Delhi High Court
Sanjay Rathi vs Devender Kumar & Ors. on 22 September, 2023
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 22.09.2023
+ CM(M) 1419/2023
SANJAY RATHI ..... Petitioner
Through: Mr. Vikram Dua and Mr. Vinod
Kumar Shukla, Advocates
versus
DEVENDER KUMAR & ORS. ..... Respondents
Through: Mr. Akash Sethi, Advocate for R-1
R-2 and R-3 (Through VC)
%
CORAM:
HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
JUDGMENT
MANMEET PRITAM SINGH ARORA, J (ORAL):
CM APPL. 45156/2023(stay)
1. This petition filed under Article 227 of the Constitution of India
impugns the order dated 18.05.2023 and 21.07.2023 passed by ADJ, North-
West, Rohini Courts, Delhi ('Trial Court') in CS No. 77713/2016, titiled as
Devender Kumar v. Sanjay Rathi.
1.1. The Trial Court vide order dated 18.05.2023 dismissed an application
filed by the Petitioner herein for modification of issues and framing of an
additional issue.
1.2. The Trial Court vide order dated 21.07.2023 closed the right of the
defendant to cross examine the plaintiff witness-1 ('PW-1') and set the
Signature Not Verified
By:Mahima Sharma
Signing Date:27.09.2023
19:08:58
matter down for final arguments. No opportunity was granted to the
defendants to lead their evidence.
1.3. The Petitioner herein is defendant no. 1 and Respondent No. 1 is the
plaintiff.
1.4. Respondent Nos. 2 and 3 are the newly impleaded defendant nos. 2
and 3.
2. The civil suit has been filed for specific performance of agreement
dated 24.02.2006 against defendant no.1 and late Smt. Gindori Rathi.
2.1. In the civil suit, late Smt. Gindori Rathi was arrayed as defendant no.
2. Upon her death, she was survived by her legal heirs being her two (2)
daughters and her son. Since, the son (i.e., the Petitioner herein) was already
a party to the suit as defendant no.1 and right to sue survived upon the
daughters as well, therefore, both the daughters were impleaded as
defendant nos. 2 and 3 to the suit.
3. The learned counsel for Respondent No. 1 has entered appearance.
The Respondent Nos. 2 and 3 have joined through video conferencing.
4. With respect to the impugned order dated 18.05.2023, learned counsel
for the Petitioner states that he is aggrieved by the non-framing of a separate
and a distinct issue, as regards the defence raised in the written statement
that there is no privity of contract between the plaintiff and late Smt. Gindori
Rathi.
4.1. He further states that the Trial Court vide order dated 18.05.2023
while dismissing the application has returned a finding on the issue of
privity of contract at paragraph '9', which would amount to determination of
the said issue at this stage even before the evidence of parties has been
recorded.
Signature Not Verified
By:Mahima Sharma
Signing Date:27.09.2023
19:08:58
5. In reply, learned counsel for the Respondent No.1 states that no
separate issue on privity of contract is required to be framed and he states
that the issues as were framed on 25.02.2010 sufficiently cover the issue of
privity of contract.
5.1. He further states that he has no objection if it is clarified that the
finding of the Trial Court at paragraph '9' of the impugned order dated
18.05.2023 will not operate as an issue estopple and at the time of the final
arguments, the issue of privity of contract will be decided by the Court
without being influenced by the order dated 18.05.2023.
6. This Court has considered the submissions of the parties and perused
the record.
Impugned order dated 18.05.2023
7. The issue of lack of privity of contract between the plaintiff and late
Smt. Gindori Rathi is covered by issue No. 'd' as framed in order dated
25.02.2010, which reads as under:
"(d) Whether the plaintiff is entitled to a decree of specific performance of
the agreement dated 24.02.2006, if so, to what effect? OPP"
7.1. In the opinion of this Court, while deciding the said issue No. 'd', the
plaintiff will have to satisfy the Court that he had a privity of contract with
late Smt. Gindori Rathi.
7.2. This Court is also in agreement with the submissions of the Petitioner
that no finding on the said issue of privity can be returned at this stage of the
proceedings before the evidence has been recorded, since parties are still in
the midst of leading evidence.
7.3. Accordingly, with the consent of the parties, it is clarified that
observations made by the Trial Court at paragraph '9' of the impugned order
Signature Not Verified
By:Mahima Sharma
Signing Date:27.09.2023
19:08:58
dated 18.05.2023 is not conclusive and the issue of privity of contract
between the plaintiff and late Smt. Gindori Rathi will be decided at the time
of final arguments after perusing the evidence lead by the parties. Paragraph
9 of the impugned order read as under:
"9. The bayana agreement dated 24.02.2006 has been placed on file which
is executed between Sanjay Rathi and Sh. Devender Kumar and in its first
paragraph, it is mentioned that the agreement is executed between Sanjay
Rathi S/o Late Shri Ram Kishan Rathi Rio 312, Group B-1, Modem
Apartments, Sector 15, Rohini, Dehli-85 on behalf of Smt. Gindori Rathi
W/o Late Sh. Ram Kishan Rathi (hereinafter called the first party). Thus the
language of the agreement depicts that this agreement is executed by
Sanjay Rathi on behalf of his mother who is arrayed as defendant no. 2.
The contention raised on behalf of defendant no. 2 about no privity
between her and the plaintiff are contrary to the agreement in question
and as such, no issue is required to be framed in this regard."
(Emphasis supplied)
8. The aforesaid directions are agreeable to both the parties. With the
aforesaid directions, the present insofar as it challenges order dated
18.05.2023 stands disposed of.
Impugned order dated 21.07.2023
9. The Trial Court vide order dated 21.07.2023 while closing the right of
the defendants to cross examine the plaintiff's witness has proceeded with
fixing the matter for final arguments, without granting any opportunity to
the defendants to lead evidence and therefore, impliedly the Trial Court has
closed the right of the defendant to lead its evidence.
10. The counsel for the Respondent No. 1 states that he has no objection
if last opportunity is given to the Petitioner herein to cross examine the PW-
1 subject to strict terms.
11. Accordingly, with the consent of the parties, the order dated
21.07.2023 is set aside.
Signature Not Verified
By:Mahima Sharma
Signing Date:27.09.2023
19:08:58
11.1. The Petitioner and Respondent Nos. 2 and 3 (i.e., the defendants) are
granted an opportunity to cross-examine plaintiff's witnesses including PW-
1 on 14.10.2023 on the following terms:
11.2. The Petitioner will pay cost of Rs. 20,000/- to Respondent No. 1 on or
before 14.10.2023.
11.3. The Petitioner shall not seek any adjournment before the Trial Court
on 14.10.2023 or any subsequent dates fixed by the Trial Court for
examination and cross examination of the plaintiff's witnesses and he will
conclude the cross-examination expeditiously.
11.4. The Petitioner and Respondent nos. 2 and 3 will lead and conclude the
defendant evidence expeditiously without seeking any unnecessary
adjournment. The defendants will file their affidavits of evidence within
three (3) weeks after conclusion of the plaintiff evidence.
11.5. The parties undertake not to seek any unnecessary adjournment before
the Trial Court.
12. The Trial Court is requested to exercise its jurisdiction under Order
XVII CPC in case it is of the opinion that either party is seeking unnecessary
adjournment.
13. With the aforesaid clarifications, the order dated 18.05.2023 is
upheld. And, the order dated 21.07.2023 is set aside with the consent of the
parties.
14. Accordingly, the present petition along with the pending application
stands disposed of.
MANMEET PRITAM SINGH ARORA, J
SEPTEMBER 22, 2023/rhc/sk
Signature Not Verified
By:Mahima Sharma
Signing Date:27.09.2023
19:08:58
