Himachal Pradesh High Court
Sh. Rajinder Kumar Verma vs Smt. Anita Verma & Ors on 8 November, 2016
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Civil Suit No. 13 of 1997
.
Date of order: November 8, 2016.
Sh. Rajinder Kumar Verma. ......Plaintiff.
Versus
Smt. Anita Verma & ors. .....Defendants.
of
Coram
rt
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Whether approved for reporting?1Yes.
For the plaintiff : Mr. Ajay Kumar, Sr. Advocate with
Mr. Dheeraj K. Vashisth, Advocate.
For the defendants : Mr. N.S. Chandel Advocate with Mr.
Dinesh Thakur, Advocate, for
defendants No. 1 to 3.
Mr. Anuj Gupta, Advocate, for
defendant No. 4.
Mr. N.K. Thakur, Sr. Advocate with
Ms. Jamuna Kumari, Advocate, for
defendant No. 6.
Defendant No. 5 in person.
ORDER
The present suit after passing preliminary decree for partition of the suit land is presently at the stage of partition 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes.
::: Downloaded on - 15/04/2017 21:31:20 :::HCHP 2thereof by a Local Commissioner to be appointed by this Court before the final decree is passed.
.
2. It is seen that vide order passed on 2.3.2004 in an application registered as CMP No. 440 of 2003 filed in this suit Mr. Bhupender Guprta, Senior Advocate was appointed as Local Commissioner to partition the suit property in accordance with of the preliminary decree and submit the report to this Court. Mr. Gupta, however, failed to do so because as per the record the rt parties i.e. all co-sharers have not cooperated with him in getting the suit property situate within the territory of the State of Himachal Pradesh partitioned. As regards the suit property A-
1/12 Safdarjung Enclave, New Delhi Mr. Naresh Sharma, Senior Advocate came to be appointed as Local Commissioner to put the same to auction. The Local Commissioner has sold that property in auction and auction purchaser had deposited the earnest money also in the Registry of this Court. However, the application registered as OMP No. 4229 of 2013 filed by the auction purchaser with a prayer to confirm the sale was dismissed because the same being lease hold could have only been sold in auction subject to the payment of 50% of the sale consideration to Delhi Development Authority towards unearned increase. The parties to the suit were not ready and willing to part with 50% sale consideration, therefore, the permission to confirm the sale as sought was declined and as the proceedings ::: Downloaded on - 15/04/2017 21:31:20 :::HCHP 3 qua conversion of the property aforesaid from lease hold to free hold were already initiated, therefore, the parties were directed .
to pursue the same and ascertain the status thereof as well as apprise this Court also qua the same.
3. On 23.6.2015, when the matter came to be listed before this court, time was sought on behalf of the plaintiff to of ascertain the current status of the proceedings qua conversion of the property i.e. A-1/12, Safdarjung Enclave, New Delhi. At the rt same time, learned Counsel on both sides had come forward with the proposal that the property situated within the territorial jurisdiction of this court can be partitioned with mutual understanding. Consequently, the following order came be passed in this matter on that day:-
"Learned counsel representing the plaintiff seeks time to pursue the matter with Delhi Development Authority qua conversion of the property i.e. A-1/12, Safdarjung Enclave, New Delhi from lease hold to free hold. Allowed. Let the Court be informed about the current status on the next date.
2. Learned counsel on both sides further submit that so far as the property situated within the territorial jurisdiction of the State of Himachal Pradesh is concerned, the same can be partitioned with mutual understanding. They further submit that at the first instance this ::: Downloaded on - 15/04/2017 21:31:20 :::HCHP 4 matter can be fixed for presence of the parties and thereafter if necessary to .
refer the same for compromise through mediated settlement. List for presence of parties on 18th August, 2015."
4. Consequent upon the order ibid the parties did not of appear on 18.8.2015 and even on the next date i.e. 22.9.2015 also it is only the plaintiff who was present in person. On the rt joint request made by learned Counsel on both sides the dispute was referred to learned Mediator appointed with mutual consent for negotiate settlement. The order passed on that day reads as follows:
"Only plaintiff is present in person. Defendants, however, are not present.
Learned Counsel on both sides are hopeful qua partition of the property situated within the State of Himachal Pradesh with mutual understanding. They pray for referring this matter to a Mediator for settlement. On their joint request, Mr. Naresh Sood, Senior Advocate is appointed as Mediator to conduct negotiations between the parties in this matter. The date for trying conciliation is left open to be fixed by learned Mediator under intimation to learned Counsel representing the parties on both sides. Administrative ::: Downloaded on - 15/04/2017 21:31:20 :::HCHP 5 Coordinator, main Mediator Centre, HP High Court to render all required .
assistance to learned Mediator in conducting the negotiations. List on 16th December, 2015."
5. However, the efforts to settle the dispute amicably of were failed as the parties did not agree for the same. An order to this effect came to be passed on 6.4.2016, which reads as under: rt "Mediation failed. On the joint request of learned counsel representing the parties on both sides, list on 26th May, 2016."
6. The matter when came to be listed before this Court again on 26.5.2016 a detailed order taking note of the delay occurred in expediting the proceedings in the suit on account of non-cooperative attitude of the parties on both sides came to be passed and prima facie opinion formed to adjourn the same as sine-a-die. The prayer made to appoint someone as Local Commissioner to partition at least the suit property situate in the state of H.P. though was not found to be in order in view of the non-cooperative attitude of the parties on both sides and also that in the opinion of this Court the appointment of the Local Commissioner was also not likely to serve any purpose, however, this Court agreed to appoint Local Commissioner subject to the ::: Downloaded on - 15/04/2017 21:31:20 :::HCHP 6 parties to file their respective affidavits indicating therein a common name to be appointed as Local Commissioner and also .
undertaking to render all assistance to the Commissioner so appointed during the course of partition proceedings initiated by him. The matter as such was adjourned for the purpose with further observation that if the steps as directed are not taken the of Court may proceed to pass appropriate orders in the matter including its adjournment as Sine-a-die. The order passed on rt 26.5.2016 also reads as follow:
"Plaintiff Rajinder Kumar Verma is present in person and Dhananjay Verma son of Shri Ashok Kumar Verma (defendant No.5), is also present.
2. It is seen from the record that Mr. Bhupender Gupta was appointed as Local Commissioner vide order passed on 2nd March, 2004 in OMP No.440 of 2003 to effect partition of the suit property consequent upon the preliminary decree passed in the suit. Learned Local Commissioner has submitted the report on 2.11.2005. He could suggest the manner in which the property namely A-1/12 Safdarjung Enclave, New Delhi could have been partitioned. As regards the other suit properties situate in the State of Himachal Pradesh, no proposal could be made perhaps on account of the parties did not cooperate during the ::: Downloaded on - 15/04/2017 21:31:20 :::HCHP 7 course of the proceedings having taken place before learned Local .
Commissioner. The property at Delhi could also not be partitioned in the manner as suggested by the Local Commissioner, of course, the same, pursuant to the order passed by this Court, was put to auction by Shri Naresh of Sharma, Advocate, who was appointed as Local Commissioner. The sale could not be confirmed as the parties on both sides rt raised objections to the report of the Local Commissioner. Subsequently, an application registered as OMP No. 4229 of 2013 came to be filed by auction purchaser for confirmation of the sale was dismissed on merits whereas OMP No.4319 of 2013 filed by the plaintiff for cancellation of the sale was dismissed being premature vide judgment dated 2.4.2015. The plaintiffs were directed to apprise the status of the proceedings qua conversion of the property A-1/12 Safdarjung Enclave, New Delhi from lease hold to free hold. The instructions as sought, however, have not yet seen the light of the day. No doubt, learned counsel on both sides are hopeful that the suit property situated within the State of Himachal Pradesh can be partitioned with mutual consent and it is for this reason the matter was referred ::: Downloaded on - 15/04/2017 21:31:20 :::HCHP 8 for mediation, however, the mediation is also failed.
.
3. This matter is pending in this Court right from the year 1997. Preliminary decree was passed long back on 3.7.2003. It is on account of non- cooperative attitude of the parties on both sides, the partition of the suit of property could not be effected. Learned counsel on both sides though pray for rt appointment of Local Commissioner, afresh, however, taking into consideration the past conduct of the parties, it may not be possible to the Local Commissioner, if appointed, again to effect partition, unless and until, a joint prayer is made in this Court by the parties on their respective affidavits in support thereof and there being consensus between them qua the person to be appointed as Local Commissioner. As prayed, the matter is adjourned to 14th June, 2016 for taking appropriate steps in the light of this order. If no steps are taken appropriate orders including adjourning this matter sine-a-die will be passed".
7. The plaintiff and defendants No. 1 to 4 have filed the affidavits as directed and consented for appointment of Mr. Naresh Sood, learned Senior Advocate as Local Commissioner.
::: Downloaded on - 15/04/2017 21:31:20 :::HCHP 9Defendants No. 5 and 6 who were exparte also appeared and filed application for setting aside the exparte order. The .
application OMP No. 262 of 2016 filed by defendant No. 5 was allowed vide order dated 10.8.2016 and while setting aside the exparte order passed against him he was permitted to join the proceedings in the suit from the stage as on 10.8.2016 onwards.
of Similar order came to be passed on 14.9.2016 in the application, OMP No. 342 of 2016 filed on behalf of defendant No. 6. On rt 10.8.2016 when defendants No. 5 and 6 appeared before this Court they both came forward with the submissions that the parties i.e. all co-sharers are permitted to settle the dispute amicably in an outside court settlement. They were allowed to do so and also to discuss the matter with the remaining co-
sharers i.e. plaintiff and defendants No. 1 to 4. The following order came to be passed on 10.8.2016:
"Affidavits on behalf of defendants No.1 to 3 is also stated to be filed during the course of the day. Defendant No.6, who was proceeded against exparte on the last date, is present in person. If so advised, he may file appropriate application for getting the exparte order set aside. Defendants No.5 and 6 submits that the issue pertaining to the partition of the joint property can be decided by all the co-sharers (parties to the suit) themselves in an outside Court ::: Downloaded on - 15/04/2017 21:31:20 :::HCHP 10 settlement. Learned counsel representing the plaintiffs and .
defendants No.1 to 4 have, however, certain reservations in this regard as according to them the suit property can only be partitioned by a Local Commissioner appointed by the Court. Anyhow, defendants No.5 and 6, if so of advised, may discuss the matter with the plaintiffs and other defendants and if rt possible to settle the issue qua partition of the suit property by way of negotiation and inform the Court on the next date.
In case their proposal is not acceptable to the plaintiffs and defendants No.1 to 4, they may also file their respective affidavits, in terms of the orders passed on 21.6.2016 so that Local Commissioner to effect the partition of the suit property amongst all co-sharers can be appointed.
List on 14th September, 2016."
8. When the matter came to be listed on 14.9.2016 this court was informed that defendants No. 5 and 6 have not discussed the matter with the plaintiff and defendants No. 1 to 4 in terms of the order ibid while defendant No. 5 was granted one more opportunity as last and final in this regard, the submissions made on behalf of defendant No. 6 that he is also not averse to the appointment of local commissioner and also filing an affidavit ::: Downloaded on - 15/04/2017 21:31:20 :::HCHP 11 to this effect, were taken on record. The order passed on 14.9.2016 is also reproduced here as under:
.
"This Court has been informed that defendants No. 5 and 6 have not discussed the matter with the plaintiffs and defendants No.1 to 4 in terms of the order passed on the previous date. Defendant No. 5 who is of present in person has sought some more time for the purpose, which though is allowed, however, as a last and final opportunity. On rt behalf of defendant No. 6 Mr. N.K. Thakur, learned Senior Advocate on instructions from Ms. Jamuna Kumari, Advocate submits that the said defendant is not averse to the appointment of the Local Commissioner and also for filing an affidavit to this effect. However, some more time has been sought for the purpose, which is granted. Let defendants No. 5 and 6 now to file their respective affidavits in the light of the order passed on 26.5.2016 within four weeks. List on 25.10.2016."
9. Now the affidavit filed by defendant N6. 6 is also on record and he has also no objection in case Mr. Naresh Sood, Senior Advocate is appointed as Local Commissioner, however, defendant No. 5 in the affidavit he filed submits that he has objection to the appointment of Mr. Naresh Sood, Senior ::: Downloaded on - 15/04/2017 21:31:20 :::HCHP 12 Advocate as Local Commissioner, however without assigning any reasons therefor.
.
10. The position explained hereinabove make it crystal clear that plaintiff, defendants No. 1 to 4 and 6 are in favour of appointment of Mr. Naresh Sood, Senior Advocate as Local Commissioner to effect the partition of the joint property situate of within the territorial jurisdiction of the State of Himachal Pradesh amongst the co-sharers. The objection to such appointment on rt behalf of defendant No. 5 being without any reason and justification is uncalled for. The record reveals that the conduct and approach of the said defendant had been non-cooperative throughout during the course of proceedings in the suit. He allowed himself to be proceeded against exparte during the course of proceedings in the suit. The date i.e. 26.5.2016 when the parties on both sides sought time to file their affidavits and agreeing therein for the appointment of some common person as Local Commissioner, defendant No. 5 was exparte. The exparte order was set aside vide order dated 10.8.2016 passed in OMP No. 262 of 2016 and he was permitted to join proceedings in this suit from that day onwards. Therefore, objection to the appointment of Local Commissioner he raised otherwise is also meaningless. One person cannot be allowed to hamper proceedings in the suit that too without any justifiable cause therefor. He even failed to make the other co-sharers agree for ::: Downloaded on - 15/04/2017 21:31:20 :::HCHP 13 settlement of the dispute in an outside court settlement despite opportunities including last and final granted in this regard. The .
objection he raised as such is rejected. However, taking a lenient view this Court defers the penal action i.e. burdening him with exemplary costs at this stage.
11. In view of the above, I appoint Mr. Naresh Sood, of learned Senior Advocate as Local Commissioner to effect the partition of the suit property situate in the State of Himachal rt Pradesh in terms of the preliminary decree passed in this suit.
Mr. Sood while executing the partition shall be at liberty to seek expert assistance. The parties on both sides are directed to render all assistance to learned Local Commissioner as mutually agreed upon and undertaken by them in their respective affidavits. Liberty to defendant No. 5 also to join the proceedings before the Local Commissioner, if so advised. However, in view of the reasons hereinabove there shall be no impact of his absence during the course of partition proceedings because this Court has reasons to believe that learned Commissioner shall effect the partition of the suit property in accordance with law and in terms of the preliminary decree as well as in the better interest of all the co-sharers.
12. The tentative remuneration of learned Commissioner is fixed at `2,00,000/- to be borne by the parties on both sides in equal shares. The amount in question be deposited in the ::: Downloaded on - 15/04/2017 21:31:20 :::HCHP 14 Registry of this Court within four weeks. The incidental expenses, if any, incurred upon by the Commissioner shall also .
be borne by the parties in equal shares. The final remuneration of the Commissioner is left open to be considered and assessed after the receipt of the report.
13. Learned Commissioner shall inform the parties of through learned Counsel representing them and also defendant No. 5 to remain present in person on the date, time and the rt venue for effecting partition which is left open to be fixed by him.
Learned Commissioner to submit the report to this Court on or before 30th April, 2017. There shall be a direction to the Registry to handover the record of the case as and when any request in this regard is made by learned Commissioner.
14. Learned Counsel representing the parties on both sides further submit that Mr. Naresh Sood, learned Senior Advocate can be appointed as Local Commissioner to effect partition of the property, A-1/12, Safdarjung Enclave, New Delhi also. Previously, it has been noticed that it was not possible to partition the suit property by metes and bounds and it is for this reason the same was ordered to be put to auction. The auction proceedings also did not mature for the reasons recorded in the order dated 2.4.2015 passed in OMP Nos. 4229 and 4319 of 2013 as neither the auction purchaser nor the parties were ready to part with 50% of the sale consideration towards unearned ::: Downloaded on - 15/04/2017 21:31:20 :::HCHP 15 increase in favour of Delhi Development Authority. Learned Counsel on both sides to ascertain there being any change in the .
rules and regulations if any to chalk out that the suit property situate at Delhi can now be partitioned or not. If it is possible to do so the authority of the Commissioner can be extended to partition the said property also in due course as and when the of status of the rules and regulations governing lease hold property under the partition of Delhi Development Authority is placed on record.
rt
15. The copy of this order and also that of the preliminary decree passed in this suit be supplied free of cost to learned Local Commissioner.
(Dharam Chand Chaudhary), Judge.
November 8, 2016, (vs) ::: Downloaded on - 15/04/2017 21:31:20 :::HCHP