Smt. Bimla Devi vs Dinesh Kumar Gupta & Ors.
2014 Latest Caselaw 5828 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      C.M.(M) No.1011/2014

%                                                       14th November, 2014

SMT. BIMLA DEVI                                           ..... Petitioner
                          Through:       Mr. Bharat Singh Sisodia, Advocate.

                          Versus

DINESH KUMAR GUPTA & ORS.                                    ..... Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. No.18513/2014 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

+ C.M.(M) No.1011/2014 and C.M. No.18514/2014 (stay)

2. This petition under Article 227 of the Constitution of India is

filed by the defendant no.3 in the suit for partition impugning the order dated

17.2.2014 passed by the trial court striking off the defence of the

petitioner/defendant no.3 inasmuch as petitioner/defendant no.3 did not

comply with the earlier order passed by the court dated 29.10.2013 directing

petitioner/defendant no.3 to file an affidavit with respect to rent received

from all the tenants of the suit property and thereafter to deposit the same in

the court.

3. Before me, the admitted position which emerges is that the

order dated 29.10.2013 till date has not been complied with. The effect is

that the petitioner who is only one of the co-owners of the suit property and

which was the property of the father in spite of the fact that as on date the

Will propounded by the petitioner/defendant no.3 as a defence in the suit is

yet to be proved, is taking the entire rent from all the tenants and is

depriving all other co-owners of their shares of the rent in the property. It is

not in dispute that the property originally belonged to the father and the

tenants were also inducted by the father. I fail to understand how one co-

owner can take up an obdurate stand that she will appropriate the entire rent

received from all the tenants of the property and keep on insisting to do so,

and which thereafter has rightly resulted in striking off the defence of the

petitioner/defendant no.3.

4. Powers under Article 227 of the Constitution of India are only

to be exercised to prevent grave injustice. Powers under Article 227 of the

Constitution of India which are discretionary and extraordinary powers are

not meant to be exercised in favour of persons such as the petitioner who

even during the pendency of the suit for partition, in spite of the Will

propounded by her is not yet proved and by which exclusive ownership is

claimed, refuse to deposit in the Court the shares of the other co-owners out

of the rent received from the tenants of the property which was owned by the

father.

5. Dismissed.

VALMIKI J. MEHTA, J NOVEMBER 14, 2014 Ne