Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on:08.08.2025
Judgment pronounced on: 18.08.2025
+ FAO(OS) 75/2025, CM APPL. 39144/2025, CM APPL.
39145/2025 and CM APPL. 39147/2025
SURENDRA MOHAN TARUN (DECEASED) THR LR
SURAJ SAXENA .....Appellant
Through: Mr. Udit Arora, Advocate for
LRs.
versus
SARABJIT SINGH .....Respondent
Through: Mr. Nishant Datta, Mr. Chirag
Rathi, Mr. Kunal Sejwal, Mr.
Dipesh Kashyap and Mr.
Yatharth Rathi, Advocates.
+ FAO(OS) 60/2025, CM APPL. 30674/2025, CM APPL.
30675/2025, CM APPL. 30676/2025 and CM APPL.
30677/2025
SHRI SURAJ SAXENA .....Appellant
Through: Mr. Aatreya Singh, Adv.
versus
SHRI SARABJIT SINGH .....Respondent
Through: Mr. Nishant Datta, Mr. Chirag
Rathi, Mr. Kunal Sejwal, Mr.
Dipesh Kashyap and Mr.
Yatharth Rathi, Advocates.
CORAM:
HON'BLE MR. JUSTICE ANIL KSHETARPAL
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN
SHANKAR
J U D G M E N T
ANIL KSHETARPAL, J.
1. With the consent of the learned counsel representing the parties,
Signature Not Verified
FAO(OS)75/2025 & Connected matter Page 1 of 8
Signed By:JAI
NARAYAN
Signing Date:18.08.2025
12:16:45
two appeals, being FAO(OS) 60/2025 and FAO(OS)75/2025, which
arise from two interlocutory orders in CS (OS) No. 1418/2010
captioned as Sarabjit Singh vs Surendra Mohan Tarun , shall stand
disposed of by this Judgement.
2. In FAO (OS) 60/2025 , the Appellant has filed the appeal under
1
Section 104 read with Order XLIII of Code of Civil Procedure, 1908
assailing the Order dated 09.08.2023 passed by the learned Single
Judge appointing a Receiver to take over possession and management
2
of the property being C-9, Gulmohar Park, New Delhi-110049 ,
particularly in view of the fact that name plate of the counsel
representing the deceased Defendant, namely, Sh. Suraj Saxena
(Appellant herein) was found at the entrance of the suit property.
Additionally, there was a violation of the undertaking by the
Defendant, who had promised not to carry out any construction or part
with possession of the suit property.
3. In FAO (OS) 75/2025 , the Appellant assails the Order dated
07.10.2024 passed by the learned Single Judge in R.A. No. 314/2023,
wherein review filed by the Appellant against the Order dated
09.08.2023, was dismissed.
4. The cause title of FAO (OS) 75/2025 shows Late Sh. Surendra
Mohan Tarun through Sh. Suraj Saxena as Appellant. However, the
learned Counsel representing the Appellant submits that Sh. Suraj
Saxena, a practising advocate, is himself the Appellant, and he has
filed an application seeking permission to amend the cause title.
1
Hereinafter referred to as “CPC”
2
Hereinafter referred to as “Suit property”
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Signed By:JAI
NARAYAN
Signing Date:18.08.2025
12:16:45
FACTUAL MATRIX
5. Be that as it may, in order to comprehend the issues involved in
the present case, relevant facts in brief are required to be noticed.
5.1 The Respondent/Sh. Sarabjit Singh filed a suit, being CS (OS)
No. 1418/2010, as a Plaintiff for possession, permanent injunction and
mesne profits in the year 2010. He claims that the Defendant/Late Sh.
Surendra Mohan Tarun sold the suit property on receipt of valuable
consideration in his favour, in the year 1982. On 15.03.1982, the
Defendant/Sh. Surendra Mohan Tarun, accordingly, executed an
Agreement to Sell, a General Power of Attorney, a Possession Letter,
an affidavit, a receipt and a registered Will, all dated 15.03.1982, in
his favour, besides handing over the original title documents.
5.2 Up until the riots of 1984, the Plaintiff/Respondent herein used
to reside/visit the suit property frequently; however, subsequent
thereto, the Plaintiff/Respondent herein appointed two caretakers for
the suit property. The caretakers were permitted to use the property
along with their family members and to take care and clean the
property.
5.3 In the year 2009, the deceased Defendant/Late Sh. Surendra
Mohan Tarun forcibly took possession of the suit property in the
absence of the Plaintiff, compelling the Plaintiff to file the suit. The
Defendant claimed that he did not execute the documents and
continues to be the owner of the property.
5.4 On 02.08.2011, while an application under Order XXXIX, Rule
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Signed By:JAI
NARAYAN
Signing Date:18.08.2025
12:16:45
1 and 2 of the CPC filed by the Plaintiff was under consideration, the
Defendant undertook not to carry out any construction on the suit
property or part with the possession to create a third-party interest.
However, on 16.11.2021, the Defendant/Sh. Surendra Mohan Tarun
passed away.
5.5 In January 2022, the Plaintiff/Respondent noticed that the suit
premises had a name plate of the Defendant’s counsel, namely, Sh.
Suraj Saxena, and of a Trust, namely, Basant Ram Shanti Devi
Charitable Trust. It was also noticed that construction had been carried
out in violation of the undertaking.
5.6 Consequently, two applications, being I.A. No. 3209/2022 and
I.A. No. 3210/2022, seeking appointment of a Receiver and ad-interim
injunction in respect of the suit property, respectively, were filed.
5.7 On 09.08.2023, after considering all aspects of the matter, it
was considered appropriate to appoint a Receiver to take over
possession of the suit property because it was found that there are
three sets of Claimants, who are now claiming the property from the
original Defendant, who has died during pendency of the suit. The
first set of claimants is the alleged Class II heirs of the Defendant, the
second set comprises Ms. K. Jeevan Rita Murthy (who is not a party
to the Original Suit), a domestic help and legatee under the alleged
Will executed by the deceased Defendant, and the third claimant is the
Appellant/Sh. Suraj Saxena, counsel who was representing the
Defendant in the present litigation.
5.8 Notably, the alleged Class II heirs did not object to the
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Signed By:JAI
NARAYAN
Signing Date:18.08.2025
12:16:45
appointment of a Receiver. Ms. Murthy claims that she is residing at
the suit property; however, statements made by her before the Police
indicate otherwise, that she resides with her family at a property
bearing No. 1l7A, Arjun Nagar, Safdarjang Enclave, New Delhi.
5.9 A review petition bearing R.A. No. 314/2023 was filed seeking
to recall the Order dated 09.08.2023. Vide Order dated 07.10.2024, the
said review petition was dismissed by holding that the Court cannot
render a finding of ownership in favour of the Applicant/Appellant in
a review petition with liberty to resort to appropriate remedies in law
or to contest the suit.
SUBMISSIONS OF THE PARTIES
6. The Appellant/Sh. Suraj Saxena claims that the Late Sh.
Surendra Mohan Tarun bequeathed immovable property in his favour
vide registered Will dated 15.05.2021, which was followed by a
registered Codicil dated 07.08.2021, whereas moveable property was
bequeathed in favour of M/s Basant Ram Shanti Devi Charitable trust.
7. Learned counsel representing the Appellant has submitted that
the Court has travelled beyond pleadings in the application while
appointing a Receiver. The Appellant is deprived of the de facto
possession of the property. The Court has also not followed the five
well-known tests laid, namely, “ panch sadachar” laid down by the
Courts correctly, before appointing a Receiver.
8. Per contra, the learned counsel representing the Respondent
submits that the Appellant has never been in possession of the suit
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Signed By:JAI
NARAYAN
Signing Date:18.08.2025
12:16:45
property and has no ownership rights over it. Merely his name plate
has been put up outside the property. He further submits that the suit
property is likely to be damaged, and the conduct of the Appellant
proves that he did not honour his undertaking.
ANALYSIS
9. This Court has considered the submissions of the parties and
carefully perused the material on record.
10. The Respondent has claimed that the person claiming to be in
possession of the suit property is neither related nor authorised by the
Defendant. It has been disclosed that the Late Sh. Surendra Mohan
Tarun was unmarried and did not have any legal heirs. Moreover, the
original documents produced by the Respondent/Plaintiff have
undergone forensic examination and have been found to be genuine.
11. It is undisputed that there is a violation of the undertaking dated
02.08.2011, whereby it was expressly agreed that no third-party rights
would be created in respect of the property. In such circumstances,
there is no substance in the first submission of learned counsel
representing the Appellant.
12. It is evident that the Appellant is proved not to be in settled
possession. The Court has recorded that three sets of the Claimants
claim the suit property, wherein one set, being Class II Heirs, has not
disputed the appointment of the Receiver. The claim of the second set,
i.e., Smt. K. Jeevan Rita Murthy to the effect that she is in possession,
is contrary to her statement before the Police. Furthermore, the third
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Signed By:JAI
NARAYAN
Signing Date:18.08.2025
12:16:45
set comprising the Appellant, has failed to prove possession, inasmuch
as the list of articles belonging to the deceased Defendant, as filed by
him, does not demonstrate or establish possession of the suit property.
13. With regard to the last submission, it be noted that in paragraph
No.10 of the Order dated 09.08.2023, the Court applied the five tests,
which are normally referred to as “ panch sadachar” , and the Court
found that the Plaintiff has successfully made out a case for
appointment of a Receiver with respect to the suit property.
14. Interference in interlocutory orders passed by the Court of first
instance is not appropriate in the Appellate Forum, unless the Order
suffers from material irregularity or perversity. If the Order has been
passed by the Court while exercising discretion, the Appellate Court
normally would not interfere in the same unless the cause of justice
suffers.
15. In this case, by appointing a Receiver, the cause of justice has
been served because the Appellant, at the cost of repetition, claims
that his client (Defendant) executed a Will in his favour. The
Appellant was representing the Defendant in this litigation.
16. The lawyers practising in the Court are considered Officers of
the Court, who are expected to help the Courts in advancing the cause
of justice, while ensuring justice for the poor, downtrodden and
deprived. There is a big responsibility on the shoulders of practising
advocates to maintain the grace and reputation of the institution. They
are not expected to claim the interest in the property left behind by
their clients.
Signature Not Verified
FAO(OS)75/2025 & Connected matter Page 7 of 8
Signed By:JAI
NARAYAN
Signing Date:18.08.2025
12:16:45
17. In view of the foregoing discussion, both the Appeals lack merit
and are hence dismissed.
18. The present Appeals, along with pending applications, are
disposed of.
ANIL KSHETARPAL, J.
HARISH VAIDYANATHAN SHANKAR, J.
AUGUST 18, 2025 /sg/er
Signature Not Verified
FAO(OS)75/2025 & Connected matter Page 8 of 8
Signed By:JAI
NARAYAN
Signing Date:18.08.2025
12:16:45