Indu Sharma & Ors. vs Uma Sharma & Ors.
2011 Latest Caselaw 4171 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      FAO No.370/2010

%                                                     26th August, 2011

INDU SHARMA & ORS.                                   ...... Appellants
                        Through:    Mr. J.P.Gupta, Adv.


                       VERSUS

UMA SHARMA & ORS.                                    ...... Respondents
                       Through:     Mr. G.K.Srivastava, Adv.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

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

2.   To be referred to the Reporter or not?

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

VALMIKI J. MEHTA, J (ORAL)

1.         The challenge by means of this First Appeal under Order 43 CPC

is to the impugned order dated 23.8.2010 which dismissed the application of

the appellant/defendant no.1 under Order 9 Rule 13 CPC on the ground that

the application under the said provision will not lie inasmuch as the

appellant/defendant no.1 had entered appearance in the suit, contested the

suit, and had not led evidence which had thereafter resulted in passing of the

judgment and decree for partition dated 25.11.2009.               In fact, the

appellant/defendant no.1 was present on 25.11.2009 when the judgment

was passed.

2.         The facts of the case pertain to dispute with regard to the

property no. 7360-7363, Pahari Dhiraj, Gali Teliyan, Sadar Bazar, Delhi. Half

FAO No.370/2010                                                  Page 1 of 5
 share in the property belonged to one Sh. Ram Narain and the other half

share in the property belonged to Sh.Daulat Ram Sharma. The dispute is

only with respect to the half share of Sh. Ram Narain and 2/3rd of         which

share is claimed by the plaintiff/respondent no.1, who was one of the

daughters of Sh. Ram Narain. Sh. Ram Narain sired besides the plaintiff two

sons namely Sh. Bharat Bhushan Sharma and Sh. Narender Kumar Sharma.

The defendants no. 1 to 4 in the suit were the widow and children of Sh.

Bharat Bhushan Sharma. Sh. Narender Kumar Sharma died a bachelor. In

view of the aforesaid facts, whereas the plaintiff/respondent no.1 admittedly

had 1/3rd share in the suit property, 1/3rd share in the property vested with

Sh. Bharat Bhushan Sharma (since deceased) and who was represented

thereafter by his widow and children being the defendants no. 1 to 4. The

defendants no. 1 to 4 are the appellants before this Court.        Sh. Narender

Kumar Sharma did not marry and the plaintiff/respondent no.1 claimed that

he executed a Will with respect to his share in the property in favour of the

plaintiff/respondent no.1.      This Will, dated 18.2.1998 was proved and

exhibited in the Trial Court by the respondent no.1/plaintiff as Ex.PW2/1. The

only dispute therefore in the suit was as to who inherited the 1/3rd share of

Sh. Narender Kumar Sharma son of Sh.Ram Narain i.e. whether the share of

Sh. Narender Kumar Sharma is inherited by the appellants who were the

legal heirs of the other son Sh. Bharat Bhushan Sharma or that 1/3rd share of

the Narender Kumar Sharma is inherited by the plaintiff/respondent

no.1/sister.

3.             Before the Trial Court, after pleadings were complete, issues were

framed and the respondent no.1/plaintiff completed her evidence. The case
FAO No.370/2010                                                   Page 2 of 5
 was   thereafter    fixed   for   defendants'/appellants'   evidence,   but   the

defendants/appellants were not present and hence were proceeded ex parte

on 23.9.2008.      However, thereafter on repeated dates, i.e. on 7.1.2009,

5.3.2009, 7.7.2009, 1.8.2009, 29.10.2009 and finally on 25.11.2009 either

the defendant no.1 was present in person or on certain occasions she was

also present in person along with her counsel.         The final judgment was

thereafter passed on 25.11.2009 in presence of the counsel for the plaintiff

and the defendant no.1 who represented herself and defendants no. 2 to 4.

Thus, the final judgment is a judgment on merits by which the 1/3 rd share of

Sh. Narender Kumar Sharma was held to have stood devolved upon the

respondent no.1/plaintiff by virtue of the Will dated 18.2.1998, Ex.PW2/1.

4.         The appellants/defendants thereafter seem to have woken up on

8.5.2010 and filed an application under Order 9 Rule 13 CPC along with an

application under Section 5 of the Limitation Act.          A reference to the

application shows that except alleging illiteracy of the defendant no.1 and

the alleged negligence of her counsel, nothing was stated with regard to the

sufficient cause with regard to why the evidence was not led on behalf of the

appellants/defendants no.1 to 4 although they kept on regularly appearing

even after they were proceeded ex parte, and that too with their counsel,

including even on the date when final judgment was passed in the suit on

25.11.2009. The Trial Court has therefore dismissed the application as no

sufficient cause was made out for setting aside the ex parte judgment and

decree.

5.         In my opinion, no fault can be found with the order of the Trial

Court inasmuch as provision of Order 9 Rule 13 CPC has been held to be
FAO No.370/2010                                                   Page 3 of 5
 rightly not applicable in the facts of the present case where the defendants

contested the suit on merits, filed their pleadings, cross-examined the

witness of the respondent no. 1, but thereafter, did not lead any evidence

and were proceeded ex parte.      In fact defendant no.1/appellant no.1, and

also with their counsel on many dates, after being proceeded ex parte,

regularly kept on appearing, but did not make any prayer to lead any

evidence. I may note that the Trial Court has in the final judgment dated

25.11.2009 noted that the appellant no.1/defendant no.1 qua the same

property had earlier filed a suit and which suit was however got withdrawn

although complete trial was conducted in the said case. Learned counsel for

the respondent no.1 also states that the sister is a legal heir as per Class II

Entry II in the Schedule to the Hindu Succession Act, 1956, and would have

in any way inherited the share of the deceased brother, Sh.Narender Kumar

Sharma even assuming there was no Will in favour of the respondent

no.1/plaintiff. Thus not only the appellant no.1/defendants no.1 withdrew an

earlier suit but in the present suit, did not lead any evidence, and therefore

the same resulted in the final judgment dated 25.11.2009 granting the

appellants/defendants no. 1 to 4 1/3rd share of the half share of Sh.Ram

Narain in the property and gave the respondent no.1/plaintiff/sister 2/3rd

share of the half share in the property of Sh. Ram Narain, i.e. 1/3 rd share as

one of the children of Sh. Ram Narain and plus 1/3rd share of Sh. Narender

Kumar Sharma which devolved upon the respondent no.1/plaintiff by virtue

of the Will dated 18.2.1998, Ex.PW2/1 of Sh. Narender Sharma S/o Ram

Narain.

6.    In view of the above, I do not find any merit in the appeal. The Trial
FAO No.370/2010                                                 Page 4 of 5
 Court has rightly dismissed the application under Order 9 Rule 13 CPC. The

appeal is accordingly dismissed leaving the parties to bear their own costs.

Trial Court record be sent back.




AUGUST 26, 2011                               VALMIKI J. MEHTA, J.

ak