Research › Search › Judgment

Delhi High Court · body

2007 DIGILAW 1690 (DEL)

RAJENDER JAIN v. PRAVEEN JAIN

2007-08-24

HIMA KOHLI

body2007
MUKUNDAKAM SHARMA, C. J. ( 1 ) CM No. 11539/2007 (exemption) Allowed, subject to just exceptions. FAO (OS) No. 325/2007 and CM No. 11538/2007 ( 2 ) THIS appeal is filed by the appellant, who is plaintiff in the suit being aggrieved by the order dated 16th July, 2007 whereby the learned Single Judge disposed of the applications of the appellant registered as IA No. 6922/2006, IA 3213/2007 and IA No. 7765/2007. In the suit, the learned Single Judge passed orders on 20rd March, 2007 disposing of IA Nos. 1892/2004 and 4677/2005. By the aforesaid order, the ex parte injunction order dated 23rd March, 2004 passed on the first date was vacated and the defendant No. 1 was held to be entitled to take possession of the premises from the defendants No. 3,7 and 10. The defendant No. 1 was also permitted to let out the property and/or portion of the premises with a direction to file accounts mentioning the rents realised from them from time to time. A restraint order was also passed by the learned Single judge restraining the defendant No. 1 from selling, mortgaging and / or creating third party interest in the property. ( 3 ) AN application registered as IA No. 6053/2007 was filed by the appellant contending, inter alia, that the defendant No. 1 was trying to change the nature of the corpus of the suit property by making addition/alteration. The application and the contents thereof were considered by the learned Single Judge in the light of the documents available on record and also upon taking into consideration the earlier order dated 23rd March, 2004 The learned Single Judge recorded a finding at that stage that the appellant / plaintiff had yet to establish any right in the property. Reference was also made to the order passed in the rent control proceedings. Accordingly, while holding that there should be no prohibition on defendant No. 1's right to use the property, the learned Single Judge dismissed the application by order dated 22nd May, 2007. Being aggrieved by the said order of dismissal, the appellant filed an appeal in this court, which was registered as FAO (OS) No. 219/2007. By order passed by this court, the said appeal was disposed of on 6th July, 2007. Being aggrieved by the said order of dismissal, the appellant filed an appeal in this court, which was registered as FAO (OS) No. 219/2007. By order passed by this court, the said appeal was disposed of on 6th July, 2007. This court held that Court can always mould the relief to be given to the plaintiff and while doing so it could also hold that any construction made by the defendant would not defeat the claim of the appellant and such construction has not affected the rights of the plaintiff. However, it was also held that if there is any change in the nature of the suit property and in case the appellant succeeds in the suit, suitable directions can be issued to restore back the suit property to its original condition and for effective implementation. Another application registered as IA No. 6922/2006 under the provisions of order XXXIX Rule 2a of the Code of Civil Procedure was filed by the appellant in may 2006 before the learned Single Judge. In that application, the appellant / plaintiff had sought for orders as contemplated under Order XXXIX Rule 2a CPC for alleged violation of the order passed by the Court. The said application has been dismissed by the learned Single Judge by passing the impugned order holding that the appellant / plaintiff had yet to establish that he had a right in the suit property for grant of any relief. It was observed that the interim injunction order which was passed earlier, having merged with the final order, no case for taking action under Order XXXIX Rule 2a CPC was made out. The said findings are challenged on the ground that if there is violation of the interim injunction passed by this court, the Court can always pass orders under Order xxxix Rule 2a CPC. ( 4 ) WE are, however, unable to agree with the contention of the counsel for the appellant for the simple reason that prima facie findings are being recorded repeatedly on the applications of the appellant that the appellant / plaintiff was yet to establish that he had any right in the suit property, for grant of any relief. After appreciation of the records, the learned Single Judge held, although prima facie, that the plaintiff / appellant has no right to have any restriction on the defendant No. 1's right of user of the property. After appreciation of the records, the learned Single Judge held, although prima facie, that the plaintiff / appellant has no right to have any restriction on the defendant No. 1's right of user of the property. It may be relevant to note that the orders passed in IA No. 6922/2006 are subsequent in time to the orders dated 22nd May, 2007 passed in IA No. 6053/2007, as also to the orders dated 6th July, 2007 passed in FAO (OS) No. 219/2007. ( 5 ) IN this view of the matter, we find no infirmity in the orders passed by the learned Single Judge. The contentions of the appellant in respect of the said order are rejected. The order passed in the application registered as CM no. 6922/2006 is upheld. ( 6 ) THE next contention raised by the learned counsel for the appellant is with regard to the order passed by the learned Single Judge in respect of the application filed by the appellant under Order I Rule 10 of the Code of Civil procedure (IA No. 3213/2007) seeking impleadment of the legal representatives of defendants No. 5 and 7. There is a categorical finding recorded by the learned single Judge that the sub-tenants are being impleaded as defendants without there being any cause of action against them. The learned Single Judge has held that right to sue in respect of the legal representatives of the aforesaid sub-tenants does not survive. However, as the counsel for the appellant insisted on their impleadment, Court has passed an order directing for deposit of a sum of rs. 30,000/- per person in the Court as security for litigation expenses. It is submitted before us that the said order is not envisaged under any of the provisions of the Code of Civil Procedure. We are, however, unable to accept the aforesaid contention. If in the opinion of the learned Single Judge, security is to be furnished, such an order can be passed particularly in view of the fact that a prima facie finding has been recorded by the learned Single judge that right to sue in respect of the legal representatives of the aforesaid sub-tenants did not survive. It is also crystal clear that the said defendants no. 5 and 7 died as far back as in the years 1994 and 1995 respectively. It is also crystal clear that the said defendants no. 5 and 7 died as far back as in the years 1994 and 1995 respectively. We, therefore, find no reason to interfere with the aforesaid order passed by the learned Single Judge in respect of IA No. 3213/2007. ( 7 ) THE appellant has also assailed the order dated 16th July, 2007 whereby his application (IA No. 7765/2007) for filing additional documents and a supplementary affidavit was allowed but subject to costs of Rs. 20,000/ -. ( 8 ) THE suit was filed by the appellant / plaintiff against the defendant in march 2004 The same is at the stage of recording of evidence. At that stage when the suit had matured for recording evidence, the appellant / plaintiff filed an application under Order VII of the Code of Civil Procedure seeking permission to produce some additional documents and to file supplementary affidavit of evidence of PW-1. The stage for filing additional documents was already over and the suit was listed for recording of evidence and that also for the cross examination of the plaintiff as PW-1. Despite being skeptical about the stand taken by the appellant to explain the difficulty he faced in tracing the documents which were admittedly in his power and possession, taking the entire facts and circumstances of the case into consideration, the learned single Judge imposed costs of Rs. 20,000/- for allowing the application, and justified his order as to why costs should be imposed. The aforesaid discretion which is vested in the learned Single Judge cannot be said to have been exercised arbitrarily or capriciously. We find no reason to interfere with the order. ( 9 ) FOR all the reasons stated herein above, the appeal is dismissed being devoid of merits.