Delhi High Court
Sh. Baljinder Singh vs Sh. Sadhu Singh & Ors on 1 October, 2018
$~OS-7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% date of decision: 01.10.2018
+ CS(OS) 583/2017
SH. BALJINDER SINGH ..... Plaintiff
Through Mr.Raman Gandhi and Ms.Harsha
Sharma, Advs.
versus
SH. SADHU SINGH & ORS ..... Defendant
Through Mr.Amit Sanduja, Adv. for D-9 to 12
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH J. (ORAL)
IA 12530/2017
1.
This application is filed seeking ad interim ex parte injunction to
restrain the defendants from further creating any interest in favour of any
third party or acting upon on the basis of preliminary decree dated
16.07.2013 and final decree dated 18.12.2015 passed by this court in
CS(OS)303/2018
2. The facts of this case are that the plaintiff 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 favour of the applicant on
22.2.1996 whereby she bequeathed her entire property in favour of the
applicant. Late Smt.Sant Kaur passed away on 13.8.1996.
3. On 6.2.2008 a suit being CS(OS) 303/2008 was filed by defendants
No.9 to 12 stating that Smt.Sant Kaur had died intestate and that the said
CS(OS) 583/2017 Page 1
defendants are entitled to 1/4th share in the suit property.
4. Essentially, Smt.Sant Kaur was survived by four sons and the suit was
filed by LRs of one of the pre-deceased son against the three other sons of
Smt.Sant Kaur. On 16.7.2013 a preliminary decree was passed by this court
noting that the defendants therein, namely, father and uncles of the plaintiff
did not choose to cross-examine the witnesses of the plaintiffs therein. A
final decree of partition was passed on 18.12.2015.
5. Being aggrieved by the aforesaid decree which is now pending for
execution the plaintiff has filed objections being EA(OS)587/2016 under
Order 21 Rule 58 readwith section 151 CPC against the execution of the
said decree. This court on 8.2.2017 dismissed the said objections noting that
the plaintiff claims to be the grandson of Smt.Sant Kaur and his claims
allegedly flow from the Will dated 22.2.1996. Though Smt.Sant Kaur died
in 1996 this Court noted that no probate petition or any other proceedings
have been initiated by the plaintiff based on the said Will. There is a delay
of more than two decades. Hence, the objections were dismissed. Against
the above objections, the plaintiff preferred an appeal being
FAO(OS)11/2017 before the Division Bench The Division Bench also
dismissed the appeal on 8.3.2017.
6. Learned counsel appearing for the plaintiff relies upon Order 21 Rule
58 Sub clause (5) to contend that where a court has refused to entertain
objections he is entitled to file a suit. He also relies upon judgment of this
court in Canara Bank vs. Gurmukh Singh & Ors AIR 2000 Delhi 48 to
note that objections are to be adjudicated upon like a suit and as the same
has not been done by this court the plaintiff is entitled to file the present suit.
7. Learned counsel appearing for the defendant submits that even after
CS(OS) 583/2017 Page 2
the Division Bench of this court had dismissed the objections on 8.3.2017,
the plaintiff has preferred two additional objections before the trial court
which have also been dismissed.
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
CS(OS) 583/2017 Page 3
dealing with claim or objections suit.
11. I see no reason to grant any injunction in favour of the plaintiff
keeping in view the gross delay and latches. The application is dismissed.
CS(OS) 583/2017
12. List before Joint Registrar on 23.10.2018 for admission/denial of
documents.
JAYANT NATH, J
OCTOBER 01, 2018
n
CS(OS) 583/2017 Page 4
