Baljinder Singh vs Sadhu Singh & Ors
2018 Latest Caselaw 6717 Del

     * IN THE HIGH COURT OF DELHI AT NEW DELHI
     %                     Date of decision: 13th November, 2018.

+     FAO(OS) 167/2018, CM Nos. 47076/2018 & 47077/2018
      BALJINDER SINGH
                                                        ..... Appellant
                     Through: Mr. Raman Gandhi, Mr. Ravnee Singh
                                 and Ms. Harsha Sharma, Advs.

                          versus

      SADHU SINGH & ORS
                                                                 ..... Respondents
                          Through:
      CORAM:
      HON'BLE THE CHIEF JUSTICE
      HON'BLE MR. JUSTICE V. KAMESWAR RAO

     V. KAMESWAR RAO, J. (ORAL)

CM No. 47077/2018 (for exemption) Exemption allowed subject to all just exceptions.

Application stands disposed of.

FAO(OS) 165/2018

1. The present appeal has been filed by the appellant

challenging the order of the learned Single Judge in IA No.

12530/2017 in CS(OS) 583/2017 dated January 10, 2018, whereby

the learned Single Judge has dismissed the said IA praying for ad

interim ex parte injunction.

2. That facts as noted from the record are that the appellant,

who is the plaintiff in the aforesaid suit, claims that the suit property

being 2113/164 Tri Nagar, Delhi belonged to his grandmother late

Smt. Sant Kaur. The grandmother executed a Will in his favour on

February 22, 1996 whereby she bequeathed the entire property in

his favour. There is no dispute that Smt. Sant Kaur passed away on

August 13, 1996.

3. Prior to the filing of the Suit by the appellant herein, a Suit

being CS (OS) 303/2008 was filed by the respondent Nos.9 to 12

before this Court stating that the late Smt. Sant Kaur had died

intestate and that the said respondents are entitled to 1/4th share each

in the suit property.

4. On July 16, 2013 a preliminary decree was passed by this

Court in CS (OS) 303/2008, noting that the defendants therein,

namely, father and uncles of the plaintiff did not choose to cross-

examine the witness of the plaintiffs therein. A final decree of

partition was passed on December 18, 2015.

5. The aforesaid decree is pending execution in this Court and

the appellant herein had filed objections being EA(OS) 587/2016

under Order 21 Rule 58 read with Section 151 CPC against the

execution of the said decree. On February 08, 2017 the executing

Court dismissed the objections noting that the appellant claims to be

the grandson of Late Smt. Sant Kaur and his claim allegedly flow

from the Will dated February 22, 1996. This Court noted that

though late Smt. Sant Kaur died in 1996, no probate petition or any

other proceedings have been initiated by the plaintiff based on the

Will. It was concluded that there was a delay of more than two

decades. Against the dismissal of the objections, the appellant

preferred an appeal being FAO(OS) 11/2017 before a Coordinate

Bench of this Court. The Court dismissed the appeal on March 08,

2017. It may be stated here that the appellant had preferred,

additional objections before the executing Court which have also

been dismissed.

6. The case of the appellant on the maintainability of the suit

being CS(OS) 583/2017 was by relying on Order 21 Rule 58 Sub

clause (5) CPC inasmuch as where a Court has refused to entertain

objections, the appellant is within his right to file a Suit.

7. Be that as it may, the application for ad interim injunction

filed by the appellant was dismissed by the learned Single Judge by

holding as under:

"8. One of the elementary principles while seeking interim relief is that the application seeking interim injunction should not suffer from delay or latches. There is untold delay in this case. The grandmother Smt.Sant Kaur died on 13.8.1996. The plaintiff claims that as per

the Will of grandmother of 22.2.1996 the entire property was bequeathed to him and he had become the owner. Admittedly, the plaintiff is in occupation only of the second floor of the suit property whereas rest of the property is in occupation of other relatives/sons and grandsons of late Smt.Sant Kaur. It is quite clear that the plaintiff has been grossly negligent in pursuing his case. He cannot wake up after 20 years and claim that he has a right to the full property and that proceedings which have been initiated by his father and uncles be kept in abeyance, at this stage. I may also note that father of the plaintiff is alive and is arrayed as defendant No.1 to the present suit. He has not entered appearance and is not supporting the case of the plaintiff.

9. Order 21 Rule 58 (2) CPC reads as follows:- "2. All the questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit."

10. I may also note that under Order 21 Rule 58 (2) CPC all questions which arise between the parties to a proceeding relating to right, title and interest in the

property attached are to be adjudicated upon by the court dealing with claim or objections suit."

8. It is contended by Mr. Raman Gandhi, learned counsel

appearing for the appellant that if the injunction is not granted, the

Suit filed by the appellant shall become infructuous. According to

him, the Will executed by late Smt. Sant Kaur on February 22, 1996

conclusively proves that the property in question has been

bequeathed in favour of the appellant.

9. The issue which falls for consideration in this appeal is

whether the rejection of the application being IA No.12530/2017 for

ad interim injunction by the Ld. Single Judge is justified.

10. We have already reproduced the relevant paras vide which

the learned Single Judge has dismissed the application. From the

perusal of the same, we find that the learned Single Judge has not

exercised the discretion in favour of the appellant herein for

granting ad interim injunction on the ground of delay and laches. In

other words, the appellant is seeking an injunction on the basis of a

Will alleged to have been executed by late Smt. Sant Kaur on

February 22, 1996, whereby it is alleged that the entire property has

been bequeathed in his favour, which was almost 22 years back.

11. It is also noted by the learned Single Judge that the plaintiff

is in occupation of only second floor of the property where as the

rest of the property is in occupation of other relatives / sons and

grandsons of late Smt. Sant Kaur. Meaningfully read that the

appellant had not pursued his case for so many years and also had

not lay a claim with regard to the rest of the property despite the

Will. The learned Single Judge has also noted that the father of the

appellant, who is the son of late Smt. Sant Kaur is alive and is not

supporting the case of the appellant. Noting the relevant

considerations which weighed with the learned Single Judge for not

exercising the discretion in favour of the appellant with which we

concur, we do not see any merit in the appeal, the same is

dismissed.

CM No. 47076/2018 (for stay) Dismissed as infructuous.

V. KAMESWAR RAO, J

CHIEF JUSTICE

NOVEMBER 13, 2018/aky