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The Indian Succession Act 1925.

To whom administration may be granted, where deceased is a Hindu, Muhammadan, Buddhist, Sikh, Jaina or exempted person.- (1) If the deceased has died intestate and was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, administration of his estate may be granted to any person who, according to the rules for the distribution of the estate applicable in the case of such deceased, would be entitled to the whole or any part of such deceased’s estate.

(2) When several such persons apply for such administration, it shall be in the discretion of the Court to grant it to any one or more of them.

(3) When no such person applies, it may be granted to a creditor of the deceased.

Where deceased is not a Hindu, Muhammadan, Buddhist, Sikh, Jaina or exempted person.- If the deceased has died intestate and was not a person belonging to any of the classes referred to in section 218, those who are connected with him, either by marriage or by consanguinity, are entitled to obtain letters of administration of his estate and effects in the order and according to the rules hereinafter stated, namely:–

(a) If the deceased has left a widow, administration shall be granted to the widow, unless the Court sees cause to exclude her, either on the ground of some personal disqualification, or because she has no interest in the estate of the deceased.

Illustrations

(i) The widow is a lunatic or has committed adultery or has been barred by her marriage settlement of all interest in her husband’s estate. There is cause for excluding her from the administration.

(ii) The widow has married again since the decease of her husband. This is not good cause for her exclusion.

(b) If the Judge thinks proper, he may associate any person or persons with the widow in the administration who would be entitled solely to the administration if there were no widow.

(c) If there is no widow, or if the Court sees cause to exclude the widow, it shall commit the administration to the person or persons who would be beneficially entitled to the estate according to the rules for the distribution of an intestate’s estate:

Provided that, when the mother of the deceased is one of the class of persons so entitled, she shall be solely entitled to administration.

(d) Those who stand in equal degree of kindred to the deceased are equally entitled to administration.

(e) The husband surviving his wife has the same right of administration of her estate as the widow has in respect of the estate of her husband.

(f) When there is no person connected with the deceased by marriage or consanguinity who is entitled to letters of administration and willing to act, they may be granted to a creditor.

(g) Where the deceased has left property in India, letters of administration shall be granted according to the foregoing rules, notwithstanding that he had his domicile in a country in which the law relating to testate and intestate succession differs from the law of India.

Probate only to appointed executor.- (1) Probate shall be granted only to an executor appointed by the will.

(2) The appointment may be expressed or by necessary implication.

Illustrations

(i) A wills that C be his executor if B will not. B is appointed executor by implication.

(ii) A gives a legacy to B and several legacies to other persons, among the rest to his daughter-in-law C, and adds “but should the within-named C be not living I do constitute and appoint B my whole and sole executrix”. C is appointed executrix by implication.

(iii) A appoints several persons executors of his will and codicils and his nephew residuary legatee, and in another codicil are these words,–“I appoint my nephew my residuary legatee to discharge all lawful demands against my will and codicils signed of different dates”. The nephew is appointed an executor by implication.

Persons to whom probate cannot be granted.- Probate cannot be granted to any person who is a minor or is of unsound mind nor to any association of individuals unless it is a company which satisfies the conditions prescribed by rules to be made, by notification in the Official Gazette by the State Government in this behalf.

Administration, with copy annexed, of authenticated copy of will proved abroad.- When a will has been proved and deposited in a Court of competent jurisdiction situated beyond the limits of the State, whether within or beyond the limits of India, and a roperly authenticated copy of the will is produced, letters of dministration may be granted with a copy of such copy annexed.

Conclusiveness of application for probate or administration if properly made and verified.- The application for probate or letters of administration, if made and verified in the manner hereinafter provided, shall be conclusive for the purpose of authorising the grant of probate or administration; and no such grant shall be impeached by reason only that the testator or intestate had no fixed place of abode or no property within the district at the time of his death, unless by a proceeding to revoke the grant if obtained by a fraud upon the Court.

Petition for probate.- (1) Application for probate or for letters of administration, with the will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the will or, in the cases mentioned in sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating–

(a) the time of the testator’s death.

(b) that the writing annexed is his last will and testament,

(c) that it was duly executed,

(d) the amount of assets which are likely to come to the petitioner’s hands, and

(e) when the application is for probate, that the petitioner is the executor named in the will.

(2) In addition to these particulars, the petition shall further state,–

(a) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and

(b) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.

(3) Where the application is to the District Judge and any portion of the assets likely to come to the petitioner’s hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate.

Petition for letters of administration.- (1) Application for letters of administration shall be made by petition distinctly written as aforesaid and stating–

(a) the time and place of the destator’s death;

(b) the family or other relatives of the deceased, and their respective residences;

(c) the right in which the petitioner claims;

(d) the amount of assets which are likely to come to the petitioner’s hands;

(e) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and

(f) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.

(2) Where the application is to the District Judge and any portion of the assets likely to come to the petitioner’s hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate.

In exercise of powers conferred by Section 9 of Suits Valuation Act, Punjab High Court made rules which are applicable to Delhi.

Suits for partition of property–

Courtfee–(a) as determined by the Courtfees Act, 1870 Value–(b) For the purpose of theSuit Valuation Act, 1887, and the Punjab Court Act, 1918 the value of the whole of the property as determined by Sections 3, 8 and 9 of the Suits Valuation Act, 1887.

6. It would thus be seen that in view of the rules framed by Punjab High Court under Section 9 ofSuits Valuation Act, which admittedly are applicable to Delhi, there can be separate valuations for the purpose of Court fee and jurisdiction. The valuation for the purpose of jurisdiction has to be the value of the whole of the properties subject matter of partition, whereas valuation for the purpose of Court fee would be such as is provided by the Courtfees Act.

————————————————————————————————————————–

            THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Reserved on:   25.02.2011
                      Judgment Pronounced on: 04.03.2011

+           CS(OS) No. 2642/2008


SUSHMA TEHLAN DALAL                             .....Plaintiff


                            - versus -


SHIVRAJ SINGH TEHLAN & ORS                      ....Defendant

Advocates who appeared in this case:
For the Plaintiff:      Mr. Y.P. Narula, Sr. Adv. with
                        Ms. Nandita Rao, Adv.

For the Defendant:            Mr. Mohinder Madan, Adv. for
                              D-1. Mr Vivek Singh, Adv. for D-
                              7.

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1.

Whether Reporters of local papers may Yes be allowed to see the judgment?

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported Yes in Digest?

V.K. JAIN, J IA No. 10367/2010 (O.7 R.11 CPC by D-1)

1. This is a suit for partition, cancellation of sale deeds, permanent injunction, rendition of accounts and mesne profits. Late Chaudhary Hukum Singh was the owner of the following properties:

(a) 2/28, Roop Nagar, Delhi of 246 square yards on GT Road.

(b) Lands in Village Nunglai Sakrawati, Najafgarh Tehsil Jila, Delhi, Delhi in Khasra Nos. 32/3,4,7/1,12/16,13/20,19,25/21/1,27/5/1,1 3/2,242,49,49/1.

(c) 3 Farm Land Plots, Alipur Delhi, approximately 18 bighas.

(d) Sansar Service Station, Najafgarh (Near Vikas Puri), Delhi;

(e) Anup Service Station, Alaknanda upon land on 99 year lessee from DDA;

(f) Harjeet Filling Statin with adjoining plot Alipur (on GT Karnal Road), Delhi;

(g) 189 Bighas of land situated in Alwar at Khaderpur, Tehsil, Tejara Distt. Alwar, Rajasthan in Khasra No.2 to 16, 23 to 26, 38, 140, 138, 142M, 34M, 1M, 46, 43, 44, 930, 939, 942/1058, 918, 920, 940, 928, 870, 871, 911, 893, 908, 909, 1029, 905, 890, 891, 894, 892, 868, 869, 872 to 875, 878, 906, 907, 1026, 1027, 1028, 896, 897 and 1023 total area around 189 bighas.

He died intestate on 15th August, 1969, leaving six legal heirs, including his widow Smt. Barfo Devi. Smt. Berfo Devi died on 26 th June, 1981, leaving five legal heirs, namely, her son, late Shri Anup Singh Tehlan, her other son Harjeet Singh Tehlan, defendant No.1 Shivraj Singh Tehlan, defendant No. 6 Kaushalya Chaudhary and the plaintiff Sushma Singh Tehlan. Shri Harjeet Singh Tehlan died intestate in the year 2003, without any issues and his wife, who was estranged from him, is stated to have since re- married. It is alleged that his share in the above-referred properties devolved on the plaintiff and the defendants, they being his Class-II legal heirs. Defendants 2 to 5 are the legal heirs of late Shri Anup Singh Tehlan.

2. The plaintiff claims to be in possession of two rooms, two verandahs, two stores, two toilets and washroom in the western wing of the first floor of house No. 2/28, Roop Nagar, Delhi and joint possession of the kitchen, open terrace of the second floor, the flat on second floor and shops and garage on the ground floor. It is further alleged that defendant No. 1 sold some portion of the parental property by executing a General Power of Attorney dated 26th May, 1987. One sale deed in respect of land in village Nangli is alleged to have been executed by defendant No. 1 on 02nd July, 2008 in favour of defendant No. 7, Bharat Singh and another sale deed of the same date is alleged to have been executed in favour of defendant No. 8 Vijay Sharma. The plaintiff has sought partition of the above- referred properties, besides seeking rendition of accounts and mesne profit with respect to the profits earned from the service stations. She has also sought cancellation of the sale deeds dated 02nd July, 2008, executed by defendant No. 1 in favour of defendant Nos. 7 and 8.

3. Para 2 of the plaint which deals with valuation reads as under:

“The suit is valued over a crore for the purpose of jurisdiction. As regards the reliefs of permanent injunction, the suit is valued at Rs 20,01,000/- and a court fee of Rs 22,000/ has been paid. As regards the relief of partition and mesne profits, the suit is valued at Rs 200/- and a court fee of Rs 20 has been paid. As regards the relief of cancellation for the documents being sale deeds dated 02.07.2008 which are a fraud, nullity the suit is valued at Rs 200. The plaintiff also undertakes to pay any further court fee which may be required to be paid on actual partition of the property.”

4. IA No. 10367/2010 has been filed by defendant No. 1, seeking rejection of the plaint on the ground that the plaintiff has not paid requisite Court fee.

5. Section 8 of the Suits Valuation Act, 1887 provides that where other than those referred to in the Court-fees Act, 1870 Section 7, paragraph v, vi and ix, and paragraph x, clause (d), Court-fees are payable ad valorem under the Court-fees Act, 1870, the value as determinable for the computation of court-fees and the value for purposes of jurisdiction shall be the same. Section 9of the above- referred Act provides that when the subject-matter of suits of any class, other than suits mentioned in the Court-fees Act, 1870, Section 7, paragraph v and vi, and paragraph x, clause (d) is such that in the opinion of the High Court it does not admit of being satisfactorily valued, the High Court may with the previous sanction of the State Government, direct that suits of that class shall, for the purposes of the Court-fees Act, 1870, and of this Act and any other enactment for the time being in force, be treated as if their subject-matter were of such value as the High Court thinks fit to specify in this behalf.

In exercise of powers conferred by Section 9 of Suits Valuation Act, Punjab High Court made rules which are applicable to Delhi.

Suits for partition of property–

Court-fee–(a) as determined by the Court-fees Act, 1870 Value–(b) For the purpose of the Suit Valuation Act, 1887, and the Punjab Court Act, 1918 the value of the whole of the property as determined by Sections 3, 8 and 9 of the Suits Valuation Act, 1887.

6. It would thus be seen that in view of the rules framed by Punjab High Court under Section 9 of Suits Valuation Act, which admittedly are applicable to Delhi, there can be separate valuations for the purpose of Court fee and jurisdiction. The valuation for the purpose of jurisdiction has to be the value of the whole of the properties subject matter of partition, whereas valuation for the purpose of Court fee would be such as is provided by the Court-fees Act.

7. Section 7(iv)(b) of Court Fees Act, provides that in a suit to enforce the right to share in any property on the ground that it is a joint family property, the amount of fee payable under Court-fee Act, shall be computed according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. It further provides that in all such suits the plaintiff shall state the amount at which he values the relief sought by him. Article 17(vi) of Schedule II of Court-fees Act provides for payment of a fixed Court fee in a suit where it is not possible to estimate at a money value the subject matter in dispute, and which is not otherwise provided for by this Act.

8. In S. Rm. Ar. S. Sp. Sathappa Chettiar v. S. Rm. Ar. Rm. Ramanathan Chettiar AIR 1958 SC 245, Supreme Court, inter alia, read as under:

“If the scheme laid down for the computation of fees payable in suits covered by the several sub-sections of S. 7 is considered it would be clear that in respect of suits falling under sub-section

(iv), a departure has been made and liberty has been given to the plaintiff to value his claim for the purposes of court- fees. The theoretical basis of this provision appears to be that in cases in which the plaintiff is given the option to value his claim, it is really difficult to value the claim with any precision or definiteness. Take for instance the claim for partition where the plaintiff seeks to enforce his right to share in any property on the ground that it is joint family property. The basis of the claim is that the property in respect of which a share is claimed is joint family property. In other words, it is property in which the plaintiff has an undivided share. What the plaintiff purports to do by making a claim for partition is to ask the court to give him certain specified properties separately and absolutely on his own account for his share in lieu of his undivided share in the whole property. Now it would be clear that the conversion of the plaintiff’s alleged undivided share in the joint family property into his separate share cannot be easily valued in terms of rupees with any precision or definiteness. That is why legislature has left it to the option of the plaintiff to value his claim for the payment of court-fees. It really means that in suits falling under S. 7(iv)(b) the amount stated by the plaintiff as the value of his claim for partition has ordinarily to be accepted by the court in computing the court-fees payable in respect of the said relief. In the circumstances of this case it is unnecessary to consider whether, under the provisions of this section, the plaintiff has been given an absolute right or option to place any valuation whatever on his relief.”

9. In Neelavathi and Ors. v. N. Natarajan and Others, AIR 1980 SC 691, which arose out of a suit for partition, the plaintiff averred in the plaint that they were in joint possession of the property along with the defendants. The plaintiffs had valued their share of the property and paid fixed court fee of Rs 200/- under Section 37(2) of Tamil Nadu Court-Fee and Suits Valuation Act. It was contended by the defendants in that suit that the plaintiff were not in joint possession and, therefore, were required to pay ad valorem Court fee at the market rate. The suit was dismissed on the ground that ad valorem Court fee had not been paid. Allowing the appeals, filed by the plaintiff, Supreme Court held that the question of Court fee was to be considered in the light of allegations made in the plaint and decision of this issue cannot be influenced either by the plea taken in the written statement or by final decision of the suit on merits. In that case, the plaintiff had stated in the plaint that the defendants had failed to give their share of income and they could not remain in joint possession. It was held that this averment would not mean that the plaintiffs had been excluded from possession of the suit property. During the Course of judgment, Supreme Court, inter alia, observed as under:

“It will be seen that the Court-fee is payable under Section 37(1) if the plaintiff is ‘excluded’ from possession of the property. The plaintiffs who are sisters of the defendants, claimed to be members of the joint family, and prayed for partition alleging that they are in joint possession. Under the proviso to Section 6 of the Hindu Succession Act, 1956 (Act 30 of 1956) the plaintiffs being the daughters of the male Hindu who died after the commencement of the Act having at the time of the death an interest in the mitakshara coparcenary property, acquired an interest by devolution under the Act. It is not in dispute that the plaintiffs are entitled to a share. The property to which the plaintiffs are entitled is undivided joint family property’ though not in the strict sense of the term. The general principle of law is that in the case of co-owners, the possession of one is law possession of all unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession. Before the plaintiffs could be called upon to pay Court-fee under Section 37(1) of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been ‘excluded’ from joint possession to which they are entitled to in law.”

(emphasis supplied)

10. In Jagannath Amin vs. Seetharama (dead) by Lrs. and Ors. 2007 (1) SCC 674, a suit for partition of agricultural land was filed seeking its division into two equal shares. The plaintiff had paid Court fee of Rs 200 under Section 35(2) of Karnataka Court-fees and Suit Valuation Act, 1958. The plaintiffs had also alleged to be in joint possession of the suit property. During the course of the judgment, Supreme Court, referred to the following observation made by it in Commercial Aviation and Travel Co. Vs. Vimla Panna Lal, AIR 1988 SC 1636:

“It is true that the Court did not consider whether the plaintiff had been given an absolute right or option to place any valuation whatever on his relief under the provision of Section 7(iv) of the Court-fees Act, but the difficulty that would be felt by the Court in exercising its power under Order VII, Rule 11(b) of the Code of Civil Procedure is that if it is unable to determine the correct value of the relief, it cannot direct the plaintiff to correct the valuation. Order VII, Rule 11(b) contemplates correct valuation and not approximate correct valuation and such correct valuation of the relief has to be determined by the Court. If the Court cannot determine the correct valuation of the relief claimed, it cannot require the plaintiff to correct the valuation and, consequently. Order VII, Rule 11(b) will not be applicable.”

11. The following legal proposition of law emerges from the above-referred decisions:

(i) In order to ascertain whether the suit has been property valued for the purpose of Court fee or not, only the averments made in the plaint have to be seen, without reference to the plea taken by the defendants;

(ii) If the plaintiff claims to be in joint possession of the suit property, he has to pay a fixed Court fee in terms of Article 17(vi) of Court-fees Act.

(iii) If the averments made in the plaint show that the plaintiff has been completely ousted from possession and is not in possession of any part of the suit property, he is required to claim possession and also pay ad valorem Court fee on the market value of his share in the suit property.

12. In the present case, the plaintiff has specifically alleged that she is in exclusive possession of house No. 2/28, Roop Nagar, Delhi and in joint possession of certain other parts of the aforesaid house. Thus, the plaintiff has undisputedly claimed joint possession with respect to one of the properties in respect of which partition has been sought by her. In my view, in order to constitute joint possession, it is not necessary that the plaintiff should claim to be in joint possession of each of the properties in respect of which partition is sought by him/her. If she claims to be in joint possession of even one of the properties either wholly or partly, that would be sufficient to bring the case within the ambit of Article 7(iv) of Court-fees Act, because what is relevant is joint possession of the estate in respect of which partition is sought. The plaintiff is seeking partition not with respect to any one property, but with respect to all the properties which were owned by her late parents. If partition is sought in respect of more than one property and one of the co-owners possesses one property or a part of it and the other co-owners possess the remaining properties, all of them will be deemed to be in joint possession of the properties subject matter of partition. In this regard, the following observations made by this Court in Sudershan Kumar Seth vs. Pawan Kumar Seth & Ors. 124 (2005) DLT 305:

“It is settled that in order to decide as to what relief has been claimed by the plaintiff, the whole of the plaint has to be read. From the perusal of the plaint if it can be inferred that the plaintiff is in possession of the any of properties to be partitioned, then the court fees shall be payable under Article 17 (6) of Schedule II of the Court fees Act i.e. fixed court fees at the time of institution of the suit but if the conclusion is that the plaintiff is not in possession of any part of the properties then the plaintiff has to pay Court fees under section 7(iv)(b) of the Court fees Act i.e. on the value of plaintiff’s share.”

13. Moreover, in the case before this Court, there is no averment in the plaint that the plaintiff has been ousted from the possession of the other properties which were owned by her parents. It is true that she has not specifically averred that she is in joint possession of the other properties, but, it is also equally true that she does not claim or admit ouster from those properties. She being one of the co-owners of the other properties is by fiction of law, deemed to be in joint possession of those properties along with other co-owners unless she pleads or admits complete ouster from those properties. This view also confirms to the observations made by Supreme Court in the case of Neelavathi (supra) that the general principle of law is that in case of co-owners, it is not necessary that the plaintiff should be in actual possession of the property, the possession of one co-owner is in law the possession of all unless ouster or exclusion is proved and so long as his right to share and the nature of the property as joint is not disputed, the law presumes that he is in joint possession, unless he is excluded from such possession.

14. The logic behind not insisting on payment of ad valorem Court fee in a case of joint possession was explained by Supreme Court in the case of Sathappa Chettiar (supra) when the Court said that in such cases what the plaintiff seeks by claiming partition is to ask the Court to give certain specific properties to him for his absolute and exclusive enjoyment, to the exclusion of other co-owners of that property and, thereby what he is seeking only a conversion of his undivided share into a separate share. Moreover, as observed by Supreme Court in the case of Jagannath Amin (supra), the Court needs to have exact valuation before it, before it can reject the plaint under Order VII Rule 11(d) of Code of Civil Procedure and that determination cannot be made in such a case.

15. Therefore, there is no ground to reject the plaint, as far as Court fee on the relief of partition is concerned. During the course of arguments, the learned counsel for the plaintiff fairly stated that as far as relief of cancellation of sale deeds are concerned, the plaintiff would pay ad valorem Court fee on the sale consideration, shown in the sale deeds, executed in favour of defendants 7 and 8. Therefore, the plea taken by the plaintiff with regard to inadequate Court fee on the relief of cancellation of sale deeds does not survive anymore. The plaintiff is directed to pay deficient Court fee on the relief of cancellation of sale deeds within two weeks.

The application stands disposed of accordingly.

(V.K. JAIN) JUDGE MARCH

 

 

NEW DELHI: The Supreme Court on Wednesday allowed resumption of nursery admissions in Delhi which were stalled over scrapping of inter-state transfer quota seats.

images nursery

The apex court quashed the February 27 notification issued by the Delhi lieutenant governor to scrap the inter-state transfer quota and granted admission to successful transfer quota candidates whose parents had approached court.

The apex court said wards of those who had approached the court challenging scrapping of the inter-state transfer quota would be given a seat even if a particular school had filled all seats and asked the Delhi government to raise number of seats, if required, to accommodate 24 students whose parents had approached the court.

With the Supreme Court’s ruling, the five-monthlong impasse on nursery admissions in Delhi finally came to an end.

The SC had on April 11 put nursery admissions on hold again in Delhi schools after it put a stay on Delhi HC’s April 3 interim order directing that those children who were selected in draw of lot for neighbourhood and other categories, be admitted.

It had on April 28 asked Delhi government to consider increasing seats in schools to accommodate inter-state transfer cases.o

Sources: http://timesofindia.indiatimes.com/home/education/news/SC-allows-resumption-of-nursery-admissions-in-Delhi/articleshow/34770861.cms

 

Click to read whole judgement below the link.

supreme court nursery order

preliminary issue-order 14 rule 2 of CPC.

 

 
preliminary issue.
 
order 14 rule 2 of cpc.
 
Court to pronounce judgment on all issues
 
(1) Notwithstanding that a case may be disposed of on preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.
 
(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-
 
(a) the jurisdiction of the Court, or
 
(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.
 
 

IA 12530/2000 in CS(OS) 1823/2000 Page 1 of 17
THE HIGH COURT OF DELHI AT NEW DELHI
%   Judgment delivered on: 20.09.2010
IA No.12530/2000 in CS(OS) No.1823/2000
Sh. Anil Kumar Sanghi & Anr. ….. PLAINTIFFS
Vs 
Sh. Hari Kishan Sanghi & Ors.             ….. DEFENDANTS
                            
Advocates who appeared in this case:
For the Plaintiff : Mr. Pravir K.Jain, Advocate
For the Defendant:  Mr. Arvind Kumar & Ms. Neelam Rathore, Advocates for D-1&2.
Mr. Rajat Aneja, Advocate for D-5/Applicant.
Ms. Padma Priya, Advocate for D-7 / NHAI.
CORAM :-
HON’BLE MR JUSTICE RAJIV SHAKDHER
1.  Whether the Reporters of local papers may 
   be allowed to see the judgment ?  No
2.  To be referred to Reporters or not ?  Yes
3.  Whether the judgment should be reported 
      in the Digest ?  Yes
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”).  
2. 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 IA 12530/2000 in CS(OS) 1823/2000 Page 2 of 17
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”
3. 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.  
4. 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 IA 12530/2000 in CS(OS) 1823/2000 Page 3 of 17
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 daughterin-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.
5. 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.
6. 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 IA 12530/2000 in CS(OS) 1823/2000 Page 4 of 17
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. 
7. 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. Hari Kishan Sanghi to various tenants on behalf of Ram Kishan Sanghi  and family.  
For this purpose, it is averred, Mr. Hari Kishan Sanghi obtained a power of attorney in 
favour of his son Mr. Rajender Kumar Sanghi from the plaintiffs (i.e. Anil Kumar Sanghi IA 12530/2000 in CS(OS) 1823/2000 Page 5 of 17
and Arun Kumar Sanghi) and Defendant Nos. 7 and 8 (i.e. Mr. Ram Kishan Sanghi and 
Smt. Indra Devi).  There is also an averment to the effect that by a registered deed dated 
29.03.1980, a partition, in respect of property no.3, took place in the family of Mr. Ram 
Kishan Sanghi whereby, the two plaintiffs and Mr. Ram Kishan Sanghi, Smt. Indra Devi 
and Mr. Sanjay Kumar acquired 1/5
th
undivided share in property no.3.   It is specifically 
averred that this partnership deed was witnesseth by Mr. Hari Kishan Sanghi.  There are 
further averments to the effect that in 1989, the first floor of property no.3 was let out to 
an entity by the name of Indian  Renewable Energy Development Agency (i.e. M/s. 
IREDA) vide lease agreement dated 30.06.1989 at a rent of Rs.45,000/- p.m.
8. In so far as applicant / RKS is concerned, there are averments made in para 22 of 
the plaint.  The said averments basically advert to the fact that  in 1975, the joint family 
comprising of Mr. Hari Kishan Sanghi, Mr. Ram Kishan Sanghi and Mr. Tek Chand 
Sanghi acquired an industrial plot bearing no.10, DLF Industrial Estate, Faridabad by 
acquiring share holding rights in the company by the name of M/s.  Optical Instrument 
Company Pvt. Ltd., which at that point of time evidently owned the said property.  
Subsequently, it is averred, the name was changed to the present name of applicant i.e. 
R.K.S. India Pvt. Ltd.  It is alleged that the management and control of the said company 
was, however, entrusted to Mr. Hari Kishan Sanghi.  
9. What is important is that the plaintiffs have specifically adverted to the fact that  
Mr. Hari Kishan Sanghi had got signatures of Mr. Ram Kishan Sanghi, Smt. Indra Devi 
and Mr. Sanjay Kumar on blank papers and documents which included stamp papers by 
representing to them that the said documentation was required for taxation purposes.  
There is also a reference to the fact that in early 1991, the ground floor of property no.3 
was let out to one French company  at  a rent of Rs.1,30,000/- p.m., out of which   only 
Rs.30,000/- was shown as the rent, while the balance sum was shown as “liaison charges”
only to avoid tax liability.  The fact that the signatures on documents were appended by 
Mr. Hari Kishan Sanghi, in good faith, is also adverted in para 24 and 28 of the plaint.IA 12530/2000 in CS(OS) 1823/2000 Page 6 of 17
10. The plaintiffs have filed a site plan to show that while the annexe to the super 
structure built on property no.3 is in their possession, including the drive way and all other 
portions marked therein in yellow colour, the first floor and the barsati, which is marked in 
red colour, is in possession of Hari Kishan Sanghi and family.  It is averred that the first 
floor and the barsati floor is occupied by M/s. Pulse Impulse Health Club Fitness Centre, 
which is an entity controlled by Hari Kishan Sanghi and family.  At the relevant point in 
time, the ground floor which is marked green, in the site plan, was occupied by defendant 
no.10 i.e. National Highway Authority of India (in short „NHAI‟).  
10.1 To be noted during the pendency of the proceedings,  NHAI  has vacated the 
premises.  Reference in this regard may be made to order dated 23.09.2002 passed by this 
court. 
11. In the background of these broad averments, the plaintiffs have sought reliefs of 
declaration that they are owners of property no.3, more specifically comprising of the 
main building, annexe, servant quarters and  garages shown in colour yellow, red, green
and brown in the site plan appended to the plaint.   The plaintiffs also sought possession of 
entire first and barsati floor of property no.3 alongwith servant quarters and  garages 
shown in colour red in the site plan appended to the plaint.  A mandatory injunction was 
also sought at the relevant point in time qua NHAI India as also the injunction against 
Hari Kishan Sanghi and family against creating any third party rights in property no.3 or 
any part thereof.  There are other reliefs also sought for, such as rendition of accounts with 
regard to other properties, I am  not detailing the same out, as presently one is  not 
concerned with them.
12. The applicant/ RKS in both in the written statement as well as in the captioned 
application  has raised preliminary objections with regard to lack of cause of action qua 
itself, as  also raised objection as to the jurisdiction  of the court to entertain and try the 
instant suit in the background of the following averments.  Briefly, these are  as follows:-IA 12530/2000 in CS(OS) 1823/2000 Page 7 of 17
(i) Vide lease deed dated 22.05.1985 executed in its favour by Ram Kishan 
Sanghi  and family, it acquired  leasehold  rights in the second floor of 
property no.3 alongwith three floors in the annexe block.  The rent as per 
the lease deed is a sum of Rs.1,000/- p.m.  More importantly, as per the 
said lease deed, applicant/RKS  could use the demised premises not only 
for commercial and residential purposes but could also sub-let the demised 
premises or any part thereof. 
(ii) It is averred that by virtue of yet another lease deed dated 09.07.1990, 
applicant/RKS surrendered possession of the annexe block in favour of  
Ram Kishan Sanghi  and family, however, it retained tenancy rights with 
respect to the second floor of the main building of property no.3.  The rent, 
however, remained fixed at Rs.1,000/- p.m.  In so far as the ground floor of 
the main building of property no.3 was concerned, it was let out to the 
applicant/RKS for commercial and residential purposes at a rent of 
Rs.2500/- with a further right to further sub-let.
(iii)By virtue of a lease deed dated 04.01.1995, Shri Hari Kishan Sanghi acting as 
the attorney of  Ram Kishan Sanghi and family, leased out the first floor of 
the main building of Property no.3 to the applicant/RKS @ Rs.2,000/- p.m.  
In this lease deed as well the applicant/RKS was given the right to sub-let 
the demised premises.  
(iv)The applicant/RKS has averred that it is an independent entity which has 
acquired tenancy right in the ground floor, first floor and the second / 
barsati floor of the main building of property no.3.  It is thus submitted by 
applicant/RKS that neither does it have anything to do with the joint family 
nor has any cause of action arisen against it.  It is, therefore pleaded, that 
since  there is no cause of action in so far as applicant / RKS is concerned, 
it should be deleted from the array of parties by taking recourse to 
provisions of Order 1 Rule 10(2) of the CPC. IA 12530/2000 in CS(OS) 1823/2000 Page 8 of 17
(v) In addition, it is also pleaded that the suit is not maintainable in view of the 
provisions of Section 50 of Delhi Rent Control Act, 1958 (in short, D.R.C. 
Act).  The stance being that: since the rent of the  various portions of the 
main building of property no.3 (referred to above) is  less than Rs.3500/-
p.m., it is a matter over which  only  the Rent Controller  would have 
jurisdiction, and therefore, by virtue of Section 50 of the D.R.C. Act, the 
jurisdiction of this court is ousted.  In this connection, it is specifically 
averred that the plaintiffs while, referring to the fact that Mr. Hari Kishan 
Sanghi had let out various portions of property no.3 from time to time to 
various tenants; had concealed the material fact pertaining to execution of 
the three lease deeds referred to in the written statement, and the captioned 
application.
13. At this juncture, it may perhaps be  pertinent to refer to order dated 06.04.2005 
passed in IA No.3191/02 whereby, NHAI which was erstwhile defendant no.10 was 
deleted from the array of parties based on the application filed by NHAI.  The application 
was  pivoted  on the circumstance that  since  NHAI was inducted as a sub-tenant in  a 
portion of property no.3, and the fact that, it had vacated the premises on 30.09.2009; it 
ought to be deleted from the array of parties as, no relief was sought against it.  The court 
based on the application of NHAI directed its deletion from the array of parties.  NHAI 
was, however, directed to file copy of the lease deed, by which, it had been inducted as a 
tenant. 
13.1 By the very same order, directions were passed in IA 12531/2000, whereby Mr. 
Ram Kishan Sanghi, erstwhile defendant no.7, Smt. Indra Devi, erstwhile defendant no.8 
and Mr. Sanjay Kumar, erstwhile defendant no.9 were transposed as plaintiffs.  In these 
circumstances, plaintiffs were directed to file an amended memo of parties.  These orders 
are referred to for the purposes of bringing to fore the fact that the original memo of IA 12530/2000 in CS(OS) 1823/2000 Page 9 of 17
parties stood amended; therefore, as noticed above, the defendants are largely referred to 
by name.   
14. Mr. Aneja, who appeared for the applicant/RKS has argued before me that in view 
of the  lease deeds referred to hereinabove, the execution of which according to him being 
not in dispute, the plaint ought to be rejected in so far as the applicant/RKS is concerned 
as mandated by the provisions of Order VII Rule 11 (a) & (d) of the CPC.  Mr. Aneja has 
also argued that the plaintiffs have not as a matter of fact impugned the said lease deeds.  
It is submitted that the plaintiffs ought to have, in terms of Section 34 of the Specific 
Relief Act, 1963 sought a declaratory relief with respect to the said lease deeds.  The suit 
in these circumstances according to Mr. Aneja is not maintainable.  It is also urged by Mr. 
Aneja that provisions of Section 92 of the Indian Evidence Act, 1872 would prevent the 
plaintiffs from leading any evidence contrary to the contents of the said lease deeds.  
15. Mr. Jain, who appeared for the plaintiffs, submitted that this court is presently 
called upon only to deal with the application filed under Order VII Rule 11 (a) & (d) of 
the CPC, therefore,  the court would only be required to examine the averments made in 
the plaint.  It was contended by him that from the averments made in the plaint, it would 
be quite clear that cause of action, as against the applicant, does arise.  In so far as the case 
set up by the applicant/RKS with regard to ouster of jurisdiction is concerned, Mr. Jain 
relied upon those averments made in the plaint, wherein it has been stated by the plaintiffs 
that from time to time signatures had been obtained of the members of Ram Kishan 
Sanghi  and family by  Shri Hari Kishan Sanghi on blank papers which included stamp 
papers, on the pretext that they were required for tax purposes.   Mr. Jain also refers to the 
averments made in the replication to the written statement filed by the applicant/RKS to 
contend and demonstrate that the veracity of the said lease deeds is squarely challenged.  
Mr. Jain specifically adverted to the fact that there is no denial of the averments made in 
the plaint to the effect that the portions of the property no.3 were let out from time to time 
on rents which were far in excess of Rs.3,500/-.  In this context, one such lease deed dated IA 12530/2000 in CS(OS) 1823/2000 Page 10 of 17
30.06.1999, amongst others, was referred to.  Mr. Jain also sought to contend that, the 
affairs of property no.3 were managed by Shri Hari Kishan Sanghi  as the attorney of Ram 
Kishan Sanghi and family.  He drew my attention to various documents appended at pages 
166, 173 & 186  of the documents filed by the plaintiffs  to demonstrate that Shri Hari 
Kishan Sanghi was  acting for and on behalf of Ram Kishan Sanghi and family in respect 
of property no.3 before the Municipal Corporation of Delhi for the purposes of assessment 
of property tax. 
16. I have heard learned counsel for the parties.  In my view, there are two aspects to 
the matter: first, whether the issue nos. 24, 31, 32 and 33 can be tried as preliminary 
issues.  It is pertinent to note that parties have been stuck; at this stage, and consequently, 
have not led evidence since December, 2003, only for this reason.  The second aspect is 
whether captioned application is maintainable.  Let me deal with the second aspect, first, 
since one is required to tread a known path.   It is trite law that  while dealing with an 
application under Order  VII Rule 11 CPC, the court is only required to look at the 
averments made in the plaint.  The averments made in the written statement are wholly 
irrelevant in order to ascertain as to whether or not, there arises a cause of action or, even 
with respect to bar of maintainability of the suit.   If an authority is required for this 
purpose, I would rely upon the judgment of the Supreme Court in the case Ramesh B. 
Desai and Ors. Vs. Bipin Vadilal Mehta and Ors. (2006) 5 SCC 638 at pages 650-652 
paragraphs no.14 & 15.  In this case, a company petition filed under section 155 (of the 
then prevailing provisions of the Companies Act, 1956) was dismissed on the ground of 
limitation by relying upon averments made in affidavit-in-reply. The Supreme Court in 
this context made the following observations:-
“14. The plea raised by the contesting respondents is in fact a plea of 
demurrer.  Demurrer is an act of objecting or taking exception or a protest.  
It is a pleading by a party to a legal action that assumes the truth of the 
matter alleged by the opposite party and sets up that it is insufficient in law to 
sustain his claim or that there is some other defect on the face of the 
pleadings constituting a legal reason why the opposite party should not be IA 12530/2000 in CS(OS) 1823/2000 Page 11 of 17
allowed to proceed further.  In O.N. Bhatnagar V. Rukibai Narsindas (SCC 
Para 9) it was held that the appellant having raised a plea in the nature of 
demurrer, the question of jurisdiction had to be determined with advertence to 
the allegations contained in the statement of claim made by Respondent under 
Section 91(1) of the Act and those allegations must be taken to be true.  In 
Roop Lal Sathi Vs. Nachhattar Singh Gill (SCC Para 24) it was observed that 
a preliminary objection that the election petition is not in conformity with 
Section 83(1)(a) of the Act i.e. it does not contain the concise statement of the 
material facts on which the petitioner relies, is but a plea in the nature  of 
demurrer and in deciding the question the Court has to assume for this purpose 
that the averments contained in the election petition are true.  Reiterating the 
same principle in  Abdulla Bin Ali V. Galappa it was said that there is no 
denying the fact that the allegations made in the plaint decide the forum and 
the jurisdiction does not depend upon the defence taken by the defendants in 
the written statement.  In Exphar SA V. Eupharma Laboratories Ltd. (SCC 
Para 9) it was ruled that where an objection to the jurisdiction is raised by 
way of demurrer and not at the trial, the objection must proceed on the basis 
that the facts as pleaded by  the initiator of the impugned proceedings are 
true.  The submission in order to succeed must show that granted those facts 
the court does not have the jurisdiction as a matter of law.  In this case the 
decision of the High Court on the point of the jurisdiction was set aside as 
the High Court had examined the written statement filed by the respondents 
in which it was claimed that the goods were not at all sold within the 
territorial jurisdiction of the Delhi High Court and also that Respondent no.2 
did not  carry out business within the jurisdiction of the said High Court.  
Following the same principle in  Indian Mineral & Chemicals Co. V. 
Deutsche Bank (SCC paras 10 and 11), it was observed that the assertions in 
a plaint must be assumed to be true for the purpose of determining whether 
leave is liable to be revoked on the point of demurrer. 
15. The principle underlying clause (d) of Order 7 Rule 11 is no different.  
We will refer here to a recent decision of this Court rendered in Popat and 
Kotecha Property Vs. State Bank of India Staff Assn. where it was held as 
under in para 10 of the report: (SCC p.515).
“10.Clause (d) of Order 7 Rule 7 speaks of suit, as appears 
from the statement in the plaint to be barred by any law.  
Disputed questions cannot be decided at the time of 
considering an application filed under Order 7 Rule 11 IA 12530/2000 in CS(OS) 1823/2000 Page 12 of 17
CPC.  Clause (d) of Rule 11 of Order 7  applies in those 
cases only where the statement made by the plaintiff in the 
plaint, without any doubt or dispute shows that the suit is 
barred by any law in force”.
16. It was emphasized in para 25 of the reports that the statement in the 
plaint without addition or subtraction must show that it is barred by 
any law to attract application of Order 7 Rule 11 CPC. The principle 
is, therefore, well settled that in order to examine whether the plaint is 
barred by any law, as contemplated by Sub-rule (d) of Order VII Rule 
11 CPC, the averments made in the plaint alone have to be seen and 
they have to be assumed to be correct. It is not permissible to look into 
the pleas raised in the written statement or to any piece of evidence. 
Applying the said principle, the plea raised by the contesting 
respondents that the Company Petition was barred by limitation has 
to be examined by looking into the averments made in the Company 
Petition alone and any affidavit filed in reply to the Company Petition 
or the contents of the affidavit filed in support of Company 
Application No. 113 of 1995 filed by the respondents seeking 
dismissal of the Company Petition cannot at all be looked into.”
16.1 As noticed hereinabove, the plaintiffs who are a part of Ram Kishan Sanghi  and
family, have  averred in the plaint that by virtue of partition carried out in 1964, property 
no.3 fell to their share.  It was also their case that the affairs with respect to the said 
property no.3 were looked after by  Shri Hari Kishan Sanghi.  In the plaint, there are 
specific averments to the effect that Shri Hari Kishan Sanghi had obtained signatures of 
Shri Ram Kishan Sanghi and other members of his family on blank documents, papers and 
stamp papers on the pretext that they were required for income tax purposes.  Whether 
these documents included the lease deeds in issue, is a matter which can only be 
ascertained after evidence is led by the parties.  It is well settled execution of documents 
by itself does not establish the veracity of contents of documents. (See Judah vs. Isolyne 
Shrojbashini Bose and Anr. AIR(32) 1945 Privy Council 174 and Ramji Dayawala and 
Sons (P) Ltd. vs. Invest Import (1981) 1 SCC 80  at page 90-91, para 16.  The relevant 
observations being:IA 12530/2000 in CS(OS) 1823/2000 Page 13 of 17
“16…….Undoubtedly, mere proof of the handwriting of a document would not 
tantamount to proof of all the contents or the facts stated in the document.  If 
the truth of the facts stated in a document is in issue mere proof of the 
handwriting and execution of the  document would not furnish evidence of the 
truth of the facts or contents of the document.  The truth or otherwise of the 
facts or contents so stated would have to be proved by admissible evidence, 
i.e. by the evidence of those persons who can vouchsafe for the truth of the 
facts in issue….” 
17. In the instant case  as is evident from the reply filed to the captioned application 
while signatures on the first and second lease deeds dated 22.05.1985 and 09.07.1990 are 
accepted the truth of the contents of the said lease deeds is disputed.  In so far as the third 
lease deed dated 04.01.1995 is concerned what is evident on the bare perusal, is that, while 
Hari Kishan Sanghi has acted on behalf of the landlord, as the attorney for Ramkishan and 
family; on behalf of the applicant RKS i.e., the lessee, the lease is signed by one Neeta 
Khanna.  Evidence will have to be led to vouch safe the truth of the contents of the said 
lease deeds.  Furthermore, notwithstanding the submissions of Mr. Aneja that by virtue of 
Section 92 of Indian Evidence Act, 1872, the plaintiffs cannot lead evidence contrary to 
the contents of documents, it is well settled that evidence can be led  to  explain the 
circumstances in which the documents were executed, or even to show that an agreement 
was executed to create evidence with regard to another matter.  In other words, as in the 
instant case there was no lease created, the document was created only for tax purposes. 
See Raj Satyendra Nath Ray Chaudhury Bahadur Vs. Pramananda Haldar and Ors 164 
Ind Cas 437.  The observations made in paragraph 4, 5 & 6 being relevant are extracted 
below:-
“4……..But under proviso 1 to Section 92, oral evidence is admissible to 
prove the circumstances which would invalidate any such document.  The 
circumstances enumerated in the said proviso, e.g., fraud, etc., are 
illustrative and not exhaustive.  In my opinion the fact that an instrument, 
registered or unregistered, was not intended to be acted upon from the very 
beginning is a fact which comes within proviso 1 and can be proved either by 
direct oral evidence or by indirect or circumstantial evidence furnished by IA 12530/2000 in CS(OS) 1823/2000 Page 14 of 17
the conduct of the parties.  If the cases are examined in this light there is no 
conflict whatsoever……
5.    ….In the case Bini Madhub Gorani V. Labnoii Dassi 6 CWN 242, where 
the defence in a suit for rent based upon a registered kabuliyat, was that the 
kabuliyat was never intended to be acted upon; Rampini, J., sitting singly held 
that oral evidence adduced to sustain the defence was not admissible but on 
Letters Patent Appeal he was overruled by Maclean, C.J., and Macpherson, J. 
Maclean, C.J., observed, firstly, that : 
Evidence would be admissible to show that, as between the landlord 
and the tenant, the document was never intended to be acted upon.
6. The learned Chief Justice further observed (in which observation 
Macpherson, J. also concurred) that evidence would also be admissible “to 
show that there has been, as between the parties to this document, a waiver 
of some of its terms.”  As I shall show later on the last mentioned observation 
only has been taken exception to it later cases and must be held to be not good 
law in view of the decision of the Full Bench in the case of Lalit Mohan Ghost 
Vs. Gopali Chuck Coal Company 39 C 284: 12 Ind. Cas. 723 : 16 CWN 55 : 11 
CLJ 411, but I am not aware of any case of this Court which has either 
dissented from or even cast doubt upon the first mentioned observation of the 
learned Chief Justice.  In the same case Macpherson, J. made the following 
observations:
The defendant in this case does not attempt to give any evidence of an 
oral agreement rescinding or contradicting the contract as to amount of the 
rent payable, but as both the lower Courts have found, he did prove that since 
the time the agreement was entered into he had always paid rent at a lower 
rate than that stated in the agreement.   The evidence was, in my opinion, 
distinctly admissible, not for the purpose of contradicting  the terms of the 
agreement, but for the purpose of showing, as the learned Chief Justice has 
pointed out, that the intention of the parties was, that the agreement was 
from the first not intended to be acted upon.”
17.1 In any event, onus with regard to the lease deeds in issue would rest on the 
applicant / RKS.   As to what would be the effect of not seeking a declaration of Section 
34 of the Specific Relief Act, 1963 will be seen at the stage of final adjudication.  These 
are submissions made at the  bar; there is no reference to them either in the written 
statement or in the captioned application.IA 12530/2000 in CS(OS) 1823/2000 Page 15 of 17
18. This brings me to the first aspect.  As noticed hereinabove, the court by order dated 
24.01.2001 had directed that objections contained in the application under O. VII Rule 11 
CPC should be incorporated in the written statement.  It was only on 16.12.2003 that the 
court held issue no.24, 31, 32 and 33 be tried as preliminary issues.  A bare reading of the 
provisions of Order XIV Rule 2(2) would show  that preliminary issues are those issues 
which can be tried as pure question of law, and pertain to jurisdiction or to bar to the suit 
created by law in force.   Sub-rule (2) of Rule 2 of Order XIV is an exception to sub-rule 
(1) of rule (2) Order XIV which requires the court to try all issues.   Therefore, before a 
Court comes to a conclusion that an issue should be tried as a preliminary issue, it 
ordinarily would assess, as to whether it is a question of law, fact or a mixed question of 
law and fact.  Though, B.N. Kirpal, J. (as he then was) in the case of Mohammad Yasin 
Vs. Abdul Kalam and Anr. 32(1987) DLT 143” has observed that even  “if  some
evidence” is required to be led an issue can be tried as a preliminary issue.  The 
observations of court being relevant are extracted hereinbelow :-
“ I am unable to agree with the contention of the learned counsel for the 
petitioner that the issue of law pertaining to jurisdiction or to the 
maintainability of the suit must be such in which no evidence at all is to be 
recorded.  The expression “issue of law” occurring in sub-rule (2) of Order 
14 Rule 2 is in contra-distinction to the expression “issue of fact”.  Whether 
the court has the jurisdiction to try the suit or may not solely be a question of 
fact.  It may be a question of law or a mixed question of fact and law.  In my 
opinion, even a mixed issue of fact and law, but which pertains to the 
jurisdiction of the court to try the suit, would be covered by Order 14 Rule 
2(2).  The reason for this is obvious.  If the court has no jurisdiction to try the 
suit then its decision on other issues arising in the case would be of no avail.  
If no suit is maintainable then the court would have no jurisdiction to give any 
decision on any other issue arising in the suit.  Order 14 Rule 2 has been 
amended with a view to expedite the trial of the suit.  Previously, all legal 
issues on which the suit could be disposed of  could be tried as preliminary 
issues.  Now a restriction  has been placed by the amendment and the 
restriction is that it is only that preliminary issue pertaining to the jurisdiction 
of the court or the maintainability of the suit which can be tried as a IA 12530/2000 in CS(OS) 1823/2000 Page 16 of 17
preliminary issue.  If  in deciding the jurisdiction of the court or the 
maintainability of the suit some evidence has to be recorded, that does not 
mean that the court would have no jurisdiction to direct such an issue to be 
treated as a preliminary issue. The trial court, therefore, in my opinion, was 
right in coming to the conclusion that the issue with regard to jurisdiction 
would be tried as a preliminary issue.”
(Emphasis is mine)
18.1 However,  if an issue is completely a question of fact, it cannot be tried as a 
preliminary issue.   [See paragraph 13 at page 650 of Ramesh B. Desai (supra)].  The 
relevant observations made in para 13 is extracted hereinbelow:
“13…….. Though there has been a slight amendment in the language of 
Order 14 Rule 2 CPC by the amending Act, 1976 but the principle 
enunciated in the abovequoted decision still holds good and there can be 
no departure from the principle that the Code confers no jurisdiction 
upon the  court to try a suit on mixed issues of law and fact as a 
preliminary issue and where the decision on issue of law depends upon 
decision of fact, it cannot be tried as a preliminary issue.”
19. Whether an issue ought to be tried as preliminary issue is completely in the 
discretion of the trial court.   Furthermore, where the court is of the view, in respect of 
even an issue of jurisdiction; that evidence would be required to be led, it ordinarily would 
not be tried as a preliminary  issue: Shyam Sundar Mohapatra Vs. Janaki Ballav Patnaik 
& Ors. AIR 1990 Orissa 23; Mithlesh Kumari & Ors. Vs. Gaon Sabha Kishanpur & 
Ors. AIR 1999 All. 304; Sidh Nath & Ors. Vs. Distt. Judge Mirzapur & Ors. AIR 2002 
All. 356; Canbank Financial Services Ltd. Vs. V.B. Desai & Anr. AIR 2002 Bom. 247 
and Shoib Ullah & Ors. Vs. Bhartesh Chandra Jain & Anr. AIR 2003 All. 31.   
20. From a conspectus of the facts obtaining in this case, as brought out in the plaint, 
in my view, evidence would be required to be led by parties.  Whether after evidence is 
adduced by parties, the court is in a position to dispose of the suit on the bases of issues 
no.24, 31, 32 and 33 is a matter, which a court could revisit, at that stage.  Given the time 
which has lapsed, in the fitness of things, I deem it fit  to direct parties to lead evidence on IA 12530/2000 in CS(OS) 1823/2000 Page 17 of 17
all issues.  Accordingly, the captioned application is dismissed with observation made 
hereinabove.
21. In view of the above, the captioned application is dismissed.  Needless to say any 
observations made herein will not impact the merits of the case.
CS(OS) 1823/2000
22. List on 19.10.2010 before the Joint Registrar.  The plaintiffs shall file their list of 
witnesses, if not already filed, within two weeks from today alongwith affidavit by way of 
evidence.   The plaintiffs shall ensure the presence of their witnesses for the purposes of 
their examination on the date fixed above.
RAJIV SHAKDHER, J
SEPTEMBER 20, 2010

yg
 
 

Payment of interest.

 

Payment of interest
 
In any decree passed in a suit for foreclosure, sale or redemption, where interest is legally recoverable, the Court may order payment of interest to the mortgagee as follows, namely:—
 
(a) interest up to the date on or before which payment of the amount found or declared due is under the preliminary decree to be made by the mortgagor or other person redeeming the mortgage—
 
(i) on the principal amount found or declared due on the mortgage,—at the rate payable on the principal, or, where such rate at the Court deems reasonable, and
 
(ii) [Sub-clause (ii) Omitted by Act 66 of 1956, sec. 14 (w.e.f. 1-1-1957)].
 
(iii) on the amount adjudged due to the mortgagee for costs, charges and expenses properly incurred by the mortgagee in respect of the mortgagee-security up to the date of the preliminary decree and added to the mortgage-money,—at the rate agreed between the parties, or, failing such rate, at such rate not exceeding six per cent, per annum as the Court deems reasonable; and
 
(b) subsequent interest up to the date of realisation or actual payment on the aggregate of the principal sums specified in clause (a) as calculated in accordance with that clause at the such rate as the Court deems reasonable.]

Sale of property subject to prior mortgage.

 

Sale of property subject to prior mortgage
 

Where any property the sale of which is directed under this Order is subject to a prior mortgage, the Court may, with the consent of the prior mortgagee, direct that the property be sold free from the same, giving to such prior mortgagee the same interest in the proceeds of the sale as he had in the property sold.

Suit for sale necessary for bringing mortgaged property to sale.

 

Suit for sale necessary for bringing mortgaged property to sale.
 
(1) Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in 1 Order II, rule 2.
 

(2) Nothing in sub-rule (1) shall apply to any territories to which the Transfer of Property Act, 1882 (4 of 1882), has not been extended.

 
 

Mortgages by the deposit of title deeds and charges.

 

Mortgages by the deposit of title deeds and charges
 
[(1)] All the provisions contained in this Order which apply to a simple mortgage shall, so far as may be, apply to a mortgage by deposit of title-deeds within the meaning of section 58, and to a charge within the meaning of section 100 of the Transfer of Property Act, 1882 (4 of 1882);
 
[(2) Where a decree orders payment of money and charges it on immovable property on default of payment, the amount may be realised by sale of that property in execution of that decree

application under Order 9 Rule 9 of cpc.

 

 
 Decree against plaintiff by default bars fresh suit
 
(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit. and shall appoint a day for proceeding with suit.
 
(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.
 
 
Madhya pradesh High Court
Surajdin And Ors. vs Shriniwas And Ors.
Bench: A Mathur, D Dharmadhikari, D Misra
ORDER
D.M. Dharmadhikari, J.
1. The learned Single Judge (B. C. Verma, J. as he then was) in the course of deciding this appeal on 28-7-1983 noticed conflicting decisions of the two Division Benches of this Court on the question of the applicability of the provisions of Article 182 of the Limitation Act, 1908 and has, therefore, referred the following questions to the Full Bench for decision:
(1) Whether the word ‘appeal’ as used in Clause (2) of Article 182 of the Limitation Act, 1908 means an appeal from a decree which is sought to be executed or it will include even an appellate order made on refusing to set aside the exparte decree, and
(2) Whether contesting an application by judgment-debtor for setting aside an ex parte decree under Order 9, Rule 13 of the Civil Procedure Code, constitutes a step-in-aid within the meaning of Article 182(5) of the Indian Limitation Act, 1908?
2. Before pointing out the conflict of decisions between the two Division Benches of this Court, the factual background in which the two questions arise may be set out.
3. In Civil Suit No. 14-A of 1944, on 27-4-1946 the Court of Additional District Judge, Bilaspur passed the preliminary decree for foreclosure on the mortgage deed dated 11-7-1932. A period of six months was fixed in the decree for payment of the decretal amount, and on failure the plaintiff should obtain a final decree. The judgment-debtor failed to make the payment within time. On 17-2-1947, the decree-holder made an application for passing a final decree. The judgment-debtor had preferred an appeal against the preliminary decree and the passing of final decree was stayed. The said first appeal against preliminary decree was, however, dismissed in 1957. On 28-10-1958, a final decree for foreclosure was passed ex parte. On 30-10-1958, the judgment-debtor filed an application under Order 9, Rule 13, Civil Procedure Code for setting aside the ex parte final decree. The stay application was rejected on 8-5-1959 against which the judgment-debtor preferred Misc. (First) Appeal No. 98 of 1959. He also obtained stay of execution of the decree on 22-3-1960. The appeal against rejection of the application for setting aside exparte decree was, however, dismissed on 27-1-1961.
4. The decree-holder thereafter filed application for execution of final decree on 27-9-1965. According to the decree-holder, since the exparte final decree of foreclosure was subject matter of the miscellaneous appeal, the period of limitation for filing application for execution under Article 182(2) of the Limitation Act of 1908 was to commence from 27-1-1961 when the appeal of the judgment-debtor against rejection of his application under Order 9, Rule 13, Civil Procedure Code for setting aside the decree was rejected.
5. On the other hand, the case of the judgment-debtor is that under Article 182 of the Limitation Act of 1908, the period of limitation will be reckoned from the date of passing of the final decree on 28-10-1958 and the application for execution having been filed beyond the prescribed period of three years, the application is barred by time. It is contended on behalf of the judgment-debtor that the appeal of the judgment-debtor against rejection of his application under Order 9, Rule 13, Civil Procedure Code for setting aside ex parte decree is not covered by Article 182(2) of the Limitation Act because there the period of limitation is reckoned from the date of order passed in appeal only if the appeal is against an executable decree or order. It is contended that the use of the expression “Where there has been an appeal” in Article 182(2) of the Act of 1908 will not include an appeal in collateral proceedings.
6. Since the answers to the two questions referred require interpretation of the relevant entries of Article 182 of the Act of 1908, the said entries are reproduced hereunder: Description of application Period of Limitation Time from which period begins to r
un
“182. For the execution of Three years: or where a 1. The date of the
a decree or order of any civil certified copy of the decree decree or order, o r
Court not provided for by or order has been Article 183 or by section 48 registered, six years. (For of the Code of Civil the State of U. P. the words Procedure, 1908 (V of 1908) “six years” have been substituted for “three
years”, by the U. P. Act 24
of 1954).
2. (whether there
has
been an appeal) t
he date
of the final decr
ee or
order of the appe
llate
Court, or the wit
hdrawal
of the appeal, or
3. (where there h
as been
a review of judgm
ent)
the date of the d
ecision
passed on the rev
iew, or
4. (where the dec
ree has
been amended) the
date
of amendment, or
5. (where the app
lication
next hereinafter
mentioned
has been made) th
e date
of the final orde
r passed
on an application
made
in accordance wit
h law
to the proper Cou
rt for
execution or to t
ake
some step in aid
of
execution of the
decree
or order, or…..
7. In an unreported decision of the Division Bench consisting of N. M. Golvalkar and S. P. Bhargava, JJ. (as they were then) in L.P.A. 13 of 1961 decided on 20-2-1963, the question of commencement of period of limitation arose on similar facts. The learned Judges, in the aforesaid decision, upheld the view expressed by P. K. Tare, J. (as he then was) in the order passed in the original appeal (M. A. No. 137 of 1960 decided on 16-2-1961) which had given rise to the L.P.A. decided by the Division Bench (supra). In construing the entry contained in Article 182(2), the Division Bench headed by N. M. Golvalkar, J. held that the words “where there has been an appeal” would include such collateral proceedings in appeal against an order passed under Order 9, Rule 13, Civil Procedure Code as such proceedings have a direct or immediate connection with the decree to be put into execution. The reasoning adopted is that the very decree which was put into execution was in a jeopardy and liable to be set aside in proceedings in appeal against the order rejecting the application for setting aside the ex parte decree. If the appeal had been allowed, any execution in the meantime commenced would have necessarily come to an end automatically. The Division Bench (supra) in taking the above view in the Letters Patent Appeal, took support from the observations on the subject made by the Supreme Court in the case of Bhawanipore Banking Corporation Ltd. v. Gourishankar Sharma, AIR 1950 SC 6.
8. The other Division Bench of this Court consisting of Shivdayal, C. J. and J. P. Bajpai, J. (as they were then) in a decision reported in 1978 MPLJ 272 = 1978 JLJ 245, Laxmichand Jagannath Pandey v. Challu Raisa, however, expressed a contrary opinion. The unreported decision of the Division Bench headed by Golvalkar, J. passed in the L.P.A., it appears, was not brought to the notice of the Division Bench headed by Shivdayal, C. J. in the case of Laxmichand (supra). The latter D. B., by seeking support from the same decision of the Supreme Court in Bhawanipore Banking Corporation Ltd. (supra) and a Privy Council decision reported in AIR 1932 Privy Council 165, Nagendra Nath Dey v. Suresh Chandra Dey, gave a considered opinion on a specific question referred to them and held that the word ‘appeal’ used in Clause (2) of Article 182 of the Act of 1908 would not include an appeal from an order made in miscellaneous proceedings under Order 9, Rule 13, Civil Procedure Code refusing to set aside the ex parte decree. The opinion expressed in the latter decision of this Court is to be found in paragraph 14, which is as under:
“It is true that if a decree-holder is required to prosecute an ex parte decree even when the proceedings for getting the same set aside are pending either at the original stage or before the appellate Court, there is always a possibility that in case of ex parte decree, being set aside, all efforts made for executing the decree will become futile but for this consideration you cannot rewrite the provisions contained in Article 182 of the Limitation Act. You cannot construe the provisions of the statute prescribing limitation de hors of the context. Similarly, you cannot read something which is not there merely on certain equitable considerations because the field covered by the statute prescribing limitation is not of one way traffic. It, on the one hand, bars the remedy and on the other hand creates a valuable right in favour of the other side due to expiry of the period of limitation. Such a right cannot be taken away by the Courts by rewriting the law in the garb of interpretation.. If it is felt that certain provisions are causing hardship and resulting in unfairness, it is for the Legislature to consider the situation and to make suitable amendments.”
9. Shri Ravish Agarwal, learned counsel appearing for the decree-holders before us, strenuously made efforts to support the view expressed in the earlier unreported decision of this Court by a Division Bench headed by Golvalkar, J. On the other hand, Shri R. K. Pandey, assisted by Shri Sanjay Dwivedi, supported the later view expressed in the reported decision of this Court by another Division Bench headed by Shivdayal, C.J.
10. We have carefully examined the two conflicting views expressed by the two Division Benches and have also considered the submissions made on the interpretation of Article 182(2) of the Limitation Act. The question requires interpretation of the relevant entry in Clauses (2) and (5) of Article 182 of the Limitation Act, 1908. Looking at the relevant entry contained in Clause (2) of Article 182, in our opinion, we find that the various clauses in Article 182 cannot be read and construed in isolation from each other. All the entries in Clauses (1) to (7) and the Explanation therein have to be read in continuation and have to be construed in conjunction with each other. The normal rule of interpretation is that general words in a statute must receive general construction unless there is some thing in the Act itself such as the subject matter with which the Act is dealing or the context in which the said words are used to show the intention of the Legislature that they must be given a restrictive or wider meaning. It is quite often that the object or the subject matter or the collocation or speaking briefly the context has the effect of restricting the normal wide meaning of general words, “for words and particularly general words cannot be read in isolation, their colour and content are derived from their context”. It is recognised principle of construction, observed Kapur, J. in Express Mills v. Municipal Committee, Wardha, AIR 1958 SC 341, that general words and phrases, however wide and comprehensive they may be in their literal sense, must usually be construed as being limited to the actual objects of the Act. It may in the same context be said that it is a sound rule of construction to confine the general provisions of a statute to the statute itself. “One of the safest guides to the construction of sweeping general words which it is difficult to apply in their full literal sense” stated the Privy Council, “is to examine other words of like import in the same instrument and to see what limitations can be placed on them.” [See: Principles of Statutory Interpretation by Justice G. P. Singh, Sixth Edition 1996, Pages 294 to 296].
11. Thus, taking aid of the settled principles of construction, if the Clauses (1) and (2) of Article 182 are examined, it would” be seen that in Clause (1) the period prescribed for filing an application for execution is from the date of decree or order. Clause (2) in continuation states that “where there has been an appeal”, the date of the final decree or order of the appellate Court would be the date of commencement of the decree. The two Clauses (1) and (2) in Article 182 in the context of the period of limitation have to be read in conjunction with each other and not in isolation. Clause (1) speaks of date of the decree or executable order. The Clause (2), therefore, refers to an appeal against the decree or the executable order. The word “appeal” in Clause (2) of Article 182 cannot be read and construed to mean even other kinds of appeals which are not against the decree or executable order. The appeal in collateral proceedings such as under Order 9, Rule 13, Civil Procedure Code for setting aside ex parte decree, in our opinion, are not covered within the word “appeal” in Clause (2) of Article 182 because the word “appeal” therein, in the context, refers only to appeal against a decree or executable order mentioned in Clause (1). In thus interpreting the relevant entry in Clause (2) of Article 182, we find great support from the decision of the Supreme Court in the case of Bhawanipore Banking Corporation Ltd., AIR 1950 SC 6 (supra). In the Supreme Court case, in a suit instituted to enforce a mortgage, after a preliminary decree was passed, the judgment-debtors made an application under section 36 of the Bengal Money-lenders Act for reopening the preliminary decree. That application was dismissed in default. The judgment-debtor then made an application under Order 9, Rule 9, Civil Procedure Code for restoration of their application under the Money-lenders Act. That application was also dismissed. The question arose before the Supreme Court was whether the period of limitation can be said to have commenced from the date of rejection of the appeal against the order made on the application under Order 9, Rule 9, Civil Procedure Code. It is in that context that Article 182, Clause (2) came up for consideration before the Supreme Court and in paragraph 5 of the judgment it has been held that an appeal from the order dismissing the application under Order 9, Rule 9, Civil Procedure Code is not included within the word “appeal” used in Clause (2) of Article 182, Paragraph 5 of the said decision read thus:
“It was also suggested by the learned counsel for the appellant that the case might be held to be covered by Clause (2) of Article 182 on the ground that even though no appeal was preferred from the final mortgage decree, the words “where there has been an appeal” are comprehensive enough to include in this case the appeal from the order dismissing the application under Order 9, Rule 9, Civil Procedure Code, made in connection with the proceedings under section 36, Money-lenders Act. This argument also is a highly far-fetched one, because the expression “where there has been an appeal” must be read with the words in Col. 1 of Article 182, viz., “for the execution of a decree or order of any Civil Court…” and however broadly we may construe it, it cannot be held to cover an appeal from an order which is passed in a collateral proceeding or which has no direct or immediate connection with the decree under execution.”
12. The decision of the Supreme Court in Bhawanipore Banking Corporation Ltd. (supra) was referred and relied on by the earlier Division Bench in its unreported decision particularly laying emphasis on the last part of the above-quoted observations, it was stated that in the Supreme Court case, the collateral proceedings under Bengal Money-lenders Act had no direct or immediate connection with the decree under execution, but in a case where the proceedings are under Order 9, Rule 13, Civil Procedure Code, the decree itself is in jeopardy. The Supreme Court decision was thus distinguished. On a closer examination of the provisions contained in Article 182 and the above quoted observations of the Supreme Court, we do not find that the distinction made in the former Division Bench decision of this Court has any substance. Where there are collateral proceedings in a suit, the possibility of the decree itself being set aside is never ruled out. In the Supreme Court (supra) also as the facts have been stated above, the application under Money-lenders Act was for reopening of preliminary decree. That would have definitely affected the final decree as also its execution. The words underlined in the observations of the Supreme Court quoted above, therefore, could not have been taken aid of by the earlier Division Bench of this Court in its unreported decision for holding that appeal arising out of proceedings under Order 9, Rule 13, Civil Procedure Code is covered within the word ‘appeal’ used in Clause (2) of Article 182 of the Act of 1908.
13. As has been rightly observed in the above quoted portion of the reported decision of the Division Bench headed by Shivdayal, C. J., a wider meaning to the word “appeal” used in Article 182(2) could not have been given contrary to the settled canon of constructions. Clauses (1) and (2) and other Clauses in Article 182 have to be read in conjunction and together and not in isolation. If they are so read and construed, the reasonable conclusion is that in the word “appeal” in Clause (2), only appeals against decree and executable order mentioned in Clause (1) alone are included and not other appeals arising out of collateral proceedings including one under Order 9, Rule 13, Civil Procedure Code. The equitable consideration that has been applied as an additional reasoning by the former Division Bench is foreign to statute like Limitation Act which requires strict construction. The following observations of the Privy Council in the case of Nagendra Nath Dey v. Suresh Chandra Dey, AIR 1932 Privy Council 165 enforce the view taken by us:-
“Their Lordships think that nothing would be gained by discussing these varying authorities in detail. They think that the question must be decided upon the plain words of the article: “where there has been an appeal”, time is to run from the date of the decree of the appellate Court. There is, in their Lordships’ opinion, no warrant for reading into the words quoted any qualification either as to the character of the appeal or as to the parties to it; the words mean just what they say. The fixation of periods of limitation must always be to some extent arbitrary and may frequently result in hardship. But in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is, their Lordships think the only safe guide. It is at least an intelligible rule that so long as there is any question subjudice between any of the parties those affected shall not be compelled to pursue the so often thorny path of execution which, if the final result is against them, may lead to no advantage. Nor in such a case as this is the judgment-debtor prejudiced. He may indeed obtain the boon of delay, which is so dear to debtors, and if he is virtuously inclined there is nothing to prevent his paying what he owes into Court. But whether there be or be not a theoretical justification for the provision in question, their Lordships think that the words of the article are plain, and that there having been in the present case an appeal from the mortgage decree of 24th June, 1920, time only ran against the appellants from 24th August, 1922, the date of the appellate Court’s decree. They are therefore in agreement upon this point with the Subordinate Judge, and they think that the order passed by him on 4th August, 1924 was right.”
14. The later part of the observations made above by the Privy Council were because of the peculiarity of the facts therein. There, there was regular appeal, but it was defectively framed and all parties were not joined. The appeal was defective and came to be rejected on subsequent date. It is on those facts that it was held that the period of limitation would run from the date of rejection of that appeal.
15. As far as the question No. 2 referred to above is concerned, based on Clause (5) of Article 182, we find no difficulty in answering it in the negative against the decree-holder. A pending application under Order 9, Rule 13, Civil Procedure Code by the judgment-debtor and the consequent proceedings taken in appeal resulting in its rejection cannot by any stretch of imagination be held as “steps taken in aid of execution” of the decree by the decree-holder. The plain language of Clause (5) itself deserves answer of question No. 2 in the negative against the decree-holder.
16. To conclude, our answers to the two questions are in the negative as under:
(1) The word ‘appeal’ as used as Clause (2) of Article 182 of the Limitation Act, 1908 means an appeal from a decree or an order which is sought to be executed. It will not include an appeal made against an order refusing to set aside ex parte decree under Order 9, Rule 13 of the Civil Procedure Code.
(2) Contesting of an application by the judgment-debtor for setting aside an ex parte decree under Order 9, Rule 13, Civil Procedure Code does not constitute step-in-aid within the meaning of Article 182(5) of the Limitation Act, 1908.
16. Let the case now be listed before the appropriate Bench for deciding the appeal on merits in the light of the answers given by us to the two questions referred. The costs of the present proceedings shall abide the ultimate result of the appeal on merits.

application under order 9 rule 7 of cpc.

 
Rule 7 of Order 9 of the CPC reads as under : 

Rule 7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance. 
Where the Court has adjourned the hearing of the suit ex parte and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.”

Supreme Court of India.
Vijay Kumar Madan And Ors. vs R.N. Gupta Techn
Bench: R Lahoti, B Agrawal
ORDER
1. Certain premises situated in the township of Gurgaon, Haryana were held by the respondents on tenancy from the appellants under the Deed of Lease dated 1.4.1996. The rent of the tenancy premises, payable with effect from 1.4.1996, was Rs. 63,087.50 per month, in addition to maintenance charges of Rs. 40,000/- per month. On 27.3.1998, the appellants filed a suit for recovery of rent and ejectment of the respondents alleging the respondents to be in arrears with effect from 1.5.1996. On 2.5.1998 the defendants/respondents and their counsel failed to appear in the trial court and, therefore, the trial court directed the suit to proceed ex-parte against the defendants. On 29.5.1998 the defendants moved an application under Order 9 Rule 7 of the CPC praying for setting aside of the ex-parte order on the ground that their counsel was prevented from appearing in the court on account of having met with an accident. On 9.9.1999 the trial court allowed the defendants’ application recording the finding that the counsel for the defendants had good and sufficient cause for previous non-appearance in the court and that the non-appearance of defendants and their counsel on 2.5.1998 was not intentional but due to avoidable circumstances. However, purporting to exercise the power conferred by Order 9 Rule 7 of the CPC to put the defendants, on terms, the trial court directed as under:–
“It is pertinent to mention here that since defendants are enjoying the property, it will be reasonable to direct them to deposit monthly lease amount in the court at he time of filing written statement. If ultimately it is found that case of the plaintiffs is false and that of the defendants is true, defendants will be entitled to claim back that amount from the plaintiffs. On this condition I set aside the exparte order dated 2.5.98 on the condition that the defendants will deposit monthly lease amount on 16.2.99 for filing the written statement and for payment”
2. The defendants feeling aggrieved by the order of the trial court to the extent to which it placed the defendants on terms in the manner reflected in the order of the trial court extracted and reproduced hereinabove, preferred an appeal in the High Court. In its order dated 14.10.1999, which is impugned herein, the High Court formed an opinion that the condition imposed by the trial court on the defendants while setting aside the ex-parte order was too onerous and in view of such opinion formed by the High Court, the condition imposed by the trial court was directed to be set aside. At the same time taking care of the hardship that was likely to result to the plaintiffs (respondents in the High Court), the High Court directed the trial court to proceed to dispose of the suit as early as possible and latest by 31.3.2000.
3. The plaintiffs filed the present petition seeking special leave to appeal. On 26.2.2000, while allowing the leave to the appellants, it was directed that the impugned order of the High Court dated 14th October, 1999 should remain stayed. However, the Court added that the stay will not in any way affect the direction of the High Court regarding the disposal of the suit by 31st March, 2000. The result of the interim order was that the order of the trial court dated 9.1.99 putting the defendants on terms came into operation and as the defendants failed to comply with the condition imposed by the trial court, the trial court in terms of the interim order passed by this Court decided the suit on 31.3.2000 passing a decree for recovery of rent in arrears as also for recovery of possession as prayed for by the plaintiffs. However, it appears that prior to 28.2.2000 the date of the passing of the interim order by this Court, and armed with the order of the High Court, the defendants had filed their written statement. The trial had proceeded and on behalf of the plaintiffs four witnesses (P.W. 5 to P.W. 8) were examined which were also cross examined on behalf of the defendants, by the time this court passes the order dated 28.2.2000. Earlier, while the proceedings had remained ex-parte, four witnesses, namely, PW 1 to PW 4 were examined on behalf of the plaintiffs and they were not cross examined by the defendants. There is yet another important event which has taken place during the pendency of this appeal. Subsequent to the passing of the decree by the trial court the (sic) was put to execution. On 1st November, 2000, the plaintiff-appellants have taken possession over the property with police aid, as directed by the executing court.
4. Here we may give an indication of the controversy between the parties to the suit though we are not concerned with the merits thereof. On the question of recovery of arrears of rent the parties are laying blame on each other. According to the defendants the plaintiffs have failed in fulfilling their obligation as to certain material terms and conditions of the lease and therefore, the obligation of the defendants to pay rent remains suspended and they are not liable to pay the rent; while according to the plaintiffs they have placed the defendants in peaceful and full possession of the tenancy premises and nothing had remained to be done by them, and therefore, they are entitled to the recovery of rent and maintenance charges as agreed.
5. During the course of hearing, the learned counsel for the defendant-respondents submitted that if this Court is (sic) to sustain the order of the High Court, in that (sic) in order to do complete justice in the case, this court ought to set aside the judgment and decree dated 31.3.2000 passed by the trial court which is in consequence of the interim order made by this Court and the parties should be put back to the position to which they would stand relegated in terms of the order of the High Court. However, the learned counsel very fairly stated under instructions that if the order of the High Court be sustained the defendants shall not pray for restitution of possession over the tenancy premises in spite of the decree of eviction being set aside and shall also not insist on such of the witnesses being recalled and made available for further cross-examination, as have already been cross examined by the defendants. In view of the abovesaid stand taken by the learned counsel for the defendants, the limited issue which survives for decision is whether the condition imposed by the trial court putting the defendants on terms can be said to be too onerous as could not have been imposed under Order 9 Rule 7 of the CPC and whether the High Court was justified in setting aside that condition while sustaining the order of the Trial Court setting aside the ex-parte proceedings.
6. Having heard the learned counsel for the parties, we are of the opinion that the impugned order of the High Court deserves to be maintained but subject to certain modifications. Under Order 9 Rule 7 of the CPC the Court does have jurisdiction, while setting aside the ex-parte order to impose costs and also to put the
defendants-applicants on terms. Rule 7 of Order 9 of the CPC reads as under :-
“Rule 7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.
Where the Court has adjourned the hearing of the suit ex parte and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.”
7. Power in the Court to impose costs and to put the defendant-applicant on terms is spelled out from the expression “Upon such terms as the Court directs as to costs or otherwise”. It is settled with the decision of this Court in Arjun Singh v. Mohinder Kumar & Ors., , that on an adjourned hearing, in spite of the Court having proceeded ex parte earlier the defendant is entitled to appear and participate in the subsequent proceedings as of right. An application under Rule 7 is required to be made only it the defendant wishes the proceedings to be relegated back and re-open the proceedings from the date wherefrom they became ex parte so an to convert the ex parte hearings into bi-parte. While (sic) power of putting the defendant on terms under Rule 7 the Court cannot pass an order which would have the effect of placing the defendant in a situation more worse off than what he would have been if he had not applied under Rule 7. So also the conditions for taking benefit of the order should not be such as would have the effect of decreeing the suit itself. Similarly, the Court may not int he garb of exercising power of placing upon terms make an order which probably the Court may not have made in the suit itself. As pointed out in the case of Arjun Singh (supra), the purpose of Rule 7 in its essence is to ensure the orderly conduct of the proceedings by penalizing improper dilatoriness calculated merely to prolong the litigation.
8. Costs should be so assessed as would reasonably compensate the plaintiff for the loss of time and inconvenience caused by relegating back the proceedings to an earlier stage. The terms which the Court may direct may take care of the time or mode of proceedings required to be taken pursuant to the order under Rule 7. For example, keeping in view the conduct of the defendant-applicant, the Court may direct that though the ex parte proceedings are being set aside, the defendant must file the written statement within an appointed time or recall for cross examination at his own cost and expenses the witnesses examined in his absence or that the defendant shall be allowed not more than one opportunity of adducing his evidence and so on. How the terms are to be devised and made a part of the order would depend on the facts and circumstances of a given case. In short, the court cannot exercise its power to put the defendant/applicant on such terms as may have the effect of pre-judging the controversy involved in the suit and virtually decreeing the suit though ex-parte order has been set aside or to put the parties on such terms as may be too onerous. That apart, the order of the trial court dated 9.1.1980 suffers from another infirmity of vagueness and want of clarity. In fact, during the course of hearing, the learned counsel for the parties tried to place their own respective interpretation, certainly divergent to each other, on the order of the High Court as to what it means, that is, whether the trial court directed to pay all the arrears of monthly lease and the amount being deposited along with filing of the written statement or for that month only and whether for future too, but we do not propose to deal further with this aspect as it is unnecessary. That condition in the order of trial court having been set aside by the High Court, we are inclined to sustain the order of the High Court but subject to certain modification. In our opinion the High Court was justified in setting aside the condition imposed by the trial court in its order which was too onerous, also vague, uncertain and suffering from want of clarity. The order of the High Court to the extent of setting aside the ex-parte proceedings and directing the expeditious trial of the suit has to be sustained as it serves the ends of justice. But in view of the subsequent events brought to our notice and the statement made by the learned counsel for the defendants-respondents during the course of hearing, the following directions are made:-
1. The ex-parte order dated 2.5.98, and the judgment and decree of the trial court based on the ex-parte order dated 2.5.98 are set aside. The interim order of this Court dated 28.2.2000 shall also stand vacated. The suit shall stand restored on the file of the trial court.
2. As the plaintiffs have secured the possession of suit premises and the defendants-respondents have given up their right of restitution so far as the possession of the premises are concerned, the suit filed by the plaintiff-appellants shall now be treated as a money claim for recovery of arrears as claimed in the plaint as also for recovery of arrears pending suit for the period expiring on 1.11.2000, the date on which the plaintiff-appellants have secured possession over the tenancy premises.
3. Such of the witnesses as have already been cross examined by the defendant-respondents shall not be recalled for further cross examination, in view of that right having been given by the learned counsel for the defendant-respondents before this Court. Such of the plaintiffs’ witnesses as were not cross examined, shall be recalled for cross examination at the cost and expenses of the defendant-respondents.
4. The parties shall have the liberty to lead such other evidence as they propose to do.
5. The trial court may refuse to grant any avoidable adjournment at the trial which may have the effect of delaying the hearing of the suit. The suit shall be expeditiously heard and decided. The learned counsel for the defendant-respondents has assured that the defendants shall co-operate therein.
6. To avail the benefit of the orders passed by the High Court and this order the defendants shall pay cost of Rs. 30,000/- to the plaintiff-appellants within four weeks as a condition precedent.
9. During the execution of decree an amount of Rs. 20,00,000/- (Rupees twenty lakhs only) is said to have been attached by the executing court. As the ex-parte decree has been set aside and the suit stand re-opened, the plaintiff-appellants shall be at liberty to move an application for attachment before judgment of such amount and/or such other interim relief as may be available to them before the trial court. However, we express no opinion on this.
10. The appeal stands disposed of in the terms abovesaid.