IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : CODE OF CIVIL PROCEDURE. Writ Petition (Civil) No of 2008 and CM No.

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1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : CODE OF CIVIL PROCEDURE Writ Petition (Civil) No of 2008 and CM No of 2008 Decided on: October 03, The Secretary Ministry of Home Affairs North Block New Delhi The Director National Crime Records Bureau Ministry of Home Affairs East Block-7, R.K. Puram New Delhi The Secretary Ministry of Planning and Programme Implementation Sardar Patel Bhawan New Delhi The Secretary Union Public Service Commission Dholpur House Shahjahan Road New Delhi Through: Mr. A.K. Bhardwaj, Adv.... Petitioners versus Shri R.K. Gupta S/o Shri R.S. Gupta R/o S-233, Greater Kailash Part I New Delhi Through: Ms. Raman Oberoi, Adv.... Respondent

2 Coram: HON'BLE MR. JUSTICE MADAN B. LOKUR HON'BLE MR. JUSTICE SURESH KAIT MADAN B. LOKUR, J. (ORAL) The petitioners are aggrieved by an order of the learned Additional District Judge dated whereby an application of the petitioners for treating issue no. 2 namely whether the suit is barred by limitation- as preliminary issue was dismissed. The respondent/plaintiff had filed a suit under Section 34 CPC for foreclosure of mortgage. He relied upon a document receipt-cum-acknowledgement dated executed by the respondent s two brothers Mohd. Sayeed and Mohd. Rais. A perusal of receipt would show that the executor of the receipt had taken a loan from the plaintiff (respondent herein) and as a security of the loan created an equitable mortgage by handing over of the original title deeds of the property no. 1739, Katra Mehar Parwar, Kucha Dakhni Rai, Pataudi House, Darya Ganj, Delhi. The original title deeds of the property are therefore with the plaintiff/respondent. The defendants contested the suit and took objection that suit was barred under Section 58 and 67 of the Transfer of Property Act as well as barred by limitation and suit was not maintainable being based on unregistered document. After framing of issues, the Court proceeded with recording of evidence. During cross examination of plaintiff/respondent objection regarding document being deficiently stamped and inadmissible in evidence was raised by the petitioners/defendants. On this, the Trial Court vide its order dated impounded the document and sent it to Collector of Stamp for payment of deficient stamp duty as well as for imposition of penalty. The plaintiff paid deficient stamp duty of Rs.3350/- and also paid penalty of Rs.33,500/- and thereafter the evidence started again. The petitioners, thereafter moved this application under Section 151 CPC with a prayer that limitation should be treated as a preliminary issue. 2. Vide order dated the learned ADJ had specifically addressed himself to the question whether the document in question was a mortgage by deposit of title deeds and required stamp duty or not and whether Article 6

3 of the Schedule of the Stamp Act or Article 40(b) would apply. After considering the arguments addressed by both the sides, the learned Court observed that the document was executed at the time of taking loan of Rs.6,70,000/- by the executants for business purpose it was not a record of any past transaction and it would be liable to stamp duty payable under Article 6 of the Stamp Act. 3. Looking into the fact that the Court has already adjudicated upon the document as a document of evidencing transaction relating to deposit of title deeds and falling under Article 6(1), I consider that the Trial Court rightly rejected the application of the petitioners for treating issue of limitation as a preliminary issue. Suffice it to say that it would not be proper for this Court to make any observation about the limitation at this stage so as to preempt the case of the petitioners or the respondent. 4. The petition is without any force and is hereby dismissed being not maintainable. The Petitioners are aggrieved by an order dated 8th February, 2008 passed by the Central Administrative Tribunal, Principal Bench, New Delhi in OA No. 823/ The Respondent is an employee of the Government of India and in March, 1980 his wife took up a job as a Receptionist with the Embassy of the Arab Republic of Egypt, New Delhi. On 2nd April, 1980, the Respondent informed the Petitioners about this and sought permission for his wife taking up employment with a foreign mission. 3. The application given by the Respondent was kept pending and was neither rejected nor accepted by the Petitioners for as long as 8 years. Sometime in 1988, the Intelligence Bureau apparently woke up and took an objection to the Respondent s wife working with a foreign mission. Consequent upon this objection, a communication was sent to the Respondent on 16th May, 1989 whereby he was directed to require his wife to discontinue her employment with the foreign mission. It appears that the Respondent did make such a request to his wife but she declined to discontinue her employment. 4. Correspondence between the parties continued for another four years and then on 5th March, 1993 a charge sheet was issued to the Respondent in which it was alleged that he had disobeyed the directions of the Government of India to require his wife to discontinue her employment with the foreign mission and, therefore, the Respondent had committed misconduct which was unbecoming of a government servant.

4 5. The Respondent contested the charge sheet and ultimately he was found guilty of the allegation made against him and by an order dated 2nd May, 2000 he was dismissed from service. 6. The Respondent challenged the order of dismissal by filing an original application under Section 19 of the Administrative Tribunal Act, The application was allowed by the Tribunal by the impugned order dated 8th February, Learned counsel for the Petitioners contended that there is a violation of the Office Memorandum dated 22nd May, He has drawn our attention to condition No.11 of that Memorandum which reads as follows:- 11. Employment of wives/dependants of Government servants : A Government servant whose wife or dependant intends to take up employment under a foreign mission in India or with any foreign organisation (including a commercial concern) should apply to the Ministry/Department, administratively concerned for permission. 8. A perusal of the above shows that if a Government servant whose wife or dependant intends to take up employment under a foreign mission, then he should apply to the concerned administrative Ministry for permission. 9. The purpose of condition No.11 is to prevent the wife or dependant of a Government servant from taking up employment under a foreign mission. Insofar as the present case is concerned, the Respondent s wife was already in employment with a foreign mission when he applied for permission. Clearly, therefore, condition No.11 is inapplicable. 10. In so far as the case of prior permission is concerned, no such allegation was made in the charge sheet. Moreover, we find that the Petitioners slept over the request of the Respondent for over 8 years. In our opinion, the conduct of the Petitioners shows that they had waived off this condition (even if it was applicable) as far as the Respondent is concerned. If the Respondent was guilty of not taking prior permission, action should have been taken by the Petitioners in March/April, 1980 itself or immediately thereafter. There is absolutely no justification for the Petitioners to wake up after 8 years and then seek to stress upon a condition which is today no longer applicable.

5 11. Even otherwise, we find that after the objection was taken by the Intelligence Bureau in 1988, a charge sheet was issued to the Respondent after a gap of almost 5 years. This shows that the matter was not as serious as is sought to be made out today by learned counsel for the Petitioners. The contention raised by learned counsel for the Petitioners today, of violation of national security and so on, is totally misconceived. We asked learned counsel for the Petitioners to tell us if there is any breach of national security by the Respondent s wife working as a Receptionist in a foreign mission but apart from making a very bald and general allegation, nothing has been told to us even today. 12. In our opinion having kept silent for 8 years, if not 13 years in all, the Petitioners have given tacit consent to the Respondent s wife working as a Receptionist in a foreign mission in New Delhi. 13. We do not find any error having been committed by the Tribunal in allowing the original application filed by the Respondent. 14. There is no merit in the writ petition. 15. Dismissed. Sd/- MADAN B. LOKUR, J Sd/- SURESH KAIT, J

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