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Deepika Talwar vs Shalini Chaudhry Sharma & Ors on 11 February, 2019

Author: Rajiv Sahai Endlaw

Bench: Rajiv Sahai Endlaw

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*   IN THE HIGH COURT OF DELHI AT NEW DELHI
+   CS(OS) 110/2016
    DEEPIKA TALWAR                                       ..... Plaintiff
               Through: Mr. Tanmay Mehta with Mr. Krishanu
                        Adhikary, Mr Ashish Kumar &
                        Mr. Shakti Verma, Advs.
                        Versus
    SHALINI CHAUDHRY SHARMA & ORS                  ..... Defendants
               Through: Mr. Rajat Aneja & Mr. Akshit Kapur, Advs.
                        for D-1.
                        Mr. Siddharth Yadav and
                        Mr. Wasim Ashraf, Advs. for D-2.
                        Mr. Amitabh Marwah, Adv. for D-3.
                        Mr. S.P.Das, Adv. for D-4.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                            ORDER

% 11.02.2019 IA No.15485/2018 (of defendant no.1 under Order IX Rule 7 CPC), IA No.2041/2019 (of plaintiff for revival of IA No.11000/2018), IAs No.2042 & 2043/2019(both of the plaintiff for condonation of delay), IA No.2094/2019 (of defendant no.2 for direction) & IA No.13117/2018 (of defendant no.1 for amendment of issues)

1. The defendant no.1 seeks setting aside of the order dated 23rd October, 2018 proceeding ex parte against the defendant no.1.

2. The counsel for the plaintiff and the counsel for the defendant no.2 have opposed the said application.

3. The counsel for the plaintiff has contended that vide order dated 17 th May, 2017, the defendant no.1 was given a last opportunity to file affidavits by way of examination-in-chief of all her witnesses on or before 31st May, 2017, else the right to lead evidence was to stand closed. It is contended that CS(OS) 110/2016 Page 1 of 4 though vide order dated 30th May, 2017 passed by the Division Bench, the order dated 17th May, 2017 was stayed, but the stay granted by the Division Bench was vacated on 12th September, 2018 and thereafter also no affidavits by way of examination-in-chief were filed and on 23rd October, 2018 the defendant no.1 was proceeded against ex parte.

4. The counsel for the defendant no.1 has contended that the Division Bench, while permitting the defendant no.1 to withdraw the appeal on 12 th September, 2018, granted permission to the defendant no.1 to approach this Bench for appropriate relief in regard to the issues framed and an application under Order XIV Rule 5 of CPC was filed immediately thereafter and which came up before this Court on 26th September, 2018 when notice thereof was ordered to be issued and thus the affidavits by way of examination-in-chief were not filed. It is also stated that the defendant no.1 will file affidavits by way of examination-in-chief of all the three witnesses to be examined including the two attesting witnesses, though no list of witnesses has been filed, and will produce all the said three witnesses at own responsibility on the date/s which are fixed for their examination.

5. Though merely filing an application under Order XIV Rule 5 of CPC did not releave the defendant no.1 of the obligation to file affidavits by way of examination-in-chief for which last opportunity was given, but for the sake of avoiding any further delay, it is deemed appropriate to grant an opportunity to the defendant no.1, binding the defendant no.1 to the aforesaid statement.

6. It is also stated that the defendant no.1 withdraws IA No.13117/2018 under Order XIV Rule 5 of the CPC. Resultantly, IA No.13117/2018 is CS(OS) 110/2016 Page 2 of 4 dismissed as withdrawn and IA No.15485/2018 under Order IX Rule 7 CPC is allowed on aforesaid terms making it clear that on non-compliance of any of the terms hereof, the opportunity granted shall stand closed in entirety and the defendant no.1 shall be relegated to the same position as of today.

7. The defendant no.1 to file affidavits by way of examination-in-chief of all the three witnesses aforesaid within one week of today with an advance copy to the counsel for the other parties. The defendant no.1 but will not be entitled to examine any other witness since no list of witnesses has been filed

8. As per the order dated 30th January, 2017, the fee of the Commissioner was to be borne by the defendant no.1. Though vide subsequent order dated 23rd October, 2018 the plaintiff and the defendant no.2 had undertaken to share the said fee since defendant no.1 was ex parte but the counsels, on enquiry, state that the fee has not been paid. The defendant no.1 to immediately also pay the fee of the Commissioner and the parties are directed to appear before the Commissioner appointed for recording evidence within two weeks of today with prior appointment.

9. It is also the grievance of the counsel for the plaintiff and the counsel for the defendant no.2 that the defendant no.1 is not in compliance with the orders dated 30th January, 2017, 17th May, 2017 and 21st August, 2018 directing the defendant no.1 to furnish the trail of the movable estate of the common predecessor.

10. The counsel for the defendant no.1 states that the requisite particulars have been furnished.

11. The counsel for the plaintiff and the counsel for the defendant no.2 controvert.

12. The counsel for the defendant no.2 has also filed an application pleading that in terms of the order dated 30th January, 2017, the defendant no.1 has not pursued the issue of income tax against the estate and which liability will consume the entire estate.

13. The counsel for the defendant no.1 states that the requisite steps are being taken and affidavit in this respect shall be filed within two weeks with advance copy to the opposing counsel.

14. The counsel for the defendant no.1 assures that he will personally with the assistance of his client, remove all the misgivings of the plaintiff and the defendant no.2 by personally sitting with the counsel for the plaintiff and defendant no.2 and if any misgivings remain, the Court may appoint an independent person to resolve the controversy.

15. In terms of above, IA Nos.11000/2018, 2041/2019, 2042/2019, 2043/2019 and 2094/2019 are disposed of.

16. List on 20th March, 2019 for making further orders if any required with respect to the income tax liability and with respect to the compliance of the orders dated 30th January, 2017, 17th May, 2017 and 21st August, 2018 qua the movable assets.

RAJIV SAHAI ENDLAW, J.

FEBRUARY 11, 2019 Ak..