Manju Choudhary v. Sudesh Lamba & Ors

RAJIV SAHAI ENDLAW, J. MARCH 18, 2019 AK (corrected & released on 3rd April, 2019)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 18th March, 2019. + CS(OS) 504/2018 & IA No.13888/2018 (u/O XXXIX R-1&2 CPC) MANJU CHOUDHARY ..... Plaintiff Through: Mr. Ashish Updhayay, Advocate. Versus SUDESH LAMBA & ORS. ..... Defendants Through: Mr. Rohit Gandhi, Advocate for D-1 and 3 to 6 with D-3&6 in person. Ms. Taru Gupta, Advocate for D-2. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The plaintiff has instituted this suit, for partition of and for rendition of accounts with respect to, property no. 217 Jor Bagh, New Delhi-3, pleading, (i) that the property no. 217 Jor Bagh, New Delhi was auctioned on 7th March, 1953 in favour of the paternal grandfather of the plaintiff and the six defendants namely Late Sh. Captain Risal Singh and the said paternal grandfather of the plaintiff paid consideration for purchase of and raised construction of the suit property; (ii) that Sh. Gian Singh, father of the plaintiff and six defendants inherited a number of properties from his parents; (iii) that the grandfather of the plaintiff Late Sh. Captain Risal Singh died in the year 1955, without leaving any Will and Sh. Gian Singh started enjoying the property, being the legal heir of Late Sh. Captain Risal Singh, as per the family arrangement; (iv) that the parents of the plaintiff and the six defendants were residing in the subject property; (v) that while all the other sisters of the plaintiff i.e. defendants no.1 to 6 got married, the plaintiff chose to remain un-married and continued looking after her parents; (vi) that in the year 2002, the defendant no. 1 polluted the mind of the parents against the plaintiff and owing thereto the relationship of the plaintiff with her parents got strained, and after a brief period of dispute in the family, the plaintiff had to leave the subject property, though against her wishes, for the sake of peace of mind, and since then has been residing separately; (vii) that after the demise of the parents, the defendants are attempting to dispose of the property; and, (viii) that the plaintiff has 1/7th share in the property. 2. The suit came up first before this Court on 8th October, 2018 when summons thereof were ordered to be issued and status quo directed to be maintained with respect to title and possession of the property. 3. Defendants no.1 and 3 to 6 filed applications under Order 7 Rule 11 and under Order XXXIX Rule 4 CPC, which were dismissed/disposed of by the order dated 22nd November, 2018. 4. Pleadings have been completed and the suit is ripe for framing of issues and for consideration of the application for interim relief. 5. The counsel for defendants no.1 and 3 to 6 informs that the appeal preferred by the said defendants against the order dated 22nd November, 2018 has been dismissed insofar as against the dismissal of application under Order VII Rule 11 CPC but notice has been issued qua the order disposing of the application under Order 39 Rule 4 CPC. 6. The pendency of the appeal qua the application under Order 39 Rule 4 CPC does not come in the way of proceeding with this suit. 7. The counsel for the defendants no.1 and 3 to 6 contends that in fact the plaintiff instituted the suit by indulging in concealment, and the plaintiff, notwithstanding the dismissal of the application under Order 7 Rule 11 CPC, is not entitled to maintain the present suit. 8. It is informed, that (i) late Sh. Gian Singh, on 1st June, 2001 instituted Suit No.40/2001 in the court of the District Judge, Delhi against plaintiff, seeking a decree inter alia of possession of portion of the subject property in possession of the plaintiff; (ii) thereafter the plaintiff instituted Suit No.962/2001 in this Court against her father Sh. Gian Singh, for permanent injunction restraining him from dispossessing the plaintiff from the property no. 217 Jor Bagh, New Delhi, claiming that the said property was an ancestral property and the plaintiff had a share therein; (iii) the suit filed by the plaintiff