Sh. Sewa Singh vs Smt. Satnam Kaur and Others

Manmohan Singh, J.—By this order, I propose to dispose of I.A No. 11060/2008 filed by the defendant No. 1 under Order 14 Rule 5 read with Section 151 CPC praying therein that Issue Nos. 7 and 8 may be treated as preliminary issues.

Originally the suit has been filed by the plaintiff for declaration and injunction in respect of property bearing No. J-41, Saket [Malviya Nagar Extension], New Delhi. As per the plaint, this property was purchased by the plaintiff out of his own funds and he is the owner of the said property, therefore, the plaintiff has filed the present suit seeking a declaration that he is the owner of the property in question.

The defendant No. 1 is the wife of the plaintiff and defendant Nos. 2 and 3 are his daughter and son respectively. The contention of the defendants in the written statement is that the property stands in the name of the defendant No. 1 and even the mutation has been done saying that the defendant No. 1 is the recorded owner of the same. It is also contended by the defendant No. 1 that the property was actually purchased by the defendant No. 1 out of the sale of her jewellery and other sources and the same entirely belongs to the defendant No. 1 therefore, the suit is not maintainable in view of Section 4 of the Benami Transactions [Prohibition] Act, 1988. Prior to filing of the present application, the defendant No. 1 earlier filed the application under Order 7 Rule 11 CPC being IA No. 890/2005 for dismissal of the suit on the very same ground and the said application was dismissed vide order dated 27.02.2006. Learned Judge while dismissing the said application referred to a decision of the Supreme Court in Nand Kishore Mehra Vs. Sushil Mehra, . The defendant No. 1 thereafter filed an appeal against the said order before the Division Bench of this Court being FAO [OS] No. 688/2006 and the said appeal was disposed of vide order dated 10.01.2008 with the following observation:

Since an issue is raised by the appellant as to whether or not the suit itself is maintainable in view of the provisions of Sections 3 and 4 of the Benami Transactions [Prohibition] Act, 1988, an issue to this effect shall be framed by the learned Single Judge and decided in accordance with law as expeditiously as possible. We also observe that whatever opinion and views are expressed by the learned Single Judge in the impugned order dated 27th February, 2006 shall be considered only as prima facie conclusions and views, which shall have no bearing at the time of deciding the issue by the learned Single Judge.

In view of the order passed in the appeal on 10.01.2008, the issues in the matter were framed on 16.05.2008 including the following two issues as directed by the Division Bench:

[vii] Whether the suit is barred by Section 14 of the Hindu Succession Act, 1956? OPD.

[viii] Whether the suit is barred by Section 4 of the Benami Transactions [Prohibition] Act, 1988? OPD

After framing of the issues, the present application has been filed by the defendant No. 1 that since it is mentioned in the order passed by the Division Bench that the issues in this regard shall be framed and decided as expeditiously as possible, it makes clear that issue on maintainability of the suit may be treated as Preliminary Issue and should be decided separately of the other issues. In view of the aforesaid statement, the present application has been filed by the defendant No. 1.

On the other hand, the plaintiff has filed the reply to this application contending that the suit is not barred by the provisions of Benami Transactions [Prohibition] Act, 1988 and the order of the learned Single Judge has been confirmed in appeal, therefore even if the said issues are to be treated as preliminary issues, the result after the hearing would be the same. It is stated that in order to decide the issues in question, is required for the proper decision. It is denied that the suit is barred by Section 14 of the Hindu Succession Act, 1956. Learned Counsel for the plaintiff has also argued that while going through the order passed by the Division Bench in FAO [OS] No. 688/2006 passed on 10.01.2008, nowhere any directions were issued that the issues framed by the court in this regard would be treated as preliminary issues, except that it is mentioned that the learned Single Judge would frame the issues and those would be decided in accordance with law as expeditiously as possible. Learned Counsel for the plaintiff further submits that the plaintiff has no objection if the trial of the suit is expedited.

I have considered the rival submissions of both the parties and I agree with the submissions made by the learned Counsel for the plaintiff as it is a matter of fact that vide order dated 27.02.2006 passed in the application filed by the defendant No. 1 under Order 7 Rule 11 CPC, the court has already given its findings that the suit is not barred by the provisions of Benami Transactions [Prohibition] Act, 1988 and the said order has not been set aside in appeal. Therefore, whether the said issue Nos. 7 and 8 are to be treated as preliminary issues or not, prima facie finding in this regard was already made in the order dated 27.02.2006. Therefore, the present application of the defendant No. 1 cannot be accepted except that the trial of the suit is expedited.

The matter is already listed on 16.07.2009 for admission/denial of additional documents, if filed by the parties. The issues in this matter have already been framed. Although, the direction for evidence was issued vide order dated 16.05.2008 and the plaintiffs application for amendment of the plaint has already been allowed vide order dated 28.04.2009, the plaintiff is directed to file his affidavit by way of evidence within six weeks with advance copy to the other side. Both the parties shall ensure to complete the admission/denial of documents on the date already fixed i.e. 16.07.2009.

The matter shall now be listed for cross-examination of plaintiffs witnesses on 10.09.2009.

The present application is accordingly disposed of.