Delhi District Court
Ravi Kant Sinha ....Jd/Defendant No.2 vs Mrs. Raj Sinha .....Dh/Plaintiff ... on 20 August, 2009
Misc. No. 46/2008 1 Major K. K. Sinha (Deceased)
Versus
Smt. Champawati (Deceased) & Anr.
IN THE COURT OF SH. VINOD KUMAR,
ADDITIONAL DISTRICT JUDGE20, CENTRAL DISTRICT, DELHI
Misc. No. 46/2008
1. Ravi Kant Sinha ....JD/defendant no.2
2. Ms Kusum Chanda .....JD/defendant no.1(b)
3. Ms Indu Sinha .....JD/defendant no.1(c)
(The applicants)
Versus
1. Mrs. Raj Sinha .....DH/plaintiff no.1(a)
2. Gautam Sinah .....DH/plaintiff no.1(b)
3. Mrs. Kavita Sarin .....DH/plaintiff no.1(c)
4. Mrs. Jyotsana Khanna .....DH/plaintiff no.1(d)
(The respondents)
Date of filing : 6.1.2005
Date of completing the arguments : 10.8.2009
Date of order : 20.8.2009
ORDER
1. By this order I shall dispose of an application moved by defendant no.2 and Ms Kusum Chandra, Ms Indu Sinha and Sh. Ravi Kant Sinha the legal heirs of defendant no.1, wherein the applicants have prayed for setting aside the ex parte order and judgement dated 13.10.2004 and for reviewing the same. The applicants have also prayed that the delay in filing of the application may be condoned under Section 5 of Limitation Act.
2. The brief history of the present case as stated in the application is reproduced as under : Misc. No. 46/2008 2 Major K. K. Sinha (Deceased) Versus Smt. Champawati (Deceased) & Anr.
I. The present suit was filed on the original side of the High Court of Delhi and was registered as Suit No. 428/1971 titled as Major K. K. Sinha Versus Mrs. Champawati and Another. The plaintiff Major K. K. Sinha came to be 1/3rd beneficiary of the estate in respect of 159, Golf Links, New Delhi. Whereas 2/3rd share holding was with the then existing defendants namely Smt. Champawati and Sh. Ravi Kant Sinha, who were arrayed as defendant no.1 and 2 respectively in the said suit.
II. In this suit partition and rendition of accounts, a preliminary decree dated 11.3.1080 was passed whereby which the share of the deceased plaintiff was decided as 1/3rd. Local Commissioner was appointed by the High Court of Delhi and accordingly Sh. Rishi Kesh, Advocate gave his report dated 26.2.1981 that the property was not divisible in equal share. III. The objections were filed by the original defendants no.1 and 2 to the said report.
IV. While the said objections filed vide IA No. 323/1983 dated 26.3.1981 were pending, the original defendant no.1 Smt. Champawati died on 6.6.1981 leaving behind 4 legal heirs (who are now the applicants), as per following details:
i) Sh. Ravi Kant Sinha Son
ii) Ms. Indu Sinha Unmarried Daughter
iii) Mrs. Shail Saxena Married Daughter
iv) Ms Kusum Chandra Married Daughter
V. These legal heirs were brought on record by filing application under Order 22 Rule 3 and 4 read with Section 151 of CPC. IA No. 2846/1981 was filed in this regard and which IA was also allowed vide order dated 22.4.1982.
VI. It is alleged that since all the legal heirs of the then Misc. No. 46/2008 3 Major K. K. Sinha (Deceased) Versus Smt. Champawati (Deceased) & Anr.
original defendant no.1 Smt. Champawati had joined together, having common interest in the matter, therefore, the composition in the case changed to the group of plaintiff having 1/3rd share and the defendants having 2/3rd share.
VII. Under these circumstances, IA No. 323/1983 came to be filed by the defendants in the High Court of Delhi originally, wherein these facts were brought to the notice of the High Court and it was prayed there that in view of the changed circumstances, a fresh report of an independent expert either an architect or reputed civil engineer was sought for suggesting ways and means for division of the suit property in the proportion of 1/3rd for plaintiff and 2/3rd for all the defendants. Accordingly, prayer was made under Order 26 Rule 13 read with Section 151 CPC by way of said application bearing IA No. 323/1983.
VIII. In the meantime the reply was also filed by the plaintiff to the objections as filed by the defendants vide IA No. 1152/1981. These objections also remained pending.
IX. IA No. 6547/1985 was filed by the plaintiff dated 5.11.1985 purported to be under Section 2, 3 and 6 (3) of the Partition Act. In that IA No. 6547/1985 it was admitted by the plaintiff that the defendant's IA No. 323/1983 was still pending. Various suggestions were also given by the plaintiff in the said IA. Eventually, it was prayed in the application that the property be partitioned by meets and bounds in terms of the preliminary decree and if it was not possible, then, property ordered to be sold either by way of publication or bid amongst the parties themselves. Doctrine of owelty was also pleaded.
X. The prayer in IA No. 6547/85 was that the plaintiff themselves had given a go bye to the report of the Local Commissioner dated 26.2.1991. The plaintiff had also Misc. No. 46/2008 4 Major K. K. Sinha (Deceased) Versus Smt. Champawati (Deceased) & Anr.
acknowledged the effect of the changed scenario after the death of Smt. Champawati. Reply to the said application was filed by the defendants and it was stated that in view of the judgement of the Division Bench of the High Court of Delhi reported in AIR 1984 Delhi page 164 titled Faquira Versus Radha Rani, the property could not be directed to be auctioned. As per the ratio of the said judgement, independent of the provisions of Partition Act, the Courts had no inherent power to order the sale of the property sought to be partitioned. It was stated that in view of the said judgement of the High Court of Delhi, no person having less than half share could ask for the sale of the joint property. It was also stated in the reply that the defendants were ready and willing to give 1/3rd share of the property to the plaintiff on the first floor of the property and he could seek such appropriate remedies against the tenant. Reference was also made to other judgements namely AIR Calcutta 1958 Page 177 and 60 Calcutta Weekly Notes Page 829, in support of these contentions. The said IA No. 6547/1985 was directed to be listed for hearing on 8.4.1987 in the category of "others". For one or the other reasons, not attributable to the defendants, the said IA No. 6547/1985 could not be taken up for hearing. XI. In the meantime there was a lot of delay caused on account of the whereabouts of the of the plaintiff bearing not know and on that account, the matter could not be taken up. Ultimately, IA No. 3343/1993 was filed by the plaintiff seeking declaration that the plaintiff Sh. K. K. Sinha be declared as having been dead since he was not heard or seen for the last 7 years. The application was also allowed and the legal heirs of the plaintiff were also brought on record. This order was passed on 1.5.1996. Thereafter, the two IAs namely IA No. 323/1983 filed by the defendant and IA Misc. No. 46/2008 5 Major K. K. Sinha (Deceased) Versus Smt. Champawati (Deceased) & Anr.
No. 6547/1985 were left out to be taken for disposal. There were some talks of compromise in between the parties and the matter was taken up in the chamber from time to time. Ultimately it was recorded on 25.1.2000 that there was no possibility of compromise and as such it was directed that several IAs which were pending for disposal be taken up for hearing. XII. It was also noted by the Court on 25.9.2000 that the legal heirs of defendant no.1 namely Mrs. Shail Saxena, who was living in Canada had also died and appropriate steps were required to be taken by the plaintiff to bring her legal heirs on record.
XIII. Vide order dated 20.7.2000 it was directed that notice be issued to the proposed legal heirs of Late Mrs. Shail Saxena in response to IA No. 473/2000 filed by the plaintiff. It was noted by the court vide order dated 31.7.2000 that legal heirs of deceased Mrs. Shail Saxena be served on filing process fee and registered AD and the case was directed to be adjourned for 1.2.2002. Some counsel had caused appearance on behalf of the proposed legal heirs of Late Smt. Shail Saxena. The case was adjourned for the said purpose. The power of attorney was not filed. Vide order dated 17.7.2002, application under Order 22 Rule 10 for impleading the legal heirs of Mrs. Shail Saxena was allowed. The amended memo was directed to be filed by the plaintiff. The power of attorney was also directed to be filed on behalf of the legal heirs of Mrs. Shail Saxena.
XIV. The case was taken up for number of dates on which dates it was adjourned and ultimately vide order dated 13.11.2002 it was directed as under :
"Let notices be issued to legal heirs of Mrs. Shail Saxena on process fee and registered AD cover for 25.2.2003."
Misc. No. 46/2008 6 Major K. K. Sinha (Deceased) Versus Smt. Champawati (Deceased) & Anr.
XV. It is argued that after passing of the said order, it was necessary and incumbent for the plaintiff to serve the legal heirs of the deceased Mrs. Shail Saxena (Defendant No. (1a). Vide order dated 25.2.2003, the plaintiff's counsel sought time to check as to the way in which the legal heirs of Late Mrs. Shail Saxena could be served. The case was directed to be taken up thereafter on 4.4.2003 when court was on leave. Thereafter, it was adjourned to 9.5.2003 on which date the Judge was on leave and the case was directed to be renotified on 1.10.2003.
XVI. The case was taken up by the Joint Registrar of Delhi High Court on 26.9.2003 on which date it was noticed that since the pecuniary value of the property was less than Rs.20 lakhs, therefore, suit was liable to be transferred to the District Judge, Delhi for 19.11.2003 and the date of 1.10.2003 was cancelled. XVII. It is argued by Ld. Counsel for applicants that vide order dated 19.11.2003 this court directed that the case be put up for further proceedings on 16.1.2004 on which date the court directed issuing notice to the counsel for defendants. However, it was not informed whether the notice was to go to the counsel for all the defendants and that the court also failed to take note of the fact of the order dated 13.11.2002 as per which the fresh notices were required to be sent by the plaintiff on process fee/registered A.D. on the legal heirs of Mrs. Shail Saxena.
XVIII. The case was directed to be taken up on 12.3.2004 on which date the proxy counsel for the plaintiff appeared and defendant no.2 appeared in person and the case was directed to be heard on 13.4.2004. Lawyers were on strike on 13.4.2004 and the case was renotified on 3.6.2004. On that date also the plaintiff's proxy counsel appeared and the case was adjourned to 13.7.2004.
Misc. No. 46/2008 7 Major K. K. Sinha (Deceased) Versus Smt. Champawati (Deceased) & Anr.
XIX. Vide order dated 13.7.2004, the case was directed to be put up for arguments on 12.8.2004, however, it is submitted by applicants that the plaintiff did not draw the attention of the court to the earlier order dated 13.11.2002 which necessitated and required the service of the legal heirs of Late Mrs. Shail Saxena. On the adjourned date of hearing namely 12.8.2004, the case was directed to be put up for arguments on 18.8.2004 and the merit of the previous order of the High Court dated 13.11.2002 was totally lost sight of. Vide order dated 18.8.2004 this court adjourned the case on the request of the counsel for the defendants, to 27.8.2004 on which date the proxy counsel for the plaintiff had asked for the date and the case was adjourned for 6.9.2004 on which date the lawyers were on strike and the case was directed to be put up for 13.9.2004. On that date the plaintiff's counsel again appeared and the proxy counsel for the defendant had appeared and sought date for arguments and the court adjourned the case to 27.9.2004.
XX. On 27.9.2004 this court directed the parties to file written arguments on or before 7.10.2004 and the case was directed to be put up on 13.10.2004.
XXI. It is submitted by Ld. Counsel for applicants that the case was taken up on 13.10.2004. Mr. Joginder Sukhija and Mr. Shailender Babbar, Advocates had been conducting the case on behalf of the main counsel. Incidentally Sh. Shailender Babbar, ADvocate was contesting for the election in the Tis Hazari Bar, which was scheduled for 15.10.2004 and as such on account of the said fact neither Mr. Joginder Sukhija nor Mr. Shailender Babbar could appear in the court to apprise this court of the relevant aspects, which were otherwise present on record. It is argued that this court accordingly passed the judgement which was for all intents and purposes an ex parte order and judgement Misc. No. 46/2008 8 Major K. K. Sinha (Deceased) Versus Smt. Champawati (Deceased) & Anr.
and that the said jugement does not take note of the previous order passed by court as well as the submissions, which were already on record along with details of judgement which would prima facie show that the order as passed could not have been passed had the said facts been taken note of by this court.
3. The respondents/DHs filed the reply to the application. In the present application following issues arise :
1. Whether the legal heirs of defendant no.1A (Mrs. Shail Saxena) were duly served.
2. Whether the judgement and decree (which was ex parte as against legal heirs of Mrs. Shail Saxena) is liable to be set aside on account of the reason that they remained unrepresented and were not heard.
3. Whether the judgement and decree can be set aside being violative of the Partition Act 1893.
4. Whether the non appearance of the applicant and his counsel has resulted in any miscarriage of justice and therefore judgement and decree should be set aside on that very account.
5. Whether the decision of pending applications was necessary before passing the judgement and decree dated 13.10.2004.
6. Whether applicants have shown any justified ground for condonation of delay in filing of the present application.
I have considered the submissions of the parties and my findings Misc. No. 46/2008 9 Major K. K. Sinha (Deceased) Versus Smt. Champawati (Deceased) & Anr.
are as under : ISSUE NO.1.
4. A perusal of the judicial file would show that Mrs. Shail Saxena (respondent no.1A) was served by way of registered posted. Defendant no.1A had died during the course of the pleadings and an application was moved by the plaintiff/DH Raj Sinha to implead the legal heirs of Mrs. Shail Saxena, who are Sh. Satish Saxena the husband, Sh. Alok Saxena and Mr. Mike Saxena (both sons), and Ms Kusum Chandra (the daughter). This application was allowed on 17.7.2002 and all the legal heirs were duly served through registered post. The duly signed acknowledges of the legal heirs have been received back which show that they were served on 18.1.2003 and 20.1.2003. Therefore it cannot be said that the legal heris of defendant no.1A were not served. It is argued by Ld. Counsel for applicants that since the court again issued the summons and the files were transferred, fresh summons were required to be issued to them. I disagree with the submissions of Ld. Counsel for applicant. The order sheet dated 25.2.2003 and subsequent order sheet do not show that the defendants appeared before Hon'ble High Court. Therefore in such situation, there was no need to issue fresh summons by the transferee court to legal heirs of Mrs. Shail Saxena as they were duly served. Therefore I hold that the legal heirs of Ms Shail Saxena were duly served and this issue is decided against the applicants. Misc. No. 46/2008 10 Major K. K. Sinha (Deceased) Versus Smt. Champawati (Deceased) & Anr.
ISSUE NO.2.
5. Ld. Counsel for applicant submits that judgement and decree is liable to be set aside because the legal heirs of Ms. Shail Saxena remained unheard and unrepresented. It is pertinent to note that in prayer clause of application, the applicants have prayed "to set aside the order and judgement dated 13.10.2004 by condoning the delay, if any be, and matter be directed to be taken on merits afresh after complying the orders of High Court regarding effective service on the legal heirs of Mrs. Shail Saxena". I have already stated that legal heirs of Mrs, Shail Saxena had been duly served. Even if they are unrepresented, it is for the legal heirs to make application before this court if they have any grievance from the judgement. However none of the legal heirs of Mrs. Shail Saxena had moved any application praying that the judgement may be set aside. Further more it has not been shown as to how the rights of the applicants have been affected if the legal heirs of Mrs. Shail Saxena have not joined the litigation. It appears that fresh summons were issued to the legal heirs of Ms Shail Saxena as the service of notice upon them was not brought to the notice of the court. I may point out that in the last order sheet dated 13.10.2004, it has been specifically noted by Sh. Praveen Kumar, Ld. ADJ that there was no need to serve notice upon the legal heirs of Ms Shail Saxena as the shares of the parties in the suit has already been determined. Therefore in view of this categorical Misc. No. 46/2008 11 Major K. K. Sinha (Deceased) Versus Smt. Champawati (Deceased) & Anr.
finding of Ld. Additional District Judge, even if the legal heirs are presumed to have not been properly served, the same would not in any manner affect the final decree. Therefore this issue is also decided against the applicant.
ISSUE NO.3.
6. Ld. Counsel for applicants has drawn my attention to Section 2 of the Parition Act 1893 and submits that partition can be sought only at the request of the owners of 50% share in the property or more. Ld. Counsel for applicant has cited Faquira Vs Smt. Raj Rani & Anr. and AIR 1984 Delhi page 168 in his favour. It is argued that since the applicants, who have 2/3 share in the property were opposing sale, this court could not have ordered the sale.
7. I have considered the submissions of Ld. Counsel for applicant.
Ld. Counsel for applicant is raising a complex question of law and fact for which statutory law and the authorities have to be perused. Ld. Counsel for respondents/DH is also relying upon a few authorities. By pressing these submissions Ld. Counsel for applicant intends to get the judgement reviewed. As per Section 114 of Civil Procedure Code, the judgement can be reviewed only in the case of the illegality appearing on the face of the record and if the court has to look into complex legal provisions and case laws, the review would not be maintainable. As per Order 47 Rule 1 CPC, the review of a judgement can be sought if there is discovery Misc. No. 46/2008 12 Major K. K. Sinha (Deceased) Versus Smt. Champawati (Deceased) & Anr.
of new and important matter or evidence which after exercise of due diligence was not within his knowledge or could not be produced by him at the time when decree was passed or on account of some mistake, error appear on the face of record. In the present case no new material/evidence has been brought. I have already stated that Ld. Counsel for plaintiff is pressing a question of law which requires detailed examination of submissions and law submitted by the parties and therefore in such circumstances the issues raised by Ld. Counsel for applicant can be heard in only appeal and not in review jurisdiction.
8. I may point out that in Delhi High Court in above mentioned case namely "Faquira" specifically held that whenever the court passes an order of sale, an appeal lies under Section 8 of the Partition Act 1893 (para 11 and 12 of the judgement). In view of the above circumstances, I am not inclined to hear a review petition filed in garb of this application. This issue is decided accordingly. ISSUE NO.4.
9. Non appearance of the applicant and his counsel is not in control of the court. Therefore if a judgement has been passed, it does not result in miscarriage of justice, though such a party may have recourse of revision and appeal. Therefore the judgement and decree cannot be set aside on this ground alone. ISSUE NO.5.
10. It is alleged by the applicant that the trial court did not decide a Misc. No. 46/2008 13 Major K. K. Sinha (Deceased) Versus Smt. Champawati (Deceased) & Anr.
few pending applications for example no. (1) An application of non applicant/plaintiff under Section 2, 3 and 6 of the Partition Act bearing I.A. No. 6547/1985 was pending disposal, (2) I. A. No. 323/83 relating to the provisions of Local Commissioner was also pending etc.
11. I am of the opinion that once the court has passed a judgement, all the applications come to end. I have already stated that if a decree is passed in violation of the Partition Act, an appeal would lie. Further the objections of the applicant against the commissioner's report stand automatically dismissed by the impugned judgement. Therefore I do not find any substance on the submissions of applicant on this issue. ISSUE NO.6.
12. Ld. Counsel for applicant submits that on 12.3.2004 the case was fixed for 13.4.2004. However on 13.4.2004 lawyers were on strike and the case was renotified on 3.6.2004. Thereafter the case was adjourned for 13.7.2004. The court adjourned the case for arguments on 12.8.2004 and thereafter to 18.8.2004.
13. On 18.8.2004 the case was adjourned at the request of Ld. Counsel for defendants (the applicants) to 27.8.2004. The case was adjourned for 6.9.2004 and thereafter on 13.9.2004. On this date both the parties sought adjournment and case was fixed for 27.9.2004.
14. On 27.9.2004 this court directed the parties to file written Misc. No. 46/2008 14 Major K. K. Sinha (Deceased) Versus Smt. Champawati (Deceased) & Anr.
arguments on or before 7.10.2004 and the case was directed to be put on 13.10.2004.
15. It is stated that on 13.10.2004 Sh. Jogender Sukhija and Sh. Shailender Babbar, advocates, who had been conducted the case on behalf of main counsel did not appear because Sh. Shailender Babar, advocate was contesting bar election in Tis Hazari, which was scheduled for 15.10.2004. Due to this reason both the counsels could not appear which led to passing of the ex parte judgement. It is argued that due to this reason the court could not take note of the submissions of the parties, which were on record. It is submitted that this is a justifiable ground for setting aside the judgement and decree. I have perused all the order sheets. It is pertinent to notie that the case was more that 30 years old and the matter was lingering on for a long time. On some dates the lawyers were on strike. The order sheet dated 12.8.2004 would show that my Ld. Predecessor directed Sh. Jogender Singh proxy counsel to ask the main counsel to appear in this case. The order sheet dated 18.8.2004 shows that the Ld. Counsel for defendant sought a date on the ground that they had just received the file from the previous counsel. On 6.9.2004 the lawyers were on strike. On 13.9.2004 proxy counsel Sh. Nitin Grover, adv. sought a date that main counsel Sh. Amit is not well. The order sheet dated 27.9.2004 reflects that Sh. Amit Nijhawan, adv. for defendant requested for a date that the main counsel is busy in High Court. The Misc. No. 46/2008 15 Major K. K. Sinha (Deceased) Versus Smt. Champawati (Deceased) & Anr.
adjournments were strongly opposed by Ld. Counsel for plaintiff and therefore my Ld. Predecessor ordered the parties to file written arguments on or before 7.10.2004 and case was fixed for judgement on 13.10.2004. It appears that no written arguments were filed and my Ld. Predecessor had no option but to pass a judgement vide judgement dated 13.10.2004. Therefore it cannot be said that the judgement is passed ex parte.
16. Further the present application for setting aside the order was filed on 17.12.2004 i.e. after the delay of more than 60 days. It is stated in para 24 of the application that applicant (defendant no.2), who was perusing the matter had been making inquiry from the previous counsels namely Sh. Jogender Sukhija and Sh. Shailender Babbar, advocates, who did not give a clearcut answer. It is stated that ultimately after making inquiry from the clerk of previous counsel it was learnt on 10.12.2004 that the case had been decreed against the defendant. It is prayed that this is a justified explanation as to why the delay should be condoned. It is very strange that the advocates would not give a clearcut answer but his clerk would oblige applicant after two months. The plea raised in the plaint is absolutely unacceptable. There is no reason why the advocate would not tell the date to his client. Further if the advocate did not oblige the applicants, they could have very well traced out the date from the court itself. I have no hesitation to point out that the entire efforts of the applicants/defendants in the Misc. No. 46/2008 16 Major K. K. Sinha (Deceased) Versus Smt. Champawati (Deceased) & Anr.
suit has been to somehow to delay it to the prejudice of the decree holders. It must not be forgotten that the applicants are in possession of the suit property, whereas the respondents are out of it. I do not find any substance in the plea of applicants that he came to know about the judgement and decree on 10.12.2004. The applicant has through out been represented by very able advocates. Applicants have not filed any affidavit of any of the advocates that they could not inform the applicant about the judgement and decree. I therefore hold that applicants have not been able to show any justified ground for condonation of delay in filing the present application. Therefore this issue is also decided against the applicants.
17. In these circumstances the applicants fail on all the issues mentioned above and the application is hereby dismissed. The application file be consigned to record room along with the decided file.
Announced in the open court on 20.8.2009.
(VINOD KUMAR) Additional District Judge20 Central District, Delhi