Delhi District Court
Partho Bhattacharya vs . Ravindranath Bhattacharya & Ors. on 21 September, 2013
IN THE COURT OF SHRI MUKESH KUMAR GUPTA:
ADDITIONAL DISTRICT JUDGE06: CENTRAL: DELHI
Civil Suit No. 213/10/07
U. ID No. 02401C0719192007
Partho Bhattacharya Vs. Ravindranath Bhattacharya & Ors.
O R D E R :
1. By way of present order, I shall conscientiously decide an application under section 151 CPC seeking permission on behalf of plaintiff and defendant no. 2 to 5 for performing customary rites and rituals ceremonies of their deceased father on completion of 12 years of his death at parental home/suit property during 07.07.2013 to 15.07.2013.
2. Eschewing prolix reference to the pleadings, crystallizing the same, the plaintiff has filed the instant suit for partition and possession against defendants herein on the basis of his claim that his mother Anjali Bhatta wife of Late Sh. Guru Prasad Bhatta had purchased a property bearing no. 371 D, Pocket 2, Mayur Vihar, Delhi (hereinafter called the suit property) from the seller Madhu Gupta for a consideration of Rs. 1,25,000/. It is the claim of the plaintiff that registered Will and a receipt to this effect dated 22.01.1990 executed by the aforesaid Madhu Gupta. It has been further stated that Sh. Guru Prasad Bhatta was the attorney of the aforesaid CS No. 213/10/07 Partho Bhattacharya Vs. Ravinderanath Bhattacharya 1/5 property and was authorized to execute the sale document by the previous owner in favour of his mother Anjali Bhatta. The property is stated to have remained in possession of his father Sh. Guru Prasad Bhatta and now stated to be in possession of defendant no.
1. It has been further stated that his mother died on 01.04.1993 while his father expired on 08.07.2001 leaving behind the plaintiff and defendant herein. It has been further stated that Sh. Guru Prasad Bhatta, father of the plaintiff and defendants had two wifes and from first wife two sons namely defendant no. 1 & 2 were born while from the second wife who happens to be mother of the plaintiff herein namely Anjali Bhatta have two sons and two daughters were born. It has been further stated that the legal heirs of Sh. Guru Prasad Bhatta as relinquished their share in favour of the plaintiff vide relinquishment deed dated 19.07.2001 and as of now only the plaintiff and defendant no. 1 are the joint owners of the suit property. The plaintiff has claimed partition as also possession of the suit property by way of instant suit.
3. While defendant no. 2 to 5 have filed their respective no objections in the form of their written statements filed on record dated 17.08.2011 and 13.09.2011 respectively, defendant no. 1 has contested the suit by filing a detailed written statement thereby refuting the existence of any cause of action in favour of the plaintiff at all. The defendant no. 1 has stated that Sh. Anjali Bhatta was never the owner of suit property nor in possession thereof and it was their late father Sh. Guru Prasad Bhatta who has purchased the suit property from the earlier owner Madhu Gupta out of his own CS No. 213/10/07 Partho Bhattacharya Vs. Ravinderanath Bhattacharya 2/5 funds from the sale proceeds of his DDA flat situated in Pitampura. It has been further stated that the suit property was purchased by his father Guru Prasad Bhatta vide Sale Agreement and Power of Attorney both dated 22.01.1990. The defendant no. 1 has further contended that his father Guru Prasad Bhatta has already executed the duly registered Will dated 29.06.2001 thereby bequeathing the suit property in his favour and there is no question of any right, title or interest of the plaintiff in the suit property and the suit is liable to be dismissed outrightly with costs.
4. Issues in this matter were settled on 12.10.2011 where after the matter was listed for plaintiff's evidence in between the instant application under disposal has been filed.
5. In the application under disposal, it has been stated that the father of the plaintiff and defendants expired on 08.07.2001 and therefore the plaintiff is required to perform certain ceremonies as per Hindu Religious Customs between the period 07.07.2013 to 15.07.2013 at their parental home for the purpose of attainment of salvation of the soul of their father Guru Prasad Bhatta. A permission has been sought by plaintiff and defendant no. 2 to 5 alongwith defendant no. 1 to hand over the possession of the suit property for the period 07.07.2013 to 15.07.2013.
6. Reply to the aforesaid application has also been filed in which it as been stated that the application is nothing but a flagrant abuse of process of law. It has been stated that the application needs to CS No. 213/10/07 Partho Bhattacharya Vs. Ravinderanath Bhattacharya 3/5 disclose any such Hindu rites and customs which require the family to perform ceremony on completion of 12 years of death. It has been further stated that the falsity of the application can be seen from the fact that no such ceremony was performed at the end of the 12 years in respect of their mother who has died long. It has been further stated that even otherwise, defendant no. 1 had been performing all the requisite ceremonies including the ceremonies referred to in the application i.e. pind daan, kali puja, satyanarayan puja, gita and akhand paath and bhog ceremony etc., which were performed by him as last rites at the time of the death of their father. The defendant no. 1 has sought dismissal of the application with exemplary costs.
7. I have heard Ld. Counsel for the parties and perused the record. I have given a thoughtful consideration to the same.
8. First and foremost, it is pertinent to mention here that the application is shown to have been moved by plaintiff with defendant no. 2 to 5. However, the same is signed by plaintiff only and not by defendant no. 2 to 5. Even no affidavit in support of their application by defendant no. 2 to 5 has been filed. Secondly, it may be seen that the plaintiff has failed to disclose any specific Hindu rites or customs by way of anything shown on record to be performed on the expiry of 12 years of death of a person. Thirdly, even if it is considered that on account of religion, region or linguistics, the parties have their separate customs to be performed on the expiry of 12 years of death of a person, the same has not CS No. 213/10/07 Partho Bhattacharya Vs. Ravinderanath Bhattacharya 4/5 been shown. In any case, the same has been refuted by defendant no. 1 in his reply. Fourthly, it is pertinent to point out that the applicant has sought permission to perform the ceremonies between the period 07.07.2013 to 15.07.2013 on the ground that his father is expired on 08.07.2001. The aforesaid period has already expired and it has not been informed to the court as to what happened to the ceremonies during that period and as such the application has already become infructuous. Finally, the present suit is a suit for partition and possession where a specific possession of the part of the suit property has been sought by the plaintiff, the reliefs sought in the application, is direction to defendant no. 1 to handover the possession of the premises for a temporary period for the purpose of performing certain ceremonies which otherwise has not been shown to have been performed in respect of the deceased mother who has expired admittedly on 01.04.1993, cannot be granted by the court in exercise of the powers under section 151 CPC. The application is nothing but a gross abuse of process of law. The same is devoid of any merits and deserves dismissal. The same is accordingly dismissed with a cost of Rs.2000/.
(MUKESH KUMAR GUPTA)
DATED 21.09.2013 ADJ06/(Central) Delhi
ANNOUNCED IN THE OPEN COURT (jb)
CS No. 213/10/07 Partho Bhattacharya Vs. Ravinderanath Bhattacharya 5/5
Civil Suit No. 213/10/07
21.09.2013
Present : Proxy Counsel for plaintiff.
Sh. J. K. Bhola, Ld. Counsel for defendant.
Vide separate order announced in the court, the
application under section 151 CPC of the plaintiff is dismissed with cost of Rs.2000/.
Now to come up for leading plaintiff's evidence on 15.01.2014. Affidavits of the remaining PWs be filed by next date under copy to other side which has been supplied at least 15 days in advance.
(MUKESH KUMAR GUPTA) ADJ06/(Central) Delhi 21.09.2013 CS No. 213/10/07 Partho Bhattacharya Vs. Ravinderanath Bhattacharya 6/5