* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No. 618/2011
% May 20, 2011
AMARJIT KAUR ...... Petitioner
Through: Mr. S.N.Kumar, Sr. Adv. with
Mr. K.B.Soni, Adv.
VERSUS
GURPREET SINGH & ORS. ...... Respondents
Through: Mr.Inder Bir Singh, Adv.
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. The present petition under Article 227 of the Constitution of
India is a stark reminder of the fact that endemic delays in litigations are
sought to be taken advantage of by unscrupulous litigants. I begin with
this sentence, inasmuch as the facts narrated here-in-after show as to
how a plaintiff who has obtained a preliminary decree way-back on
21.1.1983, i.e. over 27 years back has been frustrated in getting benefits
of his 50% share in the disputed property, and a 50% share which is not
disputed by any one till today.
2. The property in question is property no.67/7, Behind Radio
Colony, Kingsway Camp, Delhi. This property belonged to two brothers,
Pritam Singh and Harbhajan Singh. Pritam Singh, one brother after the
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death of his other brother Harbhajan Singh filed a suit (hereinafter the
subject suit) claiming a 50% share in the property and therefore asking for
a decree for partition with respect to his 50% share in the property.
Pritam Singh admitted that the other 50% share belonged to the branch of
his late brother Sh. Harbhajan Singh. This suit which was filed in 1972 was
ultimately decreed ex parte and a preliminary decree passed on
21.1.1983. The effect of the preliminary decree is to grant 50% share to
Sh.Pritam Singh and 50% share to the branch of late Sh. Harbhajan Singh.
Pritam has expired during the pendency of the litigation and his branch is
now represented by his son, respondent no.1 herein.
3. It is thereafter that the travails of Sh. Pritam Singh began.
One Jatinder Pal Singh, nephew of Harbhajan Singh claimed that he owned
half of the 50% share of the Harbhajan Singh in the suit property by virtue
of a Will dated 15.9.1964 and which he claimed was probated. Jatinder
Pal Singh also died during the litigation and is now represented by the
appellant, his widow. Jatinder Pal Singh made an application in the
subject suit after passing of the preliminary decree for being impleaded as
a party under Order 1 Rule 10 CPC. The Trial Court impleaded him by an
order of the year 1986. How of course would his impleadment be in any
manner material I fail to understand, inasmuch as, the preliminary decree
had already been passed declaring the share of Pritam Singh at 50% and
the branch of Harbhajan Singh at 50%. An application was also filed by
Sh. Jatinder Pal Singh in the year 2005, i.e. much after passing of the
preliminary decree in the year 1983 for recalling of the preliminary decree
CM(M) No. 618/2011 Page 2 of 10
on the ground that a fraud was played on the Court and the branch of
Harbhajan Singh was not the owner of the entire share of Harbhajan
Singh, inasmuch as, Jatinder Pal Singh owned half of the 50% share of
Harbhajan Singh on the basis of the Will dated 15.9.1964. This application
is stated to be pending in the Trial Court. There were from 1983 till 2007
a series of litigations initiated by the said Sh. Jatinder Pal Singh and which
facts are therefore now necessarily to state. Firstly, Jatinder Pal Singh
filed a suit for declaration, partition etc., impleading as defendants in that
suit not only the natural legal heirs of Harbhajan Singh, but also Pritam
Singh (plaintiff of the subject suit) as a party and in which suit it was
prayed that the preliminary decree dated 21.1.1983 be set aside as
having been obtained by fraud. This suit was filed in the year 1985. This
suit was dismissed in default 4 times and thereafter restored 4 times and
subsequently vide order dated 17th December, 2009, on the prayer of the
legal heirs of Jatinder Pal Singh, the said suit was adjourned sine die as
the legal heirs of Jatinder Pal Singh claimed that they were to pursue
proceedings in the subject suit for setting aside the preliminary decree.
4. Jatinder Pal Singh filed one more civil suit being Suit
No.543/2005 in the original side of this Court. This suit was dismissed by
a learned Single Judge of this Court on an application under Order 7 Rule
11 CPC being IA No.6139/2005 vide order dated 13.8.2008 observing that
once an earlier suit of Sh. Jatinder Pal Singh challenging the preliminary
decree dated 21.1.1983 is already pending, a second suit cannot lie. The
decision of the learned Single Judge of this Court dated 13.8.2008 was
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taken in appeal and which appeal was also dismissed in RFA (OS)
No.17/2008 vide judgment dated 19.12.2008.
5. Now the facts which have resulted in the present petition. The
present petition concerns an application which was filed by Smt. Amarjit
Kaur, widow and legal heir of Jatinder Pal Singh, and by which application
filed on 27.10.2007 a prayer was made for setting aside/recalling of
preliminary decree passed way back on 21.1.1983. This application
(hereinafter the subject application) has been dismissed by the impugned
order dated 17.2.2011 and hence the present petition impugning this
order. The application has been dismissed inter alia on the following
grounds:-
i) An application filed in 2007 is barred by gross delay and latches
when it seeks to set aside an ex parte preliminary decree passed way
back on 21.1.1983.
ii) Jatinder Pal Singh, had already filed a suit for declaration of the
preliminary decree as null and void, and in which suit, the applicant/
Amarjit Kaur was substituted after the death of Jatinder Pal Singh and
consequently the plea sought to be raised in the subject application
cannot be raised in the subject suit.
iii) In fact an order was already passed by the same Court on
2.11.2007 in which it was categorically admitted by the petitioner
that the LRs of Jatinder Pal Singh (including the petitioner) have only
a claim of one-fourth share in the property and it was not disputed
that the 50% share of property was of Pritam Singh and thus the 50%
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share in the suit property has to go to the branch of Pritam Singh andwhich is all that the preliminary decree was done.
iv) The Trial Court has noted that there is a memorandum of
understanding dated 25.10.2000 entered into between respondent no.1
herein, the LR of Pritam Singh, and Jatinder Pal Singh, and which MOU is
witnessed by the present petitioner (his widow) and which recognizes the
fact that Pritam Singh was not aware of any Will executed in favour of
Jatinder Pal Singh by late Harbhajan Singh. Relevant portion of the
memorandum of understanding as reproduced by the Trial Court in the
impugned order reads as under:-
“That during the lifetime of father of first party, Shri
Pritam Singh filed a suit for partition in respect of the
property bearing no.F-67(67/7) Radio Colony, Kingsway
Camp, Delhi-09 against the legal heirs of late Sh.
Harbhajan Singh which was assigned to the Ld. Civil
Judge, Delhi being suit no. Hon’ble Judge Ms. Urmila Rani
was pleased to pass a preliminary decree in the said suit
by an order dated 21.1.1983.”
Thus in 2007 an application would not have been filed by the
petitioner to challenge a preliminary decree whose existence was known
to the petitioner in 2000 itself.
7. The conspectus of the above shows the plight of Pritam Singh,
now represented by his legal heir the respondent no.1 herein, as to how
the admitted position of Pritam Singh (and now his branch) owning 50%
share in the property, for one reason for the other has been frustrated in
the final decree proceedings, initially by Jatinder Pal Singh and thereafter
by his legal heirs. The share of the branch of Pritam Singh being 50% is
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an undisputed fact and as recorded by the Trial Court in its order dated
2.11.2007 and which reads as under:-
“SUIT NO.709/06
02.11.07.
Present: Sh. Inderveer Singh, Ld. Counsel for the
plaintiff with plaintiff in person.
Sh.S.N.Kumar with Sh. Pradeep Bhardwaj,
Ld. Counsel for the LRs of the defendant no.7.
Sh.B.K.Jha, Ld. Counsel for the defendant no.2
alongwith defendant no.2.
Sh.P Banerjee, Ld. Counsel for the applicant
Sanjeet Kr.
Heard at length for 1 hour.
It has been stated on behalf of the plaintiff
that the plaintiff is having 50% share in the suit property,
25% share belongs to Satnam Kaur and 25% share
belongs to LRs of defendant no.7 Jatinder Pal Singh.
Ld. Counsel for the LRs of the defendant no.7
has also stated that LRs of Jatinder Pal Singh are having
1/4th share in the suit property. Statement of Sh. Pradeep
Bhardwaj, Ld. Counsel for the LRs of the defendant no.7
recorded.
Reply to the application under Section 151
CPC filed on behalf of the plaintiff.
Arguments heard. Counsel for the LRs of the
defendant no.7 has filed certain judgments.
Put up for consideration/further
proceedings/arguments on 17.11.07.”
I may note that the present petitioner was represented by the
same counsel on 2.11.2007 before the Trial Court and who is also the
counsel for the petitioner today before this Court. It fact the same
counsel who appears for the petitioner had all along in all litigations
represented Jatinder Pal Singh. The preliminary decree dated 21.1.1983
has achieved finality because an application filed either in 2005 or in 2007
cannot disturb finality of a preliminary decree passed way back in 1983,
CM(M) No. 618/2011 Page 6 of 10
more so when in appropriate proceedings/suit filed by Jatinder Pal Singh
the preliminary decree was already challenged on the ground of having
been allegedly obtained by fraud and no interim orders passed. In any
case, the dispute is only with respect to the share of the branch of
Sh.Harbhajan Singh and there is no reason why the branch of Pritam Singh
should be deprived of the benefit of the admitted 50% share in the suit
property and which is endeavor of the petitioner and before that of her
husband Jatinder Pal Singh. The net effect of the actions of Jatinder Pal
Singh in filing of an application under Order 1 Rule 10 CPC in the subject
suit or filing a suit for declaration challenging the preliminary decree as
having been obtained by fraud or filing a second suit on the same ground
which was dismissed or filing a similar application in 2005 by Jatinder Pal
Singh which has remained pending or by the present petitioner/widow of
Sh. Jatinder pal Singh on her application filed on 27.10.2007, has been
that all these proceedings have successfully managed in preventing for
over 27 years Pritam Singh, (and now his branch represented by the
respondent no.1) in getting fruits of the preliminary decree passed on
21.1.1983. All this obviously is being done because Jatinder Pal Singh,
and now the petitioner is sitting preety in the suit property. The
harassment of Pritam Singh and now his legal heir surely is something
which only they would understand.
9. Learned Senior counsel for the petitioner sought to argue that
the first suit which was filed by Jatinder Pal Singh, late husband of the
petitioner, has been adjourned sine die awaiting the decision in the
CM(M) No. 618/2011 Page 7 of 10
present suit where the preliminary decree was passed and therefore, the
application dated 27.10.2007 to recall the preliminary decree was
maintainable. Such an argument is wholly without merit because no one
can take advantage of his own misconceived and malafide action in
getting a suit adjourned sine die and in which suit no interim orders were
obtained. Therefore it is not permissible on such basis to claim that final
decree proceedings must not go on to give the branch of Pritam Singh the
admitted 50% share of the property. I have already noted that the first
suit filed by Jatinder pal Singh was dismissed in default four times and
restored four times before the same was got adjourned sine die. As
already noted above, 50% share of the Pritam Singh in the suit property
cannot be disputed by the petitioner or by her late husband Sh. Jatinder
Pal Singh. Simply by filing litigations, and also one application after
another, the branch of Pritam Singh cannot be prevented from getting
their half share in the suit property. While on this aspect, I may note that
the present petitioner had also filed an application under Order 7 Rule 11
CPC in the subject suit in the Trial Court and which was dismissed by the
Trial Court vide order dated 17.5.2007. The ground which was raised in
the said application for rejecting the plaint in the suit in which the
preliminary decree was already passed was that the suit was not properly
valued for the purpose of Court fees and jurisdiction because proper
market value was not fixed on the property. I am stating this fact only to
complete the narration/chain of events to show as to how Jatinder Pal
Singh and thereafter his branch has been in one way or the other has
CM(M) No. 618/2011 Page 8 of 10
been preventing the branch of Pritam Singh from enjoying their admitted
50% share in the suit property. Since the legal heirs of the Jatinder Pal
Singh including the petitioner have not been successful in obtaining any
interim orders in the first suit filed by Sh. Jatinder Pal Singh for stay of the
operation of the preliminary decree on the ground of fraud, it is wholly
inequitable for them to somehow or the other to frustrate the final decree
proceedings by merely objecting to passing of the preliminary decree as
per which Pritam Singh had only got his 50% share, and the share of the
branch of Sh. Harbhajan Singh (and the right of which Jatinder Pal Singh is
claiming) has nothing to do with the rights of the half share in the
property of the branch of Pritam Singh.
10. In view of the above, the present petition is without any merit
whatsoever. Both Pritam Singh and thereafter his branch have been
frustrated from 1983 to get even their admitted share of 50% in the suit
property on account of repeated litigations, whether they be suits one
after another for setting aside the preliminary decree, or applications in
the subject suit for setting aside the preliminary decree filed by Jatinder
Pal Singh when he was alive in 2005, or by his widow the present
petitioner by means of the subject application dated 27.10.2007 which
had been dismissed by the impugned order. All these actions tantamount
to almost over-reaching the Court and abusing the process of law. A
Division Bench of three judges of the Supreme Court in the case of Salem
Advocate Bar Association vs. Union of India (2005) 6 SCC 344, in
para 37, has said that it is high-time that actual costs of litigation should
CM(M) No. 618/2011 Page 9 of 10
be awarded. Discretion is also granted to this Court to grant actual costs
by virtue of Volume V of the Punjab High Court Rules and Orders (as
applicable to Delhi) Chapter VI Part 1 Rule 15.
11. Accordingly, while dismissing the present petition, I direct the
respondent no.1 to file his affidavit with respect to costs paid to his
counsels for the present petition and also the costs which have been
incurred for defending the application filed by the present petitioner dated
27.10.2007 in the trial court and which has been dismissed by the
impugned order. This affidavit specifying the costs incurred for payment
to his counsels will be accompanied by the certificate of the counsels of
having received the fees with respect to the litigations. Such costs stated
in the affidavit will be costs payable by the petitioner to the respondent
no.1 within a period of 4 weeks from today. Petition is dismissed with the
aforesaid observations.
May 20, 2011 VALMIKI J. MEHTA, J.
ak
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