MADHU SHARMA (SINCE DECEASED) THR. L.RS. AND OTHERS vs SURESH KAUSHIK AND OTHERS

2024-02-26 Information

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 26th February, 2024
+ CS(OS) 404/2010 & & I.As. 2876/2010, 8145/2022, 9240/2022

MADHU SHARMA (SINCE DECEASED) THR. L.RS. AND OTHERS ….. Plaintiffs
Through: Mr. Mahesh K. Chaudhary, Advocate.

versus

SURESH KAUSHIK AND OTHERS ….. Defendants
Through: Ms. Parveena Gautam, Advocate for D-1 to 4 & 6.
Mr. N.S. Dalal, Mr. Alok Kumar, Ms. Rachana Dalal & Ms. Sweta Kadyan, Advocates for D-5 & 5(a).

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)
I.A. 6822/2022 (u/O VII Rule 11 r/w Section 151 of CPC, 1908 by D-1(b) for rejection of Plaint)

1. By way of present application, the applicant/defendant No. 1(b) seeks rejection of the Plaint.
2. It is submitted in the application that the plaintiffs have filed the Suit for Partition and Rendition of Accounts claiming 1/6th share in the suit properties which were owned by Late Shri Jeet Ram Sharma, father-in-law of plaintiff No. 1 and grandfather of plaintiff Nos. 2 and 3, who died on 03.03.2009.
3. It is asserted that initially the Suit was filed in respect of following properties, namely: –
(i) Two and half storied house built on Property No. H-242, Vikaspuri, New Delhi,
(ii) Plot of land measuring 1000 sq. yards forming part of Khasra No. 342, Village Pitampura, Delhi,
(iii) House No. 256, Village Pitampura, Delhi built on a plot of land measuring 1000 sq. yards,
(iv) Plot bearing No. 2047-P, Sector 9 and 9A, Bahadurgarh (Haryana) allotted by Haryana Urban Development Authority, Bahadurgarh, Haryana in favour of Late Shri Jeet Ram Sharma.
4. Subsequently, the plaintiffs by way of Amendment Application No. I.A. 12114/2011 under Order VI Rule 17 of CPC, 1908 which was allowed vide Order dated 19.03.2015, included the following properties: –
(i) Property bearing No. 1441-F, Rani Bagh, Sant Nagar Road, Shakurbasti, Delhi measuring 150 sq. yards,
(ii) One HIG Flat No. 512, DJA Cooperative Group Housing Society Ltd., Plot No. 1-A, Sector 13, Phase-I, Dwarka, New Delhi.
5. The plaintiffs moved another Amendment Application No. I.A. 14911/2016 under Order VI Rule 17 of CPC, 1908 which was allowed vide Order dated 12.10.2018 and the following properties were included: –
(i) Land measuring 1 bigha 2 biswas forming part of Khasra No. 45/6, situated at Village Tikri Kalan, Delhi also known as Netaji Subhash Vihar,
(ii) Land measuring 1 bigha forming part of Khasra No. 33/25, situated at Tikri Kalan, Delhi,
(iii) Land measuring 1 bigha forming part of Khasra No. 57/24, situated at Mundka Village, Delhi,
(iv) The land measuring 1 bigha forming part of Khasra No. 63/16, situated at Mundka Village, Delhi,
(v) Land measuring 1 bigha 2 biswas forming part of Khasra No. 36/7, situated at Mundka Village, Delhi,
(vi) Land measuring 400 sq. yards bearing House No. 33, Pitampura, delhi.
6. The defendants have submitted that these amendments were allowed without prejudice to the rights and contentions of the parties.
7. It is contended in the present application that the defendant No. 1 expired on 04.12.2020 and his wife/defendant No. 1-b herein, took over the responsibilities of the entire family. It was noticed by her that her property as well as the properties of defendant No. 1 were also included in the suit properties. It is asserted that certain properties included in the suit by way of amendments, are exclusively owned and possessed by the defendant No. 1 and defendant No. 1-b.
8. The factum of ownership of these properties was duly admitted by the plaintiffs in their aforesaid two amendment applications filed in the year 2011 and 2016 respectively.
9. It has been firstly explained that HIG Flat No. 512, DJA Cooperative Group Housing Society Ltd. Plot No. 1-A, Sector 13, Phase I, Dwarka, New Delhi was allotted in the name of defendant No. 1 vide Agreement dated 03.10.2004, to which the plaintiffs cannot seek any claim.
10. Secondly, the land situated at Mundka Village, Delhi had been acquired by the defendant No. 1 from his own funds.
11. Thirdly, the land at Tikri Kalan, Delhi was purchased by Smt. Asha Sharma, defendant No. 1-b on 28.10.2005 from her own funds for Rs. 2,00,000/-. Therefore, these two properties have been wrongly included in the Plaint by the plaintiffs.
12. It is, therefore, submitted that the present Suit is liable to rejected in respect of two properties which are the individual properties of defendant No. 1 and his wife.
13. The plaintiffs in their Reply have opposed the present application by assuring that the case is at the stage of recording of evidence of the plaintiffs and the present application is nothing but an endeavour to delay the trial of the Suit. It is further submitted that the Plaint cannot be partly rejected in respect of some of the properties.
14. Furthermore, since the plaintiffs were not aware of the details of all the properties, they could not be impleaded in the Plaint, when originally filed. As soon as the plaintiffs came to know about the other properties, they exercised due diligence in getting those properties incorporated in the Plaint by way of aforesaid two amendment applications.
15. It is, therefore, submitted that the present application is without merit and is liable to be rejected.
16. Submissions heard.
17. The three properties which have been contended by the defendant No. 1-b to be in the exclusive ownership of defendant No. 1 & 1-b, is a matter that can only be decided by way of evidence.
18. As per the assertions made by the plaintiffs in the plaint, the three properties which are disputed by defendant No. 1-b had allegedly been purchases from the joint funds of the HUF. At this stage, without going into the evidence, it cannot be said that the plaintiffs have no interest in the suit properties.
19. Furthermore, it is only the averments made in the Plaint which are relevant while considering whether the cause of action has been disclosed or not.
20. Moreover, the Lahore High Court in Maqsud Ahmad v. Mathra Datt & Co, AIR 1936 Lahore 1021, observed that there is no provision of the CPC that allowed the rejection of a plaint in part.
21. In the case of Sejal Glass Ltd. v. Navilan Merchants (P) Ltd., (2018) 11 SCC 780 the Apex Court held that it is not permissible to reject plaint qua any particular portion of a plaint including against some of the defendant(s) and continue the same against the others. In no uncertain terms, the Court has held that if the plaint survives against certain defendant(s) and/or properties, Order 7 Rule 11(d) CPC will have no application at all, and the suit as a whole must then proceed to trial.
22. Therefore, the contention for part rejection of the Suit is also not maintainable on these additional grounds.
23. Accordingly, there is no merit in the present application, which is hereby dismissed.

I.A. 11631/2022 (u/O XXXIX Rule 10 r/w Section 151 of CPC, 1908 by plaintiffs for direction to defendants to deposit the income derived from suit properties)

24. By way of present application, the plaintiffs seek directions against the defendants to deposit the income derived from the suit properties.
25. It is submitted in the application that out of 10 properties which are the subject matter of the Suit for Partition as filed by the plaintiffs, many are in the exclusive possession of the defendants who are drawing a substantial rent and profits/income which in fact has to be considered as the joint family income. Such income is liable to be distributed equitably amongst all the legal heirs of Late Shri Jeet Ram Sharma.
26. The plaintiffs have given the details of the income being generated from the suit properties which are as under: –
S. No.
Particulars of the Property given on rent
Rental Income (approx.)
1.
15 shops built up on the plot of land measuring 1000 sq. yards forming part of Khasra No. 342, Village Pitampura, Delhi
2,20,000/-
2.
The defendant No. 1 is also running the business under the name and style of M/s Narain Paints & Hardware in 5 shops the defendant No. 1 is running the business under the name and style of M/s Narain Paints & Hardware.
3,00,000/-
3.
Two rooms and aara machine built up on land measuring 400 sq. yards bearing House No. 33, Pitampura, Delhi.
2,00,000/-
4.
40 rooms built up on land measuring 500 sq. yards bearing House No. 256, Pitampura Village, Delhi.
2,00,000/-
5.
40 rooms built up on lad measuring 500 sq. yards bearing House No. 256-B Pitampura Village, Delhi
2,00,000/-

27. Hence, the prayer is made that the defendants be directed to deposit the rental income derived from the joint family properties in the past and also to deposit the income on month-to-month basis in future in the Court.
28. No Reply has been filed on behalf of the defendants, but it is seriously contended that without first adjudicating whether the plaintiffs have any right and title in the suit properties, there can be no directions given for deposit of rent/income from the alleged properties. It is also contended that some of the properties are not even a part of or joint family properties.
29. Submissions heard.
30. At this stage, no direction can be issued until the question of title is resolved. Moreover, the plaintiffs have anyway sought the relief of rendition of accounts, in the prayer to the suit. Therefore, relief sought by way of the present application in the nature of a final relief, which is not tenable until the disputes between the parties are adjudicated.
31. Considering the vague averments made in the application, no Order under XXXIX Rule 10 of CPC, 1908 can be made at this stage, which is hereby deferred to be made at the time of passing of Preliminary Decree.
32. Accordingly, the present application is dismissed.
I.A. 22364/2022 (u/O XL r/w Section 151 of CPC, 1908 by D-5 & 5(a) for appointment of Receiver)

33. By way of present application, the defendant No. 5 and 5(a) seek appointment of a Receiver for apportionment of rental income accruing from the suit properties.
34. It is submitted in the application that the Property bearing No. 342, Shiva Market, Pitampura, Delhi is a huge plot measuring around 1000 to 1500 sq. yards and the rent of one shop is not less than Rs. 50,000/- to Rs. 70,000/- per month.
35. There is a rental income of about Rs. 3,50,000/- being generated from the Property No. 342, Shiva Market, Pitampura, Delhi and about Rs. 3,00,000/- per month from House No. 256 and 256B which comprise 35 rooms and one shop and the same are on rent.
36. It is submitted that an Official Receiver may be appointed to collect the rent from the aforesaid properties and to deposit the same in the Court.
37.
38. The present application is contested by the legal heirs of defendant No. 1 who has asserted that the defendant No. 5 and 5(a) has failed to prove on record any document of ownership of these properties in the name of Shri Jeet Ram Sharma. Moreover, the electricity connection in these properties were installed in the name of defendant No. 1. In the absence of any evidence regarding the joint nature of the properties, the share of the applicants or any proof of the rental income accruing from the said properties, no orders for appointment of a Receiver can be made.
39. Submissions heard.
40. It is still in dispute whether that the suit properties are in fact the joint family properties in which all the parties have a share. Therefore, no appointment of Receiver can be made at this stage which is deferred to be considered at the stage of passing of Preliminary Decree.
41. Accordingly, the present application is dismissed.

CS(OS) 404/2010 & & I.As. 2876/2010, 8145/2022, 9240/2022
42. List before the Joint Registrar for recording of evidence on 09.04.2024.

(NEENA BANSAL KRISHNA)
JUDGE
FEBRUARY 26, 2024
S.Sharma

CS(OS) 404/2010 Page 1 of 9