Delhi High Court
Ranjana Arora vs Surender Kumar Arora & Ors on 10 April, 2018
$~5
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on :- 10th April, 2018
+ CM (M) 162/2017 & CM Nos. 5348/2017, 18554/2017,
26099/2017
RANJANA ARORA ..... Appellant
Through: Mr. Alok Kumar & Mr. Rahul
Madan, Advs.
versus
SURENDER KUMAR ARORA & ORS ..... Respondents
Through: Ms. Pinki Aggarwal, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The civil suit (presently registered as suit no. 613211/2016) was
instituted by the petitioner on the original side of this Court in 1997,
the prayer made being for partition of the subject property and
rendition of accounts. The respondents who are defendants in the said
suit are her siblings, all children and successors-in-interest of late Mr.
Madan Lal Arora, the property which is the subject matter having been
left behind by him as the estate. It appears reference has been made to
a document described as last Will and testament of Mr. Madan Lal
Arora. The written statement was filed by the first respondent (second
defendant before the trial Court) jointly with other defendants wherein
certain admissions qua the said Will came on record. By an
application moved (IA No. 2203/2004), however, he sought
permission to file a separate written statement. The said application
was allowed by learned single Judge of this Court by order dated
08.12.2005. As a consequence of the said permission being granted,
the first respondent (second defendant in the suit) brought on record
pleadings about clash of interest between him on one hand and the
other parties on the other, he consequently no longer bound by the
admissions in the earlier pleadings.
2. The petitioner being the plaintiff took exception to withdrawal
of admissions by FAO (OS) 238/2013 which was disposed of by a
judgment dated 10.05.2013 of the division bench of this Court giving
liberty for the appeal to be withdrawn and instead appropriate
application being moved before the trial court (learned single Judge on
the original side of this Court) for withdrawal of the order dated
08.12.2005.
3. The petitioner moved an application, pursuant to the liberty
granted by the division bench in appeal, on 30.05.2013. The
application could not be disposed of while the suit was pending on the
original side of this Court.
4. The suit stood transferred, upon change of pecuniary
jurisdiction, to the district courts by order dated 19.05.2016. It was
clarified at that stage when the plaintiff sought recall of earlier order
passed by this Court, that the jurisdiction of the transferee court to
deal with the said pending application was not taken away since it was
not in the nature of review but only a "recall application".
5. The Additional District Judge before whom the case came to be
assigned, however, treated the aforesaid application as one of review
and found it time-barred and consequently dismissed it by order dated
15.11.2016 which is assailed by the petition at hand.
6. To say the least, the approach of the trial court is not proper.
Even if the application in question were to be treated as one of review,
liberty having been granted by a division bench of this Court for such
application being moved, application having come in less than 30 days
of the said order, there was no reason for the application to be thrown
out on the issue of limitation. The application is to be considered on
its merits. Therefore, the impugned order cannot be upheld.
7. The petition is allowed. The impugned order is set aside. The
matter arising out of the aforementioned application is remanded to
the trial court for fresh adjudication on merits.
8. This disposes of the petition and the applications pending
therewith.
R.K.GAUBA, J.
APRIL 10, 2018
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