Naval Kishore Gupta vs Yashwant Kumar Gupta And Ors.
2014 Latest Caselaw 4410 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CS(OS) 2756/2011


                                            Decided on : 12.09.2014

IN THE MATTER OF
NAVAL KISHORE GUPTA                            ..... Plaintiff
                   Through : Mr. Arvind Kumar, Advocate with
                   plaintiff in person.


                        versus


YASHWANT KUMAR GUPTA AND ORS.               ..... Defendants
                  Through : Mr. Rajeev Kumar and
                  Mr. Saurabh Kumar, Advocates

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (ORAL)

I.A.No.14081/2014 (by the plaintiff for condonation of

delay)

1. The present application has been filed by the plaintiff praying

inter alia for condonation of delay of 83 days in filing the brief

synopsis.

2. Learned counsel for the defendants does not seriously oppose

he application.

3. For the reasons stated in the application, the same is allowed

and the delay of 83 days in filing the brief synopsis is condoned.

4. The application is disposed of.

Review Petition No.178/2013

1. The present review petition has been filed by the plaintiff

seeking review of the order dated 6.6.2012, wherein a preliminary

decree was passed in respect of the suit premises bearing No.E-44,

Ranjit Singh Road, Street No.9, Adarsh Nagar, Delhi, measuring 150

sq. yards as prayed for by the plaintiff, holding inter alia that the

plaintiff and the defendants No.1 to 6 are entitled to 1/7 th share

each in the said property.

2. The admitted position is that the suit premises was purchased

by Smt. Attar Kali, mother of the plaintiff and the defendants No.1

to 6, and immediately upon her demise in October 2011, the

plaintiff had instituted the present suit for partition, permanent

injunction and declaration against his four brothers (defendants

No.1 to 4) and two sisters (defendants No.5 & 6), including

defendant No.7, who happens to be the wife of the defendant No.3.

3. Notice was issued in the present suit on 9.11.2011 and the

parties were directed to maintain status quo with regard to the title

and possession of the suit property. Subsequently, the defendants

had entered appearance, through counsel as also in person.

Defendant No.2 had filed I.A. No.20990/2011, stating inter alia that

he had no objection to the prayer made by the plaintiff for passing a

preliminary decree for partition of the suit premises to the extent of

1/7th share each in favour of the plaintiff and the defendants No.1

to 6 respectively. The plaintiff filed a reply to the aforesaid

application on 9.4.2012, wherein he mentioned the fact that

defendant No.2 had instituted a suit for partition in respect of 100

sq. yards of the very same property. The plaintiff also stated that

defendant No.2 had averred in his plaint that defendants No.5 & 6

(sisters) had executed a registered Relinquishment Deed dated

23.2.2000 in favour of their brothers, i.e., the plaintiff herein and

defendants No.1 to 4. However, the plaintiff challenged the stand

taken by defendant No.2 that during her lifetime, their mother had

sold 50 sq. yards out of 150 sq. yards of the suit property in favour

of the defendant No.7 (wife of defendant No.3).

4. Subsequently, on 19.9.2012, learned counsel for the plaintiff

sought discharge from the case on the ground that the plaintiff had

engaged a new counsel, who was present in Court on the said date.

Mr. A.T. Rao, the newly engaged counsel, who appeared for the

plaintiff, stated that he would be filing his power of attorney in the

course of the day. On the aforesaid date, having regard to the fact

that the plaintiff had filed a suit for partition and permanent

injunction against his brothers and sisters and all the parties were

willing to explore the possibility of arriving at a negotiated

settlement through mediation, they were directed to appear before

the Mediator, to be appointed by the Delhi High Court Mediation &

Conciliation Centre.

5. On 6.12.2012, the learned Mediator submitted a report that

there was some likelihood of the parties arriving at a settlement.

However, the plaintiff, who appeared in person, and the counsel for

the defendant No.2 stated that there was no likelihood of a

negotiated settlement. The plaintiff was asked as to why had his

newly engaged counsel not filed his power of attorney. Mr. A.T.

Rao, Advocate was present in Court and he submitted that the

plaintiff had not contacted him. In response, the plaintiff had

asserted that he did not wish to engage a counsel and that he had

already discharged his previous counsel. The plaintiff also stated

that he wanted to pursue the matter on merits.

6. The defendants No.1, 2, 3, 4, 6 & 7 were present in person

and it was noted in the order sheet that none of them had filed their

written statements. On the aforesaid date, counsel for the

defendant No.2 and the remaining defendants, who were present in

person, stated that they did not have any objection to a preliminary

decree being passed in respect of the suit premises, in terms of the

prayer made by the plaintiff. The defendants No.6 & 7 clarified that

they had instructions on the same lines from the defendant No.5,

their sister.

7. In view of the aforesaid consent given by the defendants, a

preliminary decree was passed holding inter alia that the plaintiff

and the defendants No.1 to 6 are entitled to 1/7 th share each in the

suit premises. Further, a Local Commissioner was appointed to

submit a report as to whether it was possible to partition the suit

premises by metes and bounds and if so, in what manner. The

parties were accordingly directed to appear before the Local

Commissioner on 17.12.2012.

8. The records reveal that the parties had appeared before the

Local Commissioner on 17.12.2012, whereafter the Local

Commissioner had visited the suit premises on 5.1.2013. The

plaintiff as also the defendants were present on the date fixed.

Finally, the Local Commissioner had submitted a report dated

22.1.2013 stating inter alia that the property could not be

partitioned by metes and bounds. After more than a month of the

Local Commissioner submitting his report, the plaintiff filed the

present review application on 27.2.2013, seeking review of the

order dated 6.12.2012, whereunder the preliminary decree was

passed.

9. It is averred by the plaintiff in the review application that due

to inadvertence, he had prayed for a preliminary and final decree of

partition in respect of the suit premises to the extent of 1/7 th share

each, though the defendants No.5 & 6 had already relinquished

their shares in the suit premises in terms of the Relinquishment

Deed dated 23.2.2000. It is thus prayed that the suit premises

ought to be partitioned amongst the plaintiff and the defendants

No.1 to 4 in equal shares, to the extent of 1/5th share each.

10. The explanation furnished by the plaintiff for seeking review of

the order dated 6.12.2012 is that the defendants had failed to file

their written statements and had failed to inform the court that prior

to his filing the present suit for partition in the year 2008, the

defendant No.2 had filed a suit for partition and permanent

injunction in respect of 100 sq. yards comprised in the very same

property.

11. Learned counsel for the defendants opposes the present

application and states that the contention of the plaintiff that the

defendants had withheld material information or that the defendant

No.2 had failed to inform the court that the defendants No.5 & 6

had relinquished their respective shares in the suit property in

favour of the plaintiff and the defendants No.1 to 4, is contrary to

the averments made in the plaint. To substantiate the aforesaid

submission, learned counsel for the defendants particularly draws

the attention of this Court to the averment made by the plaintiff in

para 7 of the plaint.

12. Further, counsel for the defendants states that no doubt, the

defendant No.2 had instituted a civil suit for partition of the suit

premises, but the said suit was confined to property measuring 100

sq. yards and not 150 sq. yards, as has been prayed for by the

plaintiff in the present suit. He explains that during her lifetime,

Smt. Attar Kali had sold a portion of the suit premises measuring 50

sq. yards to the defendant No.7, by executing a registered sale

deed in her favour and consequently, partition was sought in

respect of the balance 100 sq. yards of the suit premises, whereas

the plaintiff herein had challenged the authority of Smt. Attar Kali to

sell 50 sq. yards of the suit premises to the defendant No.7. In

other words, the plaintiff has questioned the legality and validity of

the sale deed dated 29.1.1988 executed by Smt. Attar Kali in favour

of defendant No.7 (wife of defendant No.3).

13. It is an undisputed position that the defendant No.2 had filed

a civil suit in the District Court bearing Suit No.71/2008, against the

plaintiff and the remaining defendants, seeking partition of 100 sq.

yards comprised in the very same property. The plaintiff, who was

impleaded as defendant No.2 in the aforesaid suit proceedings, had

entered appearance and on 31.7.2009, he filed an application under

Order VII Rules 10 & 11 CPC for rejection of the plaint on the

ground that the trial court was not vested with the pecuniary

jurisdiction to entertain the said suit.

14. Vide order dated 14.2.2011, the trial court had allowed the

aforesaid application filed by the plaintiff herein and the plaint was

returned to the defendant No.2 herein for the same to be presented

before the High Court. In the meantime, in October, 2011, the

plaintiff had instituted the present suit for partition in respect of the

very same property.

15. As noted above, notice was issued in the present suit on

9.11.2011. In the very same month, i.e., on 22.11.2011, the

defendant No.2 presented the plaint, that had been returned to him

by the trial court, in the High Court and notice was issued thereon

to the defendants including the plaintiff herein. The plaintiff herein

had entered appearance in the said suit, well before the order dated

6.12.2012 came to be passed in the present suit. Therefore, the

plaintiff cannot claim ignorance of the suit instituted by the

defendant No.2. He was well aware of the stand taken by the

defendant No.2 in the suit instituted by him.

16. Moreover, a perusal of para 7 of the plaint reveals that the

plaintiff had clearly mentioned therein the fact that the defendant

No.2 had filed a civil suit in respect of the suit property and that the

said defendant had stated therein that the defendants No.5 & 6

(sisters) had executed a Relinquishment Deed on 23.2.2000,

relinquishing their shares in the suit property. It has further been

averred by the plaintiff in the very same para 7 of the plaint that he

is unaware about the execution of the Relinquishment Deed and

that the said document was not binding upon him. Counsel for the

plaintiff does not deny that specific averments in respect of the

Relinquishment Deed were made by the plaintiff in para 7 of the

plaint. In such circumstances, it is impermissible for the plaintiff

to plead now that he was unaware of the execution of the

Relinquishment Deed by his sisters (defendants No.5 & 6).

17. In view of the aforesaid facts and circumstances, the

submission of the learned counsel for the plaintiff that there is an

error apparent on the face of the record, is not borne out. It is

clear that the plaintiff was aware of the Relinquishment Deed dated

23.7.2000 executed by the defendants No.5 & 6 in respect of their

shares in the suit property all along. He also had knowledge of the

fact that none of the defendants had questioned the legality or

validity of the sale deed that was executed by their mother, Smt.

Attar Kali in favour of the defendant No.7 and it was on the said

premise that the defendant No.2 had instituted CS(OS)

No.2919/2011 in respect of the suit property, praying inter alia for

partition amongst the plaintiff herein and the defendants No.1 to 4,

to the extent of 1/5th share each out of 100 sq. yards.

18. It is not out of place to mention that the plaintiff had all the

opportunity to amend the plaint and modify the prayer clause well

before the date when the preliminary decree was passed,

particularly when he was impleaded as a party in the civil suit

instituted by the defendant No.2 for the same property and was

aware of the stand taken by the said defendant and the remaining

defendants in the said suit. Another opportunity that came the way

of the plaintiff was when the defendant No.2 filed IA

No.20990/2011, stating inter alia that he had no objection to the

prayer made by the plaintiff for partition of the suit property.

Instead of taking steps to amend the plaint, the plaintiff filed a reply

in opposition to the application wherein he referred to the suit for

partition instituted by the defendant No.2 and to the Relinquishment

Deed executed by the defendants No.5 & 6. Thus the plaintiff

cannot feign ignorance or try and blame the defendant No.2 for

failing to inform the court about the suit instituted by him in respect

of the subject property.

19. Counsel for the plaintiff pleads that interest of justice

demands that the order dated 6.12.2012 be reviewed by this court

on the ground that the plaintiff had appeared in person on the said

date and was unaware of the consequences that would flow from

the order that came to be passed.

20. This can hardly be a ground available to the plaintiff to seek

review of the order dated 6.12.2012. As would be apparent from a

perusal of the order dated 6.12.2012 that the plaintiff was

specifically asked by the Court if he would like to engage a new

counsel in the case and Mr.A.T.Rao, Advocate was present in the

Court on the said date, but he had elected to appear in person, had

dispensed with his counsel and had insisted that the matter be

proceeded with on merits, instead of being negotiated for a

mediated settlement with the defendants.

21. The plaintiff is solely responsible for the stand taken by him

on 6.12.2012 and the preliminary decree that was resultantly

passed in respect of the suit property, in view of the consent given

by all the parties. In such circumstances, this Court has no option

but to dismiss the present review application as learned counsel has

not been able to point out any error apparent on the face of the

record, for reviewing the order dated 6.12.2012.

22. The review petition is accordingly dismissed, as being devoid

of merits.

(HIMA KOHLI) JUDGE SEPTEMBER 12, 2014 sk/rkb