Jitender Gogna vs Ajit Gogna & Ors
2018 Latest Caselaw 6282 Del

      * IN THE HIGH COURT OF DELHI AT NEW DELHI
      %                                    Date of decision: October 12, 2018
      +       FAO(OS) 51/2018
       JITENDER GOGNA                                         ..... Appellant
                                Through:    Mr. Sanjeev Sindhwani, Sr. Adv. with
                                            Mr. Siddharth Aggarwal, Adv.
                       versus
       AJIT GOGNA & ORS                                       ..... Respondents
                                Through:    Ms. Jhumjhum Sarkar, Adv. for R-2


CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE V. KAMESWAR RAO

V. KAMESWAR RAO, J. (ORAL)

1. The challenge in this appeal is to the order dated 31 st January, 2018

whereby the learned Single Judge has determined the amount of mesne profit

with regard to the property in question to be of Rs.40,000/- per month and

also held that if the defendant no.1 does not file the original of the Will, the

plaintiff or any of the other defendants shall apply to the court for decreeing

the suit forthwith.

2. Mr. Sanjeev Sindhwani, learned counsel appearing for the appellant

would submit that the case in hand being of Partition, the claim, if any, has to

be for rendition of accounts not of Mesne Profit. Be that as it may, he

submits that the learned Single Judge has determined the amount of Mesne

Profit with regard to the property in question which is in possession of the

appellant, to be Rs.40,000/- per month on the submission made by the

plaintiff (the respondent no.1 herein) and the defendant no.2 in the Suit

without leaving any scope to contest the same by the appellant herein. He

states the appellant can produce evidence to contest the same.

3. That apart, it is also his submission that the learned Single Judge has

bound the appellant to produce the Will, otherwise the plaintiff and the other

defendants in the Suit have been given the power to apply to the court for

decreeing the suit which according to him, is contrary to the provisions of the

Indian Succession Act, 1925 more specifically Section 237 inasmuch in the

absence of a primary evidence, a party to the Suit shall be within its right to

produce the secondary evidence.

4. On the other hand, learned counsel appearing for the respondent no.2

would justify the order passed by the learned Single Judge.

5. Having heard the learned counsel for the parties, this court is of the

view that appropriate for the appellant is to file an appropriate application

before the learned Single Judge seeking review of the impugned order on the

grounds as urged by the learned Sr. Counsel for the appellant today before us.

If such a review application is filed before the learned Single Judge

within a period of one month from today, the same shall be decided by the ld.

Single Judge in accordance with law.

CM No. 11689/2018 (for stay)

Dismissed as infructuous.

V. KAMESWAR RAO, J

CHIEF JUSTICE

OCTOBER 12, 2018/ak