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Vijay Arora vs Ramesh Kumar Arora And Ors on 4 January, 2023

Author: Chandra Dhari Singh

Bench: Chandra Dhari Singh

                  $~12
                  *       IN THE HIGH COURT OF DELHI AT NEW DELHI
                  +       CS(OS) 1626/1999
                          VIJAY ARORA                                                   ..... Plaintiff
                                             Through:     Mr. Prashant Batra, Advocate


                                             versus


                          RAMESH KUMAR ARORA AND ORS.                               ..... Defendants
                                             Through:     Mr. Samar Vijay Singh, Advocate


                          CORAM:
                          HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
                                       ORDER

% 04.01.2023 I.A. 17/2023 (Under Order XXVI Rule 9)

1. The instant application under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter as "CPC") has been filed on behalf of the plaintiff seeking the following reliefs:

a) may appoint the Local Commissioner by this Hon'ble Court for recording the evidence of the Plaintiff in CS (OS) No.162/1999 titled as Vijay Arora Vs. Ramesh Arora & Others and also in the Probate Case bearing Test Case No.30/2001 titled as Ramesh Arora & Others V/s. State at the residence of the Plaintiff bearing No. 36/6, Ground Floor, East Patel Nagar, New Delhi;

(b) may pass appropriate order thereby directing the officer incharge of the Branches to send the respective files of the suit bearing CS (OS) No. 1626/1999 titled as Vijay Arora V/s.

Ramesh Arora & Others and also the case file of the Probate Case bearing Test Case No. 30/2001 titled as Ramesh Arora & Others V/s. State, through the authorized person at the time of recording the evidence of the Plaintiff at his residence bearing No. 36/6, Ground Floor, East Patel Nagar, New Delhi at the cost and expenses oft he Plaintiff.

(c) to pass such other order/directions, which this Hon'ble Court deems fit and proper seeking the facts and circumstances of the suit.

2. Learned counsel for the plaintiff submits that the Plaintiff had undergone brain and spine surgeries in the year 2005 and is not in a position to move. The plaintiff, being bed-ridden, is unable to appear in the court for giving the evidence in support of his case for partition and also to the objections to the Probate Petition filed by defendants bearing Test Case No. 30/2001 titled as Ramesh Arora & Others Vs. State.

3. Learned counsel for defendants no. 1 and 2 appears on advance notice and there is no requirement of issuing formal notice.

4. Learned counsel for the defendant submits that the defendant does not oppose the appointment of a Local Commissioner for recording of evidence, so long as the cost for the same is borne by the plaintiff.

5. Learned counsel for the plaintiff submits that as stated in the application the plaintiff is willing to bear the expenses of the Local Commissioner appointed by this Court.

6. Accordingly, in view of the facts as prayed by the plaintiff, Ms. Shagun Sabharwal, Advocate is appointed as the Local Commissioner to record the evidence of the plaintiff in the suit along with the directions as under:

(i) The fees of the Local Commissioner is initially fixed at Rs.75,000/- on estimate that the recording of evidence shall be concluded in two sittings. If more than two sittings are held, the Local Commissioner shall be paid a fees of Rs.15,000/- per sitting.

(ii) Fees of the Local Commissioner shall be borne by the plaintiff.

(iii) The Local Commissioner shall carry out the recording of evidence at the premises of the Plaintiff.

(iv) In case any adjournment is taken by one of the parties, the said party shall bear the costs of the said sitting.

(v) In case of requirement of Court file, the Registry shall make the arrangements to send the Court file for the sitting before the Local Commissioner, and Rs.1,000/- is fixed towards the fees to be paid to the Court Staff to carry the Court file, which shall be borne by the plaintiff.

(vi) The plaintiff is directed to approach the Local Commissioner within one week for fixing dates for recording of evidence and executing the present commission.

(vii) The parties shall render all assistance to the Local Commissioner for recording of evidence.

7. With the aforesaid directions, the application stands disposed of.

8. A copy of this order may be sent to the Local Commissioner at the address as furnished below:

Name: Shagun Sabharwal Address: House No. 12B, H Block, Saket, New Delhi-110017 Email: [email protected] Phone No.- 7340989053 Signature Not Verified Digitally Signed By:DAMINI YADAV Signing Date:05.01.2023 18:24:59 I.A. 18/2023 (Under Order VII Rule 14)

1. The instant application under Order VII Rule 14 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter as "CPC") has been filed on behalf of the plaintiff seeking the following reliefs:

"It is therefore prayed that this Hon'ble court may be kind enough to take on record the aforementioned documents i.e., Khatoni issued in the joint names of the plaintiff and the defendant no. 1 and 2, a memorandum of family arrangement Dt. 15.01.1985, a released deed dt. 16.04.1985, and notice Dt. 25.09.1991 under section 81 of Delhi Rent Revenue Act. Any other relief this Hon'ble court deem fit and proper in present circumstances be passed in favour of plaintiff and against the defendants."

2. Learned counsel for defendants no. 1 and 2 appears on advance notice and there is no requirement of issuing formal notice.

3. Learned counsel for plaintiff submitted that the instant application is filed for taking on record Khatoni issued in the joint names of the plaintiff and the defendant no. 1 and 2, a memorandum of family arrangement dated 15th January, 1985, a released deed dated 16th April, 1985 and notice dated 25th September, 1991 under Section 81 of Delhi Rent Revenue Act. It is prayed that the same may be allowed.

4. Learned counsel for defendants no. 1 and 2 vehemently opposed the instant application and prayed for two weeks' time to file reply/objection. Let the same be filed within two weeks as prayed. Rejoinder thereto, if any, be filed within one week thereafter.

5. Issue notice to defendants no. 3 to 7 through all permissible modes on filing PF within one week.

6. List on 21st February, 2023.

7. Date already fixed in CS(OS) 1626/1999 i.e. 13 th January, 2023 stands cancelled.

CHANDRA DHARI SINGH, J JANUARY 4, 2023 gs/ak Click here to check corrigendum, if any Signature Not Verified Digitally Signed By:DAMINI YADAV Signing Date:05.01.2023 18:24:59