Sanjeev Sarin vs Rita Wadhwa & Anr.
2018 Latest Caselaw 468 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CS(OS) No. 140/2008

%                                                   18th January, 2018

SANJEEV SARIN                                              ..... Plaintiff
                          Through:       Mr. Nimit Mathur, Advocate

                          versus

RITA WADHWA & ANR.                                     ..... Defendants
                Through :                Mr. S. K. Gandhi, Advocate
                                         with Ms. Manjula Gandhi,
                                         Advocate for D-1.
                                         Ms. Sonam Anand, Advocate
                                         for D-2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)
I.A. 13506/2017 (u/O XXXIX R-10 r/w S 151 CPC)

1.           This is an application filed by the legal heir/wife of the

deceased defendant no.2 under Order XXXIX Rule 10 CPC seeking a

direction that the defendant no.1 should pay pendente lite charges for

use and occupation of the suit property and which direction prayed is

that the same direction be passed as passed on 07.08.2013 by a

Division Bench of this Court in an appeal FAO(OS) No. 94/2013 filed

against the order of a learned Single Judge of this Court dated


CS(OS) No. 140/2008                                         Page 1 of 7
 26.11.2012 by which the application filed by the plaintiff under Order

XXXIX Rule 10 was dismissed.


2.           The order of the Division Bench dated 07.08.2013 passed

in FAO(OS) No. 94/2013 in the appeal titled as Sanjeev Sarin vs. Rita

Wadhwa and Another reads as under:-

      "        After some hearing learned counsel for the respondent

No.1/defendant No. 1 submitted that in case of any apprehension, without prejudice to the rights of the said party, a bank guarantee for the sum of Rs.40,00,000/- would be furnished to the Court, to be appropriated in the event of any adverse order vis-a-vis the shares, or any amounts to be appropriated or paid towards the use and occupation of the premises or parts of it, provided such liability is found after the merits of the case, against the said respondent No. 1/defendant No. 1. Let bank guarantee to the satisfaction of the Registrar to this Court be furnished in this regard for the sum of Rs.40,00,000/-. This shall be subject to the final decision in the suit. It is clarified that this shall not be construed as an expression of opinion on the merits of the contentions of the said respondent in any manner whatsoever.

All rights of the parties are reserved. Having regard to the nature of the suit, this Court is of the opinion that the recording of the evidence should be possibly concluded on or before 31.1.2014 and directions are issued accordingly.

Learned counsel for the parties submit that above appeal may be disposed off in above terms. The respondent No. 1 shall be present before the Registrar in six weeks from today for suitable directions with regard to the compliance of the above order.

The appeal is disposed off accordingly, subject to any orders that may have been already made by the learned Single Judge with regard to the conduct of the trial and the filing of depositions of witnesses through affidavits. Order dasti."

3. The subject suit is a suit filed by the plaintiff for partition,

rendition of accounts etc. The suit property in question is B-1/23,

Vasant Vihar, New Delhi. The suit property was admittedly owned by

the mother of the parties, namely, Smt. Madhurekha Sarin. Whereas

the plaintiff, and who is supported by the defendant no.2/applicant,

claims that the mother Smt. Madhurekha Sarin died intestate, the

defendant no.1 has set up a Will dated 01.03.1999 of the mother

whereby the suit property has been bequeathed to the defendant no.1.

4. The principles with respect to disposal of an application

under Order XXXIX Rule 10 CPC have been stated by a learned

Single Judge of this Court Hon'ble Mr. Justice A. K. Sikri (as he then

was) in the judgment in the case of Harish Ramchandani vs. Manu

Ramchandani & Ors., (2001) 91 DLT 480. It has been held in this

judgment that for the provisions of Order XXXIX Rule 10 CPC to

apply, it would be necessary that the principles contained in Order XII

Rule 6 CPC are also satisfied. The relevant paras of the judgment in

Harish Ramchandani (supra) are paras 6 and 7 and these paras read

as under:-

"6. Before dealing with the respective contentions, it would be appropriate to refer to the provisions of Order XXXIX Rule 10 CPC. This would enable us to ascertain as to what are the requirements to be satisfied before the plaintiff becomes entitled to an order for deposit by way of interim measure as per this provisions. Order XXXIX Rule 10 CPC reads as under:

"Where the subject-matter of a suit is money or some other thing capable of delivery and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or

is due to another party, the Court may order the same to be deposited in Court or delivered to such last-named party, with or without security, subject to the further direction of the Court."

7. This rule would be applicable only when there is admission on the part of the defendants of the nature which would constitute sufficient admission under Order XII Rule 6 CPC. Rule 10 of Order XXXIX does not apply unless-

(A) The admission of the party is an admission sufficient under 0.12 R.6 AIR 1927 Sind 25.

(B) The party making the admission "holds" the property or other things capable of deliver (1903) 27 Mad 168."

5. There is very much a live issue in the suit, which is

pending adjudication, with respect to the fact that the plaintiff and

defendant no.2 have no ownership rights in the suit property on

account of the Will dated 01.03.1999, relied upon by the defendant

no.1 to have been executed in his favour by the mother late Smt.

Madhurekha Sarin. This aspect is the subject matter of issue no.6

which has been framed in the suit on 02.08.2010. Therefore, allowing

of the application would have been possible only if the defendant no.1

would be found to have no title to the suit property and that there was

no valid Will dated 01.03.1999 of the mother late Smt. Madhurekha

Sarin.

6. As already stated above, there is a live issue which has to

be decided in the suit at the stage of final arguments of defendant no.1

being or not the owner of the suit property. If the Will dated

01.03.1999 of the mother late Smt. Madhurekha Sarin is proved by

defendant no.1 then he will become the owner of the suit property.

This is a disputed fact on which trial will be held in terms of issue no.6

framed and thus there are no admissions that defendant no.1 is not the

owner of the suit property and that the plaintiff and defendant no. 2 are

also the co-owners. Principles contained in Order XII Rule 6 CPC are

thus not satisfied and this Court therefore cannot pass an order under

Order XXXIX Rule 10 directing the defendant no.1 to pay or deposit

any amount or give any security in the form of a bank guarantee as

prayed in this application.

7. It is also required to be noted that the defendant no.2 had

moved IA No. 16647/2011 seeking more or less same relief and which

application was filed under Order XXXIX Rule 10 CPC, however this

application was dismissed by the same order dated 26.11.2012 of the

learned Single Judge, but the defendant no.2 however never

challenged this order dismissing his application under Order XXXIX

Rule 10 CPC. Therefore, once no new facts constituting fresh cause

of action have arisen, an application based on the same facts cannot be

filed once an earlier application under Order XXXIX Rule 10 CPC

already stands dismissed in terms of the order dated 26.11.2012 and

which has become final.

8. It has been argued by the learned counsel appearing for

the legal heir/wife of the deceased defendant no.2 that the order of the

Division Bench of this Court dated 07.08.2013 in FAO(OS) No.

94/2013 will furnish a fresh entitlement and cause of action to file the

present application, however, I cannot agree because the order of the

Division Bench dated 07.08.2013 is not an order passed on merits

setting aside the order of the learned Single Judge of this Court dated

26.11.2012 and the order dated 07.08.2013 is effectively only a

consent order without touching any aspect on merits of whether the

plaintiff was entitled to an order under Order XXXIX Rule 10 CPC.

The ratio of the judgment of this Court in Harish Ramchandani

(supra) holds that an application under Order XXXIX Rule 10 CPC

will not lie unless the facts satisfy the requirement of Order XII Rule 6

CPC.

9. Clearly therefore this application is wholly misconceived

and is ex facie hit by the doctrine of res judicata/finality that a litigant

cannot file an application for the same relief although a similar

application was filed earlier and was dismissed, and the dismissal

order was not challenged with the fact that the order of the Division

Bench of this Court dated 07.08.2013 is not an order on merits setting

aside the judgment passed by a learned Single Judge of this Court

dated 26.11.2012. This application is therefore completely

misconceived and an abuse of process of law.

10. This application is dismissed with costs of Rs.20,000/-

payable by the applicant to the counsel for the defendant no.1.

CS(OS) No. 140/2008

11. Evidence is being recorded before the Local

Commissioner.

12. List for further proceedings on 24th July, 2018.

JANUARY 18, 2018                             VALMIKI J. MEHTA, J
SRwt