* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 2756/2011
Decided on : 12.09.2014
IN THE MATTER OF
NAVAL KISHORE GUPTA ..... Plaintiff
Through : Mr. Arvind Kumar, Advocate with
plaintiff in person.
versus
YASHWANT KUMAR GUPTA AND ORS. ..... Defendants
Through : Mr. Rajeev Kumar and
Mr. Saurabh Kumar, Advocates
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J. (ORAL)
I.A.No.14081/2014 (by the plaintiff for condonation of delay)
1. The present application has been filed by the plaintiff praying inter alia for condonation of delay of 83 days in filing the brief synopsis.
2. Learned counsel for the defendants does not seriously oppose he application.
3. For the reasons stated in the application, the same is allowed and the delay of 83 days in filing the brief synopsis is condoned.
4. The application is disposed of.
CS(OS) No.2756/2011 Page 1 of 11 Review Petition No.178/2013
1. The present review petition has been filed by the plaintiff seeking review of the order dated 6.6.2012, wherein a preliminary decree was passed in respect of the suit premises bearing No.E-44, Ranjit Singh Road, Street No.9, Adarsh Nagar, Delhi, measuring 150 sq. yards as prayed for by the plaintiff, holding inter alia that the plaintiff and the defendants No.1 to 6 are entitled to 1/7 th share each in the said property.
2. The admitted position is that the suit premises was purchased by Smt. Attar Kali, mother of the plaintiff and the defendants No.1 to 6, and immediately upon her demise in October 2011, the plaintiff had instituted the present suit for partition, permanent injunction and declaration against his four brothers (defendants No.1 to 4) and two sisters (defendants No.5 & 6), including defendant No.7, who happens to be the wife of the defendant No.3.
3. Notice was issued in the present suit on 9.11.2011 and the parties were directed to maintain status quo with regard to the title and possession of the suit property. Subsequently, the defendants had entered appearance, through counsel as also in person. Defendant No.2 had filed I.A. No.20990/2011, stating inter alia that he had no objection to the prayer made by the plaintiff for passing a preliminary decree for partition of the suit premises to the extent of CS(OS) No.2756/2011 Page 2 of 11 1/7th share each in favour of the plaintiff and the defendants No.1 to 6 respectively. The plaintiff filed a reply to the aforesaid application on 9.4.2012, wherein he mentioned the fact that defendant No.2 had instituted a suit for partition in respect of 100 sq. yards of the very same property. The plaintiff also stated that defendant No.2 had averred in his plaint that defendants No.5 & 6 (sisters) had executed a registered Relinquishment Deed dated 23.2.2000 in favour of their brothers, i.e., the plaintiff herein and defendants No.1 to 4. However, the plaintiff challenged the stand taken by defendant No.2 that during her lifetime, their mother had sold 50 sq. yards out of 150 sq. yards of the suit property in favour of the defendant No.7 (wife of defendant No.3).
4. Subsequently, on 19.9.2012, learned counsel for the plaintiff sought discharge from the case on the ground that the plaintiff had engaged a new counsel, who was present in Court on the said date. Mr. A.T. Rao, the newly engaged counsel, who appeared for the plaintiff, stated that he would be filing his power of attorney in the course of the day. On the aforesaid date, having regard to the fact that the plaintiff had filed a suit for partition and permanent injunction against his brothers and sisters and all the parties were willing to explore the possibility of arriving at a negotiated settlement through mediation, they were directed to appear before CS(OS) No.2756/2011 Page 3 of 11 the Mediator, to be appointed by the Delhi High Court Mediation & Conciliation Centre.
5. On 6.12.2012, the learned Mediator submitted a report that there was some likelihood of the parties arriving at a settlement. However, the plaintiff, who appeared in person, and the counsel for the defendant No.2 stated that there was no likelihood of a negotiated settlement. The plaintiff was asked as to why had his newly engaged counsel not filed his power of attorney. Mr. A.T. Rao, Advocate was present in Court and he submitted that the plaintiff had not contacted him. In response, the plaintiff had asserted that he did not wish to engage a counsel and that he had already discharged his previous counsel. The plaintiff also stated that he wanted to pursue the matter on merits.
6. The defendants No.1, 2, 3, 4, 6 & 7 were present in person and it was noted in the order sheet that none of them had filed their written statements. On the aforesaid date, counsel for the defendant No.2 and the remaining defendants, who were present in person, stated that they did not have any objection to a preliminary decree being passed in respect of the suit premises, in terms of the prayer made by the plaintiff. The defendants No.6 & 7 clarified that they had instructions on the same lines from the defendant No.5, their sister.
CS(OS) No.2756/2011 Page 4 of 11
7. In view of the aforesaid consent given by the defendants, a preliminary decree was passed holding inter alia that the plaintiff and the defendants No.1 to 6 are entitled to 1/7 th share each in the suit premises. Further, a Local Commissioner was appointed to submit a report as to whether it was possible to partition the suit premises by metes and bounds and if so, in what manner. The parties were accordingly directed to appear before the Local Commissioner on 17.12.2012.
8. The records reveal that the parties had appeared before the Local Commissioner on 17.12.2012, whereafter the Local Commissioner had visited the suit premises on 5.1.2013. The plaintiff as also the defendants were present on the date fixed. Finally, the Local Commissioner had submitted a report dated 22.1.2013 stating inter alia that the property could not be partitioned by metes and bounds. After more than a month of the Local Commissioner submitting his report, the plaintiff filed the present review application on 27.2.2013, seeking review of the order dated 6.12.2012, whereunder the preliminary decree was passed.
9. It is averred by the plaintiff in the review application that due to inadvertence, he had prayed for a preliminary and final decree of partition in respect of the suit premises to the extent of 1/7 th share CS(OS) No.2756/2011 Page 5 of 11 each, though the defendants No.5 & 6 had already relinquished their shares in the suit premises in terms of the Relinquishment Deed dated 23.2.2000. It is thus prayed that the suit premises ought to be partitioned amongst the plaintiff and the defendants No.1 to 4 in equal shares, to the extent of 1/5th share each.
10. The explanation furnished by the plaintiff for seeking review of the order dated 6.12.2012 is that the defendants had failed to file their written statements and had failed to inform the court that prior to his filing the present suit for partition in the year 2008, the defendant No.2 had filed a suit for partition and permanent injunction in respect of 100 sq. yards comprised in the very same property.
11. Learned counsel for the defendants opposes the present application and states that the contention of the plaintiff that the defendants had withheld material information or that the defendant No.2 had failed to inform the court that the defendants No.5 & 6 had relinquished their respective shares in the suit property in favour of the plaintiff and the defendants No.1 to 4, is contrary to the averments made in the plaint. To substantiate the aforesaid submission, learned counsel for the defendants particularly draws the attention of this Court to the averment made by the plaintiff in para 7 of the plaint.
CS(OS) No.2756/2011 Page 6 of 11
12. Further, counsel for the defendants states that no doubt, the defendant No.2 had instituted a civil suit for partition of the suit premises, but the said suit was confined to property measuring 100 sq. yards and not 150 sq. yards, as has been prayed for by the plaintiff in the present suit. He explains that during her lifetime, Smt. Attar Kali had sold a portion of the suit premises measuring 50 sq. yards to the defendant No.7, by executing a registered sale deed in her favour and consequently, partition was sought in respect of the balance 100 sq. yards of the suit premises, whereas the plaintiff herein had challenged the authority of Smt. Attar Kali to sell 50 sq. yards of the suit premises to the defendant No.7. In other words, the plaintiff has questioned the legality and validity of the sale deed dated 29.1.1988 executed by Smt. Attar Kali in favour of defendant No.7 (wife of defendant No.3).
13. It is an undisputed position that the defendant No.2 had filed a civil suit in the District Court bearing Suit No.71/2008, against the plaintiff and the remaining defendants, seeking partition of 100 sq. yards comprised in the very same property. The plaintiff, who was impleaded as defendant No.2 in the aforesaid suit proceedings, had entered appearance and on 31.7.2009, he filed an application under Order VII Rules 10 & 11 CPC for rejection of the plaint on the CS(OS) No.2756/2011 Page 7 of 11 ground that the trial court was not vested with the pecuniary jurisdiction to entertain the said suit.
14. Vide order dated 14.2.2011, the trial court had allowed the aforesaid application filed by the plaintiff herein and the plaint was returned to the defendant No.2 herein for the same to be presented before the High Court. In the meantime, in October, 2011, the plaintiff had instituted the present suit for partition in respect of the very same property.
15. As noted above, notice was issued in the present suit on 9.11.2011. In the very same month, i.e., on 22.11.2011, the defendant No.2 presented the plaint, that had been returned to him by the trial court, in the High Court and notice was issued thereon to the defendants including the plaintiff herein. The plaintiff herein had entered appearance in the said suit, well before the order dated 6.12.2012 came to be passed in the present suit. Therefore, the plaintiff cannot claim ignorance of the suit instituted by the defendant No.2. He was well aware of the stand taken by the defendant No.2 in the suit instituted by him.
16. Moreover, a perusal of para 7 of the plaint reveals that the plaintiff had clearly mentioned therein the fact that the defendant No.2 had filed a civil suit in respect of the suit property and that the said defendant had stated therein that the defendants No.5 & 6 CS(OS) No.2756/2011 Page 8 of 11 (sisters) had executed a Relinquishment Deed on 23.2.2000, relinquishing their shares in the suit property. It has further been averred by the plaintiff in the very same para 7 of the plaint that he is unaware about the execution of the Relinquishment Deed and that the said document was not binding upon him. Counsel for the plaintiff does not deny that specific averments in respect of the Relinquishment Deed were made by the plaintiff in para 7 of the plaint. In such circumstances, it is impermissible for the plaintiff to plead now that he was unaware of the execution of the Relinquishment Deed by his sisters (defendants No.5 & 6).
17. In view of the aforesaid facts and circumstances, the submission of the learned counsel for the plaintiff that there is an error apparent on the face of the record, is not borne out. It is clear that the plaintiff was aware of the Relinquishment Deed dated 23.7.2000 executed by the defendants No.5 & 6 in respect of their shares in the suit property all along. He also had knowledge of the fact that none of the defendants had questioned the legality or validity of the sale deed that was executed by their mother, Smt. Attar Kali in favour of the defendant No.7 and it was on the said premise that the defendant No.2 had instituted CS(OS) No.2919/2011 in respect of the suit property, praying inter alia for partition amongst the plaintiff herein and the defendants No.1 to 4, CS(OS) No.2756/2011 Page 9 of 11 to the extent of 1/5th share each out of 100 sq. yards.
18. It is not out of place to mention that the plaintiff had all the opportunity to amend the plaint and modify the prayer clause well before the date when the preliminary decree was passed, particularly when he was impleaded as a party in the civil suit instituted by the defendant No.2 for the same property and was aware of the stand taken by the said defendant and the remaining defendants in the said suit. Another opportunity that came the way of the plaintiff was when the defendant No.2 filed IA No.20990/2011, stating inter alia that he had no objection to the prayer made by the plaintiff for partition of the suit property. Instead of taking steps to amend the plaint, the plaintiff filed a reply in opposition to the application wherein he referred to the suit for partition instituted by the defendant No.2 and to the Relinquishment Deed executed by the defendants No.5 & 6. Thus the plaintiff cannot feign ignorance or try and blame the defendant No.2 for failing to inform the court about the suit instituted by him in respect of the subject property.
19. Counsel for the plaintiff pleads that interest of justice demands that the order dated 6.12.2012 be reviewed by this court on the ground that the plaintiff had appeared in person on the said date and was unaware of the consequences that would flow from CS(OS) No.2756/2011 Page 10 of 11 the order that came to be passed.
20. This can hardly be a ground available to the plaintiff to seek review of the order dated 6.12.2012. As would be apparent from a perusal of the order dated 6.12.2012 that the plaintiff was specifically asked by the Court if he would like to engage a new counsel in the case and Mr.A.T.Rao, Advocate was present in the Court on the said date, but he had elected to appear in person, had dispensed with his counsel and had insisted that the matter be proceeded with on merits, instead of being negotiated for a mediated settlement with the defendants.
21. The plaintiff is solely responsible for the stand taken by him on 6.12.2012 and the preliminary decree that was resultantly passed in respect of the suit property, in view of the consent given by all the parties. In such circumstances, this Court has no option but to dismiss the present review application as learned counsel has not been able to point out any error apparent on the face of the record, for reviewing the order dated 6.12.2012.
22. The review petition is accordingly dismissed, as being devoid of merits.
(HIMA KOHLI) JUDGE SEPTEMBER 12, 2014 sk/rkb CS(OS) No.2756/2011 Page 11 of 11