Krishna Gupta & Anr vs M/S Rajinder Nath & Co Huf And Ors
2019 Latest Caselaw 6636 Del

    * IN THE HIGH COURT OF DELHI AT NEW DELHI
    %                               Date of decision: 18th December, 2019

+    CS(OS) 663/2011, CC 26/2019 & I.As. 20912/2015, 4851/2017,
     13072/2017, 9683/2018, 9962/2018, 11533/2018, 12029/2018,
     1856/2019, 13376/2019

     KRISHNA GUPTA & ANR
                                                             ..... Plaintiffs
                           Through:      Mr. S. N. Choudhri and Mr.Dipti
                                         Sareen, Advs.

                           versus

     M/S RAJINDER NATH & CO HUF AND ORS
                                                                ..... Defendants

                           Through:      Ms. Arpita Rai, Adv. for D-2
                                         Ms. Manmeet Arora, Mr. Keshav
                                         Sehgal and Mr.Tarang Gupta, Advs.
                                         for D-5

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

    V. KAMESWAR RAO, J. (ORAL)

I.A.13376/2019

1. By this order I shall decide this application filed by the defendant No.5 under Section 151 CPC with the following prayers:

"In view of the aforesaid, it is most respectfully prayed that this Hon'ble Court may graciously be pleased to:-

(a) Pass an order permitting the Defendant No. 5 to lease out Block B of property bearing no. 1A, Qutub

Minar, Mehrauli, Delhi and realize the rental income from the same;

(b) Pass any such other order(s) as this Hon'ble Court may deem fit, just and fair in the facts and circumstances of the present case."

2. It is the case of the applicant that the plaintiffs have filed the present suit seeking partition of the assets jointly held by defendant No.1, M/s. Rajinder Nath and Co. HUF and defendant No.4, M/s. Ram Chander Nath HUF. The plaintiffs admit that they are not a co-parcener in defendant No. 4, M/s. Ram Chander Nath HUF, and they are not claiming any share in the defendant No. 4 HUF. According to the applicant, the plaintiffs contend that they are entitled to l / 8th share each in the assets jointly held by defendant No. 1 HUF and defendant No. 4 HUF. It is also stated that the plaintiffs further admit that defendant No. 4 HUF is entitled to ½ shares in the joint assets enlisted in the plaint.

3. According to the applicant, it is the case of the plaintiffs that since the business and assets are jointly held by defendant No. 1 HUF and defendant No. 4 HUF in equal undivided share, a partition by metes and bounds of the assets of defendant No. 1 HUF is not feasible unless the specific ½ (50%) share of the defendant No. 4 HUF is demarcated and it is for this limited purpose that the Plaintiffs' claim that they have a cause of action against the defendant No. 4 HUF.

4. It is the case of the applicant, that the plaintiffs have sued defendant No. 1 HUF through defendant No.2 in his capacity as the

Karta of defendant No.1 HUF and therefore admit and acknowledge the authority of the defendant No. 2 to deal with and dispose of the assets of defendant No.1 HUF. Similarly, it is the case of the applicant that the plaintiffs have sued defendant No. 4 HUF through defendant No.5 (applicant) in his capacity as the Karta of defendant No.4 HUF and therefore admit and acknowledge the authority of the defendant No.5 (applicant) to deal with and dispose of the assets of defendant No.4 HUF.

5. It is stated by the applicant that he (applicant) has entered appearance and duly apprised this Court that he is the sole surviving co-parcener of the said HUF. The defendant No.4 HUF has ceased to exist w.e.f. April 01, 2010 and therefore all assets of defendant No.4 HUF have devolved upon defendant No.5 (applicant). According to the applicant, he is a senior citizen, being 68 years old, and has a big family to support. He and his wife have one unmarried son residing with them in New Delhi, and two married daughters, who are residing in USA / Mumbai respectively. The income generated from his businesses is not enough for the defendant No.5 to sustain himself and his family. The said position has become adverse on account of on-going economic downturn and losses being suffered in businesses in the present time.

6. It is the case of the applicant that he is in need of funds to support his family. He has not been able to visit his daughter in USA since the year 2012. The younger daughter has recently given birth to a child. He needs to organize a number of birth rituals and ceremonies for his grandson and the same involve considerable

expenses. He has to arrange finances for the marriage of his son. He is a diabetes patient and suffers from high blood pressure. The aforementioned expenses are in addition to the daily sustenance and medical costs required for himself and his wife. It is a matter of record that he has also been burdened with legal costs to contest the present suit.

7. It is his case that throughout his life he relied on the uninterrupted rental income arising from the immovable properties to support his livelihood. The rental income formed a major portion of his income. He, in his advanced years is even more dependent on the rental income as he is unable to invest much time in his businesses. It is stated that on August 24, 2015 this Court passed an ex-parte order restraining defendant No.4, M/s. Ram Chander Nath HUF, from selling, transferring, alienating or parting with possession of its undivided share in the movable and immovable properties.

8. It is also stated by the applicant that the plaintiffs in paragraph 4 (d) have enlisted property bearing No.1A, Qutub Minar, Mehrauli, New Delhi, as an undivided asset of defendant No.1 HUF and defendant No.4 HUF. The defendant No.2 on May 11, 2011 filed before this Court the deed of partition dated July 23, 2010 evidencing that the property bearing No.1A Qutub Minar, Mehrauli, New Delhi, already stood partitioned by metes and bounds prior to the filing of the suit. The deed of partition dated July 23, 2010 records that the said property admeasuring 6355 sq. meters stands partitioned into two distinct blocks i.e. Block A and Block B. It is a

matter of record that the applicant is in actual physical possession of Block B i.e. his distinct and demarcated share in the said property to the exclusion of defendant No. 2. Similarly, defendant No. 2 is in exclusive possession of Block A, the demarcated share of the said property and is enjoying the same to the exclusion of the defendant No. 5. The plaintiffs claim, if any, in the said property is only with respect to Block A, which is in exclusive possession of the Defendant No. 2. Hence, the applicant herein is being prevented from leasing Block B of the said property in light of the order dated August 24, 2015. He has spent substantial money to develop and make improvements in the area falling to his demarcated share i.e. Block B. Therefore, plaintiffs and defendant No.2 cannot interfere with his rights. However, the plaintiffs by relying on the interim order dated August 24, 2015 have prevented him from enjoying its proprietary and ownership rights of his portion of the said property i.e. Block B and have put him to huge financial loss by wrongfully depriving him from him rental income arising therefrom.

9. In fact, it is stated by the applicant that he is receiving offers from real estate agents and prospective lessees showing their interest in renting out the said property. On account of approaching festive and winter season, the applicant is more likely to get attractive offers for the said property.

10. A reply to the application has been filed by the plaintiffs wherein it is stated that the defendant No.5 / applicant has no locus standi to file the present application as he is not the exclusive owner of any of suit properties including property No.1A, Qutub Minar,

Mehrauli, New Delhi. It is stated that the applicant is trying to mislead this Court and by virtue of the present application is seeking declaration of sole ownership in respect of the suit properties, which are otherwise joint properties and of which partition is being claimed by the plaintiffs.

11. It is stated that the fact of the matter is that applicant has no right, title or interest of any nature whatsoever in any of properties in suit including property No.lA Qutub Minar, Mehrauli, New Delhi in his individual capacity and hence no right to lease any portion of the referred property in his individual capacity. The suit properties including the said property of Qutub Minar is a joint family property purchased out of funds of ancestral joint family business and jointly allotted under the arbitration award dated October 26, 1978 to M/s. Rajinder Nath & Co. (HUF) and Ram Chander Nath (HUF) each having 50% undivided share. The defendant No.5 has no locus to seek the relief as prayed in the application.

12. It is stated by the plaintiffs that I.A. No. 4350/2011 under Order 39 Rules 1 and 2 CPC has been finally decided on merits vide order dated May 11, 2018 after hearing of all the parties to the suit, including the counsel appearing for the defendant No.5 herein, whereby the interim orders passed in respect of all the properties, including property No.1A Qutub Minar, Mehrauli, New Delhi earlier were confirmed and defendants were directed to maintain status quo with regard to title and possession of the properties of the suit. The applicant has been appearing in the present suit duly represented by his same counsel when various orders were passed

by this Court directing the parties to maintain status quo with regard to all the properties in suit.

13. It is stated by the plaintiffs that vide order dated February 27, 2013 this Court recorded the under-taking on behalf of defendant Nos. 2 and 3 that they will maintain status quo with regard to all the properties in suit in the presence of counsel for defendant No.4 herein. No objection was raised by counsel for defendant No. 4 to the said order being passed. Even order dated May 11, 2018 confirming interim order was passed in presence of counsel for defendant No.4.

14. It is stated by the plaintiffs that even the alleged partition mentioned by defendant No.5 in the application, whereby it claims that there has been a partition by metes and bounds of property No. 1A Qutub Minar, Mehrauli, New Delhi is not at all admissible in evidence and is in fact no document in the eyes of law as the same is neither executed on requisite stamp paper nor the same has been registered as is the requirement of law.

15. That apart, it is stated that the same is alleged to have been executed without knowledge, consent and signatures of the plaintiffs. The said document is no document in the eyes of law. The applicant on the basis of an untenable document cannot seek declaration of ownership rights as an individual over any property much less property No.1A Qutub Minar, Mehrauli, New Delhi. It is also stated by the plaintiffs that the defendant No. 5 has already been held guilty of committing contempt of the orders of this Court granting order of injunction thereby restraining the defendant Nos. 1

to 4 from transferring, alienating or parting with whole or any portion of the properties in suit to any person. Since in utter disregard of specific orders of this Court, the applicant parted with possession of portion of property No.1A Qutub Minar, Mehrauli, New Delhi, this Court held applicant guilty of contempt in Contempt Petition No.CCP(O) 60/2016 filed by the plaintiffs in the present suit.

16. This Court vide its order dated October 11, 2017 further passed clear directions against defendant No.5 / applicant for getting the premises vacated from the then tenant immediately as also directing applicant to deposit the amount received as rent before this Court. The appeal filed by the applicant impugning the said order vide contempt appeal No.(C) 7/2017 was disposed of by the Division Bench vide order dated March 15, 2018. The Division Bench did not interfere with the order dated October 11, 2017, but only modified the directions issued by this Court to applicant.

17. It is the submission of the plaintiffs that the applicant had clearly agreed in specific terms that he would continue to deposit further rents received from the tenant in the Court as directed in terms of order dated October 11, 2017 passed by the Division Bench. It is clearly admitted and accepted by applicant herein that any modification or amendment to the leased premises would require the approval and permission of this Court. It is only subject to the acceptance of these terms and conditions by applicant that consent was given by plaintiffs herein and there was modification in the order of contempt to the extent as stated above.

18. It is stated by the plaintiffs that the applicant had last deposited the rent for the period July 25, 2018 to August 24, 2018 and thereafter alleges that since tenant was not paying rent regularly the lease in respect of the tenanted premises has been terminated. The applicant did not mention the date of alleged termination of lease deed and also did not mention the date the tenant has vacated the suit property. The contention of the plaintiffs that the defendant No.5 (applicant) has thus not deposited the rent in the Court for the period August 25, 2018 onwards till the date of the vacation of the premises by the tenant.

19. It is also stated by the plaintiffs that certain stipulations in lease deed were to be complied by the tenant in case of default in payment of rent and / or in case of overstay after termination of lease entailing huge monetary value. However, the defendant No.5 / applicant unilaterally and without taking any permission from this Court changed the terms of the lease without informing the Court as to how much amount, he has received towards the arrears and also as to what compensation was received by him from the tenant in terms of the lease deed for defaulting in payment of rent resulting in premature termination of lease. The plaintiffs accordingly filed an application being IA 1856/2019 seeking from the applicant, besides other reliefs, to deposit all such amounts received by him towards rent, damages and/or mesne profits and to submit all correspondence in this regard with the tenant. The applicant has also opposed the issue of notice on the said application and due to paucity of time the said application was not being taken up on various dates. On September 19, 2019, this Court issued notice on

the said application and directed applicant to file reply to the same within two weeks from the said date. It is stated by plaintiffs instead of filing reply to the above application of the plaintiffs, the applicant has filed this false and frivolous application. It is stated that the plaintiffs, on receipt of notice of the present application informed the counsel for the applicant that his reply to IA. 1856/2019 is required for filing an effective reply to the present application. However, the counsel for applicant disagreed to the same. The plaintiffs received the reply of applicant to their IA 1856/2019 on October 22, 2019 wherein it is mentioned for the first time that the subject property was vacated by the tenant on October 24, 2018. The mere reading of the reply to the said application, it is very clear that applicant has scant respect for orders of this Court and has been intentionally flouting the same thereby committing further contempt of this Court. It is also stated by the plaintiffs that applicant does not have any right, title and/or interest of any nature whatsoever in his individual capacity and that all properties to the suit are joint properties and applicant cannot now again claim or seek from this Court permission to part with the portion of property no. lA Qutub Minar, Mehrauli, New Delhi. The parting of either of the properties to the suit during pendency of the present petition would deprive the plaintiffs of their valuable rights in the same.

20. It is also stated by the plaintiffs that defendant nos. 2 and 5 have no right to enter into any partition in respect of either of the joint family properties in suit, without the consent and permission of the plaintiffs. According to them, this Court may not grant indulgence to a contemnor viz. the applicant who has already been

held guilty of contempt and in spite of the same continues to give false and frivolous statements on oath before this Court. It is also stated that the alleged memorandum of partition dated July 23, 2010 is no document in the eyes of law and has not even been acted upon, as alleged, or otherwise. In fact, both the defendant No.2 and applicant continue to conduct their business jointly from the entire Qutub Minar property without there being any partition thereof. It is also stated that defendant No. 2 and applicant, though falsely allege with malafide intentions that partition in respect of property no. lA Qutub Minar, Mehrauli, New Delhi, has been effected between them in 2010,filed an appeal before the ATMCD, Delhi, against the sealing order passed by SDMC in respect of this property in the year 2013 and nowhere in the said appeal filed by them was there any mention of any alleged partition or that there were two demarcated portions of this property, as is being alleged now. On the contrary both defendant No. 2 & applicant filed their separate affidavits in the said appeal proceedings before ATMCD describing themselves as partners of "Indian Cottage Industries" in respect of the entire premises viz. property no. lA Qutub Minar, Mehrauli, New Delhi, by treating it as a single unit. Reference is made to the documents relating to the ATMCD proceedings in this regard. It very clearly shows that defendant No. 5 is giving false and frivolous statements before this Court and still claims that there has been division of the property by metes and bounds.

21. It is also stated by the plaintiffs that the applicant is committing further contempt of the courts of the land. It is submitted that Ld. ATMCD has clearly permitted the applicant in

the appeal before it to use the said property no. lA Qutub Minar, Mehrauli, New Delhi only for those activities which they had been using at the time of sealing and in case of change in future they will use the same as permissible under Master Plan 2021 and shall not raise any unauthorised construction in the same. The Ld. ATMCD also directed both defendant No.2 & applicant to file their separate affidavits to that extent. It is also stated that property no. 1A Qutub Minar, Mehrauli, New Delhi, is an agricultural land situated in an urban village as per the revenue records till date. The same cannot be let out to any person for commercial purposes. The defendant No. 2 and applicant herein had given an undertaking to this effect before Ld. ATMCD whereby it was very emphatically stated by them on oath that violation of any such undertaking will amount to contempt of court and will invite criminal prosecution. In spite of a specific under taking and without disclosing about the above said order or undertaking given by them before the Ld. ATMCD, the applicant is now trying to seek permission from this Court to let out the premises to a third person which shall be totally in violation of the undertaking given by the defendant No. 2 and applicant. The applicant by concealing the above fact is trying to take an order from this Court in total contradiction to the orders passed by the Ld. ATMCD. The applicant in fact wants this Court to indirectly vacate the order of the Ld. ATMCD and grant permission to him to let out the same to a third party for commercial purposes. According to the plaintiffs the same would amount to passing an order over-lapping the jurisdiction of ATMCD by this Court and indirectly sitting in

appeal and modify the said order passed by Ld. ATMCD on a false and frivolous application filed by applicant herein.

22. It is also stated by the plaintiffs that the applicant by way of the present application is, in fact seeking a declaration of exclusive ownership rights over portion of property no.lA Qutub Minar, Mehrauli, New Delhi, which he does not have. The issues have already been framed in the suit. The properties in suit including property no. 1A Qutub Minar, Mehrauli, New Delhi, are part of issues framed and the extent of ownership rights of each of the parties, in the properties in suit, have to be determined after trial. The applicant has no exclusive right to let out any portion of suit properties to any person till the properties in suit are divided by metes and bounds and each party is made the exclusive owner of its specific portion.

23. It is also stated by the plaintiffs that the relief sought by the applicant, if granted, will lead to multiplicity of litigation. It is settled law that the properties in suit should be protected during the pendency of suit. The applicant cannot be permitted to entangle properties in which Plaintiffs have rights as other defendants in the suit. The same would lead to multiplicity of litigation which is never encouraged by Courts. According to the plaintiffs the application under reply in fact is indirectly seeking review of Order dated May 11, 2018 allowing IA. 4350/2011 in the presence of all the parties to the suit. The review application in the present form is not maintainable. The same cannot be permitted and the application under reply is liable to be dismissed with heavy costs.

24. It is also stated by the plaintiffs that earlier also an application under Section 7 Rule 11 CPC for rejection of plaint was filed by defendant nos. 4, through Sh. Ashok Kumar, its Karta in which it was claimed that amendment of Hindu Succession Act, 1956 is not at all applicable to facts and circumstances of the present case. It was further averred that property no.lA Qutub Minar, Mehrauli, New Delhi has already been partitioned by metes and bounds and is not part and parcel of joint family assets of either of defendant No. 1 HUF and Defendant No. 4 HUF. Defendant No. 1 through defendant No. 2 had also moved a similar application under Order 7 Rule 11 CPC making similar claims with regard to property no. lA Qutub Minar, Mehrauli, New Delhi. However, considering the alleged claims of the said defendants the said application was rightly dismissed by this Court. The defendant No. 2 impugned the said order dismissing his application under Order 7 Rule 11, till the Supreme Court but was not successful. As such the claim of defendants No. 2 and applicant that property no.lA Qutub Minar, Mehrauli, New Delhi has already been partitioned by metes and bounds and is not part and parcel of joint family assets of either of defendant No. 1 HUF and defendant No. 4 HUF stands rejected by all the courts up to the Supreme Court. It is stated by the plaintiffs that it does not lie in the mouth of defendant no. 5 / applicant now to seek the same relief by moulding words claimed in the application under reply and the same is liable to be dismissed with exemplary costs. It is also stated by the applicant that the defendant no. 5 has not come to this Court with clean hands and has concealed various facts and stated wrong and misleading facts. The

applicant is thus and even otherwise not entitled to discretionary relief as prayed. He seeks the dismissal of the application.

25. Learned counsel for the parties have reiterated their stand, as noted above, in their oral submissions as well.

26. Having noted the stand of the respective parties, as above, there is no dispute that the suit filed is, for partition. It is the case of the applicant / defendant No.5 that all the assets of defendant No.4 HUF have devolved upon him and as such this property cannot be subject matter of partition. This fact has been disputed by the plaintiffs. They reiterate that this property is part of Joint Hindu Family property purchased out of the funds of the ancestral joint family business allotted under the arbitration Award dated October 26, 1978 to Rajinder Nath and Co. HUF and Ram Chander Nath HUF each having 50% undivided share. The stand being at variance, the issue will be decided finally in the suit. Pending hearing of the suit, the question is whether the applicant should be allowed to lease the property, which relief has been sought for in the present application. Allegations and counter allegations have been made by the parties in their respective pleadings. There is no dispute that the Court had restrained defendant No.4 from selling, transferring, alienating or parting with possession of its undivided share in the movable and immovable properties. The effect of the said order is that the applicant is prevented from leasing Block B of the property 1A, Qutub Minar, Mehrauli, Delhi.

27. The plea of the applicant primarily is that he has spent lot of money to develop and make improvements in the area falling to his

demarcated share and that apart, he is in dire need of money and has certain family obligations to fulfill, which he cannot do it, unless he earns some money by leasing out the property.

28. The plaintiffs / non applicants have contested the stand of the applicant by referring to the fact that the applicant in utter disregard to specific orders of this Court, had parted with the possession of portion of Property No. 1A, Qutub Minar, Mehrauli, Delhi and this Court has already held him guilty of contempt in CCP(O) 60/2016 and had directed him to get the premises vacated from the tenant, with a further direction to deposit the rent in the Court. It was also contested on the ground that even the Division Bench did not interfere with the order except that it modified the order after it was consented to by the plaintiffs.

29. Mr. Choudhri had referred to a litigation before the ATMCD and order passed by the ATMCD to contend that the applicant by this application seeks to overreach the order passed by the ATMCD.

30. I may state here, Mr. Choudhri may be right in highlighting the aforesaid facts to oppose the prayer, but the fact that the property being vacant and decision of the case may take some time, to keep the property vacant shall not be beneficial to any of the party. In the facts, appropriate should be that applicant is permitted to lease out Block B of Property No. 1A, Qutub Minar, Mehrauli, Delhi to a third party with a further direction that the lease amount / security deposit, shall be deposited by the applicant with the Registrar General of this Court every month, so that the money

received shall enure to the benefit of the party / parties in terms of the final adjudication of the suit. It is ordered accordingly.

31. It is made clear that the applicant shall place before this Court, a copy of the lease deed so executed with the third party, with a copy of the same to the learned counsel for the plaintiffs and other defendants within two weeks of such execution.

32. I am conscious of the fact that the ATMCD has disposed of a petition filed by the Indian Cottage Industry by holding as under:-

"Accordingly, it is clear that the owners/occupiers of premises were using the property for commercial purposes since 1959 and no unauthorized construction, whatsoever, had been raised by the appellants after 1959 thus are entitled to protection of proviso to Section 14 of the DDA Act, 1957.

In view of the above discussion, the present petition is disposed off and allowed. Petitioners shall furnish an affidavit before this Tribunal with one copy to the concerned competent authority that they will use the subject premises for those activities only for which they were being used at the time of sealing and in case of change in future they will use the same as permissible under the Master Plan 2021 and shall not raise any unauthorized construction in the same. They shall also give an undertaking that in future they will pay all the necessary charges to the MCD regularly and in time, if permissible. The violation of any such undertaking will amount to contempt of the court and will invite criminal prosecution also besides giving full liberty to the MCD and Monitoring Committee to reseal the property without any further notice to the appellant."

33. In view of the above, it is also made clear that while giving the property on lease, the applicant shall ensure that the undertaking

given to the ATMCD is strictly adhered to and not violated in any manner.

34. This order has been passed, without prejudice to the rights and contentions of the parties in this litigation.

35. Application is disposed of.

V. KAMESWAR RAO, J

DECEMBER 18, 2019/ak