IN THE COURT OF DISTT.

& SESSION JUDGE,PATIALA

HOUSE COURTS DELHI

F.A.O.__________/2016

IN THE MATTER OF:-

ANSHUMAN SHUKLA & ANR. …APPELLANTS

VERSUS

SANDHYA JOSHI …RESPONDENT

I N D E X

S.NO. PARTICULARS PAGE COURT

NO. FEE
1. Memo of parties
2. Appeal under Section 96
read with order 41 rule
1 of C.P.C. against
impugned order dated
28.02.2018 with
affidavit.
3.
ANNEXURE P-1
Computerized copy of
the order dated.
28.02.2018
4.
ANNEXURE P-2
Copy of the Police
complaint dated
25.07.2016
5.
ANNEXURE P-3
Copy of the legal
notice to the plaintiff
6.
ANNEXURE P-4
Copy of the Parivar
Register issued by the
Gram Panchayat of the
defendant.
7.
ANNEXURE P-5
Copy of the Legal heirs
certificate/inheritance
certificate of the
defendants
8.
ANNEXURE P-6
Copy of the GPA
executed in favour of
the deceased Kamlesh
Shukla
9.
ANNEXURE P-7
Copy of Aadhar Card of
the defendant Anshuman
Shukla @ Chotu Shukla
10.
ANNEXURE P-8
Copy of notice dated
17.04.2018 for delivery
of the original
document of suit
property to the
defendant
11. Vakalatnama

DELHI …APPELLANTS
DATED:
THROUGH

(SUBHASH CHANDRA VERMA)

Advocate
IN THE COURT OF DISTT.& SESSION JUDGE,PATIALA
HOUSE COURTS DELHI

F.A.O.__________/2016

IN THE MATTER OF:-

ANSHUMAN SHUKLA & ANR. …APPELLANTS

VERSUS

SANDHYA JOSHI …RESPONDENT

MEMO OF PARTIES

ANSHUMAN SHUKLA @ CHOTU SHUKLA

S/O LATE SH. VED ASHOK KUMAR SHUKLA
R/O VILLAGE BISHANPUR PHULWARIA,
THANA PURANDIRPUR, BLOCK LAKHSMIPUR,
TEHSIL NUTANWAR,
DISTT. MAHARAJAGANJ, U.P. …APPELLANTS

VERSUS

SANDHYA JOSHI
D/O SH. INDERDEV JOSHI
R/O B-25, VASANT KUNJ ENCLAVE,
NEW DELHI …RESPONDENT

DELHI …APPELLANTS
DATED:
THROUGH

(SUBHASH CHANDRA VERMA)

Advocate
IN THE COURT OF DISTT.& SESSION JUDGE,PATIALA
HOUSE COURTS DELHI

F.A.O.__________/2016

IN THE MATTER OF:-

ANSHUMAN SHUKLA & ANR. …APPELLANT

VERSUS

SANDHYA JOSHI …RESPONDENT

APPEAL UNDER U/O 41 RULE 1 UNDER SECTION 96

READ WITH SECTION 151 CODE OF CIVIL PROCEDURE

AGAINST THE IMPUGNED JUDGEMENT ORDER DATED

28.02.2018 PASSED BY SH. NAMRITA AGGARWAL,

CJ-CUM-RC:PHC: NEW DELHI IN THE SUIT TITLED

AS “ANSHUMAN SHUKLA & ANRS VS. SANDHYA

JOSHI.”

MOST RESPECTFULLY SHOWETH:

THE BRIEF FACTS OF THE CASE:

1.That a suit for permanent injunction has

been filed by the plaintiff Ms. Sandhya

Joshi against the defendants, their agents,

assignees, representatives etc from

dispossessing the plaintiff forcibly from

the property bearing no.B-25, Vasant Kunj

Enclave, New Delhi (hereinafter referred to

 as the suit property) without following the

due process of law.

2.That the case of the plaintiff is that the

plaintiff has been residing in the suit

property consisting of ground floor, first

floor, second floor, and third floor,

admeasuring 95 Sq. Yards since the year

2009. That the plaintiff was in a domestic

relationship as defined section 2 (f) of

Protection of Woman from domestic Violence

Act, 2005 with Sh. Kamlesh Shukla owner of

the suit property and residing therein

since 2009 with him. that the second floor,

of the suit property was transferred by

Late Sh. Kamlesh Shukla in favour of the

plaintiff by executing GPA, Possession

Letter, Receipt, Will, Agreement of Sell

and Purchase all dt.20.07.2009. That Sh.

Kamlesh Shukla expired on 27.06.2015. That

Sh. Kalesh Shukla was a renowned poet and a

person of big magnanimity. He was abandoned

by his family and was not in touch with

them since the last 40 years except being

in touch with Sh. Karunesh Shukla, his

 brother. That Sh. Kamlesh Shukla was

earlier residing with Ashok mission in a

very small hut and frequently kept unwell.

The plaintiff being an admirer of Sh.

Kamlesh Shukla, always took care of him in

his ill health. It is averred that the

plaintiff took the property bearing No.B-

25, Vasant Kunj, Enclave, New Delhi

constructed only on ground floor, on rent.

However, the owner of the property Smt.

Suraksha Dumari offered to sell the suit

property and plaintiff agreed to purchase

the same for a meager sum of Rs.5 lacs and

out of the love and affection, plaintiff

got executed all the documents in favour of

Late Sh. Kamlesh Shukla.

3.That thereafter between 2006-2009 the

plaintiff reconstructed the suit property

in phases and subsequently, shifted with

Kamlesh Shukla to the suit property.

However, at the instance of Sh. Kamlesh

Shukla, plaintiff agreed to get the

ownership rights with respect to the second

floor of the suit property transferred to

her name and since the plaintiff had paid a

sum of Rs.5 lacs to the original owner of

the suit property, therefore, the value of

the second floor is mentioned as Rs.5 lacs.

It is averred by the plaintiff that after

the death of Sh. Kamlesh Shukla, his

relatives including the defendants came to

the suit property and threatened her that

she shall be forcibly dispossessed from the

suit property. It is submitted by the

plaintiff that all these relatives never

cared to look after Sh. Kamlesh Shukla

during his life time and in order to grab

the property of Sh. Kamlesh Shukla is now

threatening her.

GROUNDS

a) Because the impugned order passed by

the Ld. Court below suffers from

serious illegality and irregularity and

is also wrong on law and facts.

b) Because the plaintiff/appellant has got

prima facie good case against

respondent.
c) Because the respondent /plaintiff has

concealed the material facts from this

Hon’ble Court and that is why evasively

denied the averments made by the

defendant/appellant. In fact the

respondent /plaintiff has made a

baseless contention against the

plaintiff/respondent without any

documentary evidence.

d) Because it is apparent from proceedings

of the trial Court that the Ld. Court

below did not take cognizance of the

fact of admission by the respondent

/plaintiff that she was not threatened

by the defendant. In fact the Ld. Court

below should have taken into

consideration the pleadings of the

parties and in view of the provision of

the Order XII Rule 6 would have passed

a judgment on admission by the

respondent /plaintiff that there was

neither threats to the property nor

threat to her life and liberty.

e) Because in fact Under Order XII Rule 6

there is a provision that the trial

Court could pass judgment on admission

and pass a decree in the suit on its

own motion or on the application of the

parties but the Ld. Court below did not

take the cognizance of this fact and

abandon the claim of the defendant. It

is brought to the notice to this

Hon’ble Court had the trial Court below

did not apply its mind in view of the

provision of the Order XII Rule 6 of

CPC much before this the judgment could

be passed by the Court below and the

appellant /plaintiff could enjoy

substantial part of claim of the suit.

f) Because the Ld, trial court has not the

rate plain properly and without reading

the contents of the facts of the plaint

delivered the judgment. That in the

para no.____ of the plaintiff has

already admitted the facts that the

defendant has not threaten the

 plaintiff clearly but even though the

court on its own understanding has

narrated this fact in her judgment that

the plaintiff was threatened by the

defendant and in light of that fact a

delivered the decree in favour of

plaintiff for permanent injunction.

g) Because it is admitted that there was

no threats to the plaintiff from

defendant therefore, at the very

threshold the Ld, Court below should

have dismissed the suit of the

plaintiff on maintainability in view of

the admission of the plaintiff that

neither there is threats to her life or

to the property where she was under the

possession.

h) Because that later on in her deposition

she has stated that she was threatened

by the defendant No.4 which is sheer an

improvement in her statement before the

court to substantiate her claim over

 the property. Though she has also

stated that in the suit that the

defendant no.4 has simply asked for the

keys of the property as he was the

legal heirs of the deceased and

lawfully he is having the right and

tiled over the suit property therefore,

in the light of this it is apparent

that there was no reason at all for

instituting the suit and the entire

suit is based on the false averments of

the plaintiff therefore, the suit of

permanent injunction should have been

dismissed much before in view of this

facts and circumstances.

i) Because the Ld Trial court has not

framed the issues in the light of the

controversies existing between the

parties.

j) Because the Ld Trial court has not

applied its judicial mind while framing

the issues in this instant suit and

 framed the vague issues which are not

relevant to the suit at all.

k) Because the Ld Trial court should have

framed the following issues in the suit

relating to the real controversies

between the parties which have been

given as under:-

i. Weather the deceased Kamlesh Shukla

was abundand by his family for last

40 years before his death.

ii. Weather the plaintiff was in the

living relationship with the

deceased Late Kamlesh Shukla.

iii. Weather the plaintiff was in the

domestic relationship which Late

Sh. Kamlesh Shukla.

iv. Weather the property was

constructed at the expense of the

plaintiff.
 v. Weather there was any threats to

the property and life of the

plaintiff?

l) Because these issues were not framed

therefore for the want of the

settlement these issues the proper

adjudication of the suit was not

possible at all despite this facts the

court did not take the notice of this

facts and delivered the judgment

against the defendants.

m) Because the issues are the back-borne

of the suit over which the entire suit

is based unless these issues are framed

properly the court cannot reach at the

right conclusion. The issues framed in

the suit only suggest that on over

which point the evidence has to be

taken and what facts has to be

consider for deposition by the parties

and there witnesses.

n) Because the Ld Trial court has not

framed the specific issues at all and

 the issues framed are vague and

irrelevant therefore, the proper

adjudication of the suit was not

possible for the want of the same and

because of this several facts and

controversies of the suit remained

unjust and which were very much

important for the proper adjudication

and disposal of the suit.

o) Because the plaintiff has stated

herself that she was in the live in

relationship with the deceased but this

facts has not been proved by her in

her disposition as the same was

controvert-red by the defendant in his

the written statement and his

disposition therefore, the plaintiff

has failed to proved his case against

the defendant that she was live in

relationship with deceased and in the

light of this facts inference can

withdrawn easily that the plaintiff was

trespasser of the rest of the property

of the deceased as she has no status to

 hold the possession of the property of

ground floor, and first floor, of the

property

p) Because the plaintiff has also failed

to prove from any side that she was in

the domestic relationship with the

deceased by which she hold this

possession.

q) Because the entire question has to be

taken into consideration by the trial

court that weather the circumstances

were actually prevailing which prompted

the plaintiff to institute the case of

permanent injunction? That the Ld trial

court did not take the this question

sincerely and in the very light manner

without going into much inquiry of the

case pass a decree a permanent

injunction in favour of the plaintiff

and against the defendant.

r) Because for obtaining the decree of

permanent injunction the plaintiff has

to show three things to the court i.e.

 balance of convenience, prima facie

case and irreparable loss to the

plaintiff since the plaintiff has

failed to substantiate this fact

therefore, the plaintiff is not

entitled for the decree of the

permanent injunction.

s) Because this instant suit has been

instituted with the collusion of

defendant no.1 Karunesh Shukla who was

well known to the plaintiff as the same

has been admitted in her suit. She has

also admitted this facts that she was

introduce to Kamlesh Shukla by his

brother Karunesh Shukla she has also

admitted this facts the Karunesh Shukla

offend use to come at her residence

therefore, in the light of this facts

established that karunesh Shukla has

good aquatints with the plaintiff and

despite this fact Karunesh Shukla was

im-pleaded as defendant No.1 in the

suit. Surprisingly the defendant no.1

who was in collusion with the plaintiff

 did not file even his written statement

to dismiss the claim of the plaintiff

and did not participate in the

proceedings till end at all. In the

light of this fact it is clear that

instituting a case against the

defendant no.1 by the plaintiff was

just an eye wash as they were in

collusion. Infact Karunesh Shukla was

the real person before the entire game

who was playing behind the curtain.

Infact Karunesh is the real brother of

the deceased who wants to aquire the

property from his nephew Anshuman

Shukla who is the grandson of the

deceased Kamlesh Shukla.

t) Because the defendant no.1 does not

want to come forward for aqua-ring the

property therefore, he comes through

the plaintiff in the suit to mislead

and misguide the court.

u) Because there is no possibility of live

in relationship between the deceased

and the plaintiff as the plaintiff in

her plaint has clearly stated that when

she met the deceased Kamlesh Shukla in

the year 2006 he was suffering from

multiple health problem and always

remained sick. She further stated in

her plaint that he was over weight

around 150 K.g. in the light of her

submission since the plaintiff was only

36 knowingly that the deceased Kamlesh

Shukla was double her age and was

suffering from multiple health problem

and almost the deceased was most of the

time was bed ridden in view of this

facts there could not be possibility

that a girl of 34-35 will fall in law

with such a person like deceased.

Infact the plaintiff has got

information from Karunesh Shukla that

about the property and the status of

Kamlesh Shukla who was almost on verge

death therefore, to acquire his

property the plaintiff came in touch

with the deceased Kamlesh Shukla with

 the help of Karunesh Shukla her old

pal. In the light of this fact it is

very much clear that all was done and

said by the plaintiff was for the

purpose of acquiring the entire

property of the deceased Kamlesh

Shukla.

v) Because of the above mentioned reason

and circumstances and the

witness/plaintiff is not reliable at

all as she has stated falsely

everything in her plaint. That she was

in the live in relationship with the

deceased.

w) Because at the most she could be called

a kind hearted-lady/or lady having

compassion for the others. Besides that

at the most she could be called a kind

hearted neighbour/tenant but not the

spouse of the deceased.

x) Because in her plaint the plaintiff

nowhere stated emphatically that they

 were in live in relationship and did

not give the supporting document oral

or documentary evidence of the same.

y) Because the ld, court below did not

inquire into this facts as to why the

deceased Late Kamlesh Shukla executed

the document only of second floor if

any, and not the rest of the property

in favour of the plaintiff. Infact what

was the intention of the deceased that

he did not execute the document of the

entire property in favour of the

plaintiff. Since the intention of the

deceased was not to give the entire

property to the plaintiff therefore,

neither he executed a will of entire

property to the plaintiff nor executed

a gift in favour of the plaintiff of

entire property nor executed a sell

deed in favour of the plaintiff

therefore, in view of the above facts

and circumstances inference can be

drawn easily that the deceased Late

 Kamlesh Shukla has no intention to

handover the rest of the floor of the

property to the plaintiff accept second

floor as stated by the plaintiff.

z) Because the plaintiff has not cited

Tiwari a person/property dealer who had

managed this deal and with his help the

property was purchased by the deceased

Kamlesh Shukla. Infact he is the

protecnised of the entire suit who had

gotten the deal conform though he has

not been cited as a witness by the

plaintiff in this suit for injunction

where as he could be a very important

witness to this case.

aa) Because the plaintiff has not given

description of the expenses incurred in

the construction of the property since

this piece of evidence is missing

therefore, her claim regarding the

property is stale and fake cannot

relied upon. In the light of this facts

and circumstances it is apparent that

 the plaintiff is a trespasser of the

rest of the property which is in her

possession.

-:PRAYER:-

In view of the facts and

circumstances, it is most respectfully
prayed that this Hon'ble Court may kindly
be pleased to set aside the impugned
judgment /decree dated 28.02.2018 passed
by Ms. Namrita Aggarwal ACJ-CUM, RC:PHC:
New Delhi in Suit No.56849/2016 titled
as “Sandhya Joshi V/s Karunesh Shukla”
and to frame the issue and revert the
matter back to the trial court for proper
adjudication of the case by taking
evidence of the important witnesses to
this case in the interest of justice.

Any other and further order which

this Hon'ble Court may deem fit and
proper also be passed in favour of the
appellant, in the interest of justice.

DELHI PLAINTIFF/APPELLANTS

DATED:

THROUGH

SUBHASH CHANDRA VERMA

Advocate
IN THE COURT OF DISTT.& SESSION JUDGE,PATIALA
HOUSE COURTS DELHI

F.A.O.__________/2016

IN THE MATTER OF:-

ANSHUMAN SHUKLA & ANR. …APPELLANTS

VERSUS

SANDHYA JOSHI …RESPONDENT

AFFIDAVIT
I, Anshuman Shukla @ Chotu Shukla S/o Late
Sh. Ved Ashok Kumar Shukla R/o Village
Bishanpur Phulwaria, Thana Purandirpur, Block
Lakhsmipur, Tehsil Nutanwar, Distt
Maharajaganj, U.P. do hereby solemnly affirm
and declare as under:-
1.That the deponent is the appellants in the
above noted matter and is well conversant
with the facts and circumstances of the
case, hence is competent to swear this
affidavit.
2.That the contents of accompanying appeal
have been drafted by my counsel under my
instructions, the contents of the same have
been read over and explained to me in my
vernacular language in Hindi and the facts
are true and correct. The contents of the
same may be read as part and parcel of this
affidavit which are not being reproduced
herein for the sake of brevity.

DEPONENT
VERIFICATION:
Verified at Delhi on this ________,that
the contents of my above affidavit are true
and correct to the best of my knowledge &
belief and nothing has been concealed
therein.

DEPONENT
IN THE COURT OF DISTT.& SESSION JUDGE,PATIALA
HOUSE COURTS DELHI

F.A.O.__________/2016

IN THE MATTER OF:-

ANSHUMAN SHUKLA & ANR. …APPELLANTS

VERSUS

SANDHYA JOSHI …RESPONDENT

…RESPONDENT

APPLICATION FOR CONDONATION OF DELAY UNDER

SECTION 5 OF LIMITATION ACT ON BEHALF OF
APPELLANTS.

MOST RESPECTFULLY SHOWETH:-

1.That the applicants are the appellant in

the above mentioned case.

2.That the appellant is residing with his

family in village Phulwariya and engaged in
agricultural work for earning his
livelihood as the entire finical burden is
upon the shoulder of the appellant and
because of that he could not contact his
lawyer in time to know about the status of
the case nor the lawyer could contact him
because of missing of the phone number of
the appellant from his mobile.

3.That besides this it is stated that the

elder brother of the appellant is suffering
from mental derelevant and he is under
 treatment of nerou surgeon as is elder
brother is suffering from mental illness
most of the time he does abnormal
activities and needs the strict look
aftering by someone and only because of
this the appellant could not come to Delhi
from his village to contact his lawyer for
approaching this Hon’ble court for
preferring of appeal within the prescribed
time. Therefore there was a delay of 54
days for filling appeal since the order
dated 28.02.2018.

4.That the delay in filing the application

within time was neither intentional nor
deliberate but due to above said reasons.

PRAYER:-

It is, therefore, most respectfully

prayed that this Hon’ble Court may be pleased
to allow the condonation of delay of 54 days
in filing the accompanying case, in the
interest of justice.

…APPELLANTS
DELHI
DATED:
Through

SUBHASH CHANDRA VERMA

Advocate
IN THE COURT OF DISTT.& SESSION JUDGE,PATIALA
HOUSE COURTS DELHI

F.A.O.__________/2016

IN THE MATTER OF:-

ANSHUMAN SHUKLA & ANR. …APPELLANTS

VERSUS

SANDHYA JOSHI …RESPONDENT

AFFIDAVIT
I, Anshuman Shukla @ Chotu Shukla S/o Late
Sh. Ved Ashok Kumar Shukla R/o Village
Bishanpur Phulwaria, Thana Purandirpur, Block
Lakhsmipur, Tehsil Nutanwar, Distt
Maharajaganj, U.P. do hereby solemnly affirm
and declare as under:-
1.That the deponent is the appellants in
the above noted matter and is well
conversant with the facts and
circumstances of the case, hence is
competent to swear this affidavit.
2.That the contents of accompanying
application condonation of delay have
been drafted by my counsel under my
instructions, the contents of the same
have been read over and explained to me
in my vernacular language in Hindi and
the facts are true and correct. The
contents of the same may be read as part
and parcel of this affidavit which are
not being reproduced herein for the sake
of brevity.

DEPONENT
VERIFICATION:
Verified at Delhi on this ________,that
the contents of my above affidavit are true
and correct to the best of my knowledge &
belief and nothing has been concealed
therein.
DEPONENT
IN THE COURT OF DISTT.& SESSION JUDGE,SAKET
COURTS DELHI

IN THE MATTER OF:-

RAIS AHMED …APPELLANT

VERSUS

ALIYA BEGUM CHOUDHARY …RESPONDENT

AFFIDAVIT
I, Rais Ahmed S/o Late Sh. Bashir Ahmed R/o
FA-14B, Top Floor, Abdul Fazal Enclave, Part-
II, Shaheen Bagh, Jamia Nagar, Delhi-110025
do hereby solemnly affirm and declare as
under:-

1.That the deponent is the appellant in the

above noted matter and is well conversant
with the facts and circumstances of the
case, hence is competent to swear this
affidavit.
2.That the contents of accompanying appeal
have been drafted by my counsel under my
instructions, the contents of the same
have been read over and explained to me
in my vernacular language in Hindi and
the facts are true and correct. The
contents of the same may be read as part
and parcel of this affidavit which are
not being reproduced herein for the sake
of brevity.

DEPONENT
VERIFICATION:
Verified at Delhi on this ________, that
the contents of my above affidavit are true
and correct to the best of my knowledge &
belief and nothing has been concealed
therein.

DEPONENT