i.4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 21.11.2008
+ RFA 433/2008
RAVINDER AHUJA & ANR. ..... Appellant
Through: Mr.H.Banerjee, Adv.
versus
ANU GROVER & ANR. ..... Respondent
Through:
CORAM:
Hon'ble Mr.Justice Pradeep Nandrajog
Hon'ble Mr.Justice J.R. Midha
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
: PRADEEP NANDRAJOG, J. (Oral)
1. Vide order dated 7.11.2008 the trial court record
had been summoned. The same has been received.
Unfortunately, it reveals a pathetic state of affairs in the
manner the same has been kept and in particular the plaint
and vital documents proved at the trial being missing. We are
of the opinion that an inquiry needs to be conducted by the
Registrar (Vigilance) who may also take the help of the Officer
on Special Duty.
RFA 433/2008 Page 1 of 11
2. But, before we deal with the our reasons as to why
an inquiry needs to be held, since the appeal is listed for
hearing on admission and for said purpose we had called for
the trial court record, we have requested learned counsel for
the appellant to hand over to us the copy of the plaint as also
the documents which were exhibited at the trial and in
particular Ex.PW-1/I, being the certified copies of the order
dated 10.7.1990 and statements recorded of the litigating
parties in Suit No.140/1985.
3. Learned counsel for the appellant has handed over
to us a copy of the plaint and the certified copy of Ex.PW-1/I
i.e. the statements recorded on 10.7.1990 and the order
passed thereon in Suit No.140/1985.
4. Briefly noted, facts are that late Bodh Raj Ahuja
died on 23.7.1984. He left behind an immovable property
bearing Municipal No.438, Gali Chandni Wali, Paharganj, New
Delhi-110055. He was survived by two daughters, Anu Grover
and Kamlesh Srivastava i.e. the respondents and three sons
namely Surender Kumar Ahuja, Abhi Kumar Ahuja and Sunil
Kumar Ahuja. Abhi Kumar Ahuja was unmarried and died thus
succession of the estate of Bodh Raj Ahuja had to be on the
two surviving daughters and the two surviving sons.
5. During the lifetime of Surender Kumar Ahuja, a suit
for partition was filed by the two daughters, namely Anu
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Grover and Kamlesh Srivastava. For unexplainable reasons
they claimed 1/3rd share in the property left behind by their
father, notwithstanding the assertions in the plaint that Bodh
Raj Ahuja died leaving behind three sons and two daughters
and that Abhi Kumar Ahuja had died issueless.
6. Be that as it may, the suit in question which was
registered as Suit No.140/1985, resulted in a compromise
between Anu Grover and Kamlesh Srivastava on the one hand
and their brother Surender Kumar Ahuja on the other hand.
The learned Judge dealing with the suit recorded the
statement of the parties on 10.7.1990 to the effect that the
parties had settled their dispute and had partitioned the
property No.438, Gali Chandniwali, Paharganj, New Delhi-
110055 as per shares allocated to the parties reflected in the
site plan annexed with the application.
7. The suit was disposed of recording a settlement and
hence no claim surviving to be litigated upon i.e. was
dismissed as withdrawn as settled as per the compromise, vide
order dated 10.7.1990.
8. Anu Grover and Kamlesh Srivastava, the
respondents in the instant appeal, filed the suit in the year
2003 out of which the instant appeal arises, inter alia, after
pleading the afore-noted facts set forth their case by pleading
in para 9 of the plaint as under:-
RFA 433/2008 Page 3 of 11
“9.That plaintiffs, being the married sister of Late
Sh.Surender Kumar Ahuja had put their locks to their
respective portions in property bearing No.438, Gali
Chandniwali, Paharganj, New Delhi after taking the
physical possession from his late brother Sh.Surender
Kumar Ahuja, prior to filing the compromise
application dt. 10.7.90. The said respective portions
of the plaintiff remained unused because the plaintiffs
had been residing at their matrimonial house and
reason by Late Sh.Surender Kumar Ahuja approached
the plaintiffs in the early of January, 1991 and made
requests to allow him to use the portions belonging to
the plaintiffs for the time being with the assurance
that the said portions will be vacated as and when
required by the plaintiffs, after considering the blood
relationship and conduct of Late Sh.Surender Kumar
Ahuja, the plaintiffs duly allowed him to use the same
as per his own convenience.”
9. The appellants, who are the legal heirs of late Shri
Surender Kumar Ahuja, the brother of the respondents, filed a
written statement not controverting the filing of the suit by
Anu Grover and Kamlesh Srivastava in the year 1985 or the
order passed thereon on 10.7.1990 and in respect of para 9 of
the plaint responded as under:-
“That the contents of para 9 as stated are wrong and
denied.”
10. Relevant would it be to note that there are no
pleadings in the written statement filed by the appellants that
the settlement recorded between the two sisters and their
brother in the year 1990 was not given effect to, or that by a
subsequent agreement the two sisters transferred their rights
in favour of their brother.
11. On the pleadings of the parties, issues settled
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were:-
“1. Whether the plaintiffs are exclusive owners of the
suit property as claimed by them? OPP
2. Whether the plaintiffs are entitled to recover the
possession of the suit premises from the defendants?
OPP
3. If issue No.2 is decided in favour of plaintiff
whether the plaintiff is entitled to recovery any amount
on account of damages and mesne profits for
use/occupation by the defendant? If so, at what rate and
for what period? OPP
4. Relief.”
12. The respondents examined Ashok Grover, the
attorney of the plaintiffs as PW-1. The witness proved
various documents and in particular the compromise
application and the order dated 10.7.1990 as also the
statement of the parties in Suit No.140/85 by tendering
certified copies thereof which were exhibited as PW-1/I.
13. The witness also proved a legal notice dated
28.4.2003, Ex.PW-1/D, served upon the appellants
terminating the licence to occupy the subject property,
which needless to state is the share of the sisters assigned
to them in the compromise recorded in the year 1990.
14. The appellants examined one Gulshan Kapoor as
DW-1. Appellant No.1 examined herself as DW-2. Appellant
No.2 examined himself as DW-3.
15. In her deposition, appellant No.1 stated that there
was a settlement in the year 1990, but went on to state that
RFA 433/2008 Page 5 of 11
thereafter respondent No.1 i.e. plaintiff No.1, voluntarily
proposed that the consideration amount of shops belonging to
plaintiff No.1 in property bearing No.438, Gali Chandniwali,
Paharganj, New Delhi should be that of her husband.
16. The deposition of appellant No.1 is most unhappily
worded and hence we reproduce the same in verbatim as per
the language spoken by appellant No.1. The same reads as
under:-
“That the deponent affirms that in the year 1990 that
a family dispute was arose among the parties in
related to the joint property, for the same the plaintiff
No.1 herein filed a suit for partition and separation
and in response of the said dispute, amicable
settlement was made between the plaintiff herein and
the defendant and as per the settlement, the husband
of the defendant No.1/deponent along with the
plaintiff No.1 herein moved an application for
compromise the dispute, settled the dispute amicably
but thereafter the plaintiff No.1 herein voluntarily
proposed that the consideration amount of shops
belongs to the plaintiff No.1 herein and property
bearing No.438, Chandni Wali, Pahar Ganj, New Delhi
goes to the husband of the deponent, accordingly the
family settlement was made and property in question
goes to the share of the husband of the defendant.”
17. It appears to be the intention of appellant No.1 to
convey that after the settlement was recorded in the year
1990 for money value received by respondent No.1 from the
husband of appellant No.1 i.e. late Shri Surender Kumar Ahuja
the right in the subject property was abandoned by her.
18. We say so, because we find no other meaning which
can be assigned to the sentence „but thereafter the plaintiff
No.1 herein voluntarily proposed that the consideration
RFA 433/2008 Page 6 of 11
amount of shops belongs to the plaintiff No.1 herein and
property bearing No.438, Chandni Wali, Pahar Ganj, New Delhi
goes to the husband of the defendant.’
19. Vide impugned judgment and decree dated
1.8.2008, the learned Trial Judge has decreed the suit for
possession. Needless to state, the possession relates to the
part of the property which was assigned to the respondents in
the settlement which had taken place in the year 1990. Mesne
profits @Rs.1,500/- per month have also been awarded, but
from the date of the suit till possession is handed over.
20. Learned counsel for the appellant concedes that he
is handicapped in making any submissions predicated on the
evidence of the appellants save and except to urge that in her
testimony, appellant No.1 clearly deposed to the fact that after
the settlement took place in the year 1990 it was followed by a
subsequent agreement where under the respondent No.1
received money from late Shri Surender Kumar Ahuja and
abandoned her interest in the portion of the property assigned
to her under the settlement.
21. We are afraid, the appellants cannot urge the said
plea to challenge the impugned judgment and decree. The
reason is obvious. No such defence was predicated in the
written statement. Thus, no issue was settled to the effect
whether the respondent No.1 abandoned her share in the suit
RFA 433/2008 Page 7 of 11
property by receiving consideration from her brother.
22. Needless to state, if case of the appellants was that
after the settlement took place in the month of July 1990, the
plaintiffs received money value for their share from their
brother and hence had no right to claim any title in the
property, the same had to be first pleaded, issue got settled
and only then the Court could be called upon to decide on the
issue.
23. We note that the appellants have not disputed that
a settlement took place in the year 1990. They have not
disputed the terms of the settlement. They have not disputed
the compromise application and the statements recorded when
Suit No.140/1985 was disposed of in the year 1990.
24. We accordingly hold that the learned Trial Judge has
arrived at a correct decision. The sole plea sought to be urged
in the appeal, namely that, after taking money the
respondents had abandoned their interest in the subject
property, as noted herein above cannot be urged by the
appellants.
25. The appeal is accordingly dismissed in limine.
26. We need to write a few further lines to complete the
present decision.
27. As noted herein above, the trial court record which
has been received reflects a very sorry state of affairs.
RFA 433/2008 Page 8 of 11
28. Trial Court Record sent to this Court, as per index, is
from page No.1 to 172.
29. The original suit plaint and the injunction
application filed along with the plaint is missing from the Trial
Court Record.
30. Exhibits PW-1/A to Ex.PW-1/I proved by the
respondents are missing from the Trial Court Record.
31. Not only that.
32. The casual manner in which the learned Trial Judge
has been receiving documents is also evidenced from the Trial
Court Record.
33. The defendants i.e. the appellants had proved a
document, Ex.DW-1/1, being a power of attorney executed by
appellant No.1 in favour of Gulshan to represent her.
34. The said power of attorney was tendered in
evidence by DW-1 when he appeared in Court as the witness of
the appellants on 10.10.2007.
35. As per the rules applicable for subordinate Courts in
Delhi, when ever a document is received by a learned Judge,
an endorsement is made at the rear of the document with the
stamp of the Court affixed and signatures of the Presiding
Officer, evidencing the receipt of the document. The reason is
to maintain the purity of the document received, for the
reason, if this is not done the document can be replaced at any
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time.
36. We do not find any endorsement as afore-required
at the rear of any page on Ex.DW-1/1.
37. We note that the document has been filed under
cover of an index dated 10.10.2007. Even on the index or on
its rear, we find no endorsement of the document being
received by the learned Trial Judge.
38. We further note that even on the written statement
and the vakalatnama filed along therewith, the learned Judge
who received the same has not cared to affix his signatures, to
maintain the purity of the document. We find that the stamp
of the Court stands affixed at the rear of each page of the
written statement but without the signatures of the learned
Judge who received the same in Court.
39. We also note that at the rear of the page on which
the evidence has been recorded, no signatures of the learned
Judge who recorded the evidence stand appended. Only a tick
mark has been put.
40. We accordingly direct that the Trial Court Record
which has been received would be transmitted to the Registrar
(Vigilance) who is directed to conduct an inquiry and submit a
report on the judicial side.
41. The Registrar (Vigilance) would conduct the inquiry
with respect to the improper manner in which the Trial Court
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Record has been maintained and in particular would fix the
responsibility on the officer concerned who is responsible for
not placing the plaint and the proved documents on the judicial
file.
PRADEEP NANDRAJOG, J.
NOVEMBER 21, 2008 / dk J.R. MIDHA, J.
RFA 433/2008 Page 11 of 11