Delhi High Court
Mukesh Khurana vs Rahul Chaudhary on 21 May, 2026
Author: Amit Sharma
Bench: Amit Sharma
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 15th April, 2026
Pronounced on: 21st May, 2026
+ TR.P.(C.) 50/2025 & CM APPL. 19171/2025
MUKESH KHURANA .....Petitioner
Through: Mr. Akshat Gupta, Ms. Sakshi
Tikmany and Mr. Madhav Aggarwal,
Advocates.
versus
RAHUL CHAUDHARY .....Respondent
Through: Mr. Lalit Gupta, Mr. Vikram Singh
Dalal, Ms. Ishita Nautiyal, Mr. Satvik
Sharma and Ms. Pooja Sharma,
Advocates.
CORAM:
HON'BLE MR. JUSTICE AMIT SHARMA
JUDGMENT
AMIT SHARMA, J.
1. The present petition under Section 24 of the Civil Procedure Code,
1908, (for short, ‘CPC‘) seeks the following prayers: –
“A. Direct that the Suit bearing CS No. 523 of 2022 titled “Rahul
Chaudhary v. Mukesh Khurana” be transferred from the court of the Ld.
Additional District Judge-03, Patiala House Courts, New Delhi, to the
Original Side of this Hon’ble Court; andB. Any other order(s) that this Hon’ble Court may deem fit and necessary
in the interest of justice.”
2. By way of the present petition, petitioner seeks transfer of the subject
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suit, CS No.523 of 2022, titled as, “Rahul Chaudhary v. Mukesh Khurana”
instituted and pending before the Court of learned Additional District Judge-
03, Patiala House Courts, New Delhi, to the Ordinary Original Civil
Jurisdiction of this Court. It is the case of the petitioner that subject suit was
instituted on behalf of the respondent against the petitioner, inter alia, seeking
possession of the suit property, i.e., Side Portion of Farm No.10, Ram Mandir
Road, Vasant Kunj, New Delhi, and recovery of arrears of rent,
damages/mesne profits along with interest.
3. As per the averments made in the present petition, the petitioner had
preferred an application under Section 8 of the Arbitration and Conciliation
Act, 1996, (for short, ‘A&C Act’) seeking reference of the subject suit to
arbitration, which was dismissed by the learned Trial Court vide order dated
29.04.2024. The said order was challenged by the petitioner by way of FAO
No. 200/2024 under Section 37 of the A&C Act before this Court, which was
also dismissed vide order dated 09.07.2024. The said order was further
challenged by way of SLP No.23980/2024, which was also dismissed by
Hon’ble Supreme Court vide order dated 18.02.2025.
4. Petitioner filed a counter-claim being Counter-Claim No.44/2023 in the
subject suit for declaration of the oral agreement of collaboration between the
petitioner-counter claimant and respondent-defendant (in subject suit) for
redevelopment of “Khurana Farm No.10” situated at the Side Portion of Farm
No.10, Ram Mandir Road, Vasant Kunj, New Delhi, (suit property) as also
for specific performance thereof, and alternatively, for damages. Alongwith
the aforesaid counter-claim filed by the petitioner herein, an application under
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Order VII Rule 10 read with Section 151 of the CPC seeking return of the
plaint to the respondent to be presented before this Court was also filed as the
combined pecuniary jurisdiction of the subject suit and the counter-claim
exceeded the pecuniary jurisdiction of the learned Trial Court.
5. It is the case of the petitioner that the latter’s counter-claim was
delayed as no notice/summons had been issued by the learned Trial Court
although it was filed on 11.12.2023, and on account of the same, the
petitioner preferred an application under Order VII Rule 10 read with Section
151 of the CPC before the learned Trial Court on 10.03.2025 seeking
return/withdrawal of the counter-claim filed on his behalf with liberty to be
presented before the Court of competent jurisdiction. The aforesaid
application was allowed by the learned Trial Court vide order dated
25.03.2025.
6. In pursuance thereof, the petitioner instituted suit, CS(OS) No.
208/2025, before Ordinary Original Civil Jurisdiction of this Court on
01.04.2025 on the same sets of facts and cause of action seeking same reliefs
as sought in his Counter-Claim and the same is pending adjudication since
then.
7. The present petition also states that the petitioner had also preferred an
application, IA No.408 of 2025, under Section 151 of the CPC, inter alia,
seeking direction that the aforesaid suit, CS(OS) No. 208/2025, be
adjudicated and tried together alongwith the subject suit. It is averred in the
present petition that for the grant of this relief, it was necessary and proper
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that this Court should first direct transfer of the subject suit from the learned
ADJ, Patiala House Courts, to this Court, and therefore, the present petition is
filed.
8. Learned counsel appearing on behalf of the petitioner submits that the
present petition ought to be allowed as the subject matter of the subject suit
and CS(OS) No. 208/2025 is the same, i.e., the suit property and the two suits
are in the nature of cross-suits/claims, and therefore, both ought to be heard
and tried together and disposed of together by way of common judgment.
9. Per contra, learned counsel appearing on behalf of the respondent has
submitted that the present petition is gross abuse of the process of Court, and
has been filed with ulterior motive of delaying the proceedings and harassing
the respondent. It is submitted that the nature of the two suits are completely
different inasmuch as the subject suit, filed by the respondent, is based on
previous landlord and tenant relationship, which is an admitted fact and no
evidence is required for the same. It is thus submitted that the nature and
extent of enquiry necessary in the subject suit filed by the respondent is
limited and would not overlap with the evidence to be led in the suit filed by
the petitioner. It is further submitted that, during the pendency of the present
petition, an application under Order XII Rule 6 of the CPC filed by the
respondent in the subject suit has already been allowed vide
order/judgment/decree dated 24.04.2025, and a decree of possession has
already been passed in favour of the respondent. It is further submitted that,
by way of the said decree, to a large extent arrears of rent have already been
received by the respondent.
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10. Further, to demonstrate that the extent of evidence and nature of issues,
which may arise in the two suits are completely different, the following points
have been highlighted by learned counsel for the respondent in the reply filed
to the present petition: –
“a) In his Suit filed before this Hon’ble Court, the Petitioner has
propounded merely an oral collaboration contract/ agreement, allegedly
entered into on/ around 25.07.2012 (Please see Para 10.3, Page 19).
b) That in order to succeed in his Suit, the Petitioner will have to prove
multiple issues and facts.
c) Very heavy burden will lie upon the Petitioner to prove the mere
existence of any oral collaboration contract/ agreement.
d) That whether the Suit of the Petitioner is within limitation will also be a
big issue in which the Petitioner needs to succeed, given the fact that the
Petitioner has filed his Suit vide Plaint dated 24.03.2025, in respect of oral
collaboration contract/ agreement, allegedly entered into on/ around
25.07.2012 (after almost 13 years). No such issues arise in the Suit filed
by the Respondent.
e) It is relevant to point out that the Petitioner has filed his Suit claiming
multiple reliefs of declaration, specific performance, recovery and
injunction, limitation whereof is three (3) years.”
11. Similarly, it is pointed out that both suits are at different stages in the
following manner: –
“a) The Suit filed by Petitioner has just started and is at the very initial
stage. The Suit filed by Petitioner being CS (OS) No. 208 of 2025 titled
“Mukesh Khurana vs. Rahul Chaudhary” is listed before the Ld. Joint
Registrar on 17.09.2025 for completion of pleadings. True copy of
relevant orders passed in CS (OS) No. 208 of 2025 is annexed herewith as
Annexure-R1.
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b) In the Suit filed by Respondent, decree for possession has already been
passed. The Suit filed by Respondent for the relief of possession, arrears
of rent, damages, etc. bearing CS No. 523 of 2022 titled “Rahul
Chaudhary vs. Mukesh Khurana”, was filed vide Plaint dated 16.12.2022.
The said Suit is now pending adjudication before the Ld. DJ, Patiala
House Courts, New Delhi for framing of remaining issues etc. True copy
of relevant orders passed in CS No. 523 of 2022 is annexed herewith as
AnnexureR2.”
12. Learned counsel appearing on behalf of the respondent further submits
that in the subject suit instituted by the respondent before learned ADJ,
Patiala House Courts, following reliefs have been sought: –
“i. Possession of the Suit Property;
ii. Recovery of arrears of rent to the tune of INR 78,63,750/- up-to
22.07.2022 (from 15 days after issuance of Legal Notice dated 08.07
.2022) alongwith interest@ 18% p.a.;
iii. Pendente-lite and future use and occupation charges/damages/mesne
profits for the use of the Suit Property from 23.07.2022 onwards till the
actual date of handing over of the vacant possession of the Suit property,
along with interest@ 18% p.a.”
13. In suit, CS(OS) No. 208/2025, instituted on behalf of the petitioner, the
following reliefs have been sought: –
“(i) Pass a judgement and decree declaring that the oral collaboration
contract/ agreement for redevelopment of the Suit Property as detailed in
the captioned Suit, to be a legally valid and binding agreement between
the parties and further declare that the Defendant’s denial/ reneging of the
said oral understanding is illegal and bad in fact and law; and
(ii) Pass a judgement and decree declaring the right, title and interest of
the Plaintiff in the Suit Property as being the Developer Allocation, as
detailed in Para 5 of the instant Suit, in terms of the oral collaboration
agreement for redevelopment of the Suit Property; orSignature Not Verified
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(iii) Alternatively, pass a judgement and decree declaring the right, title
and interest of the Plaintiff in the Suit Property as being the Developer
Allocation, as detailed in Para 5 of the captioned Suit, in terms of Section
60 of the Easements Act, 1882; and
(iv) Pass a decree of specific performance directing the Defendant to
specifically perform his obligations under the abovementioned oral
collaboration agreement for redevelopment of the Suit Property, and to
execute a registered sale/ conveyance deed in favour of the Plaintiff in
respect of the Plaintiff allocation of the Suit Property (i.e. Developer
Allocation of land and building), as described above in Para 5, and to
come forward and sell the Defendant’s allocation of the Suit Property (i.e.
the Owner Allocation of land and building) to the Plaintiff herein at the
prevailing market rate of Rs. 5 Crores (i.e., one-third of the market rate of
the entire property) when the offer was first made for purchase by the
Plaintiff to the Defendant i.e. in or around November 2013; or
(v) Alternatively, pass a Judgement and Decree directing the Defendant to
pay Rs. 15 Crores as damages to the Plaintiff, along with interest at the
rate of 18 % p.a., including pendente lite and future interest, until the date
of actual payment; and
(vi) Pass a Judgement and Decree declaring that the Plaintiff has the right
to stay in the entire Suit Property in terms of the abovementioned oral
collaboration agreement for redevelopment of the Suit Property, subject to
payment of use and occupation charges only in respect of the Defendant’s
allocation of the redeveloped Suit Property (i.e. the Owner Allocation);
and
(vii) Pass a decree of injunction, restraining the Defendant from
dispossessing the Plaintiff from the Suit Property in terms of the
abovementioned oral collaboration agreement for redevelopment of the
Suit Property; and
(viii) Cost of the instant proceedings; and
(ix) Pass any such order(s) that this Hon’ble Court may deem fit and
necessary in the interest of justice.”
14. It is submitted that, in similar circumstances, learned Single Judge of
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this Court vide order dated 13.09.2013 in CS(OS) No. 1280/2013 titled as,
“M/s Spearhead Digital Studio Pvt. Ltd. v. H.K. Mitroo“, on an
application filed under Section 24 of the CPC for transfer and consolidation of
suits, had passed the following order: –
“In my view, there is merit in the submissions of learned counsel for the
defendant. The nature of the suit itself indicates that the plaintiff is
indulging in multiple litigations. Earlier he filed a suit for injunction.
When stay was not granted, the present suit has been filed claiming
specific performance of an oral agreement to sell. A mere look at the
nature of submissions made by the plaintiff shows that it is make belief.
It is prima facie difficult to accept that any owner of a valuable estate
will enter into such an Agreement to Sell as propounded by the plaintiff.
It appears prima facie that this suit is filed only as a counter blast to
delay the suit of the defendant for possession and to harass the defendant.
The suit filed by the defendant earlier has already progressed and
evidence of plaintiff is being recorded. The present suit is at the initial
stage and consolidating two suits is bound to cause delay in disposal of
prior suit filed by the defendant.
Even otherwise, the nature of transactions in the present case and that in
the earlier case at District Court Saket are substantially different. In the
present suit, the plaintiff has to prove existence of an oral agreement to
sell and their readiness and willingness to perform the said oral
agreement to sell. On the other hand, in the suit filed by the defendant in
the District Court, Saket, the defendant has to prove existence of tenancy,
termination of tenancy and the rate at which mesne profit can be claimed.
Clearly, different issues arise in these two suits. Merely because there is
similarity in the subject matter i.e., the suit property, it would not be
sufficient for consolidating and trying the suits together.
Reference may be had to a judgment of the Supreme Court in the case of
Chitivalasa Jute Mills (supra). There the Court noted that the cause of
action alleged in the two plaints referred to the same period and same
transactions i.e., the supply of jute bags between the period 7-1-1992 and
31-12-1993. It is further noted that what is the cause of action alleged by
one party as foundation for the relief prayed for and the decree sought for
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noted that almost the same set of oral and documentary evidence would
be needed.”
15. The aforesaid order was challenged before learned Division Bench by
way of an appeal, FAO (OS) 450/2013, titled as, “M/s Spearhead Digital
Studio Pvt. Ltd. v. H.K. Mitroo“, and the same was dismissed by learned
Division Bench by observing as under1: –
“2. The learned single Judge has examined the matter in detail and has
also noticed that the appellant had earlier filed a suit for injunction being
suit no. 85/2010 before the civil Judge, New Delhi. Initially in that suit
an ex parte injuction had been granted in favour of the appellant.
However, the application under Order 39 Rule 1&2 CPC was ultimately
dismissed by an order of the civil Judge on 01.12.2010. In the said order
dated 01.12.2010 the learned civil Judge had observed that the appellant
herein had approached the court in the capacity of a vendee and not in
the capacity of a lessee and that it had built up its case on an oral
agreement for purchase of the suit property and had averred that part of
the sale consideration had already been paid by him. The civil Judge also
noted that the relief sought by the plaintiff therein and the appellant
herein was not on the basis of the lease agreement dated 1.4.2000 and in
essence the appellant herein had filed the said suit seeking protection
under the doctrine of part performance under section 53A of the Transfer
of Property Act, 1882. The learned civil Judge, however, observed that
the appellant had an alternate remedy available to it and therefore an
injunction could not be granted in its favour in view of the provision of
section 41(h) of the Specific Relief Act, 1963. Consequently, the learned
civil Judge was of the view that the appellant herein had not been able to
establish its prima-facie case and therefore the application under Order
39 Rule 1&2 CPC was dismissed by the said order dated 01.12.2010.
Shortly thereafter, the appellant herein withdrew the said suit no.
85/2010.
3. The respondent had filed the suit for possession and mesne profits in
2011. The present suit was filed by the appellant two years later in 2013.
Taking into consideration these circumstances, the learned single Judge
observed as under:-
1
2013 SCC Online Del 4032
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“In my view, there is merit in the submissions of learned counsel for
the defendant. The nature of the suit itself indicates that the plaintiff is
indulging in multiple litigations. Earlier he filed a suit for injunction.
When stay was not granted, the present suit has been filed claiming
specific performance of an oral agreement to sell. A mere look at the
nature of submissions made by the plaintiff shows that it is make belief.
It is prima facie difficult to accept that any owner of a valuable estate
will enter into such an Agreement to Sell as propounded by the
plaintiff. It appears prima facie that this suit is filed only as a counter
blast to delay the suit of the defendant for possession and to harass the
defendant.
The suit filed by the defendant earlier has already progressed and
evidence of plaintiff is being recorded. The present suit is at the initial
stage and consolidating two suits is bound to cause delay in disposal of
prior suit filed by the defendant.”
We feel that the learned single Judge was entirely correct in dismissing
the application of the appellant under section 24 CPC.”
16. Attention of this Court was also drawn to a judgment rendered by
learned Single Judge of this Court in Sunil Kapoor v. Himmat Singh &
Ors.2, and by placing reliance on paragraph Nos.11, 12, 15, 16, 21 thereof, it
has been contended that there is no common question involved in the
previously instituted suit for possession of property, recovery of arrears of
rent, damages/mesne profits, and interest, and the subsequently, instituted suit
for declaration of oral collaboration agreement as binding, as also for a decree
for specific performance.
17. Apart from the above, learned counsel for the respondent further draws
attention of this Court to the conduct of the petitioner, disentitling him to the
relief sought in the present petition by highlighting the same in the reply as
2
ILR (2010) II DELHI 616
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under: –
“17. The conduct of the Petitioner has been most malafide since
inception:-
a) Notably, CS No. 523 of 2022 was filed by Respondent on 16.12.2022
and registered on 19.12.2022.
b) Petitioner entered appearance and filed his written statement on
27.04.2023. However, after nearly eight (8) months, the Petitioner filed a
counter claim vide Counter Claim No. 44 of 2023 on 11.12.2023. Vide the
said counter claim; the Petitioner sought similar reliefs as sought in the
Suit now filed before this Hon’ble Court being based upon oral
collaboration.
c) No such Suit based upon oral collaboration was ever filed till such time
the owner/ Respondent sued the Petitioner for possession and recovery of
arrears of rent etc. Clearly, the Suit by Petitioner is a mere after thought
and a counter blast, to somehow save his illegal possession.
d) The Petitioner initially tried to delay the proceedings before the Ld. DJ
by filing an Application under Section 8 of the Arbitration and
Conciliation Act, 1996 ( as amended up to date). The said Application was
dismissed by the Ld. DJ on 29.04.2024. The Petitioner challenged the said
order before this Hon’ble Court vide FAO No. 200 of 2024. The said
Appeal bearing FAO No. 200 of 2024 was dismissed on 09.07.2024.
Thereafter, the said order dated 09.07.2024 was challenged before the
Hon’ble Apex Court vide SLP(C) No. 23980 of 2024. The said SLP was
also dismissed vide order dated 18.02.2025.
e) The Petitioner was well aware that the counter claim filed by him was
not maintainable before the Ld. DJ inter-alia on account of pecuniary
jurisdiction of the Ld. DJ in terms of proviso to Order VIII Rule 6A (I) of
the Code of Civil Procedure, 1908. Due to this reason, no summons/
notice were issued in the Counter Claim No. 44 of 2023.
f) Despite being aware of this fact, the Petitioner waited for another 16
months i.e., till 10.03.2025 to move an Application before the Ld. DJ to
withdraw the counter claim. This was done after dismissal of SLP(C) No.
23980 of 2024 vide order dated 18.02.2025.
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g) It is noteworthy that in the Written Statement filed by the Petitioner in
CS No. 523 of 2022, the Petitioner had contended, though falsely, that the
Lease was orally renewed twice for a period of three (3) years each. As
per the Petitioner, the said oral extension ended on 31.03.2025. Therefore,
after 31.03.2025, the Petitioner had no entitlement to remain in possession
of the Suit Property even as per the best case pleaded by the Petitioner in
his Written Statement, though all these pleas were false.
h) Pertinently, the Respondent had filed an Application under Order XII
Rule 6 of the Code of Civil Procedure, 1908 before the Ld. DJ which was
finally listed for arguments on 03.04.2025.
i) To stall the adjudication of the Application under Order XII Rule 6 the
Code of Civil Procedure, 1908 on 03.04.2025, the Petitioner filed CS (OS)
No. 208 of 2025 titled “Mukesh Khurana Vs. Rahul Chaudhary” before
this Hon’ble Court in the last week of March, 2025. Alongwith this Suit,
the Petitioner filed an Interlocutory Application under Section 151 of the
Code of Civil Procedure, 1908, being IA No. 8408/2025, with the
following prayer:
“In view of the facts and circumstances stated above, it is most humbly
prayed that this Hon ‘ble Court may be pleased to:
i. Direct that the captioned Suit be adjudicated and tried together along
with the Civil Suit bearing CS No. 523 of 2022 titled “Rahul Chaudhary
vs. Mukesh Khurana” pending before Patiala House Courts, New Delhi;
ii. During the pendency of the instant Application, direct ad interim ex-
parte stay of the proceedings in the Civil Suit bearing CS No. 523 of
2022 titled “Rahul Chaudhary vs. Mukesh Khurana” before the Ld.
Additional District Judge-03, Patiala House Courts, New Delhi; andiii. Pass any other order(s) that this Hon ‘ble Court may deem fit and
necessary in the interest of justice. ”
j) The said CS (OS) No. 208 of 2025 was first listed before the Ld. Joint
Registrar on 01.04.2025. No interim orders could be secured by the
Petitioner.
k) As such, the Petitioner filed the captioned Transfer Petition dated
31.03.2025 and got it listed on 02.04.2025. However, the Petitioner was
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unable to secure any interim orders.
l) The Petitioner herein sought adjournment before the Ld. DJ on
03.04.2025, as clearly recorded in the order sheet. Request for
adjournment was declined. Arguments were heard on the application
under Order XII Rule 6 the Code of Civil Procedure, 1908 and order was
reserved for pronouncement on 16.04.2025.
m) Even thereafter, the Petitioner filed another application dated
15.04.2025 before the Ld. DJ thereby inter alia praying for deferment of
passing of orders on the application under Order XII Rule 6 the Code of
Civil Procedure, 1908. The said application was dismissed by the Ld. DJ
vide order dated 16.04.2025.
n) Thereafter, the Petitioner filed CM Application No. 23194/2025 in the
present Transfer Petition wherein an alternative relief to defer the
proceedings before the Ld. DJ was sought. However, vide order dated
22.04.2025, the said application was also dismissed by this Hon’ble Court.
o) It is clear that the sole intent of the Petitioner was to somehow not let
the order be pronounced on the Application under Order XII Rule 6 the
Code of Civil Procedure, 1908.”
18. In rejoinder, learned counsel appearing on behalf of the petitioner,
however, submitted that the similar contentions had been raised by the
respondent at the time of arguments in CS(OS) 208/2025, however, despite
the same, summons had been issued to the respondent. It is further pointed out
that the order dated 24.04.2025 passed by learned District Judge, Patiala
House Courts, on the application filed by the respondent-plaintiff in CS
No.523/22 under Order XII Rule 6 read with Section 151 of the CPC has been
has been stayed by learned Coordinate Bench of this Court in an appeal, RFA
511/2025, preferred on behalf of the petitioner vide order dated 17.11.2025. It
is submitted that the said order was passed after extensive hearing and after
citing the same judgments which have been cited today at the bar, and
therefore, the said order will not come in the way of present transfer petition.
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It is, again, reagitated that the evidence to be led in both the suits would be
common in nature, and therefore, would be overlapping, and thus, giving rise
to multiplicity of proceedings. To demonstrate the same, attention of this
Court has been drawn to following averments made in paragraph 5 of the
plaint filed in the suit, CS (OS) No.208 of 2025, instituted by the petitioner in
Ordinary Original Civil Jurisdiction of this Court: –
“**** **** ****
5. Accordingly, on or about 25.07.2012, the Parties entered into an oral
collaboration agreement for the re-development of the Suit Property,
wherein specific plans for the re-development were agreed upon by the
Parties, and the Parties also orally agreed on the specifics of the
configuration of construction/ redevelopment of the Suit Property as well
as the extent what has actually been carried out, and which is exactly what
has actually been carried out at the site. The key aspects of the aforesaid
oral collaboration agreement and contract for redevelopment of the Suit
Property are:
(vii) The Plaintiff would redevelop the entire Suit Property as per the
mutually agreed layout/ configuration inter alia being construction of a
new building admeasuring about 14,500 sp. ft. approximately comprising
of ground floor, first floor, second floor, terrace, 6 servant quarters,
outhouse comprising of home-theatre, steam, sauna, jacuzzi and massage
room, and 2 powder room/ toilets/ and a deck with swimming poot
beautification/ landscaping of common areas, creation of passageway/
driveway along with 6 parking spaces, and fixing of main gate.
(viii) While the Defendant’s contribution in this collaboration was by way
of land (i.e. the underdeveloped Suit Property land), the Plaintiff’s
contribution would be to bear all the expenses of the redevelopment of the
Suit Property. ”
19. It is the case of the petitioner that on the basis of the oral collaboration
agreement, he is also claiming retention of possession, and therefore, his
defence in the subject suit filed by the respondent is his cause of action in theSignature Not Verified
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suit filed at his instance. Learned counsel appearing on behalf of the petitioner
has placed reliance on judgment of Hon’ble Supreme Court in Chitivalasa
Jute Mills v. Jaypee Rewa Cement 3 , in particular, on the following
paragraph: –
“9. On the facts averred in the two plaints filed by the two parties before
two different courts, it is clear that the parties are substantially the same.
Jaypee Rewa have alleged and Willard India or Chitivalasa Jute Mills do
not deny that Chitivalasa Jute Mills is nothing but a division of Willard
India Limited. The fact remains that the cause of action alleged in the two
plaints refers to the same period and the same transactions i.e. the supply
of jute bags between the period 7-1-1992 and 31-12-1993. What is the
cause of action alleged by one party as foundation for the relief prayed
for and the decree sought for in one case is the ground of defence in the
other case. The issues arising for decision would be substantially
common. Almost the same set of oral and documentary evidence would
be needed to be adduced for the purpose of determining the issues of
facts and law arising for decision in the two suits before two different
courts. Thus, there will be duplication of recording of evidence if
separate trials are held. The two courts would be writing two judgments.
The possibility that the two courts may record findings inconsistent with
each other and conflicting decrees may come to be passed cannot be
ruled out.”
20. Learned counsel further draws attention of this Court to a judgment of
learned Single Judge of this Court in Karan Kapoor v. Madhuri Kumar4, in
particular, to the following paragraph: –
“22. The suit for specific performance filed by the appellant is no
impediment for the Trial Court to proceed with the suit filed by the
respondent herein for possession. (Ref : CM(M) 1215/2007, Sunil
Kapoor v. Himmat Singh, decided on January 29, 2010), wherein in Para
20, the Court held as under:
3
(2004) 3 SCC 85
4
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“20. Though the aforesaid two judgments of the Division Bench of
this Court are on injunction application in suits for specific
performance, but the principles laid down therein would apply
here. The jurisdiction, if any, to stay eviction pending a suit for
specific performance is of the court where the suit for specific
performance is pending and the court where the suit for
ejectment/eviction is pending ought not to restrain its hands
merely because the suit for specific performance has been filed.””
21. It is the submission of learned counsel appearing on behalf of the
petitioner that the aforesaid judgment passed by learned Coordinate Bench of
this Court, relying upon Sunil Kapoor v. Himmat Singh & Ors (supra), was
challenged before the Hon’ble Supreme Court and vide judgment in Karan
Kapoor v. Madhuri Kumar 5 , the Hon’ble Supreme Court passed the
following judgment: –
“34. In our view, for the purpose of Order 12 Rule 6, the said admission
is not clear and categorical, so as to exercise a discretion by the court
without dealing with the defence as taken by defendant. As we are
conscious that any observation made by this Court may affect the merit
of either side, therefore, we are not recording any finding either on the
issue of tenancy or with respect to the defence as taken by the defendant.
We are only inclined to say whether the judgment and decree passed in
exercise of the power under Order 12 Rule 6CPC is based on clear and
categorical admission. In our view, the facts of the case in hand and the
judgment in S.M. Asif [S.M. Asif v. Virender Kumar Bajaj, (2015) 9
SCC 287 : (2015) 4 SCC (Civ) 589] are altogether similar, therefore, the
ratio of the said judgment rightly applies to the present case.
35. Consequently, the judgment and decree passed by the trial court, as
confirmed by the High Court, only on admission of fact without
considering the defence in exercise of power under Order 12 Rule 6CPC
is hereby set aside. The matter is remitted back to the trial court to decide
the suit as expeditiously as possible affording due opportunity to the
parties to record evidence that shall be appreciated by the court on
merit.”
5
(2022) 10 SCC 496
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In view of the above, it is submitted that the reliance placed by learned
counsel for the respondent on the judgment of Sunil Kapoor v. Himmat
Singh & Ors (supra) is misplaced.
22. It is the case of the petitioner that and order under Order XII Rule 6 of
the CPC cannot be a ground for rejecting the present petition and even
otherwise, the said order is under challenge and has been stayed, and
therefore, the present petition ought to be allowed. Reliance has been placed
on the judgment of Hon’ble Supreme Court in S.M. Asif v. Virender Kumar
Bajaj6, particularly on the following paragraphs: –
“9. In the suit for eviction filed by the respondent landlord, the appellant
tenant has admitted the relationship of tenancy and the period of lease
agreement; but resisted the respondent-plaintiff’s claim by setting up a
defence plea of agreement for sale and that he paid an advance of Rs
82.50 lakhs, which of course is stoutly denied by the respondent
landlord. The appellant-defendant also filed the suit for specific
performance, which of course is contested by the respondent landlord.
When such issues arising between the parties ought to be decided, mere
admission of relationship of landlord and tenant cannot be said to be an
unequivocal admission to decree the suit under Order 12 Rule 6 CPC.
10. Having regard to the stand taken by the parties, in our view, an
opportunity has to be afforded to the appellant to put forth his defence
and contest the suit and therefore, the matter is to be remitted to the trial
court for a fresh hearing, however, subject to the condition that the
appellant should pay the arrears of rent @ Rs 44,000 per month within a
period of eight weeks. Further the appellant shall pay Rs 1,00,000 per
month to the respondent landlord as compensation for use and
occupation of the suit premises with effect from 1-8-2015 and the
respondent landlord shall issue necessary receipt/acknowledgment for
having received the same. The trial court vide its order dated 30-9-2013
while directing the payment of Rs 44,000 per month has stipulated a
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condition that in the event of the appellant succeeding, the said amount
would be adjusted against the balance sale consideration amount under
the agreement for sale dated 19-8-2011. Having regard to the said order
passed by the trial court, payment of sum of Rs 1,00,000 per month
would also be subject to the final outcome of the eviction suit as well as
the suit for specific performance.
11. The impugned orders [S.M. Asif v. Virender Kumar Bajaj, 2014 SCC
OnLine Del 7564] , [S.M. Asif v. Virender Kumar Bajaj, 2014 SCC
OnLine Del 7563] are set aside and the matter is remitted back to the
Rent Controller for consideration of the matter afresh and the appeals are
allowed on the above terms. The Rent Controller shall dispose of the
matter as expeditiously as possible. We make it clear that we have not
expressed any opinion on the merits of the matter. No order as to costs.”
23. It is, therefore, prayed by learned counsel for the petitioner that the
present petition be allowed, and the subject suit, CS No.523 of 2022, pending
before learned ADJ, Patiala House Courts, New Delhi, be transferred to this
Court, and tried along with suit, CS (OS) 208 of 2025.
24. Heard learned counsels for the parties, and perused the record.
25. The power for transfer and withdrawal of suits is provided for in
Section 24 of the CPC, which reads as under: –
“24. General power of transfer and withdrawal. –(1) On the
application of any of the parties and after notice to the parties and after
hearing such of them as desired to be heard, or of its own motion
without such notice, the High Court or the District Court may at any
stage–
(a) transfer any suit, appeal or other proceeding pending before it for
trial or disposal to any Court subordinate to it and competent to try or
dispose of the same, or
(b) withdraw any suit, appeal or other proceeding pending in any Court
subordinate to it, and–
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(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any Court subordinate to it
and competent to try or dispose of the same; or
(iii) retransfer the same for trial or disposal to the Court from which it
was withdrawn.
(2) Where any suit or proceeding has been transferred or withdrawn
under sub-section (1), the Court which [is thereafter to try or dispose of
such suit or proceeding] may, subject to any special directions in the
case of an order of transfer, either retry it or proceed from the point at
which it was transferred or withdrawn.
[(3) For the purposes of this section,–
(a) Courts of Additional and Assistant Judges shall be deemed to be
subordinate to the District Court;
(b) “proceeding” includes a proceeding for the execution of a decree or
order.](4) The Court trying any suit transferred or withdrawn under this
section from a Court of Small Causes shall, for the purposes of such
suit, be deemed to be a Court of Small Causes.
[(5) A suit or proceeding may be transferred under this section from a
Court which has no jurisdiction to try it.]”
26. The main contention of the learned counsel for the petitioner is that the
subject matter of both the suits, i.e., the subject property, is same, and both of
them are in nature of cross-suits/counter-claims.
27. This Court has perused the prayers sought in both the suits as noted
hereinbefore. Suit filed on behalf of the respondent, at the first instance, is for
possession of subject property on grounds of termination of tenancy, recovery
of rent and mesne profits. Petitioner’s suit, on the other hand, filed after
withdrawal of his counter-claim in the suit filed by the respondent is for
declaration of oral collaboration agreement to be valid, and binding as also for
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a decree for specific performance.
28. Therefore, this Court is of the considered opinion that the contention of
learned counsel for the petitioner that since the subject matter of both the
suits, i.e., the subject property is same, both of them are in nature of cross-
suits/counter-claims and therefore are to be tried together, is not tenable. In
the suit filed by the petitioner, he has to prove an alleged oral collaboration
agreement between the parties, and lead further evidence in support of his
claim for decree for specific performance. However, in the suit filed by the
respondent, he has to prove existence of tenancy, termination thereof and the
rate at which mesne profits are claimed. Thus, both the suits, though with
respect to the same subject property, are substantially different in nature.
29. At this stage, a useful reference can made to the following observations
made by learned Single Judge of this Court in Sunil Kapoor v. Himmat
Singh & Ors (supra). In the said case, the petitioner therein was a defendant
in a suit pending before learned ADJ and had challenged an order dismissing
his application under Section 10 of the CPC. The contention of the petitioner
therein was that the respondents/plaintiffs had instituted the aforesaid suit for
ejectment against him as a tenant; however, prior to the same, he had
instituted a suit being CS(OS) 1018/2004 before this Court against the
respondents/plaintiffs for specific performance of agreement to sell of
immovable property. The aforesaid judgment notes that the plea taken was
that he was defending the suit for ejectment and mesne profits filed by the
respondents/plaintiffs also on the ground that the respondents/plaintiffs had
agreed to sell the premises to him, and thus, common questions of law and
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fact arose in the subsequent suit for ejectment and mesne profits and thus, the
proceedings in the suit for ejectment be stayed till the adjudication of the suit
for specific performance of agreement to sell. Learned Single Judge while
dismissing the said petition observed and held as under: –
“11. A mere agreement to sell of immovable property does not create
any right in the property save the right to enforce the said
agreement. Thus, even if the respondents/plaintiffs are found to have
agreed to sell the property, the petitioner/defendant would not get
any right to occupy that property as an agreement purchaser. This
Court in Jiwan Das Vs. Narain Das AIR 1981 Delhi 291 has held that
in fact no rights enure to the agreement purchaser, not even after the
passing of a decree for specific performance and till conveyance in
accordance with law and in pursuance thereto is executed. Thus in
law, the petitioner has no right to remain in occupation of the
premises or retain possession of the premises merely because of the
agreement to sell in his favour.
12. Section 53 (A) of the Transfer of Property Act codifies the doctrine
of part performance. A purchaser of immovable property, who in
pursuance to an agreement to sell in writing has been put into possession
of the property, is entitled to so remain in possession. However, in the
present case, there is no agreement to sell in writing. The
respondents/plaintiffs deny inter alia the averments of the
petitioner/defendant of what transpired on 8th July, 2004. Be that as it
may, in none of the receipts relied upon by the petitioner/defendant, is
there any mention of delivery of possession/constructive possession to
the petitioner/defendant of the premises in part performance of the
agreement to sell. The express plea of the petitioner/defendant in this
regard is also of an oral agreement to that effect on 8th July, 2004. Even
if the receipts relied upon by the petitioner/defendant are to be termed as
an agreement in writing, the same as per the petitioner/defendant also are
executed by the respondents 1 & 2 only. There is no agreement in writing
with the respondent no.3. The property admittedly belongs to all three of
them and the petitioner is claiming the agreement with all three of them.
There is no authority in writing shown of the respondent no.3 in favour
of respondent no.1 and/or respondent no.2. The agreement to sell with
the respondent no.3 as per the plea of the petitioner/defendant is thus oral
only.
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**** **** ****
15. What follows is that even if the petitioner/defendant were to
succeed in his suit for specific performance of agreement to sell, till
the execution of a conveyance deed in pursuance to the decree, if
any, in favour of the petitioner, the petitioner has no ground in law
to save his possession of the premises. The status of the petitioner
would continue to be as before i.e. of a tenant whose tenancy has
been determined.
16. Once that is found to be the position in law, the defence of the
agreement to sell is not a legal defence available to the petitioner in
the suit for ejectment. If that be so, there is no common question
involved in the previously instituted suit for specific performance
and the subsequently instituted suit for ejectment.
**** **** ****
21. The contention of the senior counsel for the petitioner of
consolidation though attractive is again loaded against the
respondents/plaintiffs. In view of the lesser pendency of cases in the
courts where, the suit for ejectment filed by the respondents is
pending, it can be disposed of within a few months. On the contrary,
if it were to be transferred to this Court to be decided along with suit
for specific performance and which requires voluminous evidence,
the disposal thereof would be undoubtedly delayed. The
petitioner/defendant would thereby achieve indirectly what it is
otherwise unable to achieve in law. Thus, the said plea cannot also be
allowed.”
(emphasis supplied)
30. Learned counsel appearing on behalf of the petitioner had submitted
that the aforesaid judgment in Sunil Kapoor v. Himmat Singh (supra) has
been impliedly overruled as Hon’ble Supreme Court in Karan Kapoor
(supra) had set aside the judgment passed by the learned Single Judge of this
Court which had relied upon the judgment in Sunil Kapoor v. Himmat
Singh (supra). However, the judgment rendered in Karan Kapoor (supra)
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by the Hon’ble Supreme Court was in reference to an application under Order
XII Rule 6 of the CPC, and had observed that the admission in the said case
was not clear and categorical so as to exercise the discretion by the Court
without dealing with the defense taken by the defendant therein. Similarly, in
S.M. Asif (supra), the Hon’ble Supreme Court was again dealing with decree
passed under Order XII Rule 6 of the CPC. However, for this Court for
exercise of power under Section 24 of the CPC, the parameters are different.
As noted hereinabove, the issues arising for consideration of adjudication in
both the suits are substantially different as reliefs claimed by the parties are
substantially different.
31. The Hon’ble Supreme Court in Kulwinder Kaur @ Kulwinder
Gurcharan Singh v. Kandi Friends Education Trust and Ors. 7 , while
providing for factors/broad propositions to be taken into account for transfer
of a case, has observed and held as under: –
“21. Having considered rival contentions of the parties and having
gone through the proceedings of the case, we are of the view that the
impugned order deserves to be set aside. So far as the power of
transfer is concerned, Section 24 of the Code empowers a High Court
or a District Court to transfer inter alia any suit, appeal or other
proceeding pending before it or in any court subordinate to it to any
other court for trial and disposal. The said provision confers
comprehensive power on the court to transfer suits, appeals or other
proceedings “at any stage” either on an application by any party or
suo motu.
22. Although the discretionary power of transfer of cases cannot be
imprisoned within a straitjacket of any cast-iron formula unanimously
applicable to all situations, it cannot be gainsaid that the power to7
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transfer a case must be exercised with due care, caution and
circumspection.
23. Reading Sections 24 and 25 of the Code together and keeping in
view various judicial pronouncements, certain broad propositions as
to what may constitute a ground for transfer have been laid down
by courts. They are balance of convenience or inconvenience to
the plaintiff or the defendant or witnesses; convenience or
inconvenience of a particular place of trial having regard to the
nature of evidence on the points involved in the suit; issues raised
by the parties; reasonable apprehension in the mind of the litigant
that he might not get justice in the court in which the suit is
pending; important questions of law involved or a considerable
section of public interested in the litigation; “interest of justice”
demanding for transfer of suit, appeal or other proceeding, etc.
Above are some of the instances which are germane in
considering the question of transfer of a suit, appeal or other
proceeding. They are, however, illustrative in nature and by no means
be treated as exhaustive. If on the above or other relevant
considerations, the court feels that the plaintiff or the defendant is not
likely to have a “fair trial” in the court from which he seeks to transfer
a case, it is not only the power, but the duty of the court to make such
order.
**** **** ****
26. In the case on hand, the High Court without stating anything
whatsoever as to allegations and counter-allegations, without
considering the reply submitted by the appellant herein and without
recording any reason/ground passed the impugned order transferring
the case. The learned counsel for the contesting respondent no doubt
submitted that the Court has not observed anything since observations
by a High Court one way or the other might prejudice one of the
parties to the suit. It is true that normally while making an order of
transfer, the court may not enter into merits of the matter as
it may affect the final outcome of the proceedings or cause prejudice
to one or the other side. At the same time, however, an order of
transfer must reflect application of mind by the court and the
circumstances which weighed in taking the action.”
(emphasis supplied)
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32. Thus, this Court in exercise of power under Section 24 of the CPC also
has to examine, whether transfer of the subject suit would be “in the interest
of justice”.
33. In the present case, it is pertinent to note that respondent had filed the
suit, CS No.523 of 2022, on 16.12.2022, and petitioner had filed his written
statement on 27.04.2023, and filed his counter-claim before learned District
Judge, Patiala House Courts, on 11.12.2023. It is also a matter of record that
the petitioner had filed an application under Section 8 of the A&C Act
seeking reference of the subject suit to arbitration which was dismissed by
learned Trial Court on 29.04.2024. Challenge against the same before this
Court by way of an appeal, FAO 200/2024, was again dismissed on
09.07.2024. Thereafter, a SLP No.23980/2024, against the said was also
dismissed on 18.02.2025. The petitioner, thereafter, withdrew his counter-
claim and filed suit, CS(OS) 208/2025, before this Court in March 2025.
34. It is further noted that in the suit filed by the respondent a preliminary
decree under Order XII Rule 6 of the CPC has already been passed by the
learned District Judge, Patiala House Courts, New Delhi, which is subject
matter of challenge in appeal, RFA 511/2025, preferred by the petitioner
before this Court.
35. The proceedings in the said suit are at an advance stage, and the suit
filed by the petitioner herein is at a very preliminary stage. The respondent
herein has been diligently pursuing their suit before the learned District Judge,
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Patiala House Courts, New Delhi, and, therefore, in these facts and
circumstances of the case, as noted hereinbefore, it will not be in ‘interest of
justice’, if the said suit is directed to be transferred to this Court by exercising
power under Section 24 of the CPC. Even otherwise, this Court is unable to
accept the contention raised on behalf of the petitioner that since subject
matter of both the suits, i.e., the subject property, is same, and therefore, both
of them are in nature of cross-suits/counter-claims and would involve
common issues for decision.
36. In Chitivalasa Jute Mills (supra) relied upon by learned counsel for
the petitioner, it is noted that the cause of action in the two plaints referred to
the same period, and the same transaction. It was further observed that issues
arising for decision would be substantially common, and the same set of oral
and documentary evidence was required to be led for the adjudication of the
said suits. In those circumstances, Hon’ble Supreme Court was of the view
that there would be duplication of recording of evidence, if separate trials are
held. In the present case as already noted hereinbefore that the nature of the
two suits are substantially different, and even the evidence required to be
adduced during the course of trial by the parties would be different.
37. In these facts and circumstances of the present case, no ground for
transfer of suit, CS No.523 of 2022, titled as, ‘Rahul Chaudhary v. Mukesh
Khurana’ to the Ordinary Original Civil jurisdiction of this Court is made out.
38. The present petition is dismissed and disposed of.
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39. Pending applications, if any, also stand disposed of accordingly.
40. Needless to state that, nothing stated hereinabove, shall be construed as
an opinion on the merits of any of the suits, which would be decided on their
own merits, and any observations made herein are only for the purposes of the
present petition.
41. Judgment be uploaded on the website of this Court, forthwith.
AMIT SHARMA
(JUDGE)
MAY 21, 2026/sn/ns
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