Sh. Sudhir Kohli vs Smt. Satish Kohli & Ors.
2009 Latest Caselaw 4046 Del

Citation : 2009 Latest Caselaw 4046 Del
Judgement Date : 8 October, 2009

Delhi High Court

Sh. Sudhir Kohli vs Smt. Satish Kohli & Ors. on 8 October, 2009

Author: Manmohan Singh

*          HIGH COURT OF DELHI : NEW DELHI

+          I.A. No. 13060/2006 in CS (OS) No. 1412/1995

                                    Reserved on: 9th September, 2009

%                                   Decided on: 8th October, 2009

Sh. Sudhir Kohli                                          ...Plaintiff
                      Through : Mr. Vishwa Bhushan Arya, Adv.

                                    Versus
Smt. Satish Kohli & Ors.                                 ...Defendants
                     Through : Ms. S.K. Verma, Adv. for Defendants
                               No.1 to 4

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                   No

2. To be referred to Reporter or not?                                No

3. Whether the judgment should be reported                           No
   in the Digest?

MANMOHAN SINGH, J.

1. The present application has been filed by Mr. S.K. Verma for

his admission as attorney of defendant nos. 1, 2, 3 and 4, for deposing on

behalf of defendant nos. 2, 3 and 4 and for setting aside the ex parte

status of defendant nos. 2 and 3.

2. Brief facts are that the present suit was filed by the plaintiff

for partition and his 1/5th share in property bearing no. 9, Gandhi Square,

Malka Ganj, Delhi - 110007 (hereinafter referred to as the „suit

premises). The plaintiff is the son of late Sh. O.P. Kohli, who was the

erstwhile owner of the suit premises, and who on passing away

bequeathed all his properties, movable and immovable, to his wife

defendant no. 1 vide Will dated 9 April, 1980. Defendant no. 2 is the late

brother of the plaintiff and defendant nos. 3 and 4 are the sisters of the

plaintiff. The entire case of the plaintiff was that the suit premises were

sold in his absence and therefore, he never got his 1/5 th share of the

same. The facts stated by the plaintiff have been disputed vehemently by

the defendant no. 1.

3. In the present application under consideration, it has been

contended that on 6 November, 2006, defendant no. 3 was present

though defendant no. 4 could not appear as she was with defendant no.

2, who was very unwell.

4. In his reply, the plaintiff has contended that the ex parte

proceedings against the defendant nos. 2 and 3 should not be set aside as

they have been given many chances and refused to avail of the same.

Despite repeated adjournments and costs, defendant nos. 1 and 4 did not

file their affidavits in evidence and were given a last opportunity to do so

on 7 September, 2006. On 6 November, 2006, evidence of defendant no.

1 was taken on record and defendant no. 4 executed a power of attorney

in favour of her brother in law, husband of defendant no. 3. Counsel for

the defendants stated that the evidence of defendant no. 4 be allowed to

be recorded through her attorney. It appears that defendant no. 2

appeared once in 1995, filed his reply in 1999 and then never appeared.

Defendant no. 3 received summons but never appeared.

5. I have gone through the contentions of both parties as well as

the record of the case. By order dated 29 August, 2000 this court

proceeded ex parte against defendant nos. 3, 5 and 6. On 6 September,

1999 and also on 7 February, 2001 it was recorded by the court that the

written statement of defendant no. 2 would not be taken on record. Vide

order dated 19 February, 2001 this court has passed the order that

though costs along with written statement were filed by defendant no. 3,

the same had been done way beyond the time granted and therefore, the

same was not permitted. The present application was filed on 17

November, 2006.

6. During the pendency of the present application, defendant no.

2 expired and an application was filed by the plaintiff to implead the LRs

of defendant no. 2. By the Joint Registrar‟s order dated 24 August, 2007

the LRs of defendant no. 2 being his wife, daughter and son namely Smt.

Raj Rani Kohli, Ms. Sunaina Kohli and Mr. Rajat Kohli respectively

were taken on record. Therefore, in view of the present situation the

issue is only whether defendant no. 3‟s ex parte status is to be set aside

or not.

7. As far as the legal position on the present application for

setting aside of the ex parte status of the relevant defendants, the same

has been set out comprehensively in Finolex Cables Ltd. v. Finolux

Auto Private Ltd. 2007 (35) PTC 680 (DEL) (DB), wherein it has been

observed as follows:

"10. The legal position which is not in dispute and which can be extracted from the conjoint reading of the

Supreme Court Judgment in the case of Sangram Singh Vs. Election Tribunal, Kotah, AIR 1955 SC 425 and Division Bench judgment of this court in M/s. Lotus International and Ors. vs. Chaturbhujadas Karnani Textiles (P) Ltd., 65 (1997) DLT 300 (DB) is this :

(a) if the defendant does not appear on the date of hearing CS (OS) No. 99/2004 Page 7 of 8 fixed by the court, the court has power to proceed ex parte against him;

(b) when the defendant joins and participates in the proceedings at a stage when the plaintiff is yet to examine his witnesses, the defendant shall have right to cross examine the plaintiff‟ s witnesses, provided such cross examination has not already been foreclosed. In that event, the court has also the power to permit the defendant to adduce evidence on his side. It really depends as to at what stage the defendant was set ex parte under Order IX Rule 6 CPC and at what stage he has chosen to seek permission to participate in the proceedings;

(c) the defendant can appear later and move application for setting aside the ex parte order by showing sufficient cause for non appearance on the date the defendant was proceeded ex parte. If sufficient cause is shown, the court can set aside the ex parte order and in that case it shall restart the proceedings from the stage when the defendant was proceeded ex parte on the premise that no proceedings were held at all on the date when the defendant was proceeded ex-parte and/or on subsequent dates; and

(d) even if the defendant is not able to show good cause, he has right to participate in the proceedings from the stage when he started appearing. However, in that event he has no right to set back the clock and, therefore, if any advantage accrued to the plaintiff on the dates when the defendant had not appeared, that advantage would continue to accrue in favour of the plaintiff."

8. Since the LRs of deceased defendant no. 2 have already been

taken on record, as regards Mr. S.K. Verma‟s appearance as GPA holder

is concerned, he may appear and represent their case on behalf of the

LRs of the deceased defendant and of the other defendants in accordance

with law.

9. However, the ex parte proceedings of defendant no. 3 cannot

be set aside as no valid reasons or sufficient cause for non-appearance

has been shown. However, this court is of the view that considering the

circumstances of the present case, as the present case is a partition suit,

in the interest of justice, defendant no. 3 is allowed to participate in the

proceedings at the present stage of the proceedings itself.

Accordingly, I.A. No. 13060/2006 is disposed of.