Ram Krishan Gupta Thr. Lrs. vs Rani Gupta And Ors.
2011 Latest Caselaw 5553 Del

.*         HIGH COURT OF DELHI: NEW DELHI

+                     C.S.(OS) No.1367/1998

                              Judgment Reserved on: 27.07.2011
%                              Judgment Pronounced on: 18.11.2011


RAM KRISHAN GUPTA THR. LRS.              ..... Plaintiffs
              Through Mr. Ajay Kumar, Adv.


           versus


RANI GUPTA AND ORS                          ..... Defendants
               Through Mr. Y.D. Nagar, Adv. for D-1(a) & 1(b).
                       Mr. Ambar Qamaruddin, Adv. for D-2.
                       Mr. Ajay Talesara, Adv. for D-3.
                       Mr. A.B. Pandey, Adv. for D-5(a) to (c).
                       Mr. Ayush Gupta, Adv. for D-6 & 7.

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?                No

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

MANMOHAN SINGH, J.

1. A preliminary decree was passed on 23.03.2006 in the above said

suit for partition directing the property bearing No.C-11, Green Park

Extension, New Delhi-110016, to be shared equally between the two

branches of late Shri Murari Lal Gupta and Late Shri Girdhari Lal Gupta.

Mrs. Indrani Ghosh, Advocate was appointed as a Local Commissioner to

examine the partition of the property by metes and bounds in accordance

with the shares of the parties.

2. The Local Commissioner filed her report on 21.04.2006 stating

in para No.11 that the property in question cannot be partitioned by metes

and bounds.

3. In the meanwhile, defendant No.3, i.e. Bhagwan Krishan Gupta

had challenged the order of the preliminary decree dated 23.03.2006 by

filing an appeal bearing FAO (OS) No.268/2006 which was dismissed by

the Division Bench vide order dated 23.05.2006. The said order of the

Division Bench was challenged by defendant No.3 in the Supreme Court by

filing a Special Leave Petition bearing No.12350 of 2006. The said SLP

was allowed and the matter was remanded back to the Division Bench who

again by an extensive order dated 20.12.2007 dismissed the appeal of

defendant No.3. The said order was again challenged by defendant No.3 by

filing a Civil Appeal bearing No.1186 of 2009 before the Supreme Court

which was dismissed on 25.02.2009. Thereafter, the defendant No.3 filed a

review petition which was also dismissed. Later on defendants No.2 & 3

filed the objections to the report of the Local Commissioner after the expiry

of more than three years. It is pertinent to mention here that when the matter

was listed before the Court for further proceedings, all the parties except

defendant No.3 were agreeable that the suit property be sold by public

auction and the sale proceeds be divided in the shares in terms of

preliminary decree passed on 23.3.2006. The defendant No.3 in fact only

challenged the report of Local Commissioner. As there was no force in the

objection filed by the defendant No.3, the final decree was passed by order

dated 15.12.2009.

The operative portion as mentioned in paragraph-16 of the said

order reads as under:-

"16. Accordingly, final decree is passed. The suit property be sold by public auction and sale proceeds be divided in the shares mentioned in the preliminary decree. Mr. Tanuj Khurana, Adv. (Mobile No.9811009959, X-3, Civil Wing, Tis Hazari) is appointed as Local Commissioner and is directed to take necessary steps for inviting offers from the public for auctioning the suit premises. For the purpose of ascertaining the value of the suit property, the local commissioner shall be at liberty to engage a government approved valuer who will submit his report to the local commissioner. After the government approved valuer gives his report, the local commissioner shall fix the same as the basic price for inviting offers from the public for sale of the suit premises. He shall take all further steps in pursuance thereof by publishing a proclamation of sale in the newspaper and inviting bids in respect of the suit premises. The bids shall be accompanied by a token amount toward earnest money. After finalizing the highest bidder, a report shall be submitted by the local commissioner to the court."

4. It appears, after passing the order for final decree, the defendants

have changed their stand and they raised the objection about the non-

compliance of Section 2 and 3 of the Partition Act, 1893 before passing the

said order. They filed the following petitions in support of their

submissions :

(a) R.A. No.6/2010, for review of judgment and final decree dated 15.12.2009 by defendant No.2,

(b) R.A. No.7/2010, for review of judgment and final decree dated 15.12.2009, by defendant No.3

(c) R.A. No.69/2010, for review of judgment and final decree dated 15.12.2009, by defendant No.5 along with I.A. No.1996/2010, for condonation of delay in filing the review application,

(d) I.A. No.1993/2010, under Section 3 of the Partition Act, 1893 read with Section 151 CPC, by defendant No.6,

(e) I.A. No.1994/2010, under Section 3 of the Partition Act, 1893 read with Section 151 CPC, by defendants No.7(a) to (f)

(f) I.A. No.1995/2010, for ad-interim ex parte stay, by defendant No.5,

(g) I.A. No.1992/2010, under Sections 2, 3 & 6 of the Partition Act, 1893 read with Section 151 CPC, by defendants No.1A & 1B,

(h) I.A. No.844/2010, for ad-interim ex parte stay, by defendant No.3.

5. The main contention in all the review applications is that there is

an error in the said order, as the compliance of Sections 2 & 3 of the

Partition Act, 1893 was not made while passing the order of the final decree

and the same has been overlooked and not considered by the Court.

6. Admittedly in terms of Section 2 of the Act, the sale of the suit

property and the distribution of sale proceeds may be directed to be made

only if the Court comes to the conclusion that a division of the suit property

cannot reasonably or conveniently be made. The Scheme of Sections 2 & 3

of the Act, therefore, provides that upon request being made by the

shareholders under Section 2, other shareholder(s) can apply for leave to

buy at valuation determined by the Court.

7. Section 3 of the Act deals with the situation, where a property is

directed to sale or any shareholders applies to buy at a valuation of the share

of shares of the party or parties asking for a sale, the Court shall order a

valuation of the share or shares in such manner as it may think fit and offer

to sell the same to such shareholder at the price so ascertained.

8. For the reasons mentioned above, I feel that the order dated

15.12.2009 for passing the final decree deserves to be reviewed on account

of there being an error appeared on the face of the record. Thus, the same is

recalled. As far as objections filed by the defendants 2 and 3 are concerned,

the same are rejected.

9. Accordingly, Mr. Tanuj Khurana, Advocate (Mobile

No.9811009959, X-3, Civil Wing, Tis Hazari), is appointed as Local

Commissioner with the direction that he would reserve the bidding price

between the shareholders after ascertaining the true value of the property

from the qualified valuer to be appointed by him and sell the suit property to

the higher bidder between the shareholders after obtaining the permission

of the court. The fee of Local Commissioner, is fixed at Rs.60,000/-

excluding other expenses. The fee of the valuer will be borne by the parties

in equal proportion.

10. All the pending review petitions, pending applications and

objections are disposed of.

11. The Local Commissioner shall submit his report before this

Court on or before the next date.

12. List on 15.03.2012.

MANMOHAN SINGH, J.

NOVEMBER 18, 2011 ka