Delhi High Court
Sh Prakash Chand vs Pawan Kumar & Ors. on 22 May, 2023
Neutral Citation Number 2023:DHC:3655
$~67
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 22.05.2023
+ CM(M) 863/2023
SH PRAKASH CHAND ..... Petitioner
versus
PAWAN KUMAR & ORS. ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr. K.C.Mittal, Advocate with Mr.
Yugansh Mital and Mr. Vaibhav
Yadav, Advocates.
For the Respondents : None.
CORAM:
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
TUSHAR RAO GEDELA, J. (ORAL)
[ The proceeding has been conducted through Hybrid mode ]
CM APPL. 27238/2023 (for exemption)
1. Exemption is allowed, subject to all just exceptions.
2. The application stands disposed of.
CM(M) 863/2023 & CM APPL. 27237/2023 (for stay)
3. After hearing Mr. Mittal, learned counsel appearing for the
petitioner and perusing the orders of the learned Trial Court from the
order dated 24.01.2023 uptil 04.05.2023 it is apparent that the learned
Signature Not Verified
Digitally Signed
Signing Date:25.05.2023
13:03:53
Neutral Citation Number 2023:DHC:3655
Trial Court has, even on early hearing applications, simply issued
notice and adjourned the matter for the next date of hearing without
considering the urgency as urged in the application under Order XXXIX
Rules 1 and 2 of CPC, 1908.
4. Mr. Mittal, learned counsel also submits that the property which
was sought to be protected stands demolished as on date by respondent
Nos. 2 and 3, which is against the case of the petitioner.
5. Mr. Mittal also submits that substantive amendment to the plaint
was also sought by way of an application under Order VI Rule 17 of the
CPC, 1908, whereby the challenge to the Will dated 18.05.1982, of the
testator propounded by the respondent and which was intriguingly and
surprisingly, got formally registered on 02.11.2022, purported to be the
Will of the late grandfather.
6. Mr. Mittal submits that the late grandfather had unfortunately
expired in the year 1984, so the registry itself is post facto, the death of
the testator.
7. In view of the aforesaid submissions as also perusing the daily
orders passed by the learned Trial Court, it appears that the learned Trial
Court has not taken up the application under Order XXXIX Rules 1 and
2 of CPC, 1908. The urgency as expressed by Mr. Mittal seems to be
genuine.
8. Though, the respondent have been served through counsel on
advance notice, yet no one appears.
9. In view of the above, this Court is of the opinion that the interest
of justice would be sub-served, in case learned Trial Court is directed to
take up the application under Order XXXIX Rules 1 and 2 on the next
Signature Not Verified
Digitally Signed
Signing Date:25.05.2023
13:03:53
Neutral Citation Number 2023:DHC:3655
date of hearing i.e., 29.05.2023 and dispose it of in accordance with law.
10. The learned Trial Court shall ensure that no further adjournments
are sought on 29.05.2023 and the hearing, as directed above shall take
place.
11. With the aforesaid direction, the petition along with pending
application stands disposed of.
TUSHAR RAO GEDELA, J.
MAY 22, 2023/nd
Signature Not Verified
Digitally Signed
Signing Date:25.05.2023
13:03:53
