C. S. VEDI v. KIRPAL SINGH — 1996 DIGILAW 11 (DEL)

Devinder Gupta, J. ( 1 ) THIS is plaintiffs application under Order 6 Rule 16 of the Code of Civil Procedure for striking out part of written statement Filed by defendants 3 and 4 to be unnecessary. ( 2 ) "" Defendants 3 and 4 were allowed to be impleaded as necessary partics to the suit by virtue of an order passed on 9. 2. 1987 in IA 2811/85. The order is under challenge in appeal stated to be still pending before the Division Bench. ( 3 ) PLAINTIFF has claimed a decree in the suit against defendant No. 1. In the suit, which virtually is a suit for specific performance of an agreement dated 19. 4. 1972, prayers made in the plaint are to declare that the irrevocable power of attorney executed by defendant No. 1 in plaintiffs favour, special power of attorney dated 19th April, 1972 executed by defendant No. 1 in favour of defendant No. 2 and the Will dated 19th April, 1972 executed by defendant No. 1 in favour of the plaintiff continue to subsist and the registered document executed by defendant No. 1 on 30. 3. 1982 purported to cancel of the same is null and void. Declaration is also sought that the plaintiff is owner and in possession of the suit land and to direct defendant No. 1 to comply with the requirements of law for effecting transfer of the suit property in favour of the plaintiff and further directing defendant No. l not to interfere in plaintiffs possesion in the property, in any manner, whatsoever. Defendants 3 and 4 were allowed to be impleaded on the basis of averments made by them in their application (IA 2811/85) alleging that the plaintiff has transferred all his rights in respect of the suit property in their favour on the basis of agreement dated 27. 4. 1975. The order passed on 9. 2. 1987 deals with the respective; stand of the plaintiff and defendants 3 and 4. It was observed that defendants 3 and 4 have a prima facie case in their favour that they had become the nominees of the plaintiff and stand in the shoes of the plaintiff in respect of the subject matter of the suit. Admittedly defendants 3 and 4 are in possession of the property. It was observed that defendants 3 and 4 have a prima facie case in their favour that they had become the nominees of the plaintiff and stand in the shoes of the plaintiff in respect of the subject matter of the suit. Admittedly defendants 3 and 4 are in possession of the property. Defendants 3 and 4 were held to be necessary parties to the suit and since the plaintiff had refused to implead them as co-plaintiffs, they were directed to be added as codefendants in the suit. ( 4 ) IT is not in dispute that because of the inter-se agreement between the plaintiff and defendants 3 and 4 matters are required to adjudicate upon through the process of arbitration subject to the objection raised to those proceedings. The named arbitrator was J. C. Bhayana. Because of the subsequent developments necessity arose for in plaintiff in approaching this court by Filing OMP 106/82 for cancellation of the appointment of Mr. Bhayana. The said proceedings are still pending. ( 5 ) THE contention of learned counsel for the plaintiff is that in the absence of any counter claim by defendants 3 and 4 in their written statement, which they have now filed to the amended plaint, the prayers made by defendants 3 and 4 in their written statement for declaring them to be the owners in possession of the property is liable to be struck off and similarly preliminary submissions comprising paras a to m are also liable to be struck off. No reply to this application has been Filed by defendant No. 1. Reply has been filed by defendants 3 and 4, who have strongly opposed this application. I have heard learned counsel for the parlies. ( 6 ) SINCE it is a suit filed by the plaintiff primarily praying for a decree against defendant No. 1, there is no manner of doubt that issues have to be framed on the basis of the pleadings of the plaintiff and defendant No. 1, which will be necessary for adjudicating their respective rights, in order to enable the court to grant relief, if any, to the plaintiff. In view of addition of defendants 3 and 4, as parlies, holding them to he necessary parlies to the suit and so long the orders passed on 9. 12. In view of addition of defendants 3 and 4, as parlies, holding them to he necessary parlies to the suit and so long the orders passed on 9. 12. 1990 itself subsists, defendants 3 and 4 cannot be prevented from putting in their written statement on record and taking such pleas as are permissible to them in law. There can also be no doubt that in the absence of any counter claim, the prayer made by defendants 3 and 4 cannot be made subject matter of issues to be framed in the suit. Rights inter-se the parties, namely, the plaintiff and defendants 3 and 4 will have to he adjudicated upon only in proceedings before the arbitrator and not in the instant suit. But that fact alone cannot prevent defendants 3 and 4 from pulling forth their defence in their written statement which they were asked to file, though at the lime of framing of issues, the pleas raised may not be made subject matter of issues. Primary consideration for which defendants 3 and 4 have been permitted to he added as. parties to this suit, as it appears from record is to safeguard their interest that plaintiff and defendant No. 1 might not collude to defeat their rights. Pleadings of defendants 3 and 4 are neither scandalous nor frivolous or vexatious and cannot he ordered to be struck off. However, it will be at the time of framing of issues that parlies can be heard on the question as to on -what pleadings and to what extent issues need be framed. The same need not be framed on all pleadings raised by the partics but will have to be confined and limited only for the purpose of granting relief to the plaintiff against defendant No. 1. Inter se dispute between the plaintiff and defendants 3 and 4 cannot be made subject mailer fo issues in the instant suit. With these observations the application stands disposed of. IA 783/88 ( 7 ) THIS is an application under Section 34 of the Arbitration for stay of proceedings in the suit filed by defendants 3 and 4. Defendants 3 and 4 have alleged that in view of arbitration clause contained in the agreement inter-se plaintiff and defendants 3 and 4, the present suit deserves to be stayed. IA 783/88 ( 7 ) THIS is an application under Section 34 of the Arbitration for stay of proceedings in the suit filed by defendants 3 and 4. Defendants 3 and 4 have alleged that in view of arbitration clause contained in the agreement inter-se plaintiff and defendants 3 and 4, the present suit deserves to be stayed. Be it stated that this prayer cannot be allowed in these proceedings since in the suit no relief has been claimed by the plaintiff against defendants 3 and 4. Defendants 3 and 4 have been permitted to be added as defendants with a view to safeguarde their interests. Inter se dispute between the plaintiff and defendants 3 and 4, as observed in the order passed in IA 910/94, has to be adjudicated upon and decided through the process of arbitration. Consequently this application, which has no force, is dismissed. ( 8 ) DURING the course of arguments in IA 910/94, defendant No. 1 contended that he may be allowed to execute an order of eviction passed against defendants 3 and 4 against which order civil revision preferred by defendants 3 and 4 was dismissed and S. L. P. was also dismissed on 4. 4. 1992 ( 9 ) PRAYER of defendant No. 1 cannot be accepted without their being any formal application made in that behalf. Interim order passed in IA 5166/90 was made absolute on 5. 8. 1993. In case defendant No. 1 is aggrieved against this order and e. m in law seek variation in the order restraining him from executing the order of eviction, his remedy, if any, would he to file a separate application under Order 39 Rule 4 of CPC. ( 10 ) PARTIES to complete their pleadings in the suit within four weeks. ( 11 ) LIST for admission/denial of documents before the Jt. Registrar on February 02, 1996 and in court on February 09, 1996 for framing of issues.