Delhi High Court
Neha Singh vs Rita Singh & Ors. on 29 August, 2019
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 29.08.2019
+ C.R.P. 258/2017
NEHA SINGH ..... Petitioner
versus
RITA SINGH & ORS ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Ms.Shilpa V.George, Adv
For the Respondent : Mr.B.S.Banthia, Adv.
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
CM APPL.42489/2017
Petitioner seeks condonation of delay of 15 days in filing the
petition. It is contended that the case file got misplaced in the office of
the counsel for the petitioner on account of certain administrative
improvements being done in the office. Subsequently, when the file
was discovered the same was filed with the delay of 15 days.
There is no serious opposition to the application. Application is
allowed.
Delay in filing the revision petition is condoned.
C.R.P. 258/2017
1. Though office report indicates that respondent No.3 has not
been served. Learned counsel has entered appearance for all the
respondents and has filed his vakalatnama.
2. Petitioner impugns order dated 28.08.2017 whereby the
application of the petitioner under Order 9 Rule 13 seeking setting
aside of ex-parte decree dated 25.07.2013 has been dismissed.
3. The application has been dismissed primarily on the ground that
the decree was passed on 25.07.2013 and application has been filed on
02.03.2015 beyond the period of limitation without an application
seeking condonation of delay. Further, it is held that the applicant was
not a party to the suit in which the consent decree was passed and the
Court could not in said application make an enquiry as to whether she
(applicant's mother) was the wife of the decreased petitioner or not or
whether the plaintiff had converted to Islam or as to the validity of the
second marriage of the plaintiff.
4. The brief facts of the case are that plaintiff Sh. Deepak Singh
Robinson filed a Suit for declaration and cancellation (of gift deed in
favour of Defendant) and for permanent injunction against the
respondent No.3 herein i.e. Terrel Francis Lobo.
5. During the pendency of the suit Sh. Deepak Singh Robinson
expired. His wife and son i.e. respondent Nos. 1 & 2 sought
substitution and continued the suit thereafter. Subsequently there was
a settlement between the respondent Nos.1 & 2 as legal heirs of the
original plaintiff and respondent No.3 the original defendant, pursuant
to which consent decree was passed on 25.07.2013.
6. It was agreed as per the decree that the suit property would be
sold and the sale proceeds divided between the respondent Nos.1 & 2
(legal heirs of original plaintiff) on the one side and respondent No.3
(original defendant) on the other.
7. Subject application under Order 9 Rule 13 CPC was filed by the
petitioner contending that she is the daughter of the original plaintiff
from his previous wife and would also have inherited to the estate of
Sh. Deepak Singh Robinson and any settlement or distribution of his
estate without an appropriate share being given to the petitioner would
be null and void. It was also alleged that a fraud had been played on
the court by not disclosing that the petitioner was also a legal heir.
8. Subject application was filed under Order 9 Rule 13 CPC
contending that she was not a party to the suit or the settlement and
became aware of the decree on 25.01.2015, when she made an enquiry
about the property at Vasant Kunj. It is only thereafter that she
realised that a fraud had been played and the petitioner who was also a
legal heir of Sh. Deepak Singh Robinson was not impleaded or given
her share and the settlement was arrived at behind her back to sell her
father's property and distribute the sale consideration.
9. Subject application was filed on 22.02.2015 i.e. within 30 days
of the knowledge of the decree.
10. It is not in dispute that petitioner is the daughter of Sh. Deepak
Singh Robinson, however, the case of the respondent is that he had
divorced his first wife. In my view divorce is inter-se husband and
wife and does not in any manner affect the rights of children.
Accordingly, merely because there was a divorce between Sh. Deepak
Singh Robinson and the mother of the petitioner would not in any
manner affect the rights of the petitioner.
11. Further, the reasoning given by the Trial Court that the
application was beyond time is also not sustainable in as much as the
petitioner in her application under Order 1 Rule 13 CPC has
categorically stated that she became aware of the decree on
25.01.2015 and she filed the subject application on 22.02.2015, within
a period of 30 days of becoming aware of the decree. There is no
challenge to the averment that she became aware of the decree only on
25.01.2015.
12. Accordingly, the findings of the Trial Court that the application
was delayed and was not supported by an application for condonation
of delay is not sustainable. Since the application is filed within a
period of 30 days of the knowledge of the decree so no application
seeking condonation of delay was required to be filed.
13. Admittedly, petitioner was not a party to the proceedings,
however, parties to the suit by the consent decree have sought to
transfer the property owned by the father of the petitioner and divide
the sale proceeds. She has been excluded of a share of the said
property. The rights of the petitioner are clearly affected by the
consent decree and as such she is entitled to challenge the decree and
contest the suit.
14. In view of the above, the impugned order dated 28.08.2017 is
set aside. Further, in view of the reasons as noticed above, the consent
decree dated 25.07.2013 is also set aside. The suit is restored to its
original number. The petitioner is impleaded as defendant No.2 to the
suit.
15. Plaintiff shall file an amended memo of parties before the Trial
Court within one week of the next date before the Trial Court.
16. List the suit before the Trial Court for directions on 24.09.2019.
17. Petition is accordingly allowed in the above terms. No order as
to costs
18. Order dasti under signatures of the Court Master.
AUGUST 29, 2019 SANJEEV SACHDEVA, J
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