OPENING SHEET APPEALS IN COURT SUBORDINATE TO

HIGH COURT

IN THE COURT OF SENIOR CIVIL JUDGE, EAST,

KARKARDOOMA, DELHI

APPEAL NO. _________ OF 2017

NUMBER AND DATE OF THE ORIGINAL SUIT

No. Date of Institution in first court : Suit No. 8449/2017

23.11.2012
Date of decision in the first court : 22.08.2017

Date of Institution of appeal : 22.11.2017

Value of sum and appeal

for purposes of jurisdiction : Rs. 400/-
Value of appeal for
purpose of court fee : Rs. 400/-
Amount of fee on appeal : Rs. 40/-

BSES YAMUNA POWER LIMITED

SHAKTI KIRAN BUILDING
KARKARDOOMA
DELHI …APPELLANT

VERSUS

1. MRS. REENA SHARMA

W/0 SH. MAHAVIR PRASAD SHARMA
R/O BRINDAWAN VIHAR
BALAWAL, PS DOIWALA
DISTRICT DEHRADUN (UTTARAKHAND)

2. MASTER AJAY SHARMA

S/O SH. MAHAVIR PRASAD SHARMA
THROUGH REENA SHARMA
R/O BRINDAWAN VIHAR
BALAWAL, PS DOIWALA
DISTRICT DEHRADUN (UTTARAKHAND)

3. MR. MANOJ SHARMA

S/O SH. MAHAVIR PRASAD SHARMA
R/O A-37, JITAR NAGAR, PARBANA ROAD
KRISHNA NAGAR,
 DELHI

4. MRS. NEHA SHARMA

W/O SH. MANOJ SHARMA
S/O SH. MAHAVIR PRASAD SHARMA
R/O A-37, JITAR NAGAR, PARBANA ROAD
KRISHNA NAGAR,
DELHI

5. MRS. SONU
D/O SH. MAHAVIR PRASAD SHARMA
R/O A-37, JITAR NAGAR, PARBANA ROAD
KRISHNA NAGAR,
DELHI

6. MRS. CHANCHAL
D/O SH. MAHAVIR PRASAD SHARMA
R/O A-37, JITAR NAGAR, PARBANA ROAD
KRISHNA NAGAR,
DELHI

7. DVB EMPLOYEES TERMNAL BENEFIT FUND-2002

THROUGH ITS MANAGER/HEAD
PRE-FABRICATED BUILDING
RAJGHAT POWER HOUSE
NEW DELHI-110002 …RESPONDENTS

Appeal filed by : Ritu Gupta & Hemant Gupta, Advocates

Appeal from the Judgement/decree/order of Sh. Nipun Awasthi,

ACJ/CCJ/ARC(E), KKD Courts, Delhi dated 22.08.17.

Claim in Appeal:- To accept the appeal with costs, set-aside the

impugned judgment and to dismiss the suit of the
plaintiffs/respondents.
BRIEF FACTS: -

1. Respondents no. 1 & 2 (plaintiffs in the suit) filed a suit for the
Declaration and Mandatory Injunction seeking a decree that plaintiff no. 1
be declared as only family member for the entitlement and to draw the
family pension being the wife of Mr. Mahavir Prasad Sharma and after her
death the respondent no. 2 (plaintiff no. 2 in the suit) being the minor son
and further sought that the defendant in the suit be directed to grant family
pension to the plaintiff no. 1 being the widow of Mr. Mahavir Prasad
Sharma (ex-employee of defendant no.1/appellant) from 3/12/2011 and the
defendant no.2/respondent no.7 may kindly be directed to disburse the said
family pension to her. The suit was filed in year 2012 titled as “Mrs. Reena
Sharma & Anr. Vs BSES-YPL & Ors.”. Thereafter it was amended twice.

2. The suit was decreed in favour of the plaintiffs/respondents no. 1 &

2 and against the appellant and respondent no. 7 vide judgment and decree
dated 22.08.2017 whereby it was held that plaintiff no. 1 is entitled to
benefit of family pension upon death of Mr. Mahavir Prasad Sharma and
cost of Rs. 2,00,000/- was also imposed upon the defendants to be paid by
them jointly and severally to the plaintiffs.

3. Aggrieved by the impugned Judgment/Decree dated 22.08.2017, the

appellant i.e. BSES-YPL is the appellant is preferring the present appeal
amongst other the following

GROUNDS

A. Because the impugned judgment/decree and the findings returned

therein by the Ld. Trial Court are wrong, untenable and manifest with
errors;

B. Because the Ld. Trial Court erred in law in holding that all the
evidence on the basis of which the Learned Trial court had arrived at the
fact that the plaintiff no. 1 was the legally wedded wife of the deceased ex
employee of the appellant no. 1 were presented to the appellant but
appellant failed to act upon the same;

C. Because the Ld. Trial Court erred in fact as well as in law by not
appreciating that it is the respondent no. 7 (defendant no. 2 in the amended
plaint) who is responsible for grant and disbursing the family pension to the
ex-employees or their legal heirs as the case may be inter alia of appellant
company;

D. Because the Ld. Trial Court erred in fact and in law by not
appreciating that the respondent no. 7 herein had duly admitted that pension
to the deceased husband of the appellant no. 1 was paid by the respondent
no. 7;

E. Because the Ld. Trial Court erred in fact and in law by not
appreciating that respondent no. 1 had duly admitted that her husband was
drawing pension from the respondent no. 7 and that the primary
responsibility for the payment of the pension was on the respondent no. 7;

F. Because the Ld. Trial Court erred in fact and in law by not
appreciating that appellant had duly pleaded and lead evidence to the effect
that it had no liability towards the payment of the pension to the plaintiffs
in the suit and there was no corss examination to the said evidence of the
appellant and hence thus it was admitted by the plaintiffs in the suir that the
appellant hs no liability towards the respondent no. 1and 2;

G. Because the Ld. Trial Court erred in fact and in law by not
appreciating that fact regarding the tripartite agreement and the fact
that the trust i.e. respondent no. 7 herein which was formed in terms
of the tripartite agreement is responsible for processing the claim of the
plaintiffs in suit is not a fact which needs to be proved as firstly said
documents are in public domain as duly notified and secondly as the
said fact is not denied by the concerned parties i.e. the respondent nos.
1, 2 & 7 herein;
H. Because the Ld. Trial Court erred in fact and in law by not
appreciating that plaintiffs in the suit had admitted that prior to filing of the
suit only one letter dated 15/3/2012 was addressed that too by the plaintiff
no. 1 in the suit. The said letter was only addressed to the appellant
wherein the plaintiff no. 1 in the suit while admitting that her deceased
husband could not get her name recorded in his service record and further
requested that her the name be recorded in the service record of the her
husband and that she be given pension on account of her deceased husband;

I. Because the Ld. Trial Court erred in fact and in law by not
appreciating that the plaintiff no. 1 during her cross examination duly
admitted that she was served with letter dated 30/3/2012 (EX PW1/DX3)
which was in response to her letter dated 15/3/2012(EX PW1/1),

J. Because the Ld. Trial Court erred in fact and in law by not
appreciating that prior to plaintiffs filing the suit the plaintiffs were duly
intimated to take by the matter with the respondent no. 7 herein and the
plaintiffs instead of taking up the matter with the respondent no. 7 filed the
suit in issue;

K. Because the Ld. Trial Court erred in fact and in law by holding that
the appellant indulged in clever drafting by not pleading as to for what
purposes respondent no. 3 was nominated by the deceased;

L. Because the Ld. Trial Court erred in fact and in law by not
appreciating that the appellant had duly placed on record the nomination
form and had also duly exhibited same as EX D1W1/5;

M. Because the Ld. Trial Court erred in fact and in law by not
appreciating that the plaintiffs have themselves admitted that their names
were not entered into the service record of the deceased and that with their
letter dated 15/3/2012 no documents were enclosed;

N. Because the Ld. Trial Court erred in fact and in law by not
appreciating that plaintiffs prior to filing of the suit in issue had not handed
over the documents as filed along with the plaint to the concerned authority
i.e. the respondent no. 7. The plaintiff no. 1 during her cross examination
duly admitted “I had(have) not placed on record any document which
were given at the office of the defendant no. 2”

O. Because the Ld. Trial Court erred in fact and in law by holding that
the appellant and respondent no. 7 failed in performance of its duty to
process the claim of the plaintiff no. 1 as per the law and have subjected
her the agony of litigation and consequent unwarranted expenditure of
money, energy and time despite plaintiff no. 1 having adduced all material
in support of her claim to the defendants i.e. appellant and respondent no. 7
herein;

P. Because the Ld. Trial Court erred in fact and in law by not
appreciating that admittedly the plaintiffs instead of adducing record before
the concerned defendant i.e. respondent no. 7 herein who had to process her
claim herself chose to file the suit in issue;

Q. Because the Ld. Trial Court erred in fact and in law by not
appreciating that the record as filed along with the plaint was admittedly
not produced before the concerned party which had to process their claim
before the filing of the suit in issue;

R. Because the Ld. Trial Court erred in fact and in law by not
appreciating that the appellant is not an adjudicating body;

S. Because the Ld. Trial Court erred in fact and in law by not
appreciating that appellant had no role in processing the claim of the
plaintiffs, it at best could only forward her claim to the concerned party i.e.
respondent no. 7 herein which it had done not only before the filing of the
suit but there after also;

T. Because the Ld. Trial Court erred in fact and in law by not
appreciating that only duty of the appellant towards the plaintiffs was to
direct their claim to the concerned party and further intimate them about the
same. Thus, the appellant had duly performed their duty and hence under
no circumstances be burdened with cost;
U. Because the Ld. Trial Court erred in fact and in law by holding that
appellant was not ready and willing to owe responsibility of the facts
pleaded;

V. Because the Ld. Trial Court erred in fact and in law by holding that
the pleading on behalf of the appellants were annoying or mischievous or
that appellant had failed to honor and appreciated the mandate of law
regarding the pleading;

W. Because the Ld. Trial Court erred by not appreciating that issues are
framed by the Learned Trail Court;

X. Because the Ld. Trial Court erred in fact and in law by holding that
issue no. 1 is vague as what defendant no. 1 i.e. appellant herein meant by
present form could not be ascertained;

Y. Because the Ld. Trial Court erred in fact and in law by not
appreciating that the defendant no. 1 had specifically pleaded that the suit
was not maintainable firstly as suit for succession was required to be filed
and secondly as pension which the plaintiff no. 1 was claiming on account
of death of her husband was paid to her husband by the respondent no. 7
herein and not by the appellant and hence the suit was not maintainable
against the defendant no. 1 or to say the appellant herein;

Z. Because the Ld. Trial Court erred in fact and in law by not
appreciating that onus of the issue no. 1 was only on appellant even though
the objection of the suit not maintainable on the ground that the plaintiff
was required to file the suit of succession was taken by the defendant no. 2
i.e. respondent no. 7 herein as well;

AA. Because the Ld. Trial Court erred in law by holding that in respect of
family pension the suit of succession was not maintainable as it was not a
debt or security;
BB. Because the Ld. Trial Court erred in law by not appreciating that the
appellant or the respondent no. 7 under no circumstances can have
complete knowledge of al the family members of the deceased who may be
entitled to the pension and hence the suit of the succession was required to
be filed instead of civil suit;

CC. Because the Ld. Trial Court erred in law by not appreciating the
entire evidence of defendant no. 1 i.e. appellant;

DD. Because if the impugned judgment/decree dated 22.8.17 is allowed

to stand there would a grave miscarriage and travesty of justice;

EE. The order of the Ld Trial Court is against the fundamental principle
of judicial procedure as the relief granted is beyond the relief prayed for by
the respondent.

4. The present appeal has been filed within a period of limitation. The
impugned order is dated 22/8/2017. The certified copy of the same was
applied on 23/08/2017 which got ready on 27.10.17 and was received on
30.10.2017. The period of thirty days after excluding the time taken in
getting the certified copy of order would expire on 26 th November, 2017
and the present appeal has been filed on 23.11.2017 November, 2017 which
is well within the period of limitation.

It is therefore, respectfully prayed that this Hon'ble court may kindly be

pleased to:-

a. set-aside the impugned decree/judgment dated 22.8.2017 by

accepting the appeal of the appellant and to dismiss the suit bearing no.
8449/2016 titled as “Mrs. Reena Sharma & Anr. Vs BSES-YPL & Ors.”
decided by Ld. ACJ/CCJ/ARC(E), KKD, Delhi; and

b. pass any further other order as this Hon'ble court may deem fit and
proper in the facts and circumstances of the case.
 APPELLANT
BSES-YPL

THROUGH

DELHI RITU GUPTA & HEMANT GUPTA

DATED: 22.11.2017 ADVOCATES
 IN THE COURT OF SENIOR CIVIL JUDGE, EAST,
KARKARDOOMA, DELHI

APPEAL NO. /2017

IN THE MATTER OF:

BSES-YPL …APPELLANT

VERSUS

MRS. REENA SHARMA & ORS. …

RESPONDENTS

APPLICATION UNDER ORDER 41 RULE 5 R/W SECTION 151 OF

CPC ON BEHALF OF APPELLANT, BSES-YPL

MOST RESPECTFULLY SHOWETH:

1. That the appellant has filed the accompanying appeal against the
impugned decree/judgment dated 22.8..2017 passed by the Ld. Trial Court
in suit no. 8449/16 titled as “Mrs. Reena Sharma & Anr. Vs BSES-YPL &
Ors.”. The averments made in the said appeal may kindly be read as part
and parcel of this application and the same are not repeated herein for the
sake of brevity.

2. That the appellant has a good prima facie case in its favour and there is
every likelihood to succeed in it, balance of convenience is in favour of the
appellant and against the respondent and in case the operation of the
impugned order dated 22.08.2017 is not stayed during the pendency of the
accompanying appeal, then the appellant shall suffer irreparable loss and
injury.

It is, therefore, respectfully prayed that this Hon'ble court may kindly be
pleased to suspend/stay the operation of the impugned order dated
22.08.2017 passed by the Ld. Trial Court in suit no. 8449/2016 titled as
“Mrs. Reena Sharma & Anr. Vs BSES-YPL & Ors.” the final disposal of
the appeal.

APPELLANT
BSES-YPL
THROUGH
DELHI RITU GUPTA & HEMANT GUPTA
DATED:22.11.2017 ADVOCATES
 IN THE COURT OF SENIOR CIVIL JUDGE, EAST,
KARKARDOOMA, DELHI

APPEAL NO. /2017

IN THE MATTER OF:

BSES-YPL …APPELLANT

VERSUS

MRS. REENA SHARMA & ORS. …

RESPONDENTS

AFFIDAVIT

I, Pawan Mehur, Legal officer of BSES-YPL presently working at Legal

Cell of BSES-YPL at Shakti Kiran Building, Karkardooma, Delhi do
hereby solemnly affirm and declare as under:-

1. I am Legal officer of BSES-YPL, am well conversant with the facts

of the case and as such am competent to swear this affidavit.

2. I say that the contents of the accompanying application has been

drafted under my instructions on the basis of the record of the
appellant and legal information received & believed to be true and
correct.

3. I have read and understood the contents of the accompanying

application, the contents of the same be read as part and parcel of
this affidavit and the same are not being repeated herein for the sake
of brevity.

DEPONENT
VERIFICATION:

Verified at Delhi on this 22nd day of November, 2017 that the contents of
my above affidavit are true and correct to my knowledge; no part of it is
false and nothing material has been concealed therefrom.
DEPONENT
 IN THE COURT OF SENIOR CIVIL JUDGE, EAST,
KARKARDOOMA, DELHI

APPEAL NO. /2017

IN THE MATTER OF:

BSES-YPL …APPELLANT

VERSUS

MRS. REENA SHARMA & ORS. …

RESPONDENTS

AFFIDAVIT

I, Pawan Mehur, Legal officer of BSES-YPL presently working at Legal

Cell of BSES-YPL at Shakti Kiran Building, Karkardooma, Delhi do
hereby solemnly affirm and declare as under:-

1. I am Legal officer of BSES-YPL, am well conversant with the facts

of the case and as such am competent to swear this affidavit.

2. I say that the contents of the accompanying appeal have been drafted
under my instructions on the basis of the record of the appellant and
legal information received & believed to be true and correct.

3. I have read and understood the contents of the accompanying appeal,

the contents of the same be read as part and parcel of this affidavit
and the same are not being repeated herein for the sake of brevity.

DEPONENT
VERIFICATION:

Verified at Delhi on this 22nd day of November, 2017 that the contents of
my above affidavit are true and correct to my knowledge; no part of it is
false and nothing material has been concealed therefrom.
 DEPONENT
IN THE COURT OF SENIOR CIVIL JUDGE, EAST,
KARKARDOOMA, DELHI

APPEAL NO. /2017

MEMO OF PARTIES

BSES YAMUNA POWER LIMITED

SHAKTI KIRAN BUILDING
KARKARDOOMA
DELHI …APPELLANT

VERSUS

1. MRS. REENA SHARMA

W/0 SH. MAHAVIR PRASAD SHARMA
R/O BRINDAWAN VIHAR
BALAWAL, PS DOIWALA
DISTRICT DEHRADUN (UTTARAKHAND)

2. MASTER AJAY SHARMA

S/O SH. MAHAVIR PRASAD SHARMA
THROUGH REENA SHARMA
R/O BRINDAWAN VIHAR
BALAWAL, PS DOIWALA
DISTRICT DEHRADUN (UTTARAKHAND)

3. MR. MANOJ SHARMA

S/O SH. MAHAVIR PRASAD SHARMA
R/O A-37, JITAR NAGAR, PARBANA ROAD
KRISHNA NAGAR,
DELHI

4. MR. NEHA SHARMA

W/O SH. MANOJ SHARMA
S/O SH. MAHAVIR PRASAD SHARMA
R/O A-37, JITAR NAGAR, PARBANA ROAD
KRISHNA NAGAR,
DELHI

5. MRS. SONU
D/O SH. MAHAVIR PRASAD SHARMA
R/O A-37, JITAR NAGAR, PARBANA ROAD
KRISHNA NAGAR,
 DELHI

6. MRS. CHANCHAL
D/O SH. MAHAVIR PRASAD SHARMA
R/O A-37, JITAR NAGAR, PARBANA ROAD
KRISHNA NAGAR,
DELHI

7. DVB EMPLOYEES TERMNAL BENEFIT FUND-2002

THROUGHT ITS MANAGER/HEAD
PRE-FABRICATED BUILDING
RAJGHAT POWER HOUSE
NEW DELHI-110002 …RESPONDENTS

DELHI RITU GUPTA & HEMANT GUPTA

DATED: 22.11.2017 ADVOCATES FOR BSES-YPL
 IN THE COURT OF SENIOR CIVIL JUDGE, EAST,
KARKARDOOMA, DELHI

APPEAL NO. /2017

IN THE MATTER OF:

BSES YAMUNA POWER LIMITED …APPELLANT

VERSUS

MRS. REENA SHARMA & ORS. …

RESPONDENTS

INDEX

S.NO PARTICULARS PAGE NOS.

1. Memo of Parties A
2. Opening Sheet B
3. Grounds of appeal along with 1-
supporting affidavit
4. Application for stay along with
supporting affidavit
5. Certified copy of Judgement/decree
dated 22.8.2017
6. Vakalatnama

DELHI RITU GUPTA & HEMANT GUPTA

DATED: 22.11.2017 ADVOCATES FOR
BSES-YPL