Ravindra Pal Singh vs Surendra Pal Singh
2009 Latest Caselaw 155 Del

*              HIGH COURT OF DELHI : NEW DELHI


+                      IA No.9011/2007 in CS (OS) No.2115/1999


                       Judgment Reserved on    : 9th January, 2009
%                      Judgment pronounced on : 19th January,2009

RAVINDRA PAL SINGH                                   ...Plaintiff
                       Through: Mr. Vijay Gupta, Adv. with Mrs. Geeta
                                Goel, Mr. Jaladhar Das and Mohd.
                                Tarique Mustafa, Advocates
                       Vs.

SURENDRA PAL SINGH                             ....Defendant
                  Through: Mr. Mohit Gupta, Advocate

Coram:


HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported
   in the Digest?                                                   Yes

MANMOHAN SINGH, J.

1. By this order I shall dispose of application IA No.9011/2007

(U/o IX R 7 r/w S 151 CPC) in CS (OS) No.2115/1999 filed by the

defendant for setting aside ex parte order dated 12th July, 2007.

2. The facts of the case are that the plaintiff and defendant are

real brothers. Both are sons of Late Sh. Mahender Pal Singh who was

the owner of the perpetual lease rights of the property built on the plot

bearing No. 15, Babar Road, New Delhi-110001 and other properties.

3. It is an undisputed fact that late Sh. Mahender Pal Singh

executed his last Will and Testament dated 16th May 1970 in the name

of plaintiff and defendant. Sh. Mahender Pal Singh died on 15th May

1978.

4. In 1979 the plaintiff and defendant jointly filed a Probate

Case bearing No.153/94 (Old No. 119/79 and 622/93) against all other

legal heirs of late Sh.Mahender Pal Singh. That Probate was granted on

1st March 1995 in favour of plaintiff and defendant by the court of

Additional District Judge, Delhi. On 17th February 1996 certificate of

administration of the property of late Sh. Mahender Pal Singh was

issued in the name of plaintiff and defendant by the said court and they

were appointed joint executor of the Will of their deceased father.

5. According to the plaintiff he along with his family lived in the

suit property and after the death of his father he later shifted to

Ghaziabad on account of insufficiency of accommodation in the suit

property for his family and due to quarrels between the family

members of the parties. At the time of shifting he had locked two

rooms in the accommodation in his possession. However, he continued

to visit and stay in the portion of the property in his occupation.

According to him, the defendant avoided and refused to partition the

suit property or to handover the vacant possession of the half share of

the plaintiff in terms of the Will and also obstructed the plaintiff's entry

in the suit property in 1997 and threatened him with dire consequences

if the plaintiff insisted on his share in the property. Threat was received

by him in February 1998 from the defendant who informed him that he

would not get a single penny and the property will be demolished and

commercial multistoreyed building would be raised by the defendant

thereon.

6. That due to these circumstances the plaintiff filed the

present suit for partition, possession, rendition of accounts and

prohibitory and mandatory injunction which was filed in the year 1996

and the same has not been disposed of so far.

7. The defendant filed the written statement and raised one of

the main plea that he was a tenant under his late father Sh. Mahender

Pal Singh in respect of the entire property till his death. However, he

made the admission that late Sh. Mahender pal Singh had executed a

Will in favour of the plaintiff and defendant, probate of which has

already been granted by the competent court. Thus, the defendant has

become owner of half portion of the suit property after the death of his

father.

8. That by interim order dated 24th November 1999 an ad

interim order was passed against the defendant restraining him from

selling, transferring, alienating, creating third party interest or

demolishing the property bearing No. 15, Babar Road, New Delhi.

9. In 2000, the defendant filed an application under Order 7

Rule 11 CPC being I.A. No.2965/00 by making the allegation that the

suit is undervalued for purposes of court fees and jurisdiction. The

plaintiff also filed an application being I.A. No.4385/06 under Section

94 and 151CPC praying for interim directions to the defendants to

deposit the arrears of mense profits/damages for use and occupation of

the plaintiff's property. In the alternative the plaintiff has prayed in the

application for appointment of a Receiver in respect of the suit property

bearing No. 15 Babar Road, Bengali Market, New Delhi.

10. That the suit was listed before the court on 22nd February

2007, since the Hon'ble Judge did not hold court on that day the matter

was renotified for 12th July 2007. In the meanwhile another application

being I.A. No.4207/07 filed by the plaintiff for early hearing of IA

No.4385/1986 which was allowed by the court on 24th April 2007 and

the plaintiff's I.A. No.4385/06 was preponed and fixed for hearing on

24th May 2007. On 24th May 2007 hearing of the said application I.A.

No.4385/06 was adjourned to 13th July 2007.

11. On 12th July 2007 when no one appeared on behalf of the

defendant, the issues were framed by the court and time was given to

the parties to file additional documents, list of witnesses on or before

30th July 2007. In the said order it was observed that since the

defendant had set up the plea of tenancy in respect of the suit property

the burden of the issue in this behalf was placed on him and, therefore,

the defendant was to commence the evidence at the first instance. The

defendant was given time to file the affidavits of defendant's witnesses

on or before 30th August 2007 and the matter was listed for cross

examination of the defendant's witnesses before the Joint registrar on

12th September 2007.

12. On 12th July 2007 I.A.No. 4385/2006 was also heard and the

judgment was reserved.

13. On 19th July 2007 an order was pronounced in

I.A.No.4385/06 whereby the plaintiff's application was duly allowed.

14. Thereafter the defendant filed a fresh application being I.A.

No.9011/07 under Order IX Rule 7 CPC read with Section 151 CPC to set

aside the ex parte order and allowed the defendant to address his

arguments of the said application in IA No.4385/2006.

15. Notice of the said application was issued for 23rd October

2007. In the meanwhile the matter was listed before the Joint registrar

on 12th September 2007 when it was reported that the affidavits and

list of witnesses have not been filed by the defendant because of

pendency of defendant's application, thereafter, the matter was

adjourned from time to time.

16. When the matter was listed on 29th September 2008,

counsel for the defendant pointed out to the court that issues in the

above said suit were framed on 12th July 2007, however, his application

I.A.No.2965/2000 under Order 7 Rule 11 CPC was not considered as in

his application, he made the prayer that Issue No.1 be treated as a

preliminary issue. The said application was disposed of by the court by

stating that the said aspect will be considered on the next date of

hearing.

17. On 9th January 2009 learned counsel for the defendant has

made his submission in I.A. No.2965/2000 which was disposed of by

order dated 29th September 2008 as well as other application I.A.

No.9011/07 by the defendant under Order IX Rule 7 CPC to set aside

the ex parte order dated 19th July 2007.

18. That after hearing submissions of the parties I find that I.A.

No.2965/2000 filed under Order 7 Rule 11 CPC has rightly been

disposed of by this court vide order dated 29th September 2008 as the

issues in the above said matter were framed on 12th July 2007. No one

appeared on behalf of the defendant and the directions for trial has

been given and even for more than two years passed but the fact about

the pendency of the application was pointed by the defendant which

was filed in the year 2000 by the defendant. The defendant has also

failed to produce the evidence for more than one and half year, no list

of witnesses was filed. It appears from the record that suddenly after

the gap of eight years, this fact was brought to the knowledge of the

Court when the matter otherwise listed for hearing of another

application IA No.9011/2007. I am of the considered opinion that at

this belated stage, this application cannot be considered when issue

regarding the valuation of suit is already framed and it is to be decided

on merit after producing the evidence of the parties.

19. In view thereof, I hold that issue No.1 would be considered

with other issues during the trial and will have to be decided at the final

stage of the suit. Learned counsel for the plaintiff during the course of

arguments submitted that the plaintiff undertakes to pay the deficient

court fee if in the final decision the suit ultimately it is held that the suit

filed by the plaintiff is undervalued. I hold that the court has rightly

disposed of the application on the last date of hearing.

20. Now I shall deal with another application filed by defendant

being IA No.9011/2007. This application was filed by the defendant

under Order IX Rule 7 CPC read with Section 151 CPC for setting aside

the ex parte order dated 12th July, 2007. It is mentioned in the

application that on 22nd February, 2007 the present suit was listed for

hearing but the same was adjourned to 12th July, 2007 as the Court was

on leave on the said date. After more than two months, the plaintiff

filed an application being IA No.4207/2007 for fixing an early hearing of

IA No.4385/2006 which came up before this Court on 17th April, 2007

and IA No.4207/2007 was allowed as no objection was raised by the

defendant and the hearing of application IA No.4385/2006 was

preponed to 24th May, 2007. On 24th May, 2007, hearing of the

application was adjourned to 13th July, 2007. The defendant was under

the bonafide impression that the main suit would also be considered on

13th July, 2007 and date fixed in the main suit is ipso facto cancelled,

therefore, counsel for the defendant did not appear on 12th July, 2007

with bond fide impression. On 13th July, 2007, when the counsel did not

find the matter in the list, and on inquiry made it was found that the

matter was listed on 12th July, 2007 when the issues in the suit were

framed and the application IA No.4385/2006 was also heard ex parte

and the judgment was reserved by this Court on the same date.

21. I have heard learned counsel for the parties and have also

gone through the contents of the IA No.4385/2006, its reply and order

passed by the court on 19th July, 2007. It is not in dispute that by order 22nd dated February, 2007 when the main suit was listed before the 12th court, the Court was on leave, the matter was adjourned to July, 24th 2007. It also appears from the order dated April, 2007 when IA

No.4207/2007 (filed by the plaintiff for early hearing of IA

No.4385/2006) was allowed and IA No.4385/2006 was preponed to 24th 24th May, 2007 and on May, 2007 IA No.4385/2006 was further 13th adjourned to July, 2007. It appears that IA No.4385/2006 was 12th heard by the predecessor Court on July, 2007 while the date of

hearing in the said application was fixed as 13th July, 2007 and the order

was pronounced on 19th July, 2007. But fact remains that suit was listed

on 12th July, 2007 by order dated 22nd February, 2007 when issues

were framed and no one appeared on behalf of the defendant.

22. After the pronouncement of order in application IA

No.4385/2006 on 19th July, 2007 no review or appeal against the said

order has been filed. The prayer in the present application is "to set

aside the ex parte order dated 12th July, 2007. The argument of learned

counsel for the defendant in the said application being IA No.4385/2006

cannot be accepted as this is not the right forum to make such a prayer

in the application." Had the defendant aggrieved by the order passed

by the predecessor court on 19th July, 2007, he ought to have taken

appropriate remedy in accordance with law. The prayer in the

application in IA No.4207/2007 cannot be considered under the

present circumstances when the application filed by the defendant

itself is not maintainable

23. In the application it was admitted that on inquiry made from

the Court Master on 13th July, 2007 he came to know that IA

No.4385/2006 was also heard on 12th July, 2007. The defendant after

knowing the position did not mention the matter before the Court or

pointed out the said position before the order was pronounced on 19th

July, 2007. It also appears from the record that by order dated 24th

April, 2007 only IA No.4385/2006 was preponed to 13th July, 2007 and

the date fixed in the suit was remained as 12th July, 2007 and not

cancelled. Further the application in question is decided on merit and

the question of setting aside the order does not arise by this Court, the

prayer made in application IA No.9011/2007 vague and misconceived

and is not maintainable, the same is dismissed accordingly with cost of

Rs.5000/- to be paid to the plaintiff by the next date of hearing i.e. 27th

January, 2009.

                                             MANMOHAN SINGH, J
JANUARY     19, 2009
sa