JUDGMENT

Indermeet Kaur, J. (Oral)

CM No. 16628/2010

1. This is an application filed by Mr. Subhash Chand Jain/ respondent No. 6. In the trial court proceedings, he was arrayed as defendant No. 2. His contention is that he was not served in the suit proceedings; no summons had been issued to him; the body of the application has detailed the various facets of civil proceedings. It is submitted that each and every defendant is entitled to be served independently; it goes on to detail the further fact that defendant No. 2 was never served and this has caused a travesty of justice. By way of this application, he seeks that the matter be remanded back to the trial court in order that respondent No. 6/ applicant/ defendant No. 2 is able to put-forth his defence. The reply filed has belied these contentions raised by the applicant. It is pointed out by learned counsel for the respondents that on 30.04.1984, defendant No. 2/ respondent No. 6 had put in appearance before the trial court; he had in fact filed an application under Order 39 Rule 4 of the Code of Civil Procedure (hereinafter referred to as the 'Code') for setting aside the injunction order dated 26.04.1984. This application had been accompanied by his affidavit. He had been represented through his counsel namely Mr. J.P. Jain and Mr. Ravinder Tyagi who had filed power of attorney on his behalf on 17.04.1989. On 17.10.1990, the presence of defendant No. 2 had also been noted in the trial court proceedings.

2. All this is borne out from the record which has been perused. It is clear that this application has been filed malafide only to delay the proceedings in this Court. On behalf of the respondents, it is pointed out that there are two concurrent findings of fact against the appellant; this application has been collusively filed by Mr. Subhash Chand Jain along with the appellant only as a delaying tactic.

3. Be that as it may, the perusal of the record evidences the fact that the averments made in the present application which have been supported by the affidavit of the applicant Mr.Subhash Chand Jain are absolute lies. This is a warning to such a litigant to be careful in future. Court is not proceeding with perjury but the malafides of the applicant are writ large and the submission of the learned counsel for the respondents that this is a delaying tactic is well substantiated.

4. This application is dismissed with costs of Rs.20,000/- to be paid within two weeks.

R.S.A.No. 208/2007 & CM No.11271/2007 (for stay)

5. Arguments have been addressed on behalf of the appellant on the substantial question of law raised in this second appeal. The plaintiff Shitab Chand Oswal (through his LRs) had filed a suit for possession against three defendants. Ramesh Chand Jain was defendant no.1. The contention was that the deceased plaintiff and defendant no.1 had entered into a partnership dated 27.6.1972 in terms of which the partners had agreed to carry out business under the name and style of M/s Jain Traders from premises No.650, Gali No.11, Sadar Bazar, Delhi on a licence fees of Rs.50/- which was to be paid to the plaintiff who was the owner of the suit property. In terms of the aforenoted partnership it had been agreed that in the event of the dissolution of the firm or shift in its business possession of the shop would remain with the plaintiff who was the owner and no right, title or interest would vest with the defendant. In April-May 1973 defendant sought permission from the plaintiff for taking orders in the name of M/s Jaina Agencies which was permitted by the plaintiff. In terms thereof an agreement dated 1.5.1973 was drawn between the plaintiff and defendant no.1. In terms of this agreement as when the business of Jain Traders would wind up M/s Jaina Agencies (proprietorship firm of defendant no.1) would also come to a close. Plaintiff requested defendant no.1 to wind up the business of M/s Jaina Agencies but the defendant no.1 was evading the issue. On 16.1.198