Suman Ghandiok vs Ujjal S. Makker & Anr
2013 Latest Caselaw 2007 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Judgment Pronounced on: May 02, 2013

+                       I.A.No.20188/2011 in CS(OS) No.1312/2007

         SUMAN GHANDIOK                                                ..... Plaintiff
                     Through                   Ms.Arjita, Adv. for Dr.Sarbjit
                                               Sharma, Adv.

                        versus

         UJJAL S. MAKKER & ANR                                     ..... Defendants
                       Through                 Ms.Jyoti Dutt Sharma, Adv. with
                                               Mr.Rahul Sharma, Adv. for D-1.
                                               None for D-2.

         CORAM:
         HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By this order, I propose to decide the application being I.A.No.20188/2011 filed by defendant No.1 for recalling of order dated 2 nd December, 2011 and restoration of the suit to its original number and continuation of the order dated 22nd January, 2008 passed by this Court.

2. The plaintiff, Suman Ghandiok filed the abovementioned suit for partition of the property bearing No.133/10, Golf Links, New Delhi against two defendants, namely, Ujjal S. Makker and Kaval Bajaj. The plaintiff is the sister of the defendants. Defendant No.1 has also filed the counter- claim.

3. When the suit was listed before Court an interim order was passed on 23rd July, 2007 against the defendants restraining them from selling, transferring, alienating or creating any third party interest or parting with possession in any manner of the suit property in favour of any person other

than the plaintiff. The said order was confirmed with the consent of the parties, with a liberty granted to the defendants to seek variation or modification of the aforesaid order as and when necessary.

4. PW-1, i.e. the plaintiff was examined and cross-examined on 6th April, 2011. The defendants also produced evidence by way of affidavit and also summoned various witnesses for recording further evidence of the defendants by 15th March, 2012 at 2.15 p.m.

5. In the meanwhile, on 1st December, 2011 the plaintiff filed the application being I.A.No.19285/2011 under order XXIII, Rule 1 CPC before Court for seeking permission to withdraw the suit, mainly on the reason that the maternal uncle of the parties to the suit was trying to resolve the matter amicably and he asked the plaintiff to withdraw the suit, so that the matter could be sorted out amicably. The said application was taken up on 2 nd December, 2011 and the suit was accordingly dismissed as withdrawn. The said I.A. was also disposed of.

6. After passing the said order, defendant No.1 has filed the present application being I.A.No.20188/2011. In the said application, defendant No.1 has alleged that the plaintiff, in fact, in collusion with defendant No.2 earlier also moved the application being I.A.No.5705/2008 for passing a preliminary decree. Since the defendant No.1 being contesting defendant who has been claiming 50% share in the suit property objected to the passing of the said decree, therefore, by order dated 18 th December, 2009 this Court dismissed the said application of the plaintiff and directed defendant No.1/ parties to lead evidence/to go for trial. Defendant No.1 has already examined four witnesses and have also summoned 7 witnesses in order to prove his case. The matter was to come up for recording of further evidence of defendant No.1 on 15th March, 2012. The plaintiff and defendant No.2

from time to time tried to make an attempt and tried to debar the defendant No.1 to contest the matter on merit. It is not denied by the defendant No.1 that on 1st December, 2011, a copy of the application dated 1 st December 2011 under Order XXIII, Rule 1 CPC was served to the counsel for defendant No.1 at around 3-3.30 p.m. The counsel for defendant No.1 was checking the cause list uploaded on the internet, so as to enter appearance on behalf of defendant No.1 and oppose the same as per law. As the said application was not listed. Later on counsel for defendant No.1 started receiving calls from some unknown persons asking the counsel to advice defendant No.1 to sell his share in the suit property as the plaintiff and defendant No.2 are ready to do the same. Thereafter, the counsel came to know that the suit was already dismissed as withdrawn on 2nd December, 2011.

7. It appears from the record that the application being I.A.No.19285/2011 was, in fact, filed on 1st December, 2011 and the same was not to be listed on 2nd December, 2011 due to some objection and the matter was mentioned before the Court for the listing of the same on 2nd December, 2011 which was allowed and an order was passed on 2nd December, 2011 for withdrawal of the suit.

8. The application of defendant No.1 was listed before Court on 15 th December, 2011 when the notice was issued to the non-applicants for 23rd December, 2011. The operation of the order dated 2 nd December, 2011 was ordered to be stayed. On 23rd December, 2011, learned counsel for the plaintiff duly appeared before the Court and informed that he was not in a position to file reply to this application as his client is suffering from cancer. The interim order granted on 15th December, 2011 was ordered to be continued in the meanwhile. Thereafter, the matter was adjourned from time

to time even at the request of the learned counsel for the plaintiff. The plaintiff's counsel also filed an application being I.A. No.5316/2012 for discharge him from representing as counsel for the plaintiff. The said request was not allowed by this Court in view of seriousness of the matter. It has now come to the notice of the court that despite of staying the operation of the order dated 2nd December, 2011, the plaintiff has relinquished her right in favour of defendant No.2; copy of the relinquishment deed has also been placed on the record.

9. It is not denied by the parties that the matter was listed for remaining evidence of defendant No.1. It is also evident from the record that despite of staying the operation of order dated 2nd December, 2011 which was in the knowledge of the plaintiff, still plaintiff has relinquished her right in favour of defendant No.2.

10. This Court at this stage has no concern as to whether the claim of defendant No.1's 50% share of suit property is genuine or not. The fact of the matter has to be determined by the court as per its own merit.

11. No doubt the plaintiff is entitled to withdraw his claim before Court at any stage but facts and circumstance of the present case do not allow the plaintiff to withdraw her claim in this manner as it is settled law that the court should not allow the withdrawal of a matter if it prejudices the right of the other party and the party withdrawing of suit wants to achieve on ulterior goal by adopting an oblique motive.

12. Therefore, from the facts of the present matter, it creates doubt in the mind of the Court that there was occasion on the part of the plaintiff to withdraw the suit at the back of defendant No.1. The proper procedure has to be applied if the prayer of withdrawal is sought by the parties.

13. The intention of the plaintiff in the present case was not bona fide as it

shows that despite of staying the operation of order dated 2 nd December, 2011, she has relinquished her share in favour of the defendant No.2 as she was aware about the status quo order passed on 23rd July, 2007. The plaintiff is also aware about the fact that there is a counter claim filed by the defendant No.1, the exceptions of Order 23 and Rule 1 C.P.C. always available to the effected party in the suit for partition where all parties can be plaintiffs or defendants. As the defendant No.1 is claiming 50% claim in the suit property as contended in the written statement, he has some rights in respect of the suit property as alleged would be defended by withdrawal of the suit. The provisions of Order 23 Rule 1(5) CPC support the case made in the application filed by defendant No.1.

14. I am of the view if the withdrawal is allowed, vested and substantive rights of the defendant No.1 will be adversely affected as the present case is a suit for partition and plaintiff herself wants partition. Substantial part of evidence in the matter has already been recorded. The suit is almost at the final stage thus, the same has to be determined on merit. Thus, the suit as well as I.A. No.19285/2011 (Order 23 Rule 1 CPC) are revived as this Court is of the view that I.A. No.19285/2011 has to be determined after hearing the defendant No.1. The said application would now be listed on 30 th May, 2013 before the Roster Bench.

15. I.A. No.20188/2011 is, therefore, allowed. The order dated 2nd December, 2011 is recalled. The interim order which is confirmed vide order dated 18th December, 2007, with the consent of parties shall continue till the final disposal of the suit.

(MANMOHAN SINGH) JUDGE MAY 02, 2013