Smt. Hardeep Kaur & Ors. vs Shri Sadhu Singh & Ors
2015 Latest Caselaw 8571 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     CS(OS) 303/2008
      SMT. HARDEEP KAUR & ORS.                   ..... Plaintiffs
                    Through : Ms. Sonali Malhotra, Advocate

                        versus

      SHRI SADHU SINGH & ORS                      ..... Defendants
                    Through : Mr. Sunil Satyarthi, Advocate with
                    Mr. Rajinder Singh, son of D-1 in person.

      CORAM:
      HON'BLE MS. JUSTICE HIMA KOHLI
                    ORDER

% 18.11.2015

1. This order is in continuation of the order dated 16.7.2015. On

16.7.2015, a final decree was passed in respect of the factory

premises situated at Kishan Ganj, Delhi, thus leaving the residential

premises bearing No.2113/164, Tri Nagar, Delhi.

2. As for the residential premises, it was noted that after passing of

the preliminary decree on 16.07.2013, the Local Commissioner had

submitted a report stating inter alia that the said premises comprising

of three floors and a partly constructed terrace on the third floor, can

be divided by metes and bounds in terms of a proposal made in the

site plan enclosed with the said report and marked as Ex.-A. On the

said date, the defendant No.1 was present along with one Mr. Jitender

Pal Singh. It was noted that neither side had filed any objections to

the report of the Local Commissioner. Counsel for the plaintiffs had

stated that his clients did not have any objection to the suit premises

being partitioned by metes and bounds, as suggested by the Local

Commissioner in his report. However, the defendant No.1 had

requested that orders may be deferred so that defendants No.2 & 3

could be present on the next date. At the request of the defendant

No.1, the case was adjourned to 22.7.2015.

3. On 22.7.2015, lawyers were abstaining from appearing in Court

and the case was adjourned to 12.8.2015. On 12.8.2015, the son of

the defendant No.2 and nephew of the defendant No.3 were present

on the first call and they had sought an adjournment. However, since

the plaintiffs were not represented, the case was passed over. On the

second call, the defendants' relatives had absented themselves. In the

interest of justice, the case was adjourned to 22.9.2015, with

directions issued to the counsel for the plaintiffs to give a written

intimation of the next date of hearing to the other side, so as to

ensure their presence.

4. On 22.9.2015, Mr. Mukhwinder Singh, son of the defendant No.1

and nephew of the defendant No.2 and Mr. Manmeet Singh, grandson

of the defendant No.3 was present and they handed over the medical

certificates of the defendants No.2 & 3 and sought an adjournment.

The defendants were duly accommodated and last opportunity was

granted to them to remain present on the next date of hearing either

themselves or through a counsel. It was made clear that if they

remain absent, then the Court shall proceed to pass further orders,

without awaiting their presence.

5. Today, Mr. Satyarthi, learned counsel enters appearance for the

defendants No.1 to 3 and is accompanied by Shri Rajinder Singh, the

elder son of the defendant No.1. He submits that he has been

engaged in the case only yesterday and does not have any instructions

from the defendants.

6. It is most unfortunate that the defendants have engaged a

counsel at the eleventh hour and the counsel is appearing today

without any instructions. Sufficient leeway has already been given to

the defendants. The Court is not inclined to accommodate the

defendants any further. The case has been lingering since 16.7.2015

and three adjournments have already been granted to the defendants

only for them to convey their instructions directly or through counsel,

but to no avail. It may be reiterated that till date, neither side has filed

any objections to the report of the Local Commissioner in respect of

the residential premises.

7. Counsel for the plaintiffs points out that all the parties are in

occupation of the different portions of the suit premises and the Local

Commissioner has proposed that all the parties can be accommodated

in the suit premises that can be divided by metes and bounds in terms

of the proposal made in the site plan and marked as Ex.-A, which is

acceptable to her clients.

8. In view of the fact that none of the parties have filed objections

to the report of the Local Commissioner in respect of the suit

premises, the same is accepted. The suit is decreed by holding that all

the four parties to the present suit shall be entitled to 1/4th share each

in premises bearing No.2113/164, Tri Nagar, Delhi, as reflected in the

site plan marked as Ex.-A and enclosed with the Local Commissioner's

report filed under index dated 10.11.2014. Decree sheet be drawn up

accordingly.

9. At this stage, counsel for the plaintiffs draws the attention of the

Court to the order dated 16.7.2013 and states that as per the said

order, all the parties were required to bear the fee of the Local

Commissioner to the extent of 1/4th share each. However,

defendants No.1 to 3 had failed to pay their share of the Local

Commissioner's fee, which had to be entirely borne by the plaintiffs.

She states that vide order 6.11.2013, it was made clear that the Local

Commissioner's fee borne by the plaintiffs on behalf of the defendants

shall be adjusted at the time of passing of a final decree.

10. Accordingly, the defendants No.1 to 3 are directed to pay a sum

of Rs.20,000/- each to the plaintiffs towards their share of the Local

Commissioner's fee within four weeks, failing which the said amount

shall be recoverable by the plaintiff from the defendants along with

interest @12% p.a. w.e.f. 16.7.2013, till realization.

11. The suit is disposed of, while leaving the parties to bear their

own costs.

12. File be consigned to the record room.

HIMA KOHLI, J NOVEMBER 18, 2015 sk/ap/rkb