Ashok Aggarwal v. Santosh Aggarwal (Since Deceased) & Ors

RAJIV SAHAI ENDLAW, J. MARCH 09, 2016 "gsr" (corrected and released on 22nd June, 2016)

*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 9th March, 2016 + RFA No.75/2015 & CM No.7193/2016 (for stay) ASHOK KUMAR ..... Appellant Through: Mr. Sachin Datta, Sr. Adv. with Mr. B.B. Gupta, Ms. Kannupriya Tiwari, Mr. Madan Lal Gupta & Ms. Nauras S., Advs. versus ANIL AGGARWAL & ORS. .... Respondents Through: Mr. P.K. Rawal with Mr. Ajay Bahl & Mr. Tarun Agarwal, Advs. for R-1 to 5 & 8. + RFA No.219/2015 & CM No.18182/2015 (for directions) & CM No.6101/2015 (for stay) ASHOK AGGARWAL ..... Appellant Through: Mr. Sachin Datta, Sr. Adv. with Mr. B.B. Gupta, Ms. Kannupriya Tiwari, Mr. Madan Lal Gupta & Ms. Nauras S., Advs. versus SANTOSH AGGARWAL (SINCE DECEASED) & ORS. .... Respondents Through: Mr. P.K. Rawal with Mr. Ajay Bahl & Mr. Tarun Agarwal, Advs. for R-1 to 5 & 8. CORAM:- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. RFA No.75/2015 impugns the judgment and decree (dated 4th September, 2014 of the Court of Additional District Judge-17 (ADJ) (Central), Tis Hazari Courts, Delhi) of dismissal of CS No.214/2014, Unique I.D. No.02401C0418042002 filed by the appellant for declaration and injunction on the preliminary issue of being barred by Section 69 of the Indian Partnership Act, 1932. 2. The said appeal came up before this Court first on 9th February, 2015 and on 20th February, 2015 notice thereof was issued. The counsel for all the six respondents entered appearance and the trial court record was requisitioned. When this appeal was listed last on 30th November, 2015, it was informed that connected RFA No.219/2015 was listed on 9th March, 2016. Accordingly, this appeal was also posted for today. 3. RFA No.219/2016 impugns the judgment and decree (dated 17th December, 2014 of the same ADJ-17 (Central), Tis Hazari Courts, Delhi) on admissions in CS No.146/2014 filed by Smt. Santosh Aggarwal (Santosh) (who died during the pendency of the suit and was substituted by respondents no.1 to 4 viz. Pawan Aggarwal (Pawan), Rahul Aggarwal (Rahul), Payal Mittal (Payal) and Sonal Aggarwal (Sonal)) and Anil Aggarwal (Anil) being respondent no.5 against respondents no.7 to 11 viz. M/s Om Ram Dharam Kanta, Sh. Rajinder Aggarwal (Rajinder), Smt. Laxmi Devi (Laxmi), Smt. Veena Rani (Veena) & Smt. Krishna Devi (Krishna) as also against Ashok Aggarwal (Ashok) being the appellant in the said appeal, for recovery of possession of property No.1-A, Shahzada Bagh Extension, Delhi. 4. The said appeal came up before this Court first on 8th April, 2015 when notice thereof was issued and the parties referred to mediation and execution stayed. Mediation remained unsuccessful. The respondents no.1 to 5 in the said appeal filed CM No.18182/2015 for a direction to the appellant therein to deposit arrears of use and occupation charges and notice thereof was also issued. Though respondents no. 9 to 11 in the said appeal viz. Laxmi, Veena and Krishna remain unserved but the counsels inform that they were not contesting the suit before the Trial Court also. In the circumstances, their service is dispensed with. 5. Passover is sought on behalf of the counsel for the appellant (Ashok Kumar and Ashok Aggarwal are one and the same person) in both appeals. 6. The counsel for the appearing respondents opposes and states that the matters if passed over would not reach again. It is further stated that the appellant has not paid any amount for use and occupation of the property from which he has been ordered to be ejected since May, 2003. 7. On enquiry, it is informed that the enquiry into the claim for arrears and for mesne profits is underway in the suit from which RFA no.219/2015 arises. 8. In view of the aforesaid and finding that the suit from which RFA No.219/2015 arises was filed as far back as on 1st April, 2003 and the plaintiff / decree-holder therein is not receiving any monies and considering the nature of the controversy and the fact that in the event of it being found that no case for decree on admissions is made out, the matter will have to be