Pushpa Rathi & Anr v. Jugnu Bansal

RAJIV SAHAI ENDLAW, J. SEPTEMBER 07, 2017 "bs/gsr".. (Corrected & released on 29th September, 2017)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 7th September, 2017 + CM(M) 765/2011 & CMs No.12354/2011 (for stay) & 9743/2013 (of respondent u/S 151 CPC) PUSHPA RATHI & ANR ..... Petitioners Through: Mr. M.L. Bhargava, Adv. Versus JUGNU BANSAL ..... Respondent Through: Mr. Kuber Boddh and Ms. Ashima Mandla, Advs. AND + CM(M) 1098/2011, CM No.16986/2017 (u/O XXII R-4 CPC) & CM No.16987/2017 (for condonation of 15 days delay in filing CM No.16986/2017) GOVERDHAN DASS BANSAL & ANR ..... Petitioners Through: Mr. Kuber Boddh & Ms. Ashima Mandal, Advs. Versus DINESH KUMAR RATHI & ANR ..... Respondents Through: Mr. M.L. Bhargava, Adv. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW CM (M) No.765/2011 1. This petition under Article 227 of the Constitution of India impugns the judgment [dated 5th March, 2011 in RCA No.35/2008 of the Court of Additional District Judge (ADJ)-03, (North-East), Karkardooma Courts, Delhi] allowing the appeal preferred by the respondent/plaintiff against the order [dated 24th July, 2008 in Suit No.77A/2007 of the Court of Sh. Vishal Gogne, Civil Judge, Karkardooma Courts, Delhi] allowing the application of the petitioners/defendants under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) and rejecting the plaint in the suit filed by the respondent/plaintiff for recovery of possession of property No.205, Gali No.4, Gurudware Wali Gali, Durgapuri Extension, Shahdara, Delhi along with mesne profits/damages for use and occupation and for permanent injunction restraining the petitioners/defendants from selling, alienating or parting with possession of the said property. 2. The plaint in the suit from which this petition arises was rejected by the Civil Judge on the ground of the claim therein for possession being barred by limitation prescribed in Article 65 of the Schedule to the Limitation Act, 1963. Thus, the narrative herein would be concerning the aspect of limitation only. 3. The respondent/plaintiff instituted the suit from which this petition arises, pleading (i) that the respondent/plaintiff was the owner of property No.205, Gali No.4, Gurudware Wali Gali, Durgapuri Extension, Shahdara, Delhi; (ii) that the respondent/plaintiff permitted the partnership firm M/s Parag Enterprises in which the respondent/plaintiff and the defendant / petitioner No.1 Pushpa Rathi were partners; (iii) that disputes and differences arose with respect to the said partnership and the respondent/plaintiff, vide letter dated 16th January, 1986 to the Manager of the Bank in which the partnership had an account, stopped operation of the partnership account with the said Bank; (iv) that the defendant / petitioner No.2 Dinesh Rathi being the husband of the petitioner No.1 Pushpa Rathi, on 16th January, 1986, instituted a suit against the respondent/plaintiff and her husband, averring himself to be a tenant in the aforesaid property No.205, Gali No.4, Gurudware Wali Gali, Durgapuri Extension, Shahdara, Delhi as well as in property No.206, Gali No.4, Gurudware Wali Gali, Durgapuri Extension, Shahdara, Delhi owned by the husband of the respondent/plaintiff and to restrain the respondent/plaintiff and her husband from forcibly dispossessing the defendant / petitioner No.2 Dinesh Rathi from the said properties; (v) that in the written statement to the said plaint, the respondent/plaintiff and her husband while admitted the tenancy of property No.206, Durgapuri Extension, Shahdara but denied that there was any tenancy of property No.205 Durgapuri Extension, Shahdara and pleaded that the possession of property No.205, Durgapuri Extension, Shahdara was with the respondent/plaintiff only; (vi) that the defendant / petitioner No.2 Dinesh Rathi, in or about 1987 applied for amendment of plaint in the said suit No.77/1986 pleading that the husband of the respondent/plaintiff had on 6th February, 1987, on receipt of Rs.20,000/-, had sold both the properties i.e. properties No.205-206, Durgapuri Extension, Shahdara to the