - pointing out that the suit had been instituted
prior to the bifurcation of Delhi into more than one civil District. It is
the submission of the petitioners that the suit property being located in
the area of Greater Kailash, Part-I, New Delhi, the territorial
jurisdiction would now vest in the courts of South-East District at
Saket Courts Complex, New Delhi. It is clear from the facts narrated
that the suit when instituted was filed before the appropriate
jurisdictional court. The subsequent bifurcation of Delhi into districts
would not justify the movement of the case form the court where it has
been pending all along. Pertinent to add here that when bifurcation
took place, cases were not moved according to the new distribution of
jurisdiction, such dispensation having been enforced only qua the
future litigation. The request in the transfer petition is, thus, declined.
9. The petitions and the applications filed therewith stand disposed
of in above terms.
R.K.GAUBA, J.
APRIL 16, 2018
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