Raj Kumar Bari & Ors. vs Shiv Rani & Ors.
2010 Latest Caselaw 4093 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     FAO(OS) No.534/2010 & CM Nos.15238-40/2010

RAJ KUMAR BARI & ORS.               .....Appellant through
                                    Mr. S.D. Singh & Mr. Rakesh
                                    Kumar Singh, Advs.

                  versus

SHIV RANI & ORS.                    .....Respondent through
                                    None

%                      Date of Hearing : August 25, 2010

                       Date of Decision : September 06, 2010

      CORAM:
*     HON'BLE MR. JUSTICE VIKRAMAJIT SEN
      HON'BLE MS. JUSTICE MUKTA GUPTA
      1. Whether reporters of local papers may be
         allowed to see the Judgment?                  No
      2. To be referred to the Reporter or not?        No
      3. Whether the Judgment should be reported
         in the Digest?                                No

VIKRAMAJIT SEN, J.

1. This Appeal has been filed on 12.8.2010 assailing the Order

passed on 6.4.2009, which reads thus:-

Learned counsel for the defendant nos. 1-7 seeks two weeks time to file written statement and vakalatnama in his favour. Let the same be so done. Replication thereto, if any, be filed by the plaintiff within two weeks thereafter. Learned counsel for the plaintiff states that the defendant nos. 8-28 are the proforma defendants. However, the service report in respect of defendant nos. 8-27 is still awaited. The representative of defendant no. 28 is present in court and he seeks two weeks time to file the written statement. The written statement on behalf of

defendant no. 28 shall be filed within two weeks from today. The plaintiff shall take the necessary steps to serve the unserved defendant nos. 8-27 by filing process fee and registered A.D. covers within one week.

List this matter before the Joint Registrar for completion of service and for admission/denial of documents on 22nd May, 2009.

I.A. No. 1014/2009 Learned counsel for the defendant nos. 1-7 who are contesting defendants seeks ten days time to file reply to this application.

List this application for disposal on 13th July, 2009. In the meanwhile, the parties shall maintain status quo in respect of the property in question as of today.

2. The Appeal is accompanied by an application CM

No.15238/2010 praying that this Court "stay the operation of the

impugned order dated 6th April, 2009 passed by the Learned Single

Judge and pass any other further orders as this Hon'ble Court may

deem fit and proper in the facts and circumstances of the case".

3. We fail to perceive what purpose would be served in staying

the impugned Order which would be of any advantage to the

Appellants. As we see it, it would prolong the litigation and this is

the antithesis of what learned counsel for the Appellants has

endeavoured to impress before us.

4. The Appellants before us are Defendant Nos.3 to 7 in the

pending Suit bearing CS(OS) No.2422/2008. A perusal of the Order

discloses that the Appellants' request to file within two weeks a

Written Statement, Vakaltanama and Reply to IA No.1014/2009,

which is the Plaintiffs' application under Order XXXIX Rules 1 and

2 of the Code of Civil Procedure, 1908 (CPC for short) was allowed.

The Plaintiffs contend that they are joint owners of the suit

property and are in actual possession of a portion thereof.

5. The Appeal is also accompanied by an application seeking

condonation of delay of 463 days in filing the Appeal.

6. It is not controverted before us that after the passing of the

impugned Order dated 6.4.2009, several hearings have taken place

before the learned Single Judge in respect of the Suit and the

Plaintiffs' application under Order XXXIX Rules 1 and 2 of the CPC.

The Defendants Nos.3 to 7 had filed application under Order

XXXIX Rule 4 of the CPC for vacation of the stay granted by the

Court vide impugned Order dated 6.4.2010 and also an application

under Order VII Rule 11 of the CPC for rejection of the Plaint, both

dated 30.5.2009. It is beyond cavil that the Plaintiffs would have to

be given an opportunity to file Replies to the Defendants'

application for stay as well as for rejection of the Plaint. In this

interregnum, the Appellants/Defendants had filed an application

for early hearing which was dismissed because it was not pressed

by them.

7. There is no cogent reason in the application seeking

condonation of delay that would persuade us in granting that

relief. In any event, the impugned Order, in terms, grants the relief

prayed for by the Appellants herein, inasmuch as they were given

two weeks' time for filing the Written Statement and Replies.

8. The Appeal is devoid of merit for several reasons, including:-

 That no disadvantageous consequences flow against the

Appellants by the impugned Order dated 6.4.2009.

 No reasons have been given for condoning the delay of 463

days. Indeed, the delay in preferring the Appeal discloses the

lack of earnestness of the Appellant.

 Several hearings have taken place after 6.4.2009, some of

them having been necessitated because of the action taken

by the Appellants inasmuch as an application under Order

VII Rule 11 of the CPC has been filed.

 Reliance on Division Bench Judgment in Ratna Commercial

Enterprises Ltd. -vs- Vasutech Ltd., 143 (2007) DLT 754(DB)

is misconceived since the learned Single Judge in that case

had been repeatedly adjourning the Suit on several

occasions for no apparently justifiable reason.

 It is a cardinal principle that the possession of joint

owners would be protected during the pendency of a lis.

 The reading of the Order dated 13.7.2009 makes it palpably

clear that the Defendants did not demur in the Suit being

adjourned for completion of pleadings.

 The Appellants' application for early hearing was dismissed

as it was not pressed on 22.7.2009.

 The hearing held on 11.11.2009 records failure of the

Appellants to file Rejoinder despite grant of several

opportunities.

 On the hearing held on 12.11.2009, an adjournment was

necessitated because of the request made on behalf of the

Appellants for an adjournment in order to enable them to file

the original documents.

 Hearing was held on 15.1.2010 but was adjourned on the

request of Appellants to enable them to flag the documents

on which arguments were based and

 On 4.3.2010, learned counsel for the Appellants had prayed

for further time to comply with the Order dated 15.1.2010.

9. For these manifold reasons, the Appeal along with pending

applications is dismissed with costs of ` 5,000/- payable within four

weeks to the Prime Minister Relief Fund.

( VIKRAMAJIT SEN ) JUDGE

( MUKTA GUPTA ) JUDGE September 06, 2010 tp