Gordhan and Another vs Smt. Vijay Laxmi and Others

Hima Kohli, J.—The petitioners herein (defendants No.1 & 2 in the suit proceedings) are aggrieved by an order dated 1.12.2006 passed by the Commercial Civil Judge disposing of a preliminary issue with regard to the maintainability of the suit and holding that the suit as instituted by the respondents is maintainable in its present form and is not barred under the provisions of Section 50 of the Delhi Land Reforms Act, 1954 (in short ''the Act'').

It is pertinent to note that in June 1998, a simplicitor suit for injunction was filed by the respondents/plaintiffs against the petitioners/defendants No.1 and 2 and three others, seeking to restrain them from selling, transferring or alienating the suit property described as Khasra No. 137, 64, 58, 61, 57, 42, 681 and 682 situated within the revenue estate of Village Rajpur Khurd, Post Office Mehrauli, New Delhi.

In the plaint, the respondent No.1 (daughter-in-law of the petitioner No.1/defendant No. 1) and her minor child (grand-child of the petitioner No.1/defendant No. 1), averred that being the widow and minor child of Sh.Inder Singh, the deceased son of the petitioner No.1/defendant No.1, they are entitled to step into his shoes and receive a share in the ancestral properties. Pleadings were completed in the suit, whereafter the following preliminary issue was framed on 26.10.1999:-

Whether the suit is maintainable in its present form?

After hearing the parties, the aforesaid preliminary issue was decided by the court below by observing that the suit was maintainable and was not barred under the provisions of Section 50 of the Act.

Counsel for the petitioners states at the outset that he does not wish to press the present petition, but his clients may be granted liberty to approach the learned Commercial Civil Judge with a request to frame issues with regard to the mis-joinder of parties and maintainability of the suit, on other legal grounds as taken by the petitioners in their written statement, excluding those already decided by the impugned order.

Leave, as prayed for, is granted. The petition is disposed of, along with the pending application.

Considering the vintage of the present suit, which is a decade old, and in view of the fact that the petitioners are senior citizens aged above 80 years, the learned Commercial Civil Judge is requested to expedite the hearing in the suit.

Though the respondents were duly represented through counsel in the present proceedings, none has appeared on their behalf. It is therefore directed that notice of appearance be issued to the other side, before proceeding further in the suit.

List before the concerned court on 24th May, 2010 for further proceedings.