Shri Harjeet Singh vs Mrs.Manjeet Kaur
2011 Latest Caselaw 3911 Del

*      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

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

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

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.

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

for setting aside the ex parte order. Impugned order warrants

no interference.

9. Petition is dismissed.

INDERMEET KAUR, J.

AUGUST 11, 2011 rb