Mohit Gupta vs Sh. Desh Pal Gupta & Others
2018 Latest Caselaw 3505 Del

$~9
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     CS(OS) 2613/2008

MOHIT GUPTA                                             ..... Plaintiff
                        Through

                        versus

SH. DESH PAL GUPTA & OTHERS                   ..... Defendants
                   Through: Mr. Nishant Datta and Mr. Pradeep
                            Bhardwaj, Advocatse with LR of D-1
                            Mr. Puneet Gupta.

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

% 01.06.2018

I.A No. 7884/2018 (U/o 9 Rule 13 CPC filed by LR of D-2), I.A. 7885/2018 (delay of 547 days) & I.A 7886/2018 (delay in refiling)

1. By these applications, the legal heirs of the deceased defendant no.2

seeks directions for setting aside of the preliminary decree for partition

passed in terms of the judgment dated 5.10.2016 of a learned Single Judge

of this Court.

2. The judgment passed by a learned Single Judge of this Court on

5.10.2016 notes that from 31.8.2016 no one appeared for the defendants.

Defendant nos. 2 and 3 had filed their separate written statements. Issues

were framed in the suit on 10.3.2010 whereafter plaintiff led evidence and plaintiff's witness was being cross examined and at which stage the

defendants stopped appearing. The non-appearance of the defendants,

especially the defendant no.2 through whom the applicant claims, is since

31.8.2016 and thereafter on 16.9.2016 and till 5.10.2016 when the judgment

was passed passing a preliminary decree declaring the plaintiff, LRs of

defendant no.1, defendant no.2 and defendant no.3 to each have 1/4 th share

in the property bearing no.33, North-West Avenue Road, West Punjabi

Bagh, Delhi-110026.

3. By this application the LRs of defendant no.2 states that his mother

and wife of deceased defendant no.2 expired on 1.5.2015 and whereafter the

defendant no.2 went into depression. It is argued that on account of

defendant no.2 going into depression he did not appear in the suit or give

instructions in the suit, and that the knowledge of the suit came to the notice

of the applicant/LR of defendant no.2 only when notices were received in

the execution proceedings.

4. I cannot agree with the contentions raised by the applicant/LR of

defendant no.2 because no doubt there are documents which show that the

defendant no.2 suffered from depression, however in my opinion there is no

such case which is pleaded that defendant no.2 was not able to do anything whatsoever, understand anything whatsoever, not doing his ordinary day to

day occupations of life etc etc. Therefore, the huge delay of 547 days

cannot be condoned and there are therefore no sufficient reasons for

condonation of delay for setting aside the exparte judgment and decree

passed by a learned Single Judge of this Court on 5.10.2016.

5. I would also like to note that counsel who appears for the applicant is

the same counsel who was appearing in the suit for defendant no.2. In the

order dated 29.3.2016 it is recorded that defendant no.2 was not giving

proper instructions and therefore the counsel for defendant no.2 was to seek

discharge. Similar submissions were repeated on behalf of counsel for

defendant no.2 on 3.6.2016. Thereafter, counsel for defendant no.2 stopped

appearing. There is nothing in the record of the suit including the orders

passed therein that counsel for the defendant no.2 ever brought on record of

the suit that defendant no.2 was not able to understand the day to day affairs

on account of severe depression. In any case, depression without the same

completely affecting mental faculties for the concerned person not to be

engaged in daily affairs of life cannot be a ground for setting aside of the ex

parte decree and which has achieved finality now since around 547 days.

6. Once by passing of decree vested rights have arisen and on expiry of period of limitation further vested rights arose for not setting aside of such a

decree, therefore in the facts of the present case this Court is unable to hold

that there exists sufficient cause for condonation of delay or entitling the

applicant/LR of defendant no.2 to seek setting aside of the ex parte decree

and judgment dated 5.10.2016.

Dismissed.

VALMIKI J. MEHTA, J JUNE 01, 2018 ib