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Judgment
CM Appl. No. 41293/2017 (Exemption)
Exemption allowed, subject to all just exceptions.
Application stands disposed of.
RFA No. 962/2017
By this first appeal under Section 96 of the Code of Civil
Procedure, 1908 (''CPC''), the appellants/plaintiffs impugn the order
dated 14.10.2017 by which the Trial Court at the time of issuance of
summons in the suit refused to issue summons so far as the prayer (b)
of the suit is concerned. In prayer (b) it was prayed that until the
respondents/defendants pay Rs.40,00,000/- to the appellants/plaintiffs
till then appellants/plaintiffs be not evicted from the suit property
being the third floor with roof rights of property bearing No.150,
Block-H, Vikas Puri, New Delhi. The amount of Rs. 40 Lacs paid by
the appellants/plaintiffs to the respondent nos. 1 and 2/defendant nos.
1 and 2 is pleaded to be utilized in purchase of this Vikaspuri property.
Learned counsel for the appellants/plaintiffs argues that
by the impugned order the suit stands dismissed for prayer (b) on the
first date of hearing though disputed questions of fact requiring trial
arise, inasmuch as, the appellants/plaintiffs had filed the Undertaking-
cum-Receipt dated 02.04.2016 issued by defendant no.3 in the suit
acknowledging the factum of payment of Rs.40,00,000/- by the
appellants/plaintiffs to the respondent nos.1 and 2/defendant nos.1 and
2 and also disentitling the respondent nos.1 and 2/defendant nos.1 and
2 from evicting the appellants/plaintiffs from the suit property till a
sum of Rs.40,00,000/- is paid to the appellants/plaintiffs. It was also
argued that respondent nos. 1 and 2/defendant nos.1 and 2 had also
executed Power of Attorney in favour of the respondent
no.3/defendant no.3 (daughter of respondent nos.1 and 2/defendant
nos.1 and 2 and daughter-in-law of appellants/plaintiffs). It is argued
that accordingly existence of an Agreement has been pleaded by
appellants/plaintiffs from being dispossessed from the suit property till
the payment of Rs.40,00,000/- and it cannot be held on the very first
date while issuing summons in the suit that there is no such agreement
because such an aspect will be an issue in the suit and can only be
decided after evidence is led by the parties.
I agree with the arguments urged by learned counsel for
the appellants/plaintiffs that it is a disputed question of fact as to
whether prayer (b) of the suit can or cannot be granted and which
prayer would be granted in case appellants/plaintiffs succeed in
proving an agreement of their not being evicted from the suit property
till Rs.40,00,000/- is paid to them by the respondent nos. 1 and
2/defendant nos.1 and 2. Such an aspect therefore could not be
decided against the appellants/plaintiffs on the first date when the suit
comes up for hearing for the issuance of summons.
In view of the aforesaid discussion, the impugned order is
set aside to the extent of the same dismissing the suit as regards prayer
(b) is concerned, and now summons in the suit will be also issued to
the defendants with respect to prayer (b) in the suit.
Appeal is accordingly allowed in terms of the aforesaid
observations.