Mohit & Anr vs Ram Pyari & Ors
2016 Latest Caselaw 818 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Date of decision: 3rd February, 2016.

+      CM(M) 775/2015 & CMs No.4062/2016 (for exemption) &
       4063/2016 (of R-1 for condonation of 133 days delay in filing
       reply)

       MOHIT & ANR                                              ..... Petitioners
                            Through:        Mr. Anupam Srivastava and Mr.
                                            Abhishek Yadav, Advs.

                                      Versus

       RAM PYARI & ORS                                          ..... Respondents

                    Through:                Mr. Davinder Varma, Adv. for R-1.
                                            Mr. Ramesh Kumar and Mr. H.C.
                                            Nainawal, Advs. for R-2 & 4 to 6.
                                            Mr. Y.K. Solanki and Mr. Rakesh
                                            Kumar, Advs. for R-3 & 7 to 9.

                                      AND

+      RFA 490/2015 & CMs No.13210/2015 (for condonation of 1947

       days delay in filing the appeal) & 13211/2015 (for stay)

       MOHIT & ANR                                              ..... Appellants
                            Through:        Mr. Anupam Srivastava and Mr.
                                            Abhishek Yadav, Advs.

                                      Versus

       RAM PYARI & ORS                                          ..... Respondents
                    Through:                Mr. Davinder Varma, Adv. for R-1.
                                            Mr. Ramesh Kumar and Mr. H.C.
                                            Nainawal, Advs. for R-2 & 4 to 6.
                                            Mr. Y.K. Solanki and Mr. Rakesh
                                            Kumar, Advs. for R-3 & 7 to 9.


 CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. Both proceedings arise from the same suit before the learned

Additional District Judge (ADJ) and accordingly CM(M) No.775/2015,

though not in the Roster of this Bench was ordered to be placed before this

Bench to be decided along with RFA No.490/2015.

2. The counsels have been heard.

3. The nomenclature of the parties hereinafter is as per their

nomenclature in RFA No.490/2015.

4. The respondent No.1 Smt. Ram Pyari instituted the suit from which

these proceedings arise, for partition of as many as seven properties left by

her husband, between herself and her sons (respondent No.2 Sh. Shishu Pal,

respondent No.3 Sh. Inderjeet Singh, respondent No.4 Sh. Raj Singh)

daughters (respondents No.7 to 9 namely Smt. Nirmala, Smt. Anita and Smt.

Kavita) and widow (respondent No.5 Smt. Kamla Devi) / children

(respondent No.6 Smt. Chanchal and the two appellants namely Sh. Mohit

and Sh. Shobhit) of the pre-deceased son Sh. Satbir Singh.

5. The two appellants at the time of institution of the suit on 29th May,

2004 were minors and their mother respondent No.5 Smt. Kamla Devi was

appointed as their guardian for the purpose of the suit and was representing

the appellants and had engaged Mr. H.R. Verma, Advocate who filed written

statement dated 2nd August, 2004 on behalf of the respondent No.5 Smt.

Kamla Devi for herself and as guardian of the two appellants and on behalf

of the respondent No.6 Smt. Chanchal being the sister of the appellants.

6. The counsel for the appellants informs that it was a defence inter alia

in the said written statement that the properties already stood partitioned and

each of the parties was in possession / occupation of their respective share as

per the said partition which was averred to be oral.

7. On 29th October, 2009, a settlement / compromise was arrived at in the

said suit being Suit No.370/2004 of the Court of ADJ Central-7, Delhi and in

terms of the said compromise, Mr. H.R. Verma Advocate, on behalf of the

respondent No.5 Smt. Kamla Devi being the mother of the two appellants

who were mentioned in the proceedings as as "Master" and on behalf of the

respondent No.6 Smt. Chanchal, made a statement that the two appellants

and their mother and sister i.e. respondents No.5&6 namely Smt. Kamla

Devi and Smt. Chanchal were together entitled to 1/8th share in the seven

properties and that they had no objection to a preliminary decree for partition

being passed declaring the respondents No.1 to 4 and the respondents No.7

to 9 having 1/8th share each in the properties and to the two appellants and

the respondents No.5&6 together having the remaining 1/8th share in the

properties. The said settlement was however made subject to the condition

that the two appellants and their mother and sister shall be given 1/8th share

jointly out of the properties under their occupation and that they will

surrender the excess portion beyond 1/8th share held by them.

8. A preliminary decree for partition was accordingly passed on 29 th

October, 2009.

9. Mr. H.R. Verma, Advocate continued to represent the appellants and

the respondents No.5&6 even after the preliminary decree.

10. The counsel for the appellants states that the two appellants though

minor at the time of institution of the suit and when written statement on

their behalf were filed attained majority in the years 2005 and 2007

respectively (the counsel for the appellants is unable to give the dates of birth

of the two appellants). It is his contention that the statement made by Mr.

H.R. Verma, Advocate on 29th October, 2009 describing the two appellants

as „Master‟, meaning thereby that they were still minors, was in violation of

the procedure prescribed in Order 32 Rule 7 of the Civil Procedure Code,

1908 (CPC) for effecting compromise on behalf of minors.

11. The counsel for the appellants states that the Court Commissioner

appointed in pursuance to the preliminary decree for partition visited the suit

property in July, 2010 and it was then that the appellants for the first time

realised that a preliminary decree of partition had been passed, and on 20th

August, 2010 filed an application through Mr. Sanjeev Dutta, Advocate

under Order 32 Rule 7 of the CPC for setting aside of the preliminary decree

on the basis of consent.

12. The said application was dismissed by the learned ADJ vide order

dated 28th October, 2010 impugned in CM(M) No.775/2015. In the said

order, the learned ADJ has recorded that the two appellants attained majority

on 14th September, 2005 and 9th June, 2007 and has reasoned:

(i) that neither of the appellants moved the Court for participating

in the proceedings and continued to participate in the proceedings

through their mother Smt. Kamla Devi;

(ii) that Mr. H.R. Verma, Advocate had on 29th October, 2009 made

a statement not only on behalf of the mother Smt. Kamla Devi but also

on behalf of the appellants through their mother;

(iii) that the interest of the appellants was represented by their

mother and thus it could not be pleaded that appellants were

unrepresented;

(iv) that even otherwise, the settlement could not be said to be to the

detriment of the appellants inasmuch as it was not in dispute that the

appellants along with their mother and sister had only a 1/8 th share in

the properties;

(v) that the tendency amongst the litigants and lawyers to blame

previous counsel is growing alarmingly, non-serious allegations like

the one made against Mr. H.R. Verma, Advocate were being made,

when no complaint had been made with the Bar Council of Delhi

against Mr. H.R. Verma, Advocate and no affidavit of the mother Smt.

Kamla Devi was placed on record to the effect that Mr. H.R. Verma,

Advocate had no authority to depose before the Court;

(vi) that the application had been filed belatedly, to stall the

proceedings and to usurp the excess share in occupation / possession

of the appellants and their mother and sister than their entitlement.

13. The appellants then did not impugn the said order and continued to

participate in the proceedings pursuant to the preliminary decree, through

Mr. Sanjeev Dutta, Advocate for a further period of about two and a half

years.

14. Thereafter, on 2nd January, 2013 the appellants filed an application

under Order 20 Rule 18 of the CPC to contend that the preliminary decree

for partition was bad, as some of the properties which had been partitioned

were governed by the provisions of the Delhi Land Reforms Act, 1954 and

could not have been partitioned by the Civil Court. This application was

filed through a new advocate Mr. D.S. Sehrawat.

15. The said application of the appellants under Order 20 Rule 18 CPC

was dismissed vide order dated 13th May, 2014, holding that the lands were

not governed by the Reforms Act and were urbanised and thus partible by

the Civil Court.

16. The appellants then engaged a new advocate and filed CM(M)

No.642/2014 before this Court impugning the order dated 13 th May, 2014

dismissing their application under Order 20 Rule 18 CPC.

17. The said CM(M) No.642/2014 came up before this Court on 11 th July,

2014 when the appellants withdrew the same with liberty to file review.

18. The appellants thereafter on 26th August, 2014 applied for review of

the order dated 13th May, 2014, engaging yet another advocate namely Mr.

Nitin Khanna but it is informed that the said application was argued by Mr.

D.S. Sehrawat, Advocate only and was ultimately dismissed on 28 th April,

2015. The said order has also attained finality.

19. It is thereafter that the appellants, on 29th May, 2015 filed these

proceedings i.e. RFA No.490/2015 in which the preliminary decree dated

29th October, 2009 for partition is impugned and CM(M) No.775/2015 in

which the order dated 28th October, 2010 of dismissal of the application

under Order 32 Rule 7 is impugned. Needless to state that the appeal is

accompanied with an application for condonation of 1947 days delay in

filing thereof. The CM(M) No.775/2015 though filed after nearly five years

of the order impugned therein, is not accompanied with any application for

condonation of delay. The counsel for the appellants states that there is no

limitation prescribed therefor. The counsel however admits that the principle

of laches, acquiescence and waiver would apply thereto.

20. The counsel for the appellants has sought to raise lengthy arguments

by relying on Kaushalya Devi Vs. Baijnath Sayal AIR 1961 SC 790,

Bishundeo Narain Vs. Seogeni Rai and Jagernath AIR 1951 SC 280,

Byram Pestonji Gariwala Vs. Union Bank of India (1992) 1 SCC 31 &

Jineshwardas Vs. Smt. Jagrani (2003) 11 SCC 372, all on Order 32 Rule 7

of the CPC and on Basawaraj Vs. The Spl. Land Acquisition Officer (2013)

14 SCC 81, Maniben Devraj Shah Vs. Municipal Corporation of Brihan

Mumbai (2012) 5 SCC 157, Perumon Bhagvathy Devaswom, Perinadu

Village Vs. Bhargavi Amma (2008) 8 SCC 321, Ram Nath Sao @ Ram

Nath Sahu Vs. Gobardhan Sao (2002) 3 SCC 195, Concord of India

Insurance Co. Ltd. Vs. Smt. Nirmala Devi (1979) 4 SCC 365 & J.

Kumaradasan Nair Vs. IRIC Sohan (2009) 12 SCC 175, on the aspect of

limitation.

21. The counsel for the respondent No.1 who is the grandmother of the

appellants states that the respondent No.1 is a senior citizen and the

appellants by abusing the process of the Court are grabbing more share in the

properties than their entitlement.

22. Being of the opinion that the appellants are abusing the process of the

Court to delay appeal as well as the CM(M) petition have been taken for

final hearing and the counsels have been heard.

23. De hors the aspect of limitation, I have enquired from the counsel for

the appellants, what is the relevance of the judgments cited by him on Order

32 Rule 7 of the CPC laying down the procedure for effecting compromise

on behalf of minors, when admittedly the appellants on the date of the

compromise were not minors.

24. No answer is forthcoming.

25. Order 32 Rule 7 prohibits the guardian to the suit, as the respondent

No.5 Smt. Kamla Devi mother of the appellants was, from entering

compromise on behalf of a minor without the leave of the Court and provides

the procedure for seeking such leave and for grant of leave by Court. The

said provision can have no application when there is no minor. It is not the

case that the compromise resulting in the preliminary decree for partition

was not with the consent of the mother of the appellants. The mother of

appellants, on the date of compromise i.e. 29th October, 2009 would have

certainly known that her sons i.e. the appellants were no longer minors and

thus did not feel the need to seek leave of the Court under Order 32 Rule 7

CPC or to follow the procedure prescribed thereunder.

26. Though the learned ADJ in the order dated 28 th October, 2010 has

recorded that Mr. H.R. Verma, Advocate, on 29 th October, 2009 had made

statement on behalf of the mother of the appellants as their guardian also but

a perusal of the statement recorded on that day does not show it to be so.

The statement of Mr. H.R. Verma, Advocate is under the following head:

"18. Statement of Ld. Counsel Sh. H.R. Verma, Advocate on behalf of defendant no.4 Ms. Kamla Devi W/o Late Sh. Satbir Singh, defendant no.5 Ms. Chanchal D/o Late Sh. Satbir Singh, defendant No.6 Master Mohit and defendant no.7 Master Shobit both sons of Late Sh. Satbir Singh all r/o 129A, Katwaria Sarai,

New Delhi-16."

27. In my opinion, mere description of the appellant as „Master‟ would not

mean that the Court on that date proceeded on the premise of the appellants

being minors. The names etc. are generally taken by the stenographer/typists

of the Courts from the description in the Memorandum of Parties of the

proceeding and that can explain the use of „Master‟ against the name of

appellants, as is generally used for minors. I am however unable to find any

legal basis for use of „Master‟ preceding the name of a minor and of „Mister‟

preceding the name of a major or an adult. Shorter Oxford English

Dictionary Sixth Edition explains „Master‟ as a noun meaning--a man

having control or authority and also as used preceding the name of a boy not

old enough to be called „Mister‟. The General Clauses Act, 1897 in Section

3(33) defines „Master‟ when used in Central Acts and Regulations with

reference to a ship, as a person having for the time being control or charge of

the ship. The Guardians and Wards Act, 1890 enacted in exercise of the

State‟s responsibility towards persons incompetent to take care of themselves

inter alia because of their age is also not found to be containing any

provision prescribing the use of the pre-fix „Master‟ against the name of a

minor. In the absence of any legal basis, merely from the prefix „Master‟

before the names of appellants, the Court recording the compromise on 29th

October, 2009 cannot be presumed to be proceeding on the premise of the

appellants being minors. It is quite evident from the statement of Mr. H.R.

Verma, Advocate that he was not making statement on behalf of the mother

of the appellants as the guardian of the appellants but on behalf of the

appellants.

28. It cannot be lost sight of that Mr. H.R. Verma, Advocate had been the

Advocate since the institution of the suit in 2004 i.e. for six years prior to the

date when he made the statement aforesaid. Judicial notice can be taken of

the manner in which litigation is conducted in the District Courts, especially

in relation to the civil suit i.e. of the litigants regularly being in touch with

their advocates and appearing before the Court mostly on each and every

date. With the litigation remaining pending for a considerable long time, a

strong bond is developed between the advocate and the litigant and from the

factum of Mr. H.R. Verma, Advocate on 29th October, 2009 having not made

statement on behalf of the mother of the appellants as the guardian of the

appellants, it is evident that he was aware of the appellants having become

major in the years 2005 and 2007 i.e. well before the date on which the

compromise was being effected.

29. Moreover, even if it were to be held that the Court as well as Mr. H.R.

Verma, Advocate were oblivious of the appellants having attained majority

and were under the belief that the appellants were still minor and effected the

compromise in violation of procedure prescribed in Order 32 Rule 7 CPC,

now when it is not in dispute that the appellants were not minors on that day,

it is still not open to the appellants to challenge the compromise as bad on

the ground of being violative of Order 32 Rule 7 CPC.

30. I am therefore of the view that the bogey of Order 32 Rule 7 of the

CPC raised by the appellants is misconceived.

31. In my view, what the appellants, if desirous of challenging the

preliminary decree for partition on the basis of consent, were required to

show was that the procedure required by law to be followed, after the

appellants as defendants in the suit and earlier represented by their mother

attained majority in the years 2005 and 2007 respectively, had not been

followed.

32. The counsel for the appellants states that he has not looked at the

matter in this light.

33. In this regard it may be mentioned that though Order 32 Rules 12 to

14 CPC lay down procedure to be followed by a minor plaintiff on attaining

majority i.e. of election, whether to pursue suit or not but do not make any

provision for the minor defendant. The counsel for the appellants has only

suggested that since in a partition suit, all parties enjoy the same status i.e. of

plaintiff as well as defendant, the provisions of Order 32 Rules 12 to 14 of

CPC will be attracted. Though undoubtedly all parties in a partition suit

enjoy the same status but only for the purposes of pursuing the suit and not

for the purpose of the procedure to be followed by a minor defendant on

attaining majority.

34. High Court of Allahabad in Achhaiber And Anr. vs Smt.

Shakilunnisa Bibi AIR 1984 All 275 noted that though Order 32 of the CPC

provides for the course to be followed in the case of a minor plaintiff

attaining majority but is silent qua the defendant and held that there is

important difference between a minor plaintiff and a minor defendant and for

which reason no provision has been made in the CPC in respect of the minor

defendant attaining majority during the pendency of the suit; while a minor

plaintiff on becoming a major can elect either to go on with or put an end to

the litigation, the defendant has no such choice available to him and the suit

must proceed against him, notwithstanding his becoming a major. Relying

on Drupad Chandra Naskar Vs. Bindumoyi Dasi AIR 1926 Cal 1053 and in

Lanka Sanyasi Vs. Lanka Yerran Naidu AIR 1928 Mad 294 it was held that

a minor defendant who comes of age, if thinks fit to come on record and

conduct the defence himself can make an application to the Court in this

regard and further held that if he does not do so and allows the case to

proceed as though he was still a minor, without bringing to the notice of the

Court the fact of his having attained majority, then he must be deemed to

have elected to abide by the judgment or adjudication by the Court with

respect to the matters in controversy on the basis of the suit at the time. It

was accordingly held that a judgment given by a competent Court against a

defendant who during the pendency of the suit attained majority having

ceased to be a minor, is not a nullity. Same is the view of the High Court

Orissa in Saraswati Das Vs. Pravat Kumar Sahoo MANU/OR/0061/2002. I

respectfully concur with the said view.

35. In this context, it is important to notice that it was / is not the plea of

the appellants that they, after attaining majority were not in the know of the

said fact or that after attaining majority they had any differences with their

mother and sister or that the statement given by Mr. H.R. Verma, Advocate

on 29th October, 2009 was not on their behalf. The counsel for the appellants

admits that the appellants or their mother and sister at no time confronted

Mr. H.R. Verma, Advocate of having wrongly given the statement on 29 th

October, 2009 on their behalf. In fact the counsel for the appellants admits

that the mother and sister of the appellants are even today not challenging the

compromise and are bound by the statement given by Mr. H.R. Verma,

Advocate. It is not the case of the appellants that their interest in the

properties is any different from that of their mother and sister. The

application filed by the appellants before the learned ADJ and impugning the

dismissal whereof CM(M) No.775/2015 has been filed. The entire case of

the appellants is that the compromise recorded treating them as minors is in

violation of the provisions therefor and which has been held to be

misconceived as above.

36. The counsel for the appellants on enquiry states that the appellants and

their mother respondent No.5 herein are still living in the same house and

there was no animosity of the appellants with their mother and sister as on

29th October, 2009 or even today. No such case also has been pleaded. The

counsel for the appellants, on enquiry, further states that the mother of the

appellants is a housewife and has never worked. In these facts, when Mr.

H.R. Verma, Advocate admittedly had instructions from the mother and

sister of the appellants to make the statement on 29 th October, 2009, it is

unbelievable that Mr. H.R. Verma, Advocate was not so instructed by the

appellants who were then as well as now one with their mother and sister.

37. I have enquired from the counsel for the appellants, whether the

appellants have taken any action against Mr. H.R. Verma, Advocate. The

answer is in the negative. The counsel for the appellants also, on enquiry,

states that he has not made any enquiries from Mr. H.R. Verma, Advocate

before blaming him in these proceedings, as to what transpired between Mr.

H.R. Verma, Advocate and the appellants and / or their mother and sister. In

this view of the matter, the observation of the learned ADJ in the order dated

28th October, 2010 that the attempt of the advocates to blame the earlier

advocate and take a contrary stand has to be condemned, is quite apposite.

38. Not only this, from the appellants continuing to contest the final

decree proceedings from 28th October, 2010 till now also, it is evident that

the appellants have in the interregnum considered themselves to be bound by

the preliminary decree proceedings and took other steps to frustrate passing

of final decree and only on being unsuccessful therein have again chosen to

fall back on blame game, blaming the Court and the advocate, without even

giving an opportunity to the advocate to respond. The question of the

appellants on 2nd January, 2013 filing the application under Order 20 Rule 18

CPC, CM(M) No.642/2014 against the order therein and thereafter for

review of the order in the application under Order 20 Rule 18 CPC shows

that it is not open to the appellants to file these proceedings contending that

the statement made by Mr. H.R. Verma, Advocate on their behalf was not

proper. The appellants cannot be permitted to blow hot and cold as per their

convenience. The appellants first contended that the compromise decree was

bad being in violation of Order 32 Rule 7 of the CPC. Thereafter they

accepted the compromise decree and contested the same on merits. Such

contest on merits obviously was on the premise that the appellants were

bound thereby. After being unsuccessful in the same, the appellants now

again want to state that the compromise is bad for want of their consent. The

conduct of the appellants shows that the appellants are taking factual pleas,

not on the basis of truth as they should but on the basis of advice of

Advocate engaged by them from time to time and which they should not and

cannot be allowed to.

39. The counsel for the appellants faced therewith states that all the said

proceedings, filed by Mr. D.S. Sehrawat, Advocate and by Mr. Nitin

Khanna, Advocate were misguided.

40. On enquiry, whether he has found out from the said advocates, as to

what transpired, the reply again is in the negative. On further enquiry,

whether any action has been taken against the said advocates for giving the

wrong advice to the appellants, it is stated that no proceedings have been

taken, since the appellants are not blaming the advocates and the advocates

may have bona fide given a wrong advice.

41. If that is so, then the appellants having chosen the advocates, are

bound by what advocates did on their behalf as their agents and cannot now

renege therefrom.

42. The settled position in law is that while an innocent party acting bona

fide and diligently cannot be made to suffer injustice merely because of the

advocate chosen, putting entire blame on counsel, is unacceptable.

Reference in this regard can be made to Salil Dutta Vs. T.M. and M.C.

Private Ltd. (1993) 2 SCC 185, Indian Sewing Machines Co. Pvt. Ltd. Vs.

Sansar Machine Ltd. 56 (1994) DLT 45, Jai Gopal Goyal Vs. Bishen Dayal

Goyal MANU/DE/7650/2007 and Rabi Shanker Sen Gupta Vs. ITDC

MANU/DE/8419/2007.

43. From all the aforesaid, the abuse of process of Courts by the

appellants to perpetuate their possession of share larger than their entitlement

in the properties is abundantly borne out and though it is fit case for

proceeding against the appellants for criminal contempt of the Court and

issuing notice to the appellants therefor but I am refraining therefrom, this

being a family matter and with the hope that better sense will prevail upon

the appellants and the appellants at least now will not hold up the final

decree proceedings, pursuant to the preliminary decree for partition, which is

more than five years old.

44. Dismissed.

No costs.

Decree sheet in RFA No.490/2015 be drawn.

RAJIV SAHAI ENDLAW, J.

FEBRUARY 03, 2016 Bs..