Delhi High Court
Sunil Gomber vs Dr Anil Gomber & Another on 13 January, 2015
Author: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 701/2014 & IAs No.4481/2014 & 21729/2014
Decided on : 13.01.2015
IN THE MATTER OF:
SUNIL GOMBER ..... Plaintiff
Through Mr.Shiv Charan Garg and
Mr.R.K.Kashyap and Mr.Imran Khan
Advocates
versus
DR ANIL GOMBER & ANOTHER ..... Defendants
Through Mr.Asutosh Lohia, Ms.Saumya Kumar
& Mr.Satish Kumar, Advocates for D-1
Mr.N.K.Kantawala and Ms.Ritika G., Advocates
for D-2
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J.(Oral)
IA No.21729/2014(by D-2 u/S 10 r/w 151 CPC)
1.
The present application has been filed by the defendant No.2
praying inter alia that the proceedings in the suit may be stayed till the
disposal of CS(OS) No.2036/2012, a suit filed by the said defendant
prior in time for seeking partition of premises bearing No.F-3, Vijay
Nagar, near Delhi University, New Delhi, owned by the mother of the
parties, which is also a subject matter of this suit.
2. Counsel for the applicant states that the plaintiff has been
impleaded as defendant No.1 in the aforecited suit and both the
defendants therein have filed their written statements, whereafter the
following two issues were framed on 19.3.2013 :
"(i) Whether the writing dated 27.12.2010 is the last will
and testament of Lt.Smt.Usha Gomber? (OPD-1)
(ii) Whether the writing dated 29.2.2012 is the last will
and testament of Lt.Smt.Usha Gomber? (OPD-2)"
3. It is submitted by the counsels for the defendants that though the
plaintiff is a party in the aforesaid suit for partition filed by defendant
No.2 in respect of the very same property, he has proceeded to file the
present suit on 1.3.2014, which is not maintainable.
4. An advance copy of the present application was duly served on the
plaintiff and the defendant No.1 through counsel. However, none had
appeared for the plaintiff on 10.11.2014, when the application was listed
before the court. As a result, notice was issued to the plaintiff,
returnable for today. Despite the fact that the plaintiff was duly served
through counsel well in advance, a reply has not been filed. Instead,
learned counsel for the plaintiff seeks further time to file a reply.
5. Ample opportunity was granted to the plaintiff to file a reply to this
application and therefore the said request is declined.
6. It is admitted by learned counsel for the plaintiff that the prayers
made in the present suit relate to the property that is a subject matter
of CS(OS) 2036/2012, that was instituted by the defendant No.2 prior in
time. He does not deny the fact that his client is a defendant in the said
suit and vide order dated 19.03.2013, issues were framed therein in
respect of the two wills that have been mentioned by the plaintiff in the
present suit. In such circumstances, there appears no justification for
the plaintiff to have filed the present suit at a later date, particularly in
light of the fact that in a suit for partition, all the coparceners become
eligible for seeking their separate shares in the suit property,
irrespective of whether they are plaintiffs or defendants in the suit.
7. At this stage, counsel for the plaintiff states that he does not have
any objection to the disposal of the present suit on the condition that the
plaintiff be given liberty to seek modification of the issues framed on
19.3.2013, in CS(OS) No.2036/2012.
8. Counsels for the defendants state that if the plaintiff does file an
application for seeking modification of the issues that have been framed
in the aforesaid suit, it would be for the court to examine the said
request and pass appropriate orders in accordance with law.
9. In view of the aforesaid position, with the consent of the parties,
the present suit is disposed of alongwith the pending applications with
liberty granted to them to pursue their remedies in the suit instituted by
the defendant No.2, for partition of the suit premises and pending
adjudication.
(HIMA KOHLI)
JANUARY 13, 2015 JUDGE
mk
