Delhi High Court
Jagdish Kaur vs Rabinder Singh Mathoda on 21 August, 1990
Equivalent citations: 42(1990)DLT401, 1990(19)DRJ219, AIR 1991 DELHI 50
JUDGMENT R.L. Gupta, J.
(1) Defendant has moved this application under Order 9 Role 7 read with Section 151 of Code of Civil Procedure (hereinafter referred to as 'Code') for the setting aside the order dated 18-9-1989 by virtue of which the applicant/defendant was proceeded ex-parte. It is stated that Ob 2nd November, 1989, defendant came to know that suit had been filed against him by the plaintiff and was listed before this Court on 3rd November, 1989. The defendant, it is further alleged, is serving as Deputy Commissioner of Income Tax and posted at New Delhi. He filed a petition for grant of probate on the premises that Sh Gurcharan Singh son of late Major Suhel Singh as owner of D-174, defense Colony, New Delhi and being the real maternal uncle to the defendant-applicant executed and signed last Will on 8th January, 1985 at Delhi by virtue of which the right in the said property vested in the applicant. The testator died on 11th August, 1983 in an accident Practically, this application narrates all the pleas which the applicant/ defendant should have actually taken in written statement. In this application the only question to be seen is whether the ex-parte order dated 18-9-1989 should be set aside against him and if so on what terms and conditions.
(2) In that respect he claimed to have gained the knowledge of the pendency of the present suit on and November, 1989 when he came to the office to his lawyer Sh. G.L. Rawat for seeking further instructions in another matter filed by him While sitting in the chamber of the counsel and when the learned counsel wa s busy in doing some other work he found that this case was listed on the board of this Court and that is how be came to know of the pendency of the suit.
(3) This application has been hotly on tested on behalf of the plaintiff who happens to be the widow of the deceased alleged testator. In the preliminary objections it is stated that the application filed on behalf of the applicant is in nature of written statement and as such should be dismissed. On merits she had to reply to all the allegations made by the defendant applicant wherein, in short she claimed that in fact the late testator Sh. Gurcharan Singh had finally executed a Will dated 30-8-1984 in her favor bequeathing the properties at Delhi and in Village Madan Hari, Tehsil Kharar, District Ropar. This Will was duty registered. Regarding knowledge of the defendant-applicant, it is stated that the applicant has concocted a story only to show that he was not aware of the present suit. The case had actuary been shown earlier in the list presided over by Hon'ble Mr. Justice P.N. Nag and not before me. The ultimate prayer in this reply is that it should be dismissed or in the alternative the defendant be asked to pay RS.10,000.00 per month from 1984 onwards and Rs. 20,000.00 per month fop wrongful use and occupation of the premises which amount can now be fetched as rent. The dispute between the parties in this suit pertains to house No. D-164, defense Colony. New Delhi.
(4) I have heard arguments advanced by learned counsel for the parties and have given my careful consideration to the matter in dispute. The record shows that the defendant-applicant had actually refused to accept service when the Process Server went to deliver a copy of the summons along with a copy of plaint to him on 8th August, 1988. Defendant-applicant is alleged to have read the summons and thereafter refused even to disclose his name. So the process server affixed a copy of summons and plaint on the house. Seeing that there was no way to serve the defendant personally, it was ordered that he be served by publication in "Statement" A copy of that publication is on record showing that defendant was directed to appear in Court an 16th August. 1989 before Deputy Registrar at 11.00 A.M. failing which be was to be proceeded ex-parte. Certificate of posting by which a copy of this publication was forwarded to the defendant-applicant is also on record Vide order dated 18th September, 1987 of this Court the defendant was proceeded ex parte.
(5) It may be noted that there is always a presumption under law that, in case any letter or a publication like the news paper is forwarded under postal certificate on a correct addrerss, publication or letter has reached the addressee unless it is received back with a report that the addressee does not reside at the given address. In this case the newspaper sent at the address of the defendant was not received back by this Court. Therefore, the presumption is that it was correctly delivered at that address.
(6) It is also not the case of the defendant that he is not residing at that address. Therefore, prima facie it appears that the defendant has not made this application in a bona fide manner and there is neither good nor sufficient cause to set aside the ex parte order. However, it has also to be kept in mind that nobody should be condemned unheard This case actually had reached at the final stage i.e., ex-parte evidence had been led and the documents had also been exhibited. Therefore, in case the ex-parte order against defendant is set aside almost towards the fag end of the trial and he is allowed to join proceedings some equities to both sides will have to be worked out on the basis of the respective case of the parties.
(7) The case of the plaintiff is based on a registered Will dated 30 8-1984 by which she claims that the deceased who was her husband had bequeathed house No D-164. defense Colony in her favor On the other hand the defendant who alleges himself to be son of 'he sister of the testator claims the house on the basis of a unregistered Will dated 8-l-1985in his favor. He has pleaded in para-3 of the application that there were strained relations between the testator and his wife i.e. the plaintiff. He also takes a contrary stand that the testator a.nd the plaintiff actually wanted to adopt him and they used to treat him as their own child.
(8) If in fact, the relations between the deceased and the plaintiff were strained, I do not understand how both of them could think of adopting the defendant as their son. The defendant is enjoying this property for a long time in respect of which the plaintiff claims a registered Will in her favor. Learned counsel turn the plaintiff has also argued that the case of the defendant that there were strained relations between the deceased and the plaintiff is absolutely false. In fact, they were the both traveling in the same car when the deceased died because of an accident meaning thereby that there were no such attained relations between them and rather they were no good terms. Learned counsel for the defendant-applicant has not countered this fact during the course of arguments. Therefore, it is highly improbable that the deceased would have executed any Will in favor of the defendant, depriving his widow of all his properties specially when he had executed a number of registered Wills in her favor including the final registered Will -on 30-8-1984 as pleaded by the plaintiff-respondent. On the basis of the unregistered Will dated 8-1-1985 the applicant-defendant filed a probate case No. 76 of 1985. But he got that case dismissed in default and has now applied for restoration of that case. It is also not denied that the restoration proceedings are still pending. All these circumstances prima facie indicate that the intention of the defendant-applicant is only to delay the proceedings as much as possible is that the poor widow becomes weary or combating the legal battle or may be that she leaves this in oral frame and passes on the next world and in the meantime defendant-applicant keeps enjoying the property. Since the defendant is enjoining the property it will be only reasonable to permit him to contest this suit on deposit of certain monthly amount as compensation for the use and occupation of the house. If ultimately is it found that it is the plaintiff who is entitled to the possession of the house on the basis of the Will she will be entitled to adjust that amount toward mesne profits. If on the other band, the case of the plaintiff is found false and that of the defendant to be true, the defendant will be entitled to claim back that amount from the plaintiff.
(9) What should be a reasonable amount which the defendant applicant should be called upon to deposit in the Court is a question which has to be weighed carefully. The property is situate in defense Colony which is one of the most posh localities of Delhi. Plaintiff has claimed mesne profit for wrongful use and oc.:upation of the property at the rate of Rs. 10,000.00 per month from 1984 and Rs. 20.000.00 per month later on. I am of the opinion that it will be quite reasonable at this stage to call 'upon the defendant to deposit a sum of Rs. 5,000.00 per month as compensation for use and occupation during the pendency of this case and permit the plaintiff to withdraw that amount on furnishing security that in case of dismissal of her suit, she restitute that amount to the defendant-applicant. Therefore, the exparte order against the defendant is set aside provided he deposits with the learned Registrar of this Court the arrears of compensation at the aforesaid rate with effect from the date of his application i.e. 4-11-1989 within a month and also keeps on depositing the same at the rate of Rs. 5,000.00 per month on or before the 4th day of each succeeding month. The plaintiff shall been titled to withdraw that amount in the light of observations made above.
(10) Ia stands disposed off accordingly.
(11) Case may now be lilted on 24th September, 1990 before the Court.