Y.K. Sabharwal, J.

1. This family litigation has a chequered history. In order to appreciate the controversy between the parties it is necessary to give a brief resume of past litigation, pending suits and the facts.

2. Lala Girdhar Lal was son of Lala Panna Lal. There was a Joint Hindu Family of Panna Lal Girdhar Lal which owned joint family business and properties. Lala Girdhar Lal had six sons, one of them being Bal Krishan Dass. Hari Krishan, Jai Krishan Dass, Brij Krishan, Chander Krishan and Avtar Krishan are sons of Bal Krishan Dass. Smt. Ram Kali Devi was wife of Bal Krishan Dass. Bal Krishan Dass had another son named Gopal Krishan. Bal Krishan Dass, Smt. Ram Kali Devi and Gopal Krishan Dass have since died. In the year 1961 Jai Krishan Dass and his two minor sons filed a suit in the Court of Senior Sub-judge, Delhi (Suit No. 317/61) claiming that they are members of Joint Hindu Family Panna Lal Girdhar Lal which owns Joint Family business and the properties as given in the said suit. It was claimed in the said suit that the plaintiffs were members of the said Joint Hindu Family of Panna Lal Girdhar Lal and as such were entitled to ashare in the joint family business and properties of the Joint Hindu Family, Later S. No, 317/61 was transferred to this Court and was registered as Suit. No: 154/67. This suit was dismissed by R.N. Aggarwal, J. in May 1979. The first appeal was also dismissed by the Division Bench and the appeal to Supreme Court was dismissed on 4th January 1984 (AIR 1984 SC 589 Mr. Jai Krishan & Ors.v. Nirmala Devi and Another).The Supreme Courthas observed that there was a general disruption of the Joint Hindu Family Panna Lal Girdhar Lal sometimes in the year 1941 or 1942. Thus the assertion of Jai Krishan Dass, about Joint Hindu Family of Pannalal Girdhar Lal now stands concluded.

3. On 1st April, 1976 three suits were filed by Hari Krishan, in this Court.

4. Suit No. 234/76 entitled Hari Krishan Gupta v. Bal Krishan Dasswas filed for dissolution and rendition of accounts of the partnership Mr. Bal Krishan Dass. It has been claimed in this suit, that the partnership was constituted under a deed dated 11th July,1960. Jai Krishan Dass is not a party in this suit. Two applications of Jai Krishan Dass (I.A. 2592/76 and I.A. 1364/(81) for being impleaded as party to the suit were dismissed.

5. In suit No. 235/79 entitled Hari Krishan Guptav. Jai Krishan Dass and Others, partition of Joint Hindu Family. headed by Bal Krishan Dass as a Karta was sought. Hari Krishan sought partition of Joint Family properties of smaller HUF headed by Bal Krishan Dass as a Karta. The HUF Panna Lal Girdhar Lal which was disrupted some time in the year 1941 or 1942 can be described as larger HUF. All the brothers were made parties to this suit No. 235/76. The father Bal Krishan Dass and mother Smt. Ram Kali Devi were also parties. Bal Krishan Dass and Smt. Ram Kali Devi died during the pendency of the suit as also one of the brother Gopal Krishan. On 17th May, 1979 in Suit No. 235/76 a preliminary decree was passed by N.N. Goswami J. in respect of the properties mentioned in the order dated 17th May 1979. The shares of the parties were declared. ,

6. In suit No. 236/76 entitled Hari Krishan v.Brij Krishan partition of Plot No. O-2, Mohan Cooperative Industrial Area, has been sought. Jai Kishan Dass is not a party in this suit as well.

7. Suit No. 754/79 has been filed by Smt. Uma Devi wife of Mr. Hari Krishan against Smt. Bimla Devi and others for partition of Joshi Road property. Smt. Bimla Devi and other defendants are wives of the other brothers. Neither Jar Krishan Dass nor his wife is party to this suit. In this suit a preliminary decree for partition was passed on 6th May. 1980. The application of Jai Krishan Dass for being impleaded as a party was dismissed by D.R. Khanna J. by order date 22nd January, 1982, By the said order Khanna J. dismissed various applications filed by Jai Krishan Dass in number of suits.

8. In Suit No. 127/80 Chander Krishan has sought partition of Patendon Road property. The suit has been filed against some of the brothers Jai Krishan Dass is nota party to the suit. A preliminary decree for partition was passed by R.N. Aggarwal on March 1980. In this suit also application of Jai Krishan Dass for being impleaded as a party was 4ismissed by the aforesaid order of Khanna J. dated 22.1.1982.

9. On 24th July, 1982 Suit No. 1007/82 was filed by Jai Krishan Dass for declaration and partition of joint family properties, business or other funds acquired by the joint family. This suit is in respect of a smaller HUF of Bal Krishan Dass. Bal Krishan Dass, Smt. Ram Kala Devi, all brothers of Jai Krishan Dass and their wives and the son and daughter of Gopal Krishan Dass, have been made defendants in the suit. It appears that Gopal Krishan Dass had expired before filing the suit. When this suit was filed by Jai Krishan Dass, his appeal against the judgment dismissing Suit No. 154/67, was pending in the Supreme Court (C.A. 717/81). In the plaint Jai Krishan Dass said that without prejudice to his contention in Suit No. 154/67 and C.A. No. 717/81 he was filing the Suit in order to protect his rights. As mentioned hereinbefore in Suit No. 154/67 and C.A. 717/81 Jai Krishan Dass was claiming that the properties belonged to the larger HUF Panna Lal Girdhar Lal. All the properties which are subject matter of Suit Nos. 234/76, 235/76, 236/76, 754/79 and Suit No. 127/80 have been included by Jai Krishan Dass in Suit No. 1007/82. As observed above, C.A. 717/81 was dismissed by the Supreme Court on 4.1.84 and the controversy regarding the larger Joint Hindu Family of Panna Lal Girdhar Lal stands concluded now. On 15.2.85 following issues were framed in this S. No. 1007/82.

1. Whether the plaint is properly valued for purposes of Court fees

2. Whether the suit is barred by limitation

3. Whether the suit is barred under Section 281A of the Income Tax Act

4. Whether the suit is barred as res judicata

5. Whether the properties subject matter of the suit are HUF

6. Relief.

10. Turning now to the applications filed in Suit No. 235/76, Jai Krishan Dass has filed I.A. 250/83, praying that the Court may order the framing of issues and direct the parties to lead evidence so that Court may give finding That the 15 properties mentioned in the application are the properties of Bal Krishan Dass, HUF and have to be partitioned along with the properties detailed in the Schedule annexed to the plaint in respect of which a preliminary decree dated 17th May, 1979 was passed. There is a controversy between the parties whether this application has been disposed of or is pending. By I.A. 300/83, Jai Krishan Dass prays that the proceedings in Suit Nos. 234 of 1976, 236 of 1976, 754/79 and 127/80 be stayed till the final disposal of Suit No. 235/76. By I.A. 2095/85 Jai Krishan Dass seeks an order against plaintiff Hari Krishan and other defendants of Suit No. 235/76 restraining them from dealing with the properties which are subject matter of the suit bearing Nos. 234 of 1976, 236/76, 754/79 and 127/80.

11. By I.A. 2640/82 in Suit No. 1007/82 again the prayer of the applicant Jai Krishan Dass is for stay of proceedings of Suit Nos. 234/76, 236/76, 754/79 and 127/80 and for consolidation of these four suits with Suit No. 235/76.

12. The circumstances which led to the filing of I.A. 250/83 are these: Mr. Hari Krishan has given details of the immovable properties of Joint Hindu Family of Bal Krishan Dass, HUF in Schedule A to the plaint. However, an averment has been made by Hari Krishan in the plaint that besides the properties mentioned in the said schedule there are other properties which are also owned by Joint Hindu Family. It is further averred in the plaint that the plaintiff is not aware of the particulars of all immovable and movable properties that are owned by Joint Hindu Family and on the particulars of other Joint Hindu family properties being ascertained, the said other properties be also partitioned. In the order dated 17th May, 1979, passing the preliminary decree it was observed that:

the parties will be free to make their submissions in respect of any other property of Bal Krishan Dass, HUF.

13. For nearly three years after passing of the preliminary decree, none of the parties moved any application or filed particulars of any such other property of Bal Krishan Dass, HUF. By orders made on 27th July, 1982, it was directed that each of the parties may submit their version of the existence of any other Bal Krishan Dass (HUF) properties within ten days. Jai Krishan Dass filed a list of additional properties. The other defendants did not file any such list. On 31st August 1982, it was stated by all parties except Jai Krishan Dass that there are no other joint family properties which have to be partitioned in the suit. By orders made on 9th December, 1982, Jai Krishan Dass was directed to move a self contained application showing how he claims 15 properties mentioned in the list to be joint family properties of Bal Krishan Dass. It was also observed in the order that after Jai Krishan Dass has filed the said application and plaintiff and other defendants had filed replies thereto it will be considered, how far further inquiry or investigation about the respective claims of the parties with regard to those properties should be embarked upon. This led to the filing of I.A. 250/83.

14. A detail reply to I.A. 250/83 was filed by Hari Krishan Dass. In the reply Hari Krishan Dass has raised various preliminary objections. It has been, inter alia pleaded that there are no pleadings and that there can be no framing of issues when there is neither pleading nor party. The objection with regard to the parties was taken because the persons in whose names the properties stood were not parties to Suit No. 235/76, though Jai Krishan Dass was seeking partition in respect of the said properties in his I.A. 250/83 claiming that those properties belonged to Bal Krishan Dass, HUF With regard to observation in the preliminary decree dated 17th May, 1979 That parties will be free to make submissions in respect of any other property of Bal Krishan Dass, HUF, Hari Krishan Dass pleaded in his reply that Jai Krishan Dass was making that submission in Suit No. 1007/82 and that there could not be two proceedings for the same matter. It was also pleaded that prayer made in I.A. 250/83 was subsequent in point of time than Suit No. 1007/82. The plea was that Jai Krishan Dass having filed Suit No. 1007/82 in respect of same properties could not maintain I.A. 250/83 as the properties were same. On 15.2.85 in Suit No. 235/76 the following issue was framed:

Whether the properties detailed in the list submitted by defendant No. 1 belong to Bal Krishan Dass (HUF)

and the following order was passed :

It is pointed out that there are various other parties which are arrayed as plaintiffs and defendants in Suit No. 1007/82 and those parties shall also be interested in the decision of this issue. It is further submitted that all the concerned parties who are interested in the decision of this issue are those which are the parties of Suit No. 1007/ 82. So, for the limited purpose of decision of this issue alone, this suit is consolidated with Suit No. 1007/82. No. The issues which might be framed in Suit No. 1007/82 including the issue of limitation shall stand intact and shall be decided separately in that suit and the decision of the issue framed today shall be subject to the decision of the issues in Suit No. 1007/82. Now, the matter be listed before the Deputy Registrar on 25.2.85 for giving dates of evidence in respect of the above issue.

15. Hari Krishan Dass has filed I.A. 6287/86 praying for deletion of the aforesaid issue.

16. It is contended on behalf of Jai Krishan Dass that on framing of the aforesaid issue and passing of the aforesaid order, I.A. 250/83 stands disposed of. On the other hand, it is contended on behalf of Hari Krishan Dass that the said application has not been disposed of by Court on 15.2.85 and is pending.

17. Mr. Arun Mohan, learned Counsel for Hari Krishan Dass submits that order does not either state or show either expressly or impliedly, that the I.A. 250/83 has been disposed of. Learned Counsel submits that the order does not show that various objections raised in reply to I.A. 250/83 have been dealt with or that the said objections were decided against Hari Krishan. Counsel further submits that only from framing of issue, it cannot be inferred that the Court has disposed of the application. The contention of Mr. Arun Mohan cannot be accepted in its entirety. Mr. D.D. Thakur, learned Counsel for Jai Krishan Dass is right in his submission that the fact of framing issue shows that the Court has impliedly overruled objection of Hari Krishan Dass that there are no pleadings and as such issue cannot be framed. From order dated 15.2.85 it is also clear that the Court was conscious of the fact that, all the parties interested in decision of the issue, were not parties in Suit No. 235/76, though all concerned parties who were interested in the decision of the issue were parties in Suit No. 1007/82. It is for this reason that, for the limited purpose of the decision of the issue framed on the said date, S. No. 235/76 was ordered to be consolidated with Suit No. 1007/82. With regard to the objection that all interested or concerned persons were not parties in Suit No. 235/76 and, therefore, issue could not be framed, it may be noticed that by orders made on 23rd August, 1985, all such persons have been impleaded as parties in Suit No. 235/76.

18. The Court was also conscious of the other objections raised by Hari Krishan Dass and that appears to be the reason for the order that the issues which might be framed in Suit No. 1007/82, including the issue of limitation shall stand intact and shall be decided separately in that Suit (S. No. 1007/82) and decision of issue framed in Suit No. 235/76 shall be subject to decision of issues in Suit No. 1007/82. Issue of Court fee is one of the issues framed in Suit No. 1007/82. It cannot be ignored that both in Suit No. 1007/82 and Suit No. 235/76 issues were framed on the same date i.e. 15.2.85 and by the same Judge.

19. In I.A. 250/83 one of the prayers of Jai Krishan Dass was the framing of the issue. The issue having been framed the application to that extent stood disposed of. The other prayer of Jai Krishan Dass was that the Court may give a finding that the properties mentioned in the application are the properties of Bal Krishan Dass, HUF and are to be partitioned along with the properties detailed in Schedule annexed to the plaint in respect of which preliminary decree dated 17.5.79 was passed. That part of the prayer was not and could not have been granted on 15.2.85 as the parties were granted opportunity to lead evidence on the said aspect. Certain objections like objections regarding limitation and Court fee were raised by Hari Krishan Dass both in written statement of Suit No. 1007/82 and in reply to I.A. 250/3. Those objections were kept intact and that is why it was directed that decision of issue in Suit No. 250/83 will be subject to decision of issued framed in Suit No. 1007/82. In view of the above, the application stood partly disposed of on framing of the issue but as there was no decision on the other prayers, the application to that extent, is pending. If the prayer for framing of issues had been declined the position would have been different because in lat eventuality the question of considering the second prayer would not have risen.

20. Mr. Arun Mohan, learned Counsel for Hari Krishan Dass contended that, in any case, the issue framed on 15.2.85 does not arise from the pleadings and as such it is liable to be deleted as prayed in I.A. 6287/86. In support of his contention that only such issues can be framed of which arise from the pleadings f the parties, learned Counsel has referred to various provision of Code of Civil Procedure. It is also contended that the application is not a pleading as contemplated by Order 14, Rule 3, CPC. The contention in short, was that without amendment of the written statement, issue could not have been framed. In view of my conclusion as mentioned hereinbefore that this objection was impliedly overruled by framing of issue, it is not necessary to pronounce on the contention of Mr. Arun Mohan. The issue was framed on an application of Jai Krishan Dass which application was resisted byHari Krishan Dass. When the Court accepts the application and rejects the contention of Hari Krishan Dass that on the pleadings the issue does not arise it is not open to Hari Krishan Dass to again file an application praying that the issue be deleted as it does not arise from the pleadings and again agitate the same Objection which was earlier rejected though impliedly by considering the prayer made In I.A. 6287/86 and the submissions made Mr. Arun Mohan in support of the said application, in my view, a distinction has to be kept in mind in a case where issues are framed without by objection in respect of the pleadings and in a case where after rejecting the prayer that there are no pleadings, the issues are framed on a substantive application filed by one of the parties for the said purpose. In the first case, he Court would be justified in deleting the issue if it comes to the conclusion that it does not arise from the pleadings of the parties. In the second case I am afraid the position will have to be somewhat different. In the second case the aggrieved party, if permissible in law, may apply for the review of the order allowing the application of the opposite party and framing the issues in the same proceedings and on the same grounds byindirect method of filing application under Order 14 Rule 5, CPC. Some finality has to be attached to the order passed on the same subject lest it may lead to chaos and different conflicting orders. The application for deletion (I.A. 6287/87) falls under the second category. The grant of prayer made in this application would amount to review of the order dated 15.2.85. No application for review has been filed. The grounds on which Hari Krishan Dass claims deletion of the issue are same which were put forth by him while opposing framing of issue as prayed in I.A. 250/83.The legal decorum and propriety does not permit me to hold that the Court wrongly overruled. Hari Krishans objections and framed the issue. The order dated 15.2.85, If at all, can be altered only on review and not by the indirect method while dealing with Hari Krishan Dasss applications under Order 14 Rule 5 for striking of the issue. In view of this conclusion it is not necessary to consider the contention of Mr. Arun Mohan based on various provisions of CPC and judgments cited in support thereof that the issue framed on 15.2.85 could not have been framed. Consequently, I.A. 6287/86 filed by Hari Krishan Dass is dismissed. Insofar as I.A. 250/83 is concerned, I hold that it was partly disposed of on 15.2.85 and the remaining part cannot be disposed of at this stage and will have to be considered after the parties have had opportunity to lead evidence.

21. This takes me to I.As. 300/83 and 2095/85. The question in both these applications is whether Jai Krishan Dass has made out any case for stay of proceedings in Suit No. 234/76, Suit Nos. 236/76, 754/79 and 127/80 till the disposal of S. No. 235/76 and is he entitled to an order of injunction against Hari Krishan Dass and others restraining them from dealing with the properties which are subject matter of these four suits.

22. Relying on judgment of Supreme Court in Manohar Lal Choprav. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 [LQ/SC/1961/365] , I.A. 2095/85 was dismissed by Jagdish Chandra J. by orders made on March 24, 1986. However, with consent of parties the order dated 24th March, 1986 was set aside by Division Bench, in appeal, FAO (OS) 151 of 1986, entitled Jai Krishan Dassv. Hari Krishan Gupta.decided on February 18, 1987 and the case was remanded for fresh determination of I.A. 2095/85.

23. In Manohar Lals case, the Supreme Court while holding that the Courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provision of Order 39, C.P.C.. if the Court is of the opinion That interests of justice requires the issue of such interim injunction, further opined That:

The inherent powers are to be exercised by the Court in very exceptional circumstances for which the Code lays down no procedure.

The question of issuing an order to a party restraining him from proceeding with any other suit in a regularly constituted Court of law deserves great care and consideration and such an order is not to be made unless absolutely essential for the ends of justice.

24. The Supreme Court also opined that where a party claims the interference of the Court to stop another action between the same parties, it lies upon him to show to the Court that the multiplicity of actions is vexatious and that the whole burden of proof lies upon him. He does not satisfy that burden of proof by merely showing that there is a multiplicity of actions, he must go further.

25. This takes me to the question whether on facts Jai Krishan Dass has been able to make out a case that orders sought for by him in I.A. 300/83 and I.A. 2095/85 are absolutely essential for the ends of justice and whether he has been able to discharge the burden of proof placed on him. The question would also be whether Jai Krishan Dass has Prima facie case in his favour.

26. As noticed in earlier part of this order Jai Krishan Dass is not a party in any of the four suits of which he seeks stay and order of injunction restraining parties of the said suits from dealing with the properties subject matter of those suits. Application for being impleaded as party were filed by Jai Krishan Dass in three out of the four suits and the said applications were dismissed from time-to-time. In Suit No. 236/76 Jai Krishan Dass did not make an application for being impleaded as a party. In Suit No. 754/79 which relates to Joshi Road property a preliminary decree was passed as far back as on 6th May, 1980. Likewise, in Suit No. 127/80 which relates to Ratendon Road property a preliminary decree was passed in March, 1980. In this background, I have to consider the claim of Jai Krishan Dass That the properties subject matter of Suit Nos. 234, 236/76, 754/79 and 127/80 are Prima facie HUF properties of Bal Krishan Dass.

27. From the averments made by Jai Kirshan Dass himself, it is apparent, That the properties subject matter of the four suits about which relief is being claimed now, were acquired by persons in whose name the properties stand, more than 12 years before the filing of either I.A. No. 250/83 or the list of the properties by Jai Krishan Dass in Suit No. 235/76. The Joshi Road property which is subject matter of Suit No. 754/79, on the own showing of Jai Krishan Dass, was purchased in the year 1957 in the names of Smt. Uma Devi w/o Hari Krishan Dass, Bimla Devi w/o Mr. Brij Krishan Dass, and Shiela Devi W/o Chander Krishan, Smt. Swarana Gupta W/o Avtar Krishan and Jaswanti Devi W/o Late Gopal Krishan Dass. Likewise, for plot No. O-2, Mohan Cooperative Industrial Area which is subject matter of Suit No. 236/76, payments were made in the year 1963 and it was purchased in the year 1970. The Ratendon Road property, which is subject matter of Suit No. 127/80 was purchased and payments made in the year 1971. The partnership Mr. Bal Krishan Dass, which is subject matter of Suit No. 234/76, was constituted under the deed of partnership of the year 1960. Admittedly, the documents of title in respect of all these properties are in the individual names of the concerned persons it is also not the case of Jai Krishan Dass that he is in any manner in actual physical possession of these properties. The assessments in respect of the properties have been made in the names of the individuals in whose name the properties stand. None of the said properties have been assessed as HUF propertier. Jai Krishan Dass claims That the persons in whose name the properties stand are benami owners and in facts the properties are owned by HUF. For this, main reliance of Jai Krishan Dass is on the amounts paid by cheques. The payment of the amounts have been made from either the personal account of persons or debited to the personal account in the account books of the partnership.

28. Apart from the facts mentioned hereinbefore there is another aspect namely that has there been litigation between the parties since the year 1961 Jai Krishan Dass has been appearing and contesting all litigations. It is not his case that he did not know that the properties subject matter of these four suits are being claimed by the individuals in whose names the properties stand. It is neither claimed nor can it be claimed that Jai Krishan Dass did not know about the pendency of these four suits. The claim of these properties being HUF was put forth by him for the first time when I.A. 250/83 was filed or at best on 6th August 1982, when for the first time, list of additional properties was filed in Suit No. 235/76. Before the filing of the list of additional properties or I.A. 250/83 Jai Krishan Dass had already filed a substantive suit (S. No. 1007/82) on 24th July, 1982, seeking partition of same properties. Besides the aforesaid factual aspects Prima facie, claim of Jai Krishan Dass will be barred by law of limitation. The issue framed on 15th February, 1985 in Suit No. 235/76 is subject to the issues framed is Suit No. 1007/82. In Suit No. 1007/82 issue of limitation is one of the issues. The claim of the properties being held Benami, Prima facie, will be barred by Benami Transactions (Prohibition) Act, 1988 (Act No. 45 of 1988), which not only prohibits the right to recover property held Benami but also prohibits a defence based on any right in respect of any property held Benami.

29. All the four suits are almost at final stages and any order made at this stage would embarrass and delay the disposal of the said suits. Except in Suit No. 236/76 preliminary decrees have been passed in all suits Jai Krishan Dass, in my view, has failed to establish any Prima facie case for stay of any of the said four suits till decision of Suit No. 235/76. Jai Krishan Dass has also failed to establish any Prima facie case so as to restrain parties from dealing with the properties subject matter of the said suits and/or restraining the said parties from prosecuting the said suits and/or seeking partition, dissolution, etc of the properties or selling the same in execution of the decrees which may be passed in the said four suits. Jai Krishan Dass has failed to discharge the burden placed upon him that the multiplicity of action is vexatious. In my view Benami, Prima facie, Jai Krishan Dass himself is responsible for multiplicity of actions. Under no circumstances, it can be said that the order sought for by Jai Krishan Dass is essential for the ends of justice. On the contrary, grant of the order will defeat the ends of justice. For the reasons aforesaid, I.A. 300/83 and 2095/85 are dismissed.

30. The prayer made in I.A. 2640 of 1982 in Suit No. 1007/82 is substantially the same as the prayer in I.A. 300/83 and 2095/85. In this I.A. the prayer again is for stay of proceedings of Suit No. 234 and 236 of 1976, Suit No. 754/79 and Suit No. 127/80. The aforesaid reasons will also govern I.A. 2640/82. It is also not possible to consolidate Suit No. 1007/82 with aforesaid four suits as it will embarass the trial and disposal of the four suits which, as observed earlier, are at final stages and in 3 of the four suits even preliminary decrees have been passed. Thus, I.A. 2640/82 is also dismissed.

31. The opinion expressed in this order is Prima facie and will not affect the merits of controversy between the parties.

32. Consequently, these applications I.A. Nos. 300/83 and I.A. 2095/85 in Suit No. 235/76 and I.A. 2640/82 in Suit No. 1007/85 of Jai Krishan Dass are dismissed. The application of Hari Krishan (I.A. 6287/86) is also dismissed. I.A. 250/83, to the extent indicated in this order will remain pending. Hari Krishan will be entitled to costs of these applications. Counsels fee Rs. 5,000.