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2020 Supreme(Del) 1455
IN THE HIGH COURT OF DELHI AT NEW DELHI
Hima Kohli, Subramonium Prasad, JJ.
In Matter Of Indu Singh - Appellant
Versus
Surender Kamboj & Ors. - Respondent
First Appeal From Order (Os) No. 51 of 2020
Decided On : 10-11-2020
Nikhil Rohatgi, Advocate, Shashank Khurana, Advocate, Rohit K Naagpal, Advocate, Akarshan Bhardwaj, Advocate, Aditya Kasera, Advocate, Dipanshu Gaba, Advocate, Ashish Mohan, Advocate, Akshit Mago, Advocate
The judgment emphasizes the discretionary nature of Order XII Rule 6 of the CPC, which allows for a judgment on admission. It highlights that such a judgment is not a matter of right and involves a careful examination of the admissions to ensure they are plain, unambiguous, and unequivocal.
Headnote:
Judgment - Civil Procedure - Order XII Rule 6 - Benami Transaction (Prohibition) Act - Limitation Act
Fact of the Case:
The appeal was filed against the dismissal of an application under Order XII Rule 6 of the CPC, seeking a judgment on admission regarding the ownership of certain properties in a partition suit. The appellant claimed that the properties were her individual properties and not available for partition, while the respondent alleged that they were purchased from joint family funds.
Finding of the Court:
The court found that the appellant was not entitled to a judgment on admission as the facts did not meet the requirements for such a judgment. The court held that the issues raised by the appellant involved mixed questions of fact and law that needed to be adjudicated in the suit by leading evidence.
Issues: Ownership of properties in a partition suit, applicability of Benami Transaction (Prohibition) Act, and the bar of limitation under Article 110 of the Limitation Act.
Ratio Decidendi: The court's decision was based on the finding that the appellant was not entitled to a judgment on admission under Order XII Rule 6 of the CPC as the issues raised involved mixed questions of fact and law that needed to be adjudicated in the suit by leading evidence.
Final Decision: The appeal was dismissed as devoid of merits, along with the pending application.
JUDGMENT
Subramonium Prasad, J. - CM No. 25792/2020 & 25793/2020 (Exemption)
Allowed, subject to all just exceptions.
CM No. 25791/2020 (delay)
For the reasons stated in the application, the same is allowed. The delay of 43 days in filing the appeal is condoned.
The application is disposed of.
FAO(OS) 51/2020 & CM No. 25790/2020 (stay)
1. The present appeal is directed against the order dated 06.01.2020, passed by the learned Single Judge dismissing an application filed by the appellant/defendant No.9 which though was styled to be one moved under Order VI Rule 16 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the CPC"), but in fact was one under Order XII Rule 6 of the CPC.
2. The respondent No.1/plaintiff has filed a civil suit on the Original Side of this court, registered as CS(OS) No.1834/2014, praying inter alia for partition of 22 properties, as mentioned in the plaint.
3. Sh. Jitender Singh Kamboj, father of the respondent No.1/plaintiff, had 6 sons and 3 daughters. To understand the factual matrix, it is necessary to peruse the genealogy as below:-
4. It has been averred in the plaint that Sh. Jitender Singh Kamboj had set up a business concern in the name of "M/s. Souvenir House" with his four sons, the plaintiff, defendant Nos.1 & 2 and Narinder Kumar Kamboj. Defendant Nos. 3 and 4 had initially joined the business but later, they had left the business. Resultantly, the business was being carried on by late Sh. Jitender Singh Kamboj, Sh. Virender Singh Kamboj (defendant No.1), Sh. Devender Kumar Kamboj (defendant No.2), the plaintiff (respondent No.1 herein) and Sh. Narinder Kumar Kamboj who had passed away before the suit was instituted.
5. It has been averred by the respondent No.1/plaintiff that out of the profits of the aforesaid business, respondent No.2/defendant No.1 had started a partnership business with one Sh. Lalji Kapoor in the name of "Maharaja Art Palace" and the understanding amongst the brothers was that the business of "Maharaja Art Palace" was also a joint family business up to 50% of the share along with the business of "Souvenir House".
6. In or around the year 1975, "Maharaja Art Palace" was dissolved and the respondent No.2/defendant No.1 separated from Sh. Lalji Kapoor. On dissolution of the firm, Shop No. 19-C, Red Fort, Delhi which had been allotted to the respondent No.2/defendant No.1, was made a part of the joint family. After the dissolution of "Maharaja Art Palace", the respondent No.2/defendant No.1 started another partnership firm in the name of M/s. "Virender Art Palace". It is stated that apart from "Maharaja Art Palace" several businesses were started, viz "Virender Art Emporium", "M/s. Kamboj Exports", "M/s. Arun Exports", "M/s. Indian Brass Collection", "M/s. You and Me" and "M/s. Virender Art Emporium Expo Mart". The respondent No.1/plaintiff along with three brothers and the wife of respondent No.2/defendant No.1 were partners in the firms.
7. It has also been stated by the respondent No.1/plaintiff that the ratio of profit sharing was different, but all of the said family businesses were being run by the joint family and several properties were purchased out of the family business. The other facts mentioned in the plaint are not being stated here since they are not relevant for the decision in the present appeal. Stating that the suit properties are all joint family properties, the respondent No.1/plaintiff has prayed for 1/3rd share in 19 properties and 1/9th share in 3 properties.
8. Initially, the appellant, Indu Singh, who is the wife of the respondent No.2/defendant No.1, Sh. Virender Singh, was not made a party to the suit. Vide order dated 08.10.2015, passed in I.A. No. 12588/2015 she was impleaded as defendant No.9 and she filed a separate written statement contending that the following 3 properties belong exclusively to her:-
1. Property bearing House No.2425, First Floor, Tilak Gali, Chuna Mandi, Pahar Ganj, New Delhi-110055.
2. Half portion of prop
