Delhi High Court
Sudesh Lamba & Ors vs Manju Choudhary & Ors on 8 February, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 8th February, 2019
+ FAO(OS) 29/2019 & CM. Nos. 5991/2019 and 5992/2019
SUDESH LAMBA & ORS
..... Appellant
Through: Mr. Hemant Bassi, Adv. with
Mr. Rohit Gandhi, Adv.
versus
MANJU CHOUDHARY & ORS ..... Respondents
Through:
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE V. KAMESWAR RAO
V. KAMESWAR RAO, J. (ORAL)
CM. No. 5992/2019
Exemption allowed subject to all just exceptions.
Application stands disposed of.
FAO(OS) 29/2019
1. The present appeal has been filed by the appellant
challenging the order dated November 22, 2018 passed in IA
No.15876/2018, which was an application under Order 7 Rule 11 of
the CPC whereby the said application was dismissed by the learned
Single Judge.
2. Mr. Bassi, learned counsel for the appellant would make
two submissions; (i) that the suit filed by the plaintiff respondent
No.1 was barred under law in the light of the previous judicial
proceedings between her and her late father Sh. Gian Singh
Choudhary whereby a compromise was arrived at whereunder the
plaintiff respondent No.1 had admitted her father to be the sole and
absolute owner of the property bearing No. 217, Jor Bagh, New
Delhi and further agreed not to raise any claim whatsoever, present
and future in respect of any of the properties moveable and
immoveable of late Sh. Gian Singh Choudhary against the receipt of
Rs.45 lakhs from him, which was duly received by her. The
plaintiff respondent No.1 has played fraud upon the Court,
inasmuch as deliberately concealed the previous litigation between
her and her late father Sh. Gian Singh Choudhary and the
compromise arrived at therein; (2) that the plaintiff / respondent
No.1 has valued the suit separately for the jurisdiction of Court fee
while she had valued the suit at Rs.4 Crores towards her share for
the purpose of Court fee, she valued the suit at Rs.200. According
to him, it is a settled position of law that suit cannot be valued
separately for the purpose of jurisdiction and Court fee. Further,
admittedly plaintiff respondent No.1 is not in actual physical
possession of the suit property. She has failed to pay the ad-
valorem Court fee on the aforesaid valuation of Rs.4 Crores and has
filed the suit by merely paying the fixed Court fee.
3. Insofar as the first submission is concerned, we are not
impressed by the submission made by Mr. Bassi, inasmuch as the
learned Single Judge has dismissed the same by holding as under:-
"2. That would however not disentitle the plaintiff
from now, on the demise of the father, claiming a share in
the property.
3. As far as the pleas of the father having transacted
with the property in his lifetime are concerned, the same
cannot be a ground for rejection of the plaint."
4. On the concealment, the learned Single Judge has in para 7
held as under:
"7. As per the dicta of Supreme Court in Iqbal Singh
Marwah vs. Meenakshi Marwah (2005) 4 SCC 370 and of
this Court in Vishal Kapoor vs. Sonal Kapoor 2014 SCC
OnLine Del 4484 and Punjab Tractors Limited vs.
International Tractors Limited (2010) II ILR 352, an
application under Section 340 of the Code of Criminal
Procedure, 1973 (Cr.PC) does not lie at this state.
Accordingly, IA No.47757/2018 also is misconceived and is
disposed of with liberty to the applicants / defendants to, at
the appropriate state, in terms of the said judgment, apply."
We agree with the aforesaid conclusion.
5. Insofar as the submission No.2 is concerned, Mr. Bassi
concedes that there is no finding of the learned Single Judge in that
regard. If that be so, liberty is with the appellant herein to seek such
remedy as available in accordance with law.
6. The appeal is disposed of in terms of the above.
CM. No. 5991/2019 (for stay)
Dismissed as infructuous.
V. KAMESWAR RAO, J
CHIEF JUSTICE
FEBRUARY 08, 2019/ak
