Delhi High Court
Ajay Kumar Sharma vs Vivek Bharat Ram & Ors on 14 May, 2025
Author: Navin Chawla
Bench: Navin Chawla
$~103
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 14.05.2025
+ FAO(OS) 99/2024
AJAY KUMAR SHARMA
.....Appellant
Through: Mr.J. Sai Deepak, Sr. Adv.
along with Mr.Avneet Singh
Sikka, Adv
versus
VIVEK BHARAT RAM & ORS.
.....Respondents
Through: Mr.Yogender Misra,
Mr.Gurtejpal Singh, Mr.Jai
Dogra & Mr.Shantanu Dwivedi,
Advs
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE RENU BHATNAGAR
NAVIN CHAWLA, J. (ORAL)
1. This application has been filed seeking condonation of delay of
46 days in re-filing of the appeal.
2. For the reasons stated in the application, the same is allowed
and the delay is condoned.
FAO(OS) 99/2024 & CM APPL. 39878/2024 - STAY
3. The present appeal has been filed by the appellant, challenging
the Order dated 25.04.2024 passed by the learned Single Judge of this
Court in CS(OS) 108/2022, titled Vivek Bharatram & Anr. v. Ajay
Kumar Sharma & Anr. and I.As 3135/2022, 3654/2023, 6773/2023
and 12168/2023 filed therein.
4. The above suit has been filed by the respondent nos. 1 and 2
herein under Section 92 of the Code of Civil Procedure, 1908 (in
short, 'CPC'), seeking removal of the appellant as the Managing
Trustee of the respondent no. 3 - Shriram Education Trust. The
learned Single Judge, in the Impugned Order, recording the prima
facie opinion that certain clauses of the Trust Deed may require to be
amended and some Trustees need to be appointed, so as to create
proper quorum for proper functioning of the Trust. The learned Single
Judge allowed the learned counsels for the parties to consult their
respective clients for making suggestions on this aspect to the Court
on the next date of hearing.
5. The learned Single Judge also prima facie found that there may
be a need for conducting an independent audit of the funds and
accounts of the Trust. Again, with regard to this aspect as well, the
learned Single Judge allowed the parties to obtain instructions and
make submissions on the next date of hearing.
6. As the Impugned Order, in effect, only asked the counsels to
seek instructions from their respective parties and to make further
suggestions and submissions on few aspects that were pointed out by
the learned Single Judge, we enquired from the learned senior counsel
for the appellant as to how this appeal is maintainable.
7. He submits that as the Impugned Order is passed on an
application under Order XXXIX Rules 1 and 2 of the CPC filed by the
respondent nos. 1 and 2 herein, being I.A. No. 3135/2022, therefore,
in terms of Order XLIII Rule 1(r) of the CPC, an appeal against the
same shall be maintainable. He submits that even otherwise, the
Impugned Order is a 'judgment', therefore, Section 10 of the Delhi
High Court Act, 1996 is also invoked.
8. He further submits that the Impugned Order, insofar as it states
that certain clauses of the Trust Deed may require a change, is beyond
the scope of the application filed by respondent nos. 1 and 2 under
Order XXXIX Rules 1 and 2 of the CPC. He submits that, therefore,
no order in this regard can be passed. In support of his submission, he
places reliance on the judgment of the Supreme Court in Akella
Lalitha v. Konda Hanumantha Rao, 2022 SCC OnLine SC 928. He
further submits that this would amount to re-writing of the Trust Deed
by a Court in a civil suit, which is not permissible.
9. On the other hand, the learned counsel for the respondent nos. 1
and 2 submits that this appeal is not maintainable, inasmuch as the
Impugned Order does not decide any of the applications that were
pending adjudication before the learned Single Judge, but merely
expresses certain views and calls upon the counsels to take
instructions from the parties and make further submissions on the
same. It merely records the prima facie opinion of the learned Single
Judge on certain aspects, which the learned Single Judge felt the
parties ought to consider in order to resolve their disputes. He submits
that there are no restraints or directions issued in pursuance of such
prima facie opinion of the learned Single Judge and, therefore, it is
neither in the form of an injunction nor is it appealable.
10. We have considered the submissions made by the learned
counsels for the parties.
11. As would be evident from a bare reading of the Impugned
Order, it does not contain any injunction or direction to either of the
parties to do or restrain from doing anything. It merely records the
prima facie opinion of the learned Single Judge on how the disputes
between the parties can be resolved. In fact, time was granted to the
learned counsels for the parties to seek instructions in this regard. We
may quote the relevant paragraphs of the Impugned Order as under:
"12. At the juncture, on the aspect of
amending the relevant clauses of the Trust
Deed and the Supplementary Trust Deed, as
also for appointment of independent trustees,
ld. Counsels for the parties wish to consult
their respective clients for making suggestions
to the Court on the next date of hearing.
13. The Court is also of the opinion that an
independent audit ought to be conducted of the
funds and accounts of the Trust to establish
whether the allegations made by both parties
against each other are substantiated or not.
The parties may also obtain instructions in this
regard and make submissions on the next date
of hearing."
(emphasis supplied)
12. Therefore, in our opinion, this is not an order which has been
passed under Order XXXIX Rules 1 and 2 of the CPC, and as such,
the present appeal is not maintainable under Order XLIII Rule 1(r) of
the CPC. It is also not a 'judgment' as explained by the Supreme
Court in Shah Babulal Khimji v. Jayaben D. Kania and Anr., (1981)
4 SCC 8.
13. The appeal is clearly misconceived and is accordingly,
dismissed with costs quantified at Rs. 50,000/-, to be deposited by the
appellant with the 'DHCBA Cost' (A/c No. 15530110179338) within a
period of two weeks from today.
NAVIN CHAWLA, J
RENU BHATNAGAR, J
MAY 14, 2025/rv/SJ
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