Rahul Vaid vs Balraj Vaid And Ors.
2015 Latest Caselaw 4972 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI
+                                  CS(OS) 835/2004

%                                                          14th July, 2015

RAHUL VAID                                                ..... Plaintiff
                          Through        Mr. Pankul Nagpal, Advocate along
                                         with plaintiff
                          versus

BALRAJ VAID AND ORS.                                       .... Defendants
                  Through                Mr. Sunil Aggarwal, Adv. for LRs of
                                         deceased Shri Balraj Vaid
                                         Mr. Ravi Gupta, Sr. Advocate with
                                         Mr. Swastik Singh, Adv. for def. Nos.
                                         9 and 10
                                         Mr. Gagan Mathur, Adv. for def. nos.
                                         2(a), 3, 4 and 7

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)
O.A Nos. 94/2014 and 95/2014
[Chamber appeals by legal heirs of defendant no. 1 against the orders
dated 20.11.2013 and 23.4.2014 passed by the Joint Registrar refusing to
implead the legal heirs of defendant no. 1 and allowing the application of
the plaintiff under Order XXII Rule 4(4) CPC being IA No. 1293/2013 for
exempting the plaintiff from substituting the legal heirs of defendant no. 1
in place of defendant no. 1 as also to condone the delay under Section 5 of
the Limitation Act, 1963 by allowing IA No. 11687/2014]


CS(OS) 835/2004                                                              Page 1 of 11
 OA No. 119/2014
[Chamber appeal filed by defendant nos. 9 and 10 against the order dated
21.5.2014 passed by the Joint Registrar disallowing the applications being
IA No. 10800/2010 filed under Order IX Rule 7 CPC for setting aside the
ex parte proceedings against these defendants and IA No. 10801/2014 filed
under Section 5 of the Limitation Act,1963 for condonation of delay in
filing IA No. 10800/2014]

1.

Without in any manner being distracted by the many Original Appeals

and various applications which have to be decided, in sum and substance,

the prayers are for allowing the legal heirs of defendant no. 1 to appear and

contest the proceedings by being substituted in place of the deceased

defendant no.1 and that the defendant nos. 9 and 10 who are the purchasers

of rights from defendant no. 1 are allowed to get set aside the ex parte

proceedings against them and thus permitting them to contest the suit on

merits.

2. The subject suit is a suit for partition of a property stated by the

plaintiff to be joint Hindu family property. The property is the property

bearing no. 3/64, Old Rajinder Nagar, New Delhi. Originally, there were

four defendants in the suit and subsequently, after allowing of the two

amendments, the number of defendants increased to 9 and then to 10,

defendant no. 10 being the wife of defendant no. 9 and both these defendants

being purchasers of the suit property.

3. The defendant nos. 2(a), 3, 4 and 7 as also defendant nos. 5, 6 and 8

are in fact supporting the plaintiff because they fall in the plaintiff's branch.

The effective contesting defendant in the case was defendant no. 1.

Defendant no.1 had filed his initial written statement on 7.1.2005 taking the

plea that the suit property is not a joint Hindu family property but the said

property is exclusively owned by defendant no. 1 as the title deeds of the

property are in the name of defendant no. 1.

4. The defendant nos. 9 and 10 who have purchased the rights of

defendant no. 1, and therefore, they will be taken up as one group along with

defendant no. 1.

5. For disposal of various applications, a few dates are relevant for the

purpose of adjudication. These are:-

S.No. DATE FACTS

1. 07.01.2005 Defendant no. 1 appeared and filed his written

statement.

2. 06.11.2007 The defendant no. 9 was impleaded and subsequently

served on 07.12.2007.

3. 25.03.2008 Amended written statement was filed by defendant no.

1 after plaint was amended to add defendant no. 9, the

husband of defendant no. 10 and which defendant

no.10 was subsequently impleaded. (Though the

counsel for the plaintiff argued that after this

amendment adding defendant no.9, the right to file the

amended written statement shall be closed, since the

same was not filed within one week as per order dated

25.3.2008 and the same was filed on 2.5.2008,

however it is noted here that there is no specific order

taking the amended written statement of defendant no.

1 off the record and in fact the defendant no.1 would

have a right to file fresh written statement on account

of addition of defendant no.10 subsequently).

4. 08.05.2009 The defendant no. 10 was impleaded and who was

served on 26.7.2008.

It is the second time the plaintiff was allowed to make

amendments accordingly in the plaint; and make

averments against defendant no. 10 including a prayer

for cancellation of the sale deed in favour of defendant

no. 10.

As per this order, a fresh opportunity was given to all

the defendants to file the amended written statement

and this is another reason as to why the earlier order

dated 25.3.2008 by which defendant no. 1 not being

entitled to file the amended written statement would be

superseded.

5. 30.11.2009 The defendant no. 10 moved two applications; one

under Order VII Rule 11 CPC and other under Order

XXXIX Rule 4 CPC being IA nos. 15466/2009 and

15465/2009 respectively.

6. 08.12.2009 Defendant nos. 1, 9 and 10 are proceeded ex parte.

Also IA nos. 15466/2009 and 15465/2009 filed under

Order VII Rule 11 CPC and other under Order XXXIX

Rule 4 CPC respectively by the defendants no. 9 & 10

were dismissed in default.

7. 18.02.2010 The plaintiff leads ex parte evidence.

8. 16.03.2010 The counsel for defendant nos. 1, 9 and 10 appears

before the Court and he states that he would be moving

an appropriate application for setting aside the ex parte

order dated 8.12.2009.

9. 04.06.2010 I.A. nos. 8063/2010 and 8064/2010 filed by defendant

nos. 1, 9 and 10 under Order IX Rule 7 CPC for setting

aside the ex parte order and under Section 5 of the

Limitation Act, 1963 respectively for condonation of

delay in filing IA no. 8063/2010 which were earlier

filed on 16.3.2010 were allowed to be withdrawn with

liberty to file fresh applications.

10. 16.08.2010 IA nos. 10800/2010 and 10801/2010 were filed by

defendant nos. 1, 9 and 10 under Order IX Rule 7 CPC

for setting aside the ex parte order and under Section 5

of the Limitation Act for condonation of delay in filing

IA no. 10800/2010.

11. 27.10.2012 Defendant no. 1 dies.

12. 23.01.2013 IA no. 1293/2013 filed by the plaintiff under Order

XXII Rule 4(4) CPC for exempting the plaintiff from

substituting the legal heirs of deceased defendant no. 1

13. 20.11.2013, By these three orders effectively, IA no. 1293/2013

filed by plaintiff was allowed; the legal heirs of 23.04.2014 defendant no. 1 have not been allowed to be and substituted in place of defendant no. 1 and they have 21.05.2014 also been refused to be added under Order I Rule 10

CPC as defendants; and also the IA nos. 10800/2010

and 10801/2010 are dismissed whereby ex parte

proceedings against defendant nos. 1, 9 and 10 have

not been set aside and which ex parte order against

defendant nos. 9 and 10 was passed on 8.12.2009.

6. The law with respect to setting aside the ex parte proceedings is well

settled since early 1950s when the Supreme Court passed the judgment in

the case of Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya

AIR 1955 SC 425. As per this judgment, once a person is proceeded ex

parte that does not mean that the person is proceeded ex parte for all times,

and the said person has a right to appear in all subsequent dates/proceedings,

of course though he cannot set the hands of the clock back by getting those

things undone which are done when the said defendant had remained ex

parte. Therefore, unless he can show good cause, the ex parte defendant

must accept all that has happened before and such defendant must be content

to proceed from the stage at which he comes in. Also, the endeavour of the

court is that ex parte proceedings against the defendant, ordinarily in the

interest of justice can be set aside unless the defendant by his deliberate

action wants to cause irreparable prejudice to the plaintiff and condonation

of delay in setting aside the ex parte proceedings can be allowed if the

explanation for the delay is supported by sufficient cause. If the explanation

does not smack of malafides or it is not put forth as part of a dilatory

strategy the court must show utmost consideration for condoning the delay

liberally. (Ref: N. Balakrishnan Vs. M. Krishnamurthy, AIR 1998 SC

3222).

7. Basically, the courts are liberal in allowing the setting aside of ex

parte proceedings, including of restoration of suit dismissed in default,

because, ordinarily persons should be allowed to have a judgment on merits

and not on account of default.

8. With the aforesaid preliminary observations, the aspect to be noted is

that the real issue to be decided is of the absence for the period from

8.12.2009 when defendant nos. 1, 9 and 10 were proceeded ex parte; and

who are the only contesting defendants; till the date of 16.3.2010 when IA

no. 8063/2010 was filed by defendant no. 1 (who was then alive) for setting

aside of the ex parte proceedings against him. It may be noted that in the

meanwhile between 8.12.2009 and 16.3.2010, an event had happened, being

that on 18.2.2010 the plaintiff had led his ex parte evidence.

9. Essentially, therefore, the issue is that whether the negligence of

defendant no. 1 and/or his legal heirs for non-appearance from 8.12.2009 to

16.3.2010 is such that the ex parte proceedings be not set aside and the legal

heirs of defendant no.1 be not substituted in place of the deceased defendant

no.1.

10. In my opinion, a period of just a few months from 8.12.2009 to

16.3.2010 is hardly such a period and which in any manner can be said to be

such a long period of many years, that unnecessary prejudice would be

caused to the plaintiff by such delay and that non-appearance of defendant

nos. 1, 9 & 10 for such period should be punished by not allowing these

defendants to contest the suit on merits. Plaintiff can always be

compensated by costs for such delay.

11. It needs to be noted at this stage that defendant no.1, and now his legal

heirs, have urged substantial defence for contesting the suit, inasmuch as, as

already stated above, the defendant no.1's case as per the written statement

filed is that the suit property is not a joint Hindu family property but is of the

defendant no.1 and the title deeds are in the name of deceased defendant

no.1.

12. The defence of defendant nos. 9 and 10 is intrinsically linked to

defendant no. 1 inasmuch as these defendants being subsequent purchasers

have a right to be added under Order XXII Rule 10 CPC because successor-

in-interest of a property can be added as a party to the suit; once and if that

successor-in-interest of a party to litigation so chooses. (Ref: Dhurandhar

Prasad Singh Vs. Jai Prakash University and Others AIR 2001 SC 2552).

13. In the facts of the present case and where vital rights to an immovable

property for defendant nos. 1, 9 and 10 are involved, the negligence is not

such that it cannot be condoned by making payment of costs to the plaintiff

considering that valuable rights in an immovable property is involved and

the period of non-appearance and delay is only of around four months.

14. In view of the above, the appeals being OA nos. 94/2014, 95/2014 and

119/2014 along with the connected applications under Section 5 of the

Limitation Act being IA nos. 11687/2014 and 14171/2014 are allowed

subject to payment of costs of Rs. 10,000/- with respect to each appeal to be

paid to the plaintiff by defendant nos. 1, 9 and 10. The legal heirs of

defendant no.1 are added as defendants to the suit and ex parte proceedings

against them/defendant nos. 1, 9 & 10 are set aside. These legal heirs and

defendants no. 9 & 10 will now file their written statements.

15. List the matter before the Joint Registrar on 20.10.2015 for further

proceedings and for completion of pleadings as also for filing of documents

and their admission/denial.

JULY 14, 2015                                    VALMIKI J. MEHTA, J.
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