Delhi High Court
Dr. Ashok Singhal vs Dr. Inder Kumar Gupta & Ors on 9 October, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 484/2018.
% 9th October, 2018
DR. ASHOK SINGHAL ..... Appellant
Through: Mr. Manu Nayar, Ms.
Maitreyee Joshi and Mr. Chetan
Kakkar, Advocates
(9811146073)
versus
DR. INDER KUMAR GUPTA & ORS. ..... Respondents
Through: R-1 in person.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
VALMIKI J. MEHTA, J (ORAL)
1. This Regular First Appeal under Section 96 of the Code
of Civil Procedure 1908 (CPC), is filed by the plaintiff in the suit
impugning the Judgment of the Trial Court dated 20.09.2017 by which
the trial court, during the course of leading of evidence, has dismissed
the suit by suo moto framing a preliminary issue and holding that the
suit as filed is not maintainable in the present form.
2. At the outset, I would like to note that a preliminary issue
cannot be framed by a court when the preliminary issue is not a
preliminary issue which falls under Order XIV Rule 2 CPC. An issue
can be a preliminary issue only if two conditions are satisfied and
these are, firstly, that the issue is a legal issue and secondly, the issue
affects the jurisdiction of the court. In the present case, none of these
two aspects of the issue either being a legal issue or the issue being
one of jurisdiction, have been decided by the trial court by making any
such observations and these aspects are the sine qua non under Order
XIV Rule 2 CPC. The trial court has only dismissed the suit as not
maintainable in the present form by holding that the two subject plots
cannot be merged into one plot, and that the suit for partition should
not have been filed as one suit for partition, but two separate suits for
partition for two separate plots had to be filed. The two separate plots
are owned by different brothers i.e. appellant/plaintiff and respondent
no.3/defendant no.3 owned one plot of 250 sq. yds., and the
respondent nos.1 and 2/ defendant nos.1 and 2 owned the adjacent plot
of 350 sq. yds.
3. The facts of the case are that the subject suit for partition
was filed by the appellant/plaintiff pleading that the four brothers
purchased two adjacent plots of 250 sq. yds. and 350 sq. yds.
Appellant/Plaintiff and respondent nos.1 to 3/ defendant nos. 1 to 3 are
real brothers and children of Dr. Wilyati Ram Gupta. The case of the
appellant/plaintiff was that the plot of 250 sq. yds. was purchased by
the appellant/plaintiff and respondent no.3/defendant no.3 and the
adjacent plot of 350 sq. yds. was purchased by the respondent nos.1
and 2/ defendants nos. 1 and 2. However, a construction was jointly
made on adjoining both the plots by the four brothers, and it was
agreed by all the brothers that on total construction made on the two
plots together, the same would be owned by each of the four brothers
in the ratio of 1/4th each. Accordingly, the suit property which is said
to be bearing no. G-25, Amar Colony, Gokulpur, Shahdara, Delhi
situated on a plot of 600 sq. yds. was sought to be partitioned by the
following prayer clauses:-
"i) That a Preliminary decree for partition of the joint property No.G-
25,Amar Colony, East Gokulpur, Shahdra, Delhi shown in the
annexed site plan may be passed in favour of the plaintiff against
the defendant and the plaintiff's share be separated;
ii Hon'ble court may be further pleased to Appoint a Local
Commissioner to submit a Report to divide the property by metes
and Bounds and also in terms of order XX Rule 12 CPC to
determine the mense profits and/or damages for unauthorized use
and occupation of the premises in suit payable by the defendant to
the plaintiff from the date of the institution of the present suit till
the date on which the defendant hands over to the plaintiff the
actual physical vacant possession of the premises in suit;
iii. Grant to the plaintiff against the defendants a final decree of
partition of the joint property No.G-25, Amar Colony, East
Gokulpur, Shahdra Delhi shown in the annexed site plan in terms
of the report of the Local Commissioner appointed in terms of
prayer clause (ii) above.
iv. That consequently a Decree of possession in favour of plaintiff of
his share as per final decree of partition of the joint property No.G-
25 Amar Colony, East Gokulpur, Shahdara Delhi.
v. Grant to the plaintiff against the defendant No.1 a decree of Future
Mesnes profits in terms of the report of the Local Commissioner
appointed in terms of prayer clause (ii) above;
vi. That a decree of permanent injunction be passed in favour of
plaintiff and against defendant number 4 and 5 restraining them
from making any payment of rent/charges in respect of joint
property No.G-25 Amar Colony, East Gokulpur, Shahdra Delhi to
defendant No.1 in respect of the partition in their possession.
vii. A decree of rendition of account be passed in favour of plaintiff
and against defendant number directing defendant No.1 to render
true accounts of the amounts of charges received by him from
defendant number 4 and 5.
viii. That a Final decree of Recovery in terms of the share of plaintiff be
passed thereafter.
ix. A decree of future mesne profit at the rate of Rs.20,000/- per month
from the date of filing of the suit till the time the share of the
plaintiff in respect of the property in question is delivered to him
the passed against defendant No.1 in the interest of justice.
Grant to the plaintiff against the defendant such other or further
relief (s) including costs of this suit as this Hon'ble Court may
deem fit, expedient and/or appropriate."
4. Whether the decision is on a preliminary issue or on an
application under Order VII Rule 11 CPC, the contents of the plaint
have to be deemed to be correct. It cannot be argued while deciding a
preliminary issue or an order VII Rule 11 CPC issue that the contents
of the plaint are false and therefore, the suit be dismissed.
5. In the present case, whether or not the four brothers being
the appellant/plaintiff and the respondent nos.1 to 3/defendant nos.1 to
3 agreed to have a joint construction by merging the two plots, and,
thereafter, each of the parties to have a 1/4th share each in the
construction made, is a disputed question of fact which requires trial,
and which can only be decided at the stage of final arguments after all
the parties have led evidence. Such a factual issue cannot be decided
as a preliminary issue and in fact, the trial court has exceeded its
jurisdiction by suo moto framing a preliminary issue during the stage
when evidence was being led, and that too an issue which does not fall
within the purview of Order XIV Rule 2 CPC because the issue is a
factual issue and not a legal issue, much less being an issue of
jurisdiction of the court.
6. The respondent no.1/defendant no.1 appears in person
and seeks to argue the case on merits. Unfortunately, this Court
cannot give a lecture in law to the respondent no.1/defendant no.1 that
he cannot argue his case on merits for having the suit dismissed
because that stage will come after the complete evidence is led by the
parties and the suit is decided at the stage of final arguments.
7. In view of the aforesaid discussion, the trial court has
committed a gross illegality in dismissing the suit as being not
maintainable by observing that the two plots could not be joined and
that two separate suits for partition had to be filed i.e. one suit for
partition be filed for 250 sq. yds. between the appellant/plaintiff and
respondent no.3/defendant no.3 and another suit for partition as
between the respondent no.1/defendant no.1 and the respondent
no.2/defendant no.2 as regards the 350 sq. yds. plot, inasmuch as
whether or not there was an agreement between the four brothers and
whether or not the construction was jointly made by the four brothers
with their funds, and whether or not therefore in terms of an
agreement each of the parties have 1/4th share respectively, all these
factual aspects and factual issues will be decided at the stage of final
arguments after evidence is led by the parties.
8. This appeal is allowed. Impugned judgment of the trial
court dated 20.09.2017 is set aside. This judgment however is not a
reflection on merits of the cases of the respective parties and which
merits in the suit, as also all the relevant issues in the suit, will be
decided by the trial court at the stage of final arguments after parties
have led evidence.
9. Parties to appear before the District and Sessions Judge,
North East District, Karkardooma Courts, Delhi on 13.11.2018, and
the District and Sessions Judge will now mark the suit for disposal to a
competent court in accordance with law.
OCTOBER 09, 2018/ib VALMIKI J. MEHTA, J
