Delhi High Court
Acheraj Lal Lamba vs Tilak Raj Lamba And Another on 7 May, 2015
$~3.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 2288/2009
ACHERAJ LAL LAMBA ..... Plaintiff
Through: Mr. Arvind Sharma, Advocate
versus
TILAK RAJ LAMBA AND ANOTHER ..... Defendants
Through: None for Defendant No.3.
Remaining defendants are ex parte.
Ms. Madhu Lamba, wife of D-2 in person.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
ORDER
% 07.05.2015
1. Vide order dated 16.10.2014, a preliminary decree was passed
in respect of the residential premises No.1/7033, Shivaji Park,
Shahdara, Delhi, measuring 157 sq. yards comprised in Khasra
No.244-245 situated in village Sikdarpur, Shivaji Park, Shahdara,
Delhi, declaring inter alia that the plaintiff is entitled to the relief
claimed in prayers clause (a), (b) and (c) of the plaint, i.e., to a
decree of declaration declaring him as a joint shareholder of the
subject premises owned by late Smt. Vidya Wanti (mother of the
parties) to the extent of 1/3rd share therein.
2. Learned counsel for the plaintiff states that the aforesaid order
was passed after considering the ex parte evidence that was led by the
plaintiff. Pertinently, despite service, none had appeared on behalf of
the defendants No.4 to 6 and vide order dated 02.05.2012, they were
proceeded against ex parte. On 06.05.2014, all the defendants, except
for defendant No.3 were proceeded against ex parte. None had
appeared on behalf of the defendant No.3 when the matter was taken
up on 16.10.2014. After passing a preliminary decree on 16.10.2014,
a Local Commissioner was appointed to visit the suit premises and file
a report as to whether it is feasible to partition the same by metes and
bounds.
3. The Local Commissioner has submitted a report dated
05.05.2015 stating inter alia that she had visited the suit premises on
13.03.2015 and 05.04.2015 and having regard to the built up
structure existing on the suit property comprising of a single floor, she
opined that the same cannot be partitioned by metes and bounds.
4. At this stage, Ms. Madhu Lamba intervenes and states that she
is the wife of the defendant No.2. She submits that her husband
proposes to file objections to the Local Commissioner's report.
5. It is relevant to note that the defendant No.2 was served with
the summons in the suit as long back as on 01.07.2010 but he elected
not to enter appearance or file the written statement. Nor has the said
defendant taken any steps till date for setting aside of the ex parte
order. As a result, this Court is not in a position to entertain the
request made by Smt.Madhu Lamba, for and on behalf of the
defendant No.2.
6. Counsel for the plaintiff states that he has no objection if the
preliminary decree dated 16.10.2014, is converted into a final decree
and the plaintiff and the defendants No.1 and 2 are left to explore all
options for partitioning the suit premises, including buying out each
other's shares and if they are unable to negotiate an out of court
settlement, then they shall seek execution of the judgment and
decree, as per law.
7. Ordered accordingly. The preliminary decree dated 16.10.2014
is converted into a final decree. If the parties are unable to work out a
settlement as to the mode of partition, then they shall be at liberty to
seek execution of the decree in accordance with law.
8. The suit is disposed of. Decree sheet be drawn accordingly. No
order as to costs.
HIMA KOHLI, J
MAY 07, 2015
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