* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 11 August, 2011
+ CM (M) No. 997/2010 and TR.P.(C) No. 7/2010
SHRI HARJEET SINGH ...........PETITIONER
Through: Mr. Rajiv Kumar, Advocate.
Versus
MRS. MANJEET KAUR ..........RESPONDENT
Through: Mr. S.P. Aggarwal, Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J.
1. This order shall dispose of two petitions.
2. CM (M) No. 997/2010 has challenged the impugned order dated 17.11.2009 vide which the application filed by the petitioner /respondent No.5 (Harjeet Singh) under Order 9 Rule 7 of the Code of Civil Procedure (hereinafter referred to as 'the Code') seeking setting aside order dated 23.05.2009 had been CM (M) No. 997/2010 and TR.P.(C) No. 7/2010 Page 1 of 6 dismissed.
3. The second petition is a transfer petition i.e. TR.P. No. 7/2010 which has also been filed by the petitioner/Harjeet Singh contending that the suit which had been filed by him i.e. Suit No. 268/2008 which is a suit of declaration, permanent and mandatory injunction seeking a relief to the effect that the Will dated 21.02.2005 executed by his deceased father namely, Joginder Singh be declared null and void; the contention is that the probate petition filed by his sister Manjeet Kaur which was subsequent in time i.e. Probate Petition No. 95/2008 seeking a probate of this aforenoted Will dated 21.02.2005; prayer is that both the suit and the petition be clubbed together and transferred to the court where the suit is pending.
4. Joginder Singh had died on 09.02.2008 leaving behind one son, namely, Harjeet Singh (presently a resident of USA) and four daughters of whom Manjeet Kaur is one daughter. Contention of the Manjeet Kaur is that in terms of the last Will dated 21.02.2005 of the deceased Joginder Singh ground floor of the suit property i.e. 16/10, Geeta Colony, Delhi had been bequeathed to her; she has sought probate of the aforenoted Will in her favour. These proceedings were admittedly subsequent in time; the suit for declaration and mandatory CM (M) No. 997/2010 and TR.P.(C) No. 7/2010 Page 2 of 6 injunction had been filed by her brother Harjeet Singh prior in time seeking the Will dated 21.02.2005 to be declared null and void.
5. It is not disputed that an application under Section 10 of the Code been filed by Harjeet Singh in the probate petition which had been disposed of vide order dated 07.07.2010; the court was of the view that the probate petition cannot be stayed merely because of the earlier suit filed by Harjeet Singh seeking declaration and injunction against the Will dated 21.02.2005 is pending; the application under Section 10 of the Code had been dismissed. This order dated 07.07.2010 has since attained a finality; it has not been subject matter of challenge before any court. It is also not in dispute that in the probate petition evidence had been concluded and the arguments have also been addressed; matter has been reserved for judgment; because of the stay granted by this court judgment has not been delivered in the probate petition.
6. The order dated 07.07.2010 (which was on the application filed by Harjeet Singh Section 10 of the Code) having been dismissed, it is clear that that court had arrived at a finding that the two litigations i.e. suit for declaration and the probate petition are two separate and independent proceedings and CM (M) No. 997/2010 and TR.P.(C) No. 7/2010 Page 3 of 6 cannot be joined together; that order not having been challenged, as also the fact that the probate petition is now ripen for delivery of judgment on these grounds alone, the transfer petition i.e TR. P. No. 7/2010 is liable to be dismissed. It is accordingly dismissed.
7. In the CM (M) No. 997/2010, the order under challenge is the order dated 17.11.2009 which seeks setting aside of the ex parte order dated 23.05.2009 which had been passed in the probate petition; admittedly the application seeking setting aside of the ex parte order had been filed on 26.10.2009 that is after two adjourned dates. The court has in its exhaustive order noted that the petitioner/respondent No. 5 (Harjeet Singh) is a resident of USA; admittedly, he had authorized his one sister namely, Jagjit Kaur as also his counsel Bhupender Pratap Singh to act on his behalf; summons had been sent to him i.e. respondent No. 5 at the address of his sister as also the address of his counsel Bhupender Pratap Singh; his sister Jagjit Kaur had received the summons and appeared in court on 24.10.2008; no objection/written statement had admittedly been filed on his behalf; court had also noted that the advocate of the petitioner namely, Bhupender Pratap Singh had also been served on 10.10.2008 and his signatures appear on the summons. CM (M) No. 997/2010 and TR.P.(C) No. 7/2010 Page 4 of 6
8. Learned counsel for the petitioner has pointed out that Sh. Bhupender Pratap Singh was his counsel in his suit which he has filed for declaration and he did not have his power of attorney in the probate petition. This contention has been disputed by the learned counsel for the respondent. This controversy now stands rested in view of the specific averments made by the petitioner Harjeet Singh in his application under Order 9 Rule 7 of the Code. Para 3 and 4 of the said application are relevant. In this application, it has also been clearly stated by him (Harjeet Singh) that he had authorized Ms. Jagjit Kaur and his counsel Bhupender Pratap Singh to receive necessary documents and to take appropriate steps in the matter; further contention being that his sister had changed her address and that is why the documents could not reach her; this submission is belied by the fact that Jagjit Kaur had appeared in the court on 24.10.2009 pursuant to the summons and her presence was marked in the court. Para 4 of the application further records that Sh. Bhupender Pratap Singh, Advocate had also received the documents of this case but he had not cared to appear. This has been exhaustively dealt with in the impugned order and the impugned order had correctly and rightly noted that in these circumstances no sufficient cause is made out by the petitioner CM (M) No. 997/2010 and TR.P.(C) No. 7/2010 Page 5 of 6 for setting aside the ex parte order. Impugned order warrants no interference.
9. Petition is dismissed.
INDERMEET KAUR, J.
AUGUST 11, 2011 rb CM (M) No. 997/2010 and TR.P.(C) No. 7/2010 Page 6 of 6