J U D G M E N T

CHANDRA DHARI SINGH, J.

I.A. NO. 14066/2017 (under Order 14 Rule 5)

1. The present application has been filed by the Applicant/ Plaintiff under Order XIV Rule 5 read with Section 151 of Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) inter-alia seeking the following reliefs:

“a. Strike off the issues No. 2,3,5,6,7 and 9 framed on

15.09.2017;

b. Appoint a local commissioner for recording of Evidence in the above matter on the cost to be borne by the parties;

c. Pass any other order(s) that this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”

FACTUAL MATRIX

2. The captioned suit has been filed on behalf of the plaintiff seeking specific performance of agreement dated 24th December, 2003.

3. In the present suit the following issues were framed by the predecessor bench of this Court on 15th September, 2017:-

“i. Whether the plaintiff is entitled for the decree of specific performance of the agreement to sell dated 24.12.2003? OPP ii. Whether the suit filed by the plaintiff company is not maintainable? OPD-1 iii. Whether the suit is liable to be stayed under Section 10 CPC?

OPD-1 iv. Whether the plaintiff has no cause of action to institute the present suit? OPD-1, 2 & 4 v. Whether the suit is not maintainable under Section 80 CPC?

OPD-1 vi. Whether the suit is bad for non-joinder of necessary and proper party? OPD-1 vii. Whether the present suit has not been filed by a competent person? OPD-1 viii. Whether the proper description of the property in dispute has not been furnished in the plaint, if so, its effect? OPD ix. Whether the plaintiff company has no locus standi to file the present suit? OPD-1 x. Whether defendant No.1 - SomnathVij had no legal authority to sign agreement to sell dated 24.12.2003 on behalf of the defendants No.2 & 4? OPD-2 & OPD-4 xi. Whether the present suit has been filed in conspiracy between the plaintiff, defendant No.1 & Ashok Kapoor? OPD-2 xii. Whether the agreement to sell dated 24.12.2003 is a fabricated and manipulated document? OPD-2 & 4 xiii. Relief”

(emphasis supplied)

4. The Applicant/ Plaintiff by way of present application is praying for deletion / striking off of issues no ii, iii, v, vi, vii & ix.

SUBMISSIONS (on behalf of Plaintiff/Applicant)

5. Mr. Anil K. Airi, learned senior counsel appearing for the plaintiff submitted that during the pendency of the instant suit, the plaintiff with defendant no. 1 & 3 entered into a compromise qua the 22% share of defendant no. 3 in the suit property. The terms of this compromise were reduced to writing vide application submitted under Order XXIII Rule 3 of the CPC, i.e. I.A. no. 1541 of 2005. The agreement was signed and money was received from the Plaintiff, according to an affidavit that was also submitted by Defendant no. 1 in support of the motion. The following are the terms of the said settlement:

“4. That the Plaintiff and the defendant No.1 have accordingly settled the dispute concerning the share of the defendant NO.3 i.e.22% (twenty two percent) in the suit property and concerning 28% share of Mr. Ashok Kapoor in the said property, the subject matter of Suit no. 254 of

2002, on the following terms and conditions:

(a) The defendant No.3 has agreed to transfer her share in the suit property in favour of the plaintiff to the extent of 22% share with all her rights, title and interest therein.

(b) That the plaintiff has agreed to release to the defendant No.3 and defendant No.3 has agreed to accept her share of consideration in pursuance of the settlement of all her disputes with regard to her 22% share and the defendant No.1 has no objection to such settlement between the plaintiff and the defendant No.3.

(c) That the plaintiff shall release a further sum of Rs.

86,00,000/- (Rupees eighty six lakhs only)by way of Bank Draft in favour of the defendantNo.3 in pursuance of the agreement dated 24.12.2003 as full and final payment towards the share of the defendant No.3 at the time of recording of the ab