Baljinder Singh vs Sadhu Singh & Ors

JAYANT NATH, J.

IA 12530/2017

This application is filed seeking ad interim ex parte injunction to restrain the defendants from further creating any interest in favour of any third

party or acting upon on the basis of preliminary decree dated 16.07.2013 and final decree dated 18.12.2015 passed by this court in CS(OS)303/2018

The facts of this case are that the plaintiff claims that the suit property being 2113/164 Tri Nagar, Delhi belonged to his grandmother late Smt.Sant

Kaur. The grandmother executed a Will in favour of the applicant on 22.2.1996 whereby she bequeathed her entire property in favour of the applicant.

Late Smt.Sant Kaur passed away on 13.8.1996.

On 6.2.2008 a suit being CS(OS) 303/2008 was filed by defendants No.9 to 12 stating that Smt.Sant Kaur had died intestate and that the said

defendants are entitled to 1/4th share in the suit property.

Essentially, Smt.Sant Kaur was survived by four sons and the suit was filed by LRs of one of the pre-deceased son against the three other sons of

Smt.Sant Kaur. On 16.7.2013 a preliminary decree was passed by this court noting that the defendants therein, namely, father and uncles of the

plaintiff did not choose to cross-examine the witnesses of the plaintiffs therein. A final decree of partition was passed on 18.12.2015.

Being aggrieved by the aforesaid decree which is now pending for execution the plaintiff has filed objections being EA(OS)587/2016 under Order

21 Rule 58 readwith section 151 CPC against the execution of the said decree. This court on 8.2.2017 dismissed the said objections noting that the

plaintiff claims to be the grandson of Smt.Sant Kaur and his claims allegedly flow from the Will dated 22.2.1996. Though Smt.Sant Kaur died in 1996

this Court noted that no probate petition or any other proceedings have been initiated by the plaintiff based on the said Will. There is a delay of more

than two decades. Hence, the objections were dismissed. Against the above objections, the plaintiff preferred an appeal being FAO(OS)11/2017

before the Division Bench The Division Bench also dismissed the appeal on 8.3.2017.

Learned counsel appearing for the plaintiff relies upon Order 21 Rule 58 Sub clause (5) to contend that where a court has refused to entertain

objections he is entitled to file a suit. He also relies upon judgment of this court in Canara Bank vs. Gurmukh Singh & Ors AIR 2000 Delhi 48 to note

that objections are to be adjudicated upon like a suit and as the same has not been done by this court the plaintiff is entitled to file the present suit.

Learned counsel appearing for the defendant submits that even after the Division Bench of this court had dismissed the objections on 8.3.2017, the

plaintiff has preferred two additional objections before the trial court which have also been dismissed.

One of the elementary principles while seeking interim relief is that the application seeking interim injunction should not suffer from delay or latches.

There is untold delay in this case. The grandmother Smt.Sant Kaur died on 13.8.1996. The plaintiff claims that as per the Will of grandmother of

22.2.1996 the entire property was bequeathed to him and he had become the owner. Admittedly, the plaintiff is in occupation only of the second floor

of the suit property whereas rest of the property is in occupation of other relatives/sons and grandsons of late Smt.Sant Kaur. It is quite clear that the

plaintiff has been grossly negligent in pursuing his case. He cannot wake up after 20 years and claim that he has a right to the full property and that

proceedings which have been initiated by his father and uncles be kept in abeyance, at this stage. I may also note that father of the plaintiff is alive

and is arrayed as defendant No.1 to the present suit. He has not entered appearance and is not supporting the case of the plaintiff.

Order 21 Rule 58 (2) CPC reads as follows:-

“2. All the questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or

their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim

or objection and not by a separate suit.â€​

I may also note that under Order 21 Rule 58 (2) CPC all questions which arise between the parties to a proceeding relating to right, title and

interest in the property attached are to be adjudicated upon by the court dealing with claim or objections suit.

I see no reason to grant any injunction in favour of the plaintiff keeping in view the gross delay and latches. The application is dismissed.

CS(OS) 583/2017

List before Joint Registrar on 23.10.2018 for admission/denial of documents.