IA No. 12530/2000 in CS (OS) No. 1823/2000. Case: Sh. Anil Kumar Sanghi and Anr. Vs Sh. Hari Kishan Sanghi and Ors.. High Court of Delhi (India)
| Case Number | IA No. 12530/2000 in CS (OS) No. 1823/2000 |
| Counsel | For Appellant: Pravir K. Jain, Adv. and For Respondents: Arvind Kumar, Neelam Rathore, Advs. for D-1 and 2, Rajat Aneja, Adv. for D-5 and Padma Priya, Adv. |
| Judges | Rajiv Shakdher, J. |
| Issue | Delhi Rent Control Act, 1958 - Section 50; Specific Relief Act, 1963 - Section 34; Evidence Act, 1872 - Section 92; Companies Act, 1956 - Section 155; Civil Procedure Code (Amending) Act, 1976 - Order 14, Rule 2; Civil Procedure Code (CPC), 1908 - Section 151 - Order 1, Rule 10(2) - Order 7, Rule 7, 11 - Order 14, Rule 2, 2(1) and 2(2) |
| Judgement Date | September 20, 2010 |
| Court | High Court of Delhi (India) |
Judgment:
Rajiv Shakdher, J.
IA No. 12530/2000 (O. 7 R. 11 and S. 151 of CPC by Deft. No. 5)
1. By this order I propose to dispose of the captioned application, which has been filed by R.K.S. India Pvt. Ltd. erstwhile defendant no.5 (hereinafter referred to as "RKS") under the provisions of Order VII Rule 11 read with Section 151 of the Code of Civil Procedure, 1908 (in short, "CPC").
At the outset, as it is evident, this application has been pending for the last 10 years. The parties to date have not led evidence. In this context, there are two orders which I must refer to right in the beginning.
2.1 First, is the order dated 24.01.2001 wherein, it has been noticed that the applicant/RKS had filed an application under Order VII Rule 11 CPC read with Section 151 CPC for dismissal of the suit on the ground of lack of cause of action, and on the ground of jurisdiction. The court observed that this objection be taken as a preliminary objection in the written statement which would be considered as a preliminary issue. The court, further went on to observe that the said application shall be decided by way of decision on the preliminary issue arising out of the written statement. Accordingly, defendants including applicant/RKS were directed to file their respective written statements. Consequent thereto the defendants have filed their written statements. The plaintiffs in response thereto, have filed their replication.
2.2 The second order, to which reference is required is:
order dated 16.12.2003. By this order, issues were cast in the suit. The total number of issues cast in suit are thirty nine. Out of these, issue nos.24, 31, 32 & 33 were treated as preliminary issues. For the sake of convenience, the said issues are extracted hereinafter:-
"Issue No.24- Whether the suit is not maintainable in terms of Order 7 Rule 11 CPC' OPD3&4 Issue No.31- Whether defendant no.5 is a tenant in different portions of suit property, as mentioned in sub-paras a, b and c of para A of preliminary objections of written statement filed by defendant no.5' OPD-5 Issue No.32- If Issue No.32 is answered in the affirmative, whether the suit is barred under Section 50 of Delhi Rent Control Act' OPD-5 Issue No.33- Whether there is no cause of action against defendant no.5 for filing the present suit, as alleged in the written statement filed by defendant no.5' If so, its effect' OPD-5"
With the aforesaid prefatory note, let me briefly advert to the facts, which in my view, would be relevant for the purposes of disposal of the captioned application.
The plaintiffs have filed the instant suit for possession, declaration, rendition of accounts and injunction. It is averred in the plaint that one Mahabir Prasad, who died in December, 1970 was blessed with three sons. These being:
Mr. Hari Kishan Sanghi, Mr. Tek Chand Sanghi and Mr. Ram Kishan Sanghi. The plaintiffs, that is; Mr. Anil Kumar Sanghi, Mr. Arun Kumar Sanghi alongwith Mr. Sanjay Kumar Sanghi are progeny of Mr. Ram Kishan Sanghi and Smt. Indra Devi. Similarly, Mr. Hari Kishan Sanghi was blessed with two sons Mr. Rajender Kumar Sanghi and Mr. O.P. Sanghi. Mr. O.P. Sanghi had expired prior to the institution of the present suit. Mr. Rajender Kumar Sanghi was married to Smt. Prabha Sanghi. They were blessed with a son i.e., Mr. Ankur Sanghi. At the point in time when, the suit was first instituted, Mr. Hari Kishan Sanghi alongwith his son, daughter in law and grandson were impleaded as defendant no.1, 2, 3 and 4 respectively, while Mr. Ram Kishan Sanghi, who was also impleaded in the suit alongwith his wife Smt. Indra Devi and his third son Mr. Sanjay Kumar were arrayed as defendant nos.7, 8 & 9. Therefore, the two branches of the family emerged. The branch of Mr. Hari Kishan Sanghi comprised of himself; his son, Mr. Rajender Kumar Sanghi; his daughter-in-law, Ms. Prabha Sanghi; and grandson, Mr.Ankur Sanghi. The other branch comprised of the plaintiffs i.e. Mr. Anil Kumar Sanghi and Mr. Arun Kumar Sanghi alongwith their father Mr. Ram Kishan Sanghi, their mother, Smt. Indra Devi and their brother Mr. Sanjay Kumar Sanghi. For the sake of convenience, the two branches are compendiously referred to hereinafter by me as:
Hari Kishan and family; and Ram Kishan and family. As noticed above, the two branches traced their root to Mahabir Prasad Sanghi.
It is the case of the plaintiffs that Mr. Hari Kishan Sanghi alongwith Mr. Ram Kishan Sanghi and their brother Mr. Tek Chand Sanghi (who are the uncles of the plaintiffs) and Sh. Mahabir Parsad Sanghi (who was the plaintiffs' grand father) constituted a Joint Hindu Family. It is also the case of the plaintiffs that the said Mahabir Prasad Sanghi alongwith his two sons, referred to above, lived as members of a Joint Hindu Family, and in the process acquired various properties and businesses. The said joint family, it is averred, resided in a tenanted property situated at 61, Darya Ganj, Delhi. The above members of the Joint Family it is averred, were joint in estate, mess and worship.
What is pertinent for the purposes of the captioned application is that the joint family, it appears acquired, amongst various other properties, four (4) plots in Delhi, which were, numbered as plots nos.1, 2, 3 & 4 Kilokari Village, Ring Road, New Delhi-110 014 (hereinafter, referred to as Property No.1, 2 and 3 respectively). These plots, it is averred, were acquired in 1957 by the joint family in the name of Mr. Mahabir Prasad Sanghi, who was the karta of the joint family. I am, not for the moment, referring to other properties and agricultural lands which, the plaintiffs claim the joint family owns and possesses. 6.1 It is also the case of the plaintiffs that in 1960-1962, super-structures were raised on property nos.1, 2 & 3 out of the funds owned by the joint family. 6.2 It is averred that in 1964, a partial partition took place between the members of the joint family, and consequent thereto, property no.3, with the superstructure then obtaining, fell to the share of the branch of the family headed by Mr. Ram Kishan i.e. the father of the plaintiffs herein. In-so-far-as property no.2 was concerned, by virtue of the very same partition, fell to the share of Mr. Tek Chand Sanghi, while property no.1 came to the share of the family of Mr. Hari Kishan Sanghi.
It is the case of the plaintiffs that Mr. Hari Kishan Sanghi being the eldest son of Mr. Mahabir Prasad Sanghi, had in sum and substance taken over the reins of the family, and thereby exerted great amount of influence on the other members of the family. The plaintiffs allege that the affairs of the family, which also included management of the property which fell to the share of Ram Kishan Sanghi and family i.e. Property No.3 was within the domain of Mr. Hari Kishan Sanghi. The averments to that effect have been made in paragraph 14 of the plaint. There are also averments to the effect that the ground floor of property no.3 was let out on rent to Ranbaxy, W.H.O., GM (Postage & Telegraph), etc., and the rents which were realized by Mr. Hari Kishan Sanghi were deposited, in joint account of Ram Kishan Sanghi and family. It is further averred that out of the rental income of the ground floor of the property no.3, further construction was carried out whereby, the first floor and the barsati floor alongwith the annexe was raised on property no.3. It is alleged that between 1964-1980, the ground floor was let out by Mr...
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