* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 16 th May, 2008 + FAO(OS) 234/2008 M.D.ESTATES & ORS. ..... Appellants Through Mr.A.K. Singla, Sr. Advocate with Mr.Pankaj Gupta, Advocate versus INDER SINGH SAHNI DECED. ..... Respondent Through nemo CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE DR. JUSTICE S.MURALIDHAR 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? AJIT PRAKASH SHAH, CJ. (Oral) CM No.7296/2008 (exemption) Allowed, subject to just exceptions. CM No.7297/2008 (delay) For the reasons stated in the application, the application is allowed. Delay in filing the appeal stands condoned. The appeal is taken on record. The application stands disposed of in terms of the aforesaid order. FAO(OS) No.234/2008 page 1 of 5 FAO(OS) No.234/2008 and CM No.7295/2008 (stay) 1. This appeal is directed against the common order passed by the learned Single Judge in IA Nos.3076/2004 and 6351/2004 in CS(OS) No.1976/1995. 2. IA No.3076/2004 is filed by the plaintiff (respondents herein) under Order XXXIX Rule 2A of the Code of Civil Procedure (hereinafter referred to as the CPC) in respect of an alleged violation of the undertaking given on behalf of the defendants (appellants herein) on 20th March, 1996 in IA No.8572/1995. IA No.6351/2004 is filed on behalf of the defendants under Order VII Rule 11 CPC for rejection of the plaint on the ground that the plaint does not disclose a cause of action. 3. First, we will deal with the order passed by the learned Single Judge in IA No.3076/2004. 4. On 20th March, 1996, the learned counsel appearing for the defendants gave the following undertaking in IA No.8572/1995: “Mr.Aggarwal states that till the next date, the defendants would not part with / transfer / alienate the respective residential premises. In view of this statement, no order is necessitated in this IA at this stage.” 5. In violation of the above undertaking, the defendants created a lease in favour of one Shri Tanuj K. Sahgal. The lease deed was executed on 23rd October, 2001 and the same was duly registered. FAO(OS) No.234/2008 page 2 of 5 The argument of the defendants before the learned Single Judge was that the word “alienate” and “transfer” generally apply to absolute conveyances of immovable properties involving transactions of transfer of ownership to another person. They do not include the creation of a lease (monthly tenancy). It was also argued that the expressions ‘part with’, ‘transfer’ and ‘alienate’ do not refer to possession and, therefore, leasing out the property by creating a tenancy would not be covered under any of these expressions. 6. The learned Single Judge repelling this argument held in para 10 as under: “10. This leaves for discussion the expression “part with the respective residential premises”. What is meant by the expression “part with”? The Shorter Oxford English Dictionary gives the meaning of “part with” as under:- “part with (a) cease to keep possession of, give up; (of a body or substance) give off (heat, a constituent part),” If one were to go by this definition, then the expression “part with” would mean “part with possession” in the sense of ceasing to keep possession or giving up of possession. A lease necessarily entails parting with possession. The lessor gives up possession to the lessee for a term and in consideration of rent. The lessor, however, retains the title over the property as also the right to recover possession on the expiration of the period of the lease or prior determination thereof. Viewed in this manner, the very fact that the defendant No.2 executed a lease, as mentioned above, meant that he FAO(OS) No.234/2008 page 3 of 5 parted with his residential premises. No amount of legalese would take the defendant out of this harsh reality. While it is true that the jurisdiction of contempt and that of Order 39 Rule 2A ought not to be lightly exercised, it is also true that the courts should not permit flagrant and even clever deviations from orders of the court and / or undertakings given to the court. Therefore, I feel that the plaintiff has made out a case for invoking the provisions of Order 39 Rule 2A and I, accordingly, direct that the said property (D-311, Second Floor, Defence Colony, New Delhi) belonging to the defendant No.2 be attached subject to any further orders that may be passed in the suit. The defendants should also be aware of the consequences of the continued disobedience or breach as provided in Order 39 Rule 2A of the CPC.” 7. We do not see any illegality or infirmity in the view taken by the learned single Judge. 8. As far as IA No.6351/2004 is concerned, it has been pointed out by the learned single Judge that this was the third application filed on behalf of the defendants under Order VII Rule 11 CPC. The first was filed some time in September, 1996, though it was not pursued thereafter. After six years, in 2001, a second application came to be filed under Order VII Rule 11 CPC, which came to be disposed of by the learned single Judge on 1st April, 2002 holding that as the issues are now to be framed, no order on the application need to be passed. This third application under Order VII Rule 11 CPC has been filed when the suit is ready for trial. Admission / denial of documents has taken place. Issues have been framed and some issues have even been recast. The FAO(OS) No.234/2008 page 4 of 5 learned Single Judge has rightly held that it is not possible to entertain this application under Order VII Rule 11 CPC. 9. Under the circumstances, no interference is warranted with the order of the learned single Judge. The appeal has no merit and is dismissed. CHIEF JUSTICE S.MURALIDHAR, J MAY 16, 2008 “nm” FAO(OS) No.234/2008 page 5 of 5