Delhi High Court
Sh. Achal Gupta vs Sh. Ajay Gupta & Ors. on 7 April, 2010
Author: S.Ravindra Bhat
Bench: S. Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1235/2009
Pronounced on : 07.04.2010
SH. ACHAL GUPTA ..... Plaintiff
Through: Mr. R.K. Jain, Advocate
versus
SH. AJAY GUPTA & ORS. ..... Defendant
Through: Mr. Kailash Chander Diwan, Advocate, Def.No.1.
Mr. Vikas K. Chadha Rajesh Rajora, Advocates
for Def. Nos.2-4.
CORAM:
MR. JUSTICE S. RAVINDRA BHAT
1. Whether the Reporters of local papers YES
may be allowed to see the judgment?
2. To be referred to Reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
MR. JUSTICE S.RAVINDRA BHAT
*
1. This suit for partition is filed by the plaintiff claiming 1/5th share in property bearing no. XV/2379 Part to 2383, built on land measuring about 1228 sq. feet, situated at Tilak Street, Chuna Mandi, Pahar Ganj, New Delhi.
2. The suit avers that the first defendant is the plaintiff's brother and the second, third and fourth defendants are his mother and sisters, respectively. Late Sh. Ishwar Das Gupta, father of the plaintiff was the owner of the said property in terms of a Partition Deed, dated 17.03.2001 entered into between the plaintiff's father and his uncles. A certified copy of the said Partition deed has been filed. It is stated that the plaintiff's father, the said late Ishwar Das, died intestate; as such the plaintiff and the four defendants are entitled to a 1/5th share each in the said property.
CS(OS) No.1235/2009 Page 1
3. The second, third and fourth defendants filed a joint written statement in the suit where the factum of late Sh. Ishwar Das Gupta being the owner of the suit property and that he died intestate is admitted. These defendants do not deny that each party to the suit is entitled to a 1/5th share in the suit property and further state that they have no objections to its partition by metes and bounds. The first defendant was granted three opportunities to file his written statement in the suit, once with costs of Rs. 3000/-. He stood in defiance of the Court's order and his right to contest the suit was closed on 24.02.2010.
4. The plaintiff has filed the certified copy of the site plan in respect of the suit property, where the areas demarcated in red are the portions, which fell to the share of late Sh. Ishwar Das Gupta under the Partition Deed, dated 17.03.2001. The certified copy of the Partition Deed, a registered document, clearly records that late Ishar Das was entitled to 1228 square feet of specified and demarcated portions of the property bearing no. XV/2379 Part to 2383 (the suit property).
5. As mentioned earlier, the written statement of defendants other than the first defendant, admit that each party to the suit is entitled to 1/5th share in the suit property. The first defendant has not chosen to contest the suit; his right to file the written statement was foreclosed.
6. Order VIII Rule 10 of the Code of Civil Procedure, 1908 provides the procedure when a party fails to present written statement called for by Court, as under:
"Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order relating to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up."
7. The second, third and fourth defendants have not raised any objection to the suit seeking partition of the said property. The first defendant has failed to file the written statement even after repeated opportunities. In view of the pleadings in the suit and the provision under Order VIII Rule 10 of the CPC, the Court considers it appropriate to allow the claim for partition of the suit property by metes and bounds.
8. In view of the above discussion, a preliminary decree shall be drawn, declaring that each party to the suit is entitled to one fifth share in the said 1228 square feet of the suit property. Shri Rajesh Banati, Advocate, (Mobile 9810294894) is hereby appointed as Local Commissioner CS(OS) No.1235/2009 Page 2 to inspect the property, and suggest the most appropriate method of partitioning the suit property. The commissioner's fee is hereby fixed at Rs. 60,000/- and shall be borne by all the parties, in equal proportion. The commissioner shall file his report within 10 weeks.
9. Let a preliminary decree in the above terms be drawn. List the suit on 6th July, 2010 for further proceedings.
6th April, 2010 (S.RAVINDRA BHAT)
JUDGE
CS(OS) No.1235/2009 Page 3