Harmeet Singh vs Dalip Singh and Others

Indermeet Kaur, J.

1 Impugned order is dated 14.08.2006. The application filed by the respondent Dalip Singh u/s 151 of the CPC (hereinafter referred to as the ''Code'') had been allowed; correspondingly the application filed by the petitioner under Order IX Rule 8 of the Code was dismissed; the Court was of the view that the suit has become infructuous. This is an unfortunate dispute between a son and a father. Record shows that the plaintiff Harmit Singh had filed a suit for partition against his father; contention was that the suit property bearing No. 2429, Tilak Street, Paharganj, New Delhi is co-owned by him; accordingly suit was filed. In the course of the proceedings, an application under Order 23 Rule 1 of the Code was filed; this was on 19.08.1998. This application was pending when on behalf of the plaintiff a statement was made by his counsel Mr. P.K. Bhardwaj dated 27.08.1998 seeking permission of the Court to withdraw the suit which permission was granted to him and the suit had accordingly been withdrawn.

Contention of the plaintiff is that this authority was not vested in the Advocate Mr P.K. Bhardwaj to withdraw the suit on 27.08.1998 and he had committed a wrong; accordingly the present application had been filed by him under Order IX Rule 8 of the Code seeking a restoration of the suit. This application has been disposed of by the impugned order; the second application filed by the defendant during the pendency of the suit which was an application u/s 151 of the Code averring that the suit has become infructuous had been allowed.

Record shows that an earlier suit i.e. Civil Suit No. 581/1990 had been filed by the father namely Dalip Singh which was a suit for possession which suit had been decreed on 06.03.2000 by the then Civil Judge Mr. S.S. Rathi. The first appeal filed against this judgment and decree was dismissed on 11.07.2001; this was in proceedings i.e. RCA No. 7/2000. The second appeal filed against the said judgment and decree dated 11.07.2001 was dismissed by the second appellate Court on 04.05.2006. SLP was also dismissed on 10.07.2006. Relevant would it be to state that this was a suit for possession of one room in a part of the property No. 2429, Tilak Street, Paharganj, New Delhi; the present suit which has been filed by Harmit Singh (Son) was also a suit for partition qua another room of the same property i.e. property bearing No. 2429, Tilak Street, Paharganj.

As noted supra, suit No. 581/1990 had been disposed of on 06.03.2000. The categorical finding returned in this suit is that the subject matter of the suit property is not co-owned by Harmit Singh as is his contention vehemently argued even today. In fact the whole case of the petitioner is that his suit which he had filed for partition which had been withdrawn on 27.08.1998 was unauthorisedly withdrawn; submission is that the property is co-owned by him.

At the cost of repetition, the facts as noted supra have recorded a categorical finding on 06.03.2000 (in suit No. 581/1990) that this property is not co-owned by Harmit Singh/son as is his contention and this fact in issue has been up-held right up to the Apex Court who had dismissed the SLP on 10.07.2006. The contention of the petitioner before this Court is that in the first appellate Court i.e. before the Court of M.s Aruna Suresh, a compromise had been entered into between the parties which is dated 03.10.1998 and 26.10.1998 an in terms of that compromise, the father and the son had arrived at an understanding wherein the petitioner Harmit Singh was entitled to a share in the suit property. Both the first appellate Court on 11.07.2011 as also the second appellate Court on 04.05.2006 had noted the dates of the aforenoted compromises i.e. 03.10.1998 and 26.10.1998 and had noted that these compromise documents allegedly entered into between the parties were never filed before the Court; although an application under Order XXIII Rule 1 of the Code was filed before the first appellate Court to place these documents on record but these so called compromises never formed a part of the record of any Court and as such these documents cannot be looked into. This finding was affirmed by the second appellate Court on 04.05.2006 and thereafter by the dismissal of the SLP on 10.07.2006.

Thus the controversy about the alleged aforenoted compromises dated 03.10.1998 and 26.10.1998 have also been set to rest and the controversy is now no more alive. These facts were noted in the correct perspective in the impugned order dated 14.08.2006. The Court had rightly returned a finding that the suit for partition filed by Harmit Singh has come infructuous and his application under Order IX Rule 8 of the Code was dismissed; correspondingly the prayer made by the defendant praying that the suit be declared as infructuous was allowed. In this background, the impugned judgment suffers from no infirmity. The petitioner is vehemently continuing with his arguments on the points which already stands decided; the so called compromises dated 03.10.1998 and 26.10.1998 had admittedly not been filed and as such cannot be looked into and this has been affirmed up to by the Apex Court. This petition is an abuse of the process of the Court. It is dismissed with costs of Rs. 25,000/-