Delhi District Court
Sh. Lal Chand vs Sh. Gian Chand on 21 November, 2011
IN THE COURT OF SH. REETESH SINGH
ADDITIONAL DISTRICT JUDGE-01 (NORTH-EAST)
KARKARDOOMA COURTS, DELHI
CS No. 160/11
Date of Institution of Suit : 03.12.2010
Date on which Reserved for Order : 09.11.2011
Date of Judgment/Order : 21.11.2011
Case I.D. Number : 02402C0338802010
IN THE MATTER OF:-
Sh. Lal Chand,
S/o Late Sh. Lajpat Rai,
R/o 1/4629, Ram Nagar Extn.,
Mandoli Road, Shahdara, Delhi. .......Plaintiff.
Versus
1. Sh. Gian Chand,
S/o Late Sh. Lajpat Rai,
R/o 103-D-1, Zakir Nagar,
Okhla, New Delhi.
2. Sh. Jai Bhagwan,
S/o Late Sh. Lajpat Rai,
R/o 1/4610, Ram Nagar Extn.,
Mandoli Road, Shahdara, Delhi. .......Defendants.
O R D E R:
1. By this order I shall decide a composite application of defendant no.1 which has been filed under Order 9 Rule 7 and 13 read with Section 151 CPC and Order 47 Rule 1 CPC praying for recall / review of the order dated 27.8.11 passed by this court.
2. Before adverting to the application of defendant no.1, it may be noted that this is a suit filed by plaintiff seeking preliminary decree of partition to declare that the plaintiff is entitled to one third share in Plot No.C-92, Delhi School Teacher's Cooperative House Building Society Ltd. Delhi Surajmal Vihar measuring about 225.70 sq. yards (hereinafter referred to as the suit property). Plaintiff and the defendants are brothers and sons of Late Sh. Lajpat Rai in whose favour the suit property was allotted by the CS No. 160/11 Page No. 1 of 14 DDA vide registered perpetual lease deed dated 11.2.1985. By order dated 27.8.11 this court had dismissed the application of defendant no.1 under Order 7 Rule 11 CPC (filed on 9.2.11) for default since none appeared on behalf of defendant no.1 despite the matter being called out thrice or on the previous date i.e. 6.7.11 to argue the same. By the said order defendant no.1 defendant no.1 was proceeded ex-parte and this court proceeded to consider the written statement filed by defendant no.1 and 2 and granted a preliminary decree of partition in favour of the plaintiff and defendant no.1 and D2 holding that they were entitled to 1/3rd share in the suit property.
3. The defendant no.1 has filed this composite application on 24.8.11 seeking recall / review of the order dated 27.8.11. Counsel for plaintiff and defendant no.2 did not wish to file any reply to this application and arguments on the same were heard by this court on 9.11.11.
4. In the composite application under Order 9 Rule 7, Rule 13 read with Section 151 CPC and Order 47 Rule 1 CPC, it is stated that file of the suit for partition had been transferred to this court for 21.4.11 and the matter was thereafter adjourned for 6.7.11 for arguments on the application of defendant no.1 under Order 7 Rule 11 CPC. It is averred in the application that on 6.7.11 one of the counsels of defendant no.1 namely Sh. Kunal Yadav Advocate was held up in a Writ Petition no.90/11 titled as MCD Vs. Bar and Bench which was listed before the Hon'ble High Court of Delhi. It is averred that other counsel of defendant no.1 Sh. R.K. Sharma Advocate had gone to his native place District Palwal Haryana on account of family dispute. It is averred that Sh. Kunal Yadav Advocate after attending his matter before the Hon'ble High Court came to this court at about 2.00PM and on enquiry noted the next date of hearing of the matter to be 27.8.11. It is averred that on 27.8.11 Sh. R.K. Sharma, other counsel for defendant no.1 had gone to Vrindavan U.P. where he is going for many years on every Saturday. Other counsel for defendant no.1 Sh. Kunal Yadav, Advocate was suffering from fever and therefore he requested his colleague Ms. Priti Bhardwaj Advocate to attend the case. It is averred that Ms. Priti Bhardwaj was held up in other matters in the Rohini Court in the case of Devender Kaur Vs. Harmit Kaur in the court CS No. 160/11 Page No. 2 of 14 of Ld. MM and when she reached this court in the post lunch session at 2.30PM on enquiry it was revealed that defendant no.1 had been proceeded ex-parte, his application under Order 7 Rule 11 CPC had been dismissed in default and preliminary decree in the matter had been passed.
5. In para no.4 of this application, it is stated that counsel for defendant no.1 had asked defendant no.1 not to come to the court as his presence was not required and for this reason defendant no.1 did not appear in this court on the two dates i.e. 6.7.11 and 9.11.11. It is stated that non-appearance of the counsel for defendant no.1 was neither intentional nor deliberate but due to reasons stated in this application. It is therefore prayed that the order dated 27.8.11 be recalled/reviewed.
6. On merits ld. Counsel for defendant no.1 has argued that admittedly the suit property is a lease hold property and Clause II (3) of the lease provides that the lessee should not deviate from the lay out plan nor could alter the size of the residential plot whether by subdivision, amalgamation or otherwise. Counsel for defendant no.1 submits that since the perpetual lease deed of the suit property executed in favour of the father of the parties late Sh. Lajpat Rai itself barred subdivision of the suit property, the same could not be partitioned. He submitted that therefore the suit itself was not maintainable and was liable to be rejected under the provisions of Order 7 Rule 11 CPC. The same were his submissions with regard to the prayer made for grant of preliminary decree for partition.
7. Counsel for plaintiff on the other hand had submitted that non-appearance of counsels for defendant no.1 on account of them being busy in other cases and in their personal matters is not a ground on which the court can allow an application to recall an order by which the said defendant was proceeded exparte. Counsel for defendant no.2 did not make any submissions.
8. I have heard the ld. Counsels for parties and perused the record.
9. File of this case was received by this court by way of transfer on 21.4.11 on which date parties were represented through their respective counsels. On behalf of defendant no.1 one Sh. Rajender Advocate had appeared. Matter was adjourned for CS No. 160/11 Page No. 3 of 14 arguments on applications of defendant no.1 under Order 7 Rule 11 CPC for 6.7.11. On 6.7.11 none appeared for parties on the first call and at the second call none appeared for defendant no.1. On that date counsel for defendant no.2 had submitted that defendant no.2 had filed a petition under Section 276 of Indian Succession Act 1925 seeking grant of letters of administration in respect of the suit property and by order dated 29.4.05 the petition was allowed. Letter of administration was jointly issued in favour of all parties on 31.1.07 by which the parties were held entitled to one third share each in the suit property in terms of the will dated 18.9.1998 executed by Late Sh. Lajpat Rai, father of parties. It was submitted by counsel for defendant no.2 that defendant no.1 was resisting partition of the suit property which was a vacant plot of land measuring 225.70 sq. yards. Although counsel for defendant no.1 had not appeared despite second call this court had granted last opportunity to defendant no.1 to make submissions on the said application and the same was adjourned for 27.8.2011. On 27.8.2011 matte was called out thrice. Since none appeared for defendant no.1 till 2.10PM this court dismissed the application of defendant no.1 under Order 7 Rule 11 CPC for default and proceeded exparte against defendant no.1 and they went on to grant a preliminary decree for partition.
10. The reasons stated in the composite application of defendant no.1 for recall/review of the order dated 22.8.2011 are unconvincing to say the least. The defendant no.1 is represented by three counsels. On 6.7.11 it was stated that one counsel had gone to the Hon'ble High Court to attend a matter and the other counsel was at his native place in Palwal Haryana and therefore none could appear on behalf of defendant no.1. For 27.8.11 it is stated that one counsel had gone to Vrindavan U.P. where he is visiting for the past many years every Saturday. The other counsel was held up in Rohini and the third counsel was unwell. This application is supported by individual affidavits of defendant no.1, Sh. R.K. Sharma, Advocate, Sh. Kunal Yadav Advocate as well as Ms. Priti Bhardwaj Advocate. The only reason this court deems it fit and proper to consider the prayer in the application is that parties should not suffer due to fault of their counsel and at the same time endeavour to decide matters on CS No. 160/11 Page No. 4 of 14 merits. The same will of course be subject to payment of cost to balance equities.
11. For the reasons recorded above composite application of defendant no.1 dated 15.9.2011 (filed on 24.09.11) is allowed, however subject to payment of cost of Rs. 15,000/- to the plaintiff. Order dated 27.8.11 by which application of defendant no.1 under Order 7 Rule 11 CPC was dismissed for default, defendant no.1 was proceeded ex-parte and preliminary decree for partition had been granted is recalled. Order on application under Order 7 Rule 11 CPC:
12. By way of this application defendant no.1 has prayed that the plaint of the plaintiff be rejected. It is submitted in this application that suit of the plaintiff was barred by time as the suit property was leased by DDA on 11.2.1985. The other ground taken is that under Clause II (3) of the registered lease of the suit property, alteration of size of the suit plot or subdivision / amalgamation of the same is not permitted. Therefore relief in the suit for partition was barred. Submission of counsel for defendant no.1 had been on these lines.
13. In the case of Mayar (H.K.) Ltd. v. Owners & Parties, Vessel M.V. Fortune Express (2006) 3 SCC 100 the Hon'ble Supreme Court was pleased to hold as under:-
12. From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint."
14. Further, in the case of C. Natrajan v. Ashim Bai (2007) 14 SCC 183 the Hon'ble Supreme Court was pleased to hold as under:-
"8. An application for rejection of the plaint can be filed if the allegations made in the plaint even if given face value and taken to be correct in their entirety appear to be barred by any law. The question as to whether a suit is barred by limitation or not would, therefore, depend upon the facts and circumstances of each case. For the said purpose, only the averments made in the plaint are relevant. At this stage, the court would not be CS No. 160/11 Page No. 5 of 14 entitled to consider the case of the defence."
15. In the cases referred above, the Hon'ble Supreme Court has held that for the purposes of order 7 rule 11 CPC only averments made in the plaint are to be looked into. Defence of the defendant raised in the written statement or even in an application u/o 7 rule 11 CPC cannot be considered.
16. Plaintiff has averred that suit property was allotted in favour of Sh. Lajpat Rai father of the parties by way of registered perpetual lease deed dated 11.2.1985 executed on 28.2.1985. Copy of the registered lease has been placed on record.
Clause II (3) of lease deed reads as under:
"(3). The sub-lessee shall not deviate in any manner from the layout plan nor alter the size of the residential plot whether by sub-division amalgamation or otherwise."
17. Lease debars alteration of size of the plot whether by subdivision/amalgamation or otherwise. Arguments of counsel for defendant no.1 at the first blush appears to be attractive but a careful perusal of the other terms of the lease deed reveals otherwise.
Clause 6 of the lease reads as under:
"(6) (a) The sub-lessee shall not sell, transfer, assign or otherwise part with the possession of the whole or any part of the residential plot in any form or manner, benami or otherwise, to a person who is not a member of the Lessee.
(b) The Sub-Lessee shall not sell, transfer, assign or otherwise part with the possession of the whole or any part of the residential plot to any other member of the Lessee except with the previous consent in writing of the Lessor which he shall be entitled to refuse in his absolute discretion:
PROVIDED that In the event of the consent being given the Lessor may impose such terms and conditions as he thinks fit and the Lessor shall be entitled to claim and recover a portion of the unearned increase in the value (i.e. the difference between the premium paid and the market value) of the residential plot at the time of sale, transfer, assignment, or parting with the possession, the amount to be recovered being fifty per cent of the unearned increase and the decision of the Lessor in respect of the market value shall be final and binding:CS No. 160/11 Page No. 6 of 14
18. Perusal of Clause 6 of the lease reveals that although there is a bar on the lessee from transferring, selling or parting with possession of the residential plot, Clause 6 (b) provides that the same can be effected with the previous consent of the lessor in writing and such consent can be granted by the lessor by imposing unearned increase the value (which is described as difference between the premium paid and the market value of the residential plot at the time of sale, transfer, assignment or parting with possession). In other words although subdivision of a plot may not be permitted but sale of the same is permissible with the consent of the lessor who claim unearned increase i.e. a form of charges for permitting such a sale / transfer. In a suit for partition if physical partition of a property is not possible for any reason whatsoever then the court can always direct sale of the same and to divide the proceeds of such sale to the parties.
19. In the case of DDA Vs. Dr. K.K. Srivastava LPA No.403/1999 decided on 12.1.2004, the Hon'ble Division Bench of Delhi High Court has relied upon a policy of the DDA regarding grant of permission for transfer of lease hold property subject to payment of unearned increase at the rate of 50% of the market value of the property. Further in the cases of MCD Vs. Shashank Steel Industries (P) Ltd. reported in 2009 (2) SCC, 349, DDA Vs. Joginder S Monga (2004) 2 SCC 297, DDA Vs, Official Liquidator, High Court of Calcutta (2001) 5 SCC 712 the Hon'ble Supreme Court has also been pleased to consider grant of permission to transfer lease hold property subject to payment of unearned increase to the lessor. Perusal of these judgments of the DDA reveals that it is a common practice for the DDA to grant permission to sale lease hold property with such permission being granted subject to payment of unearned increase as mentioned in proviso to clause 6 of the lease. In the case of DDA Vs. Joginder S Monga (supra), the terms of the lease granted by DDA are similar to the terms of the lease in the present suit.
20. Therefore in the opinion of this court, contention of defendant no.1 that since the suit property is a lease hold property and subdivision of the same is not permitted, suit CS No. 160/11 Page No. 7 of 14 itself is fit to be rejected has no merit. Other contention of the defendant no.1 was that the suit was time barred. In the application under Order 7 Rule 11 CPC no explanation has been afforded by the defendant no.1 as to how the suit is time barred. In suits for partition, cause of action arises only when the other co-owners / legal heirs deny request for partition. In para 11 of the plaint it is averred that on 12.09.10 and 2.10.10 plaintiff has approached defendants for partition of one third of his share which was refused. Suit is filed on 3.12.10 which is within 12 years of the same. Suit is therefore well within limitation. Contentions of the defendant no.1 in his application under Order 7 Rule 11 are rejected.
21. For the reasons recorded above application of defendant no.1 under Order 7 Rule 11 CPC has no merit and is dismissed.
Order in Suit:
22. As recorded above, this suit has been filed seeking partition of the above mentioned suit property which is an open plot of land measuring 225.70 sq. yards allotted by DDA in favour of Sh. Lajpat Rai, father of the parties vide perpetual lease deed dated 11.2.1985 executed on 28.2.1985. It is averred that Late Sh. Lajpat Rai died on 29.6.1991 leaving behind his wife Smt. Shanti Devi, their 3 sons and 4 daughters as his only legal heirs. Another daughter of Late Sh. Lajpat Rai i.e. Smt. Pushpa has pre-deceased Sh. Lajpat Rai. It is averred that Sh. Lajpat Rai has executed in his life time a will dated 18.09.1988 by which he bequeathed his entire property in favour of his 3 sons i.e. Plaintiff and two defendants in equal shares. After the death of Late Sh. Lajpat Rai defendant no.2 filed probate case no.58/01 in the court of Sh. S.N. Dhingra (as his lordship then was) where defendant no.2 and the plaintiff were impleaded as respondent no.2 and 3 respectively. Objections to the said petition were filed only by defendant no.1 Sh. Gyan Chand and all other relation of the deceased did not file any objections. The said petition was decided on merits and by the judgment dated 24.09.05 the court of Sh. S.N. Dhingra (as his lordship then was) granted letter of administration in respect of will dated 18.9.1988 in favour of Sh. Jai Bhagwan jointly with Sh. Gyan Chand and Sh. Lal Chand holding that all three persons CS No. 160/11 Page No. 8 of 14 will have right in the property to the extent of one third share each.
23. It is averred that plaintiff and the defendants were therefore entitled to one third share in the suit property and that they were in joint possession of the same. It is averred that despite repeated requests defendants refused to partition the suit property and for this reason plaintiff has filed the present suit. Prayer is made to grant of preliminary decree for partition holding that plaintiff was entitled to one third share in the suit property and thereafter to pass a final decree of partition.
24. In the written statement defendant no.1 has contended that since the suit property was lease hold property, in which Clause II (3) prevented subdivision of the suit plot, the suit was not maintainable and barred. On merits defendant no.1 has not disputed that the suit property was allotted in favour of father of the parties Late Sh. Lajpat Rai who died after executed a will which was probated and letter of administration in respect of which had been granted in PC No.58/01 vide judgment dated 24.09.05. It is averred by defendant no.1 that he is the owner of the suit property since the same was purchased from funds contributed by defendant no.1 only. It is averred that the property was purchased in the name of the father of the parties and therefore the suit property can be allotted in favour of defendant no.1 only. However defendant no.1 has categorically admitted the orders dated 24.09.05 passed in PC 58/01 whereby will of Late Lajpat Rai was probated holding that plaintiff and defendants would have one third share each in the suit property.
25. Written statement to the suit has also been filed by defendant no.2. In his written statement defendant no.2 has averred that he himself had filed PC 58/01. It was allowed vide order dated 24.9.05 holding that all parties would have one third share each in the suit property in terms of the will of Late Lajpat Rai dated 18.09.1988. Defendant no.2 has also raised an objection that in view of the Clause II (3) which prevents subdivision of the suit property suit for partition would not be maintainable.
26. From the pleadings of the parties following admitted facts emanated:
(i) That suit property was allotted by DDA in favour of Late Sh. Lajpat Rai vide perpetual lease dated 11.2.1985 executed on 28.2.1985.CS No. 160/11 Page No. 9 of 14
(ii) Sh. Lajpat Rai died on 29.6.1991 after executing a will dated 18.09.1988 by which he bequeathed the suit property in favour of the plaintiff and defendants in equal proportions.
(iii) PC 58/01 was filed for grant of probate of the will dated 18.9.1988 and letters of administration in respect of the suit property. The said petition was filed by Sh.
Jai Bhagwan (defendant no.2 herein) in which defendant no.1 was respondent no.2 and plaintiff was respondent no.3. Only Sh. Gyan Chand, present defendant no.1 filed objections to the said petition. Said objections were rejected and by judgment dated 24.9.2005 of late Sh. Lajpat Rai dated 18.7.1988 was probated as Ex.PW1/2 and it was held that all the three parties would have one third share in the suit property.
27. A judgment by a probate court is a judgment in rem which binds not only the parties to the said petition but also any other person claiming under the said property. No appeal has been filed by defendant no.1 against judgment dated 24.9.05 by which PC 58/01 was allowed. In the said matter it was categorically held that all the three parties would have one third share each in the present suit property. Contention of defendant no.1 that he is the owner of the suit property as he contributed to the same has no merit since the judgment dated 24.09.05 operates as res-judicata qua him. Perusal of the judgment dated 24.9.05 reveals that Sh. Gyan Chand admitted that will in question was executed by his father Late Sh. Lajpat Rai in respect of the suit property. In the said proceedings defendant no.1 Gyan Chand also admitted executing an indemnity bond dated 4.4.01 (proved as Ex.PW1/D1) in which defendant no.1 has stated that his father died on 29.6.1991 and left behind will dated 19.9.1988 by which he bequeathed the suit property in favour of Sh. Gyan Chand, Jai Bhagwan and Lal Chand. Paras 6, 7 and 8 of the judgment dated 24.09.2005 passed in PC no.58/01 are reproduced as under:
"6- Gian Chand examined himself as RW-1. During cross-examination, RW1 Gian Chand objector was put documents RW1/P1, RW1/P2 & RW1/P3. He admitted that all these documents were executed by him. These document CS No. 160/11 Page No. 10 of 14 which have been admitted by him, also prove that respondent/objector was not only aware of the execution of the Will but he himself mentioned in the documents that his father had executed the Will in question. RW1/P1 is indemnity bond executed by Gian Chand/respondent on 4.4.2001 in favour of President of India through DDA. In this indemnity bond, Gian Chand has mentioned that his father died on 29.6.91 and left being Will dated 19.9.1988 whereby he had bequeathed the suit property in favour of his three sons viz. Gian Chand, Jai Bhagwan and Lal Chand. The Will in question is also of same date and by this Will the property has been bequeathed to all the three sons.
7. That next document which has been admitted by this witness is RW1/P2. This document bears the photograph of Gian Chand, which he has affixed along with his signatures duly notarized and was filed with DDA. RW1/P3 is the affidavit executed by Gian Chand, wherein he has stated that his father Lajpat Rai died on 26.9.1991, leaving behind a Will.
8. In view of the indemnity bond and affidavit filed by the respondent before DDA in which he has admitted that his father Lajpat Rai left behind a Will and in view of the testimony of PW1 Sh. Subash Chand Gupta, I have no doubt that the Will Ex.PW1/2 was executed by Shri. Lajpat Rai in his sound disposing mind, in the presence of witnesses and he got it registered. Therefore, this issue is decided in favour of the petitioner and against the respondents."
28. Perusal of the above mentioned paras of the judgment dated 24.09.05 make it crystal clear that the defendant no.1 after the death of his father himself had taken a stand before the DDA that the suit property belonged to his father Late Sh. Lajpat Rai who had left behind a will dated 19.9.1988. The averments made by the defendant no.1 in his written statement that he exclusively contributed money towards purchase of the suit plot which was in the name of his father are contrary to his deposition in PC 58/01. Even if he had not taken the said objection in PC 58/01, the same are barred under the principles of constructive res-judicata which is provided for in Explanation IV to Section 11 of the CPC, 1908. The said explanation provides that any defence which a party could have taken in previously instituted suit but was not taken by him would be deemed to be a matter directly and substantially in issue in such suit. Hence the contention of defendant no.1 in his written statement has no merit and are rejected.
29. Other contention of the defendant no.1 that the suit plot is lease hold plot which cannot be subdivided and therefore the suit is not maintainable. Defendant no.2 had also raised the same objection i.e. that the suit plot cannot be subdivided. The said CS No. 160/11 Page No. 11 of 14 contentions has already been rejected by this court while dealing with the application of defendant no.1 under Order 7 Rule 11 CPC. In a partition suit where plot cannot be subdivided physically, the only option left to the concerned court is to direct sale of the same and then to divide the proceeds of the same amongst the parties having share in the same. Sale of a lease hold property, as the suit property, is permissible after taking permission from the lessor. Further at the stage of grant of preliminary decree, the court is only concerned with declaring the shares of the respective parties in the suit property. The mode and manner for dividing the property is to be considered at the stage of final decree.
30. For the reasons recorded above, preliminary decree of partition in respect of the suit property is granted to the plaintiff. It is held that plaintiff and defendants are entitled to one third share each in the suit property. Decree sheet be prepared accordingly. Put up the matter for consideration the mode and manner of partition of the suit property for grant of final decree for partition on 9.2.2012.
Order on Application of plaintiff under Section 151 CPC:
31. This application has been filed by defendant no.1 on 18.11.2011. Arguments on the composite application of defendant no.1 (filed on 24.9.11) were heard by this court on 9.11.2011 and the matter was put up for orders on 21.11.2011. This application has been moved on 18.11.2011 in between, i.e. between the date of reserving of the order and the date of its pronouncement.
32. In the case of Arjun Singh vs. Mohindra Kumar reported in AIR 1964 SC 993, the Hon'ble Supreme Court was pleased to hold that where the hearing is completed, the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that Order XX Rule 1 permits judgment to be delivered after an interval after the hearing is completed.
33. Placing reliance on the judgment of the Hon'ble Supreme Court in the case of Arjun Singh vs. Mohindra Kumar (Supra), the Hon'ble High Court of Delhi was pleased to hold in the case of Arti Sukhdev Kashyap and Ors. Vs. Daya Kishore Arora reported CS No. 160/11 Page No. 12 of 14 in 1992 (24) DRJ 285 that when once the hearing starts, the Code contemplates only two stages in the trial of the suit: (1) where the hearing is adjourned or (2) where the hearing is completed. Where hearing is completed the parties have no further right or privileges in the matter and it is only for the convenience of the Court that Order XX Rule 1 permits judgment to be delivered after an interval after the hearing is completed. There is thus no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary, for the court to afford to the party the remedy of getting orders passed on the lines of Order IX Rule 7. As provision has been made for every contingency, there is no scope for the invocation of the inherent powers of the Court to make an order necessary for the ends of justice.
34. The judgment of the Hon'ble Supreme Court in the case of Arjun Singh vs. Mohindra Kumar (Supra) has also been followed by the Hon'ble Rajasthan High Court in the case of Rajasthan Financial Corporation Vs. Pukhraj Jain and Ors. reported in AIR 2001 Raj 71 where the Hon'ble High Court was pleased to reject an application under Order 13, Rule 2, CPC moved by the plaintiff after the case was reserved for judgment holding that no application could be moved after the arguments were heard and the case was closed for judgment since as the Hon'ble Supreme Court had categorically decided in the case of Arjun Singh Vs.Mohindra Kumar that there is no hiatus between the two stages of reservation of judgment and pronouncement of judgment, it could not be said that there can be any stage in between the closure of the case for judgment and the pronouncement of the judgment itself.
35. Further in the case of Pujya Sindhi Panchayat Vs. Prof. C.L. Mishra and Ors. reported in AIR 2002 Raj 274 the Division Bench of the Hon'ble Rajasthan High Court was pleased to rely on the judgment of the Hon'ble Supreme Court in the case of Arjun Singh vs. Mohindra Kumar (Supra) and hold that where hearing is completed the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that Order 20 Rule 1 permits Judgment to be delivered after CS No. 160/11 Page No. 13 of 14 an interval after the hearing is completed. It would, therefore, follow that after the judgment is re served there remains no stage in any case. Thus, there is no hiatus (break) between the two stages of reservation of Judgment and pronouncing it.
36. The judgement in the case of Arjun Singh vs. Mohindra Kumar (Supra) was followed by the Hon'ble Supreme Court in the case of Lal Devi v. Vaneeta Jain reported in (2007) 7 SCC 200 in which the Hon'ble Supreme Court was pleased to hold as under:-
"15. Having regard to the totality of circumstances we are of the view that in the interest of justice this appeal must be allowed. The learned District Judge recorded evidence, heard arguments and posted the matter later in the day for delivery of judgment. If the court had adjourned the proceedings to another day after deciding to proceed ex parte, the defendant could have applied for being permitted to participate in the proceedings. In this case since everything happened on the same day the defendant did not get an opportunity to do so. The learned District Judge decided to proceed ex parte. It thereafter examined the witnesses present in court and proceeded to hear arguments. It reserved its judgment to be pronounced later in the day. Even before he could pronounce judgment, counsel for the defendant had moved an application before him for recall of the order. It is true that in view of the law laid down by this Court in Arjun Singh1 the learned District Judge could not have entertained an application under Order 9 Rule 7 CPC."
(Emphasis supplied)
37. For the reasons recorded above, i.e. as this application was moved between the date of reserving the order and the date of pronouncement of the same, this application is not maintainable and is therefore rejected.
(REETESH SINGH) Addl. Distt. Judge-01 (NE) Karkardooma Courts, Delhi CS No. 160/11 Page No. 14 of 14 CS No. 160/11 Page No. 15 of 14