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2012 DIGILAW 1718 (PNJ)

Sanjeev Sabharwal & another v. Anita Chopra

2012-12-03

L.N.MITTAL

body2012
L. N. Mittal, J.:— (ORAL) CM No. 29857-CII of 2012 Allowed as prayed for. Main Case Defendants have filed this revision petition under Article 227 of the Constitution of India assailing order dated 15.09.2012 Annexure P-2 passed by the trial court thereby only partly allowing application Annexure P-9 filed by the defendants. It is unfortunate litigation by a daughter (respondent-plaintiff) filed against her own brother and mother (defendants/petitioners) regarding inheritance of the suit property from the deceased father of the plaintiff and defendant No. 1 and husband of defendant No.2. Plaintiff has claimed 1/3rd share in the suit property on the basis of natural inheritance. On the other hand, defendant No. 2 claimed the suit property exclusively on the basis of Will allegedly executed by the deceased O. P. Sabharwal in her favour. Defendant No. 2 has further transferred the suit property to defendant No. 1 to the exclusion of the plaintiff. In application Annexure P-9, defendants sought framing of additional issues regarding valuation of the suit for purposes of Court fee and jurisdiction and payment of proper Court fee and also regarding estoppel against the plaintiff. Said relief has been granted by the trial Court by framing additional issues No. 11 and 12 by the impugned order. There is no grievance about the same in the instant revision petition. Defendants in their application Annexure P-9 also pleaded that onus of issue No. 10 relating to limitation should be placed on the plaintiff and not on the defendants. It was also pleaded that issues relating to Court fee and limitation be treated as preliminary issues. Another grievance was that the defendants have been asked to lead the evidence first instead of the plaintiff being required to lead her evidence. These prayers have been declined by the trial Court by way of impugned order giving rise to the instant revision petition. I have heard learned counsel for the petitioners and perused the case file. Another grievance was that the defendants have been asked to lead the evidence first instead of the plaintiff being required to lead her evidence. These prayers have been declined by the trial Court by way of impugned order giving rise to the instant revision petition. I have heard learned counsel for the petitioners and perused the case file. Counsel for the petitioners relying on a judgment of Hon’ble Supreme Court in the case of N. R. Govindarajan versus V. K. Rajagopalan & others, (2005) 12 Supreme Court cases 362; two judgments of this Court in the cases of Jagdev Singh versus Sardarni Prem Parkash Kaur and others, AIR 2002 P&H 330 and Rajesh Kumar versus Gholu Ram & others, (1999) 121 PLR 653 and a judgment of High Court of Karnataka in the case of Abdul Salam versus The District Automobile Workers Association rep. by its Secretary and another, (2010) ILR NULL 3018, contended that even if some evidence is required on certain issues, even then the same can be treated as preliminary issues. I have carefully considered the matter. In the case of N. R. Govindarajan (supra) and Rajesh Kumar (supra), it was not so laid down that even if an issue requires evidence, the same may be treated as preliminary issue. However, in the case of Jagdev Singh (supra), it was held that if detailed evidence is not required, issues concerning limitation, maintainability of suit and Court fee could be treated as preliminary issues. Similarly in the case of Abdul Salam (supra), it has been laid down that issue regarding valuation of suit and payment of Court fee may be treated as preliminary issue, if necessary, after recording of evidence. However, even assuming that Court has power to treat an issue as preliminary issue even when it requires evidence, it does not mean that the Court always has to treat such an issue as preliminary issue whenever required by a party. The Court has discretion in the matter. In the instant case, keeping in view all the facts and circumstances of the case, the trial Court has exercised discretion and declined the prayer of the defendants for treating the issues regarding limitation and Court fee as preliminary issues. The Court has discretion in the matter. In the instant case, keeping in view all the facts and circumstances of the case, the trial Court has exercised discretion and declined the prayer of the defendants for treating the issues regarding limitation and Court fee as preliminary issues. In exercise of supervisory power under Article 227 of the Constitution of India, the said discretion is not required to be reversed as the same can not be said to be suffering from any perversity, illegality or jurisdictional error. On the contrary, prima facie it appears from the pleadings of the parties that these issues are inter connected with the merits of the claim and would require detailed evidence and therefore, these issues should not be treated as preliminary issues. As regards onus of issue No. 10 relating to limitation, the same has been rightly placed on the defendants, keeping in view the pleadings of the parties. O. P. Sabharwal died on 26.10.1997 and the suit has been filed on 28.05.2008. In the suit, the plaintiff has inter alia sought declaration that she is owner in joint possession of 1/3rd share of the suit property and transfer deed dated 17.07.2007 executed by defendant No. 2 in favour of defendant No. 1 is illegal and null and void. The plaintiff has also sought partition of the suit property. In these circumstances, the onus of issue No. 10 relating to limitation has been rightly placed on defendants. As regards direction to the defendants to commence their evidence instead of the plaintiff being directed to do so, onus of proving issue No. 6 as to whether Om Parkash Sabharwal executed a valid Will in favour of defendant No. 2-Sushila Sabharwal has been placed on defendants and rightly so. Other issues No. 1 to 5, onus whereof has been placed on the plaintiff, would depend on decision on issue No.6.If issue No. 6 relating to Will is answered in favour of defendants, issues No. 1 to 5 would automatically go against the plaintiff who would have no right in the suit property in that event. Conversely if issue No. 6 relating to Will is answered against the defendants, then on the basis of natural inheritance, plaintiff would have 1/3rd share in the suit property because relationship of the parties with the deceased is not in dispute. Conversely if issue No. 6 relating to Will is answered against the defendants, then on the basis of natural inheritance, plaintiff would have 1/3rd share in the suit property because relationship of the parties with the deceased is not in dispute. There is no challenge to onus of issue No. 6 having placed on the defendants and rightly so because they have set up the Will and therefore, they have to prove the same. Consequently, defendants have been rightly required to produce their evidence first. For the reasons aforesaid, I find no merit in this revision petition. There is no infirmity, much less perversity, illegality or jurisdictional error in impugned order of the trial Court so as to warrant interference at the hands of this Court in exercise of revisional jurisdiction under Article 227 of the Constitution of India. The revision petition is accordingly dismissed in limine.