2017 Supreme(Del) 815

IN THE HIGH COURT OF DELHI AT NEW DELHI
INDIRA BANERJEE & V. KAMESWAR RAO, JJ.
M/S CARAVAN COMMERCIAL COMPANY LTD. – Appellant
Versus
YASHASHWI AGGARWAL & ORS. – Respondents
FAO(OS) 385, 386 of 2014 & CM No. 14139, 14143, 14145 of 2014
Decided On : 08-03-2017

An order passed in a suit restraining a party from transferring the ground floor of the suit property would have no bearing on the fact whether Smt. Pushpa Devi could have parted with the possession of the ground floor.

Headnote:

The appellants, Caravan Commercial Co. Ltd. and Smt. Pushpa Devi, challenged the impugned order holding them guilty of contempt of court for disobeying the status quo order dated May 07, 1997, subsequently modified by orders dated September 16, 2005 and November 24, 2009. The dispute arose from three co-owners namely (i) Late Smt. Shanti Devi (respondents 12 to 18) (ii) Late Smt. Bimla Devi (respondents 3 to 6) and (iii) Smt. Pushpa Devi (the appellant in FAO (OS) 386/2014) in respect of suit property No. 42-44, Sunder Nagar, New Delhi. The appellants contended that the order dated November 24, 2009 allowed Smt. Pushpa Devi to deal with and part with possession of the ground floor of the suit property. They argued that the order was not ambiguous and capable of two interpretations. The respondents, on the other hand, argued that the order did not permit Smt. Pushpa Devi to part with possession and that the appellants had willfully disobeyed the order.

Fact of the Case:

1. The suit property was owned by three co-owners: Late Smt. Shanti Devi, Late Smt. Bimla Devi, and Smt. Pushpa Devi. 2. A perpetual lease in respect of the suit property was executed in their favor in 1954. 3. A fresh perpetual lease was executed in 1992 on the demise of Smt. Shanti Devi to include her heirs (respondents 1 and 2 and Sh. Ashish Aggarwal). 4. Caravan entered into an Agreement to Sell with the co-owners in 1991 and 1992. 5. The co-owners were aware of a suit being CS(OS) No. 1578/1992 filed by one Sh. Arun Batra seeking specific performance of an alleged oral Agreement to Sell in respect of the suit property. 6. Caravan took physical possession of the ground floor of the suit property in December 2012. 7. Smt. Pushpa Devi filed an application being IA No. 12948/2008 under Order 39 Rule 4 CPC seeking discharge, vacation, modification of the status quo order dated May 07, 1997 as modified on September 16, 2005 as a whole; seeking discharge and vacation of the status quo orders dated May 07, 1997 and September 16, 2005 insofar as it relates to her 1/3rd undivided share. Vide order dated November 24, 2009 the learned Single Judge passed the following order: "I.A. No.12948/2008 This application has been made under Order 39 Rule 4 CPC on behalf of defendant No.8 with a prayer that the court should modify the status quo order dated 7th May, 1997 which was earlier modified on 16th September, 2005. It is submitted by learned counsel for defendant No.8 that defendant No.8 was entitled to undivided 1/3rd share in the property. This court vide order dated 16th September, 2005 had given liberty to defendant No.12, who was similarly placed that defendant No.12 shall be entitled to exercise his rights and deal with his undivided share in his property. He states that defendant No.8 is also entitled for the same liberty. Learned counsel for the plaintiffs states that as far as defendant No.8 is concerned, her 1/3rd share in the property is not disputed and counsel for the plaintiffs has no objection in case, the similar order as in respect of defendant No.12 has been passed is also passed in favour of defendant No.8. In view of this submission, the application for modifying the status quo order dated 16th September, 2005 is allowed and it is observed that defendant No.8 shall be entitled to exercise her rights and deal with her undivided 1/3rd share in the property. The application stands disposed of. C.S. (OS) No.1561/1994 The plaintiffs have filed this suit claiming 1/3rd undivided share in the property No.42- 44, Sunder Nagar, New Delhi. The plaintiffs are grandsons of Smt. Bimla Devi, defendant No.3 (deceased) and defendant Nos.1 and 2 are father and uncle of the plaintiffs respectively. Smt. Bimla Devi had entered into a sale agreement along with co-owners of the property with defendant No.14. The other defendants are defendants in respect of other two co-owners of the property, namely, Smt. Pushpa Devi and Smt. Shanti Devi (since deceased). They are defendant Nos.8 and 9 to 13. There is no dispute in respect of undivided 1/3rd share, one of LRs of Smt. Shanti Devi or undivided share of Smt. Pushpa Devi. The dispute is only in respect of 1/3rd undivided share of late Smt. Bimla Devi. I, therefore, consider that all the defendants, who inherit property from Smt. Pushpa Devi or Smt. Shanti Devi, being performa defendants, are at liberty to deal with their respective undivided share of the property. The court had passed similar order in respect of defendant No.12 earlier and defendant No.8 today. I consider that the other defendants similarly placed cannot be treated differently and the earlier order of dismissing the application made by the defendants is, therefore, recalled. However, since the property is not divided so far, the defendants shall remain entitled to undivided share and they may deal only with undivided share." 8. Caravan was impleaded as a party defendant in CS (OS) No. 1561/1994 on May 13, 2008. 9. Two applications were filed first being IA 22681/2012 seeking interim reliefs directing the appellant Caravan to hand over possession of the ground floor of the suit property. According to the appellant, no notice has been issued on the said application; and the second being IA No. 22682/2012 under Order 39 Rule 2A of CPC stating that Smt. Pushpa Devi and Caravan were in contempt of the orders dated September 16, 2005 and November 24, 2009, wherein the impugned order was passed.

Finding of the Court:

1. The order dated November 24, 2009 did not permit Smt. Pushpa Devi to part with possession of the ground floor of the suit property. 2. The appellants had willfully disobeyed the order.

Issues: Whether the order dated November 24, 2009 permitted Smt. Pushpa Devi to part with possession of the ground floor of the suit property. Whether the appellants had willfully disobeyed the order.

Ratio Decidendi: 1. The order dated November 24, 2009 was clear and unambiguous. It did not permit Smt. Pushpa Devi to part with possession of the ground floor of the suit property. 2. The appellants had willfully disobeyed the order by parting with possession of the ground floor to Caravan.

Final Decision: The appeals were dismissed. The time to deliver/for taking possession of the entire ground floor of the suit property by Caravan and Smt. Pushpa Devi was extended by eight weeks from the date of the judgment. The matter was listed before the learned Single Judge on May 15, 2017 for compliance.