* IN THE HIGH COURT OF DELHI AT NEW DELHI. % Judgment delivered on: 4 th August, I.A. No.16571/2012 & I.A. No.16572/2012 in CS (OS) 2527/2009

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1 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 4 th August, I.A. No.16571/2012 & I.A. No.16572/2012 in CS (OS) 2527/2009 VEENA KUMARI Through... Plaintiff Mr.D.S. Vohra, Adv. KISHAN LAL versus Through... Defendant Mr.Manoj Swarup, Mr.A. Tewari and Mr.S.K. Sahai, Adv. CORAM: HON'BLE MR.JUSTICE MANMOHAN SINGH MANMOHAN SINGH, J. 1. The plaintiff filed a suit for possession, damages/mesne profit and permanent injunction against the defendant claiming herself to be the owner of property No.48 in Block-D, measuring sq. mtrs situated at Parshant Vihar, Delhi (hereinafter referred to as the suit property ) who purchased the suit property through sale deed executed by Shri Ramesh Kumar, son of Late Shri Bal Kishan in her favour which was registered as document No in Addl. Book No.I Volume No.3897 on pages 12 to 17 on 8 th October, 2007 in the office of Sub-Registrar-VI, Delhi. 2. The suit was filed on 22 nd December, The matter was listed before Court on 23 rd December, Summons were issued for 19 th February, On 12 th May, 2010 the statement was made CS(OS) No.2527/2009 Page 1 of 10

2 by the counsel for defendant that he would get the objection removed and also get the written statement on record. On the same date interim order was passed. 3. On 30 th August, 2010 and 26 th November, 2010, it was recorded that the defendant failed to place on record the written statement. On 26 th November, 2010 another chance was given to the defendant subject to cost of Rs.5000/- and it was also clarified that if by the next date written statement was not brought on record, appropriate consequences would follow. 4. From the next date i.e. 2 nd February, 2011, the defendant and his counsel stopped appearing before Court. On 20 th May, 2011 the defendant was proceeded ex parte and interim order dated 12 th May, 2010 was confirmed. 5. The plaintiff was allowed to produce ex-parte evidence. PW-1 i.e. plaintiff was examined and discharged. 6. The matter was listed before Court on 2 nd November, 2011 for final arguments. On the same date, the plaintiff was heard and exparte decree was passed after discussing the case on merit by rendering the speaking judgment. 7. It would be appropriate to reproduce the contents of the judgment in order to know the case of the plaintiff against the defendant : i) Plaintiff has filed this suit for possession, damages/mesne profit and permanent injunction against the defendant. CS(OS) No.2527/2009 Page 2 of 10

3 Defendant is brother-in-law (husband s brother) of the plaintiff. ii) It is alleged in the plaint that the husband of plaintiff is owner of property bearing no. 48 in Block-D, measuring sq. meters situated at Prashant Vihar, Delhi. She had purchased this suit property from Ramesh Kumar vide registered Sale Deed dated 8 th August, Originally, the suit property was allotted to Late Shri Bal Kishan by the Delhi Development Authority vide perpetual Lease Deed dated 19 th December, 1980 duly registered in the office of Sub-Registrar I, Delhi. Thereafter, the suit property devolved upon Shri Ramesh Kumar pursuant to a Will left behind by Late Shri Bal Kishan. Wife of Late Shri Bal Kishan, namely Smt. Shanti Devi, was given right to reside in the property during her life time. Shanti Devi expired on 28 th June, Defendant was permitted by Late Shri Bal Kishan to live on the first floor more particularly shown in red colour in the site plan (hereinafter referred to suit property ) as a licensee. After the plaintiff acquired ownership rights in the property she made several requests to the defendant to vacate the suit property but to no effect. Finally, plaintiff revoked the license deed vide legal notice dated 28 th August, 2009 served through her lawyer Shri D.S. Dalal, Advocate. Defendant claimed himself to be the owner of the suit property vide his reply dated 25th September, 2009 sent through his lawyer Shri S.C. Sharma, Advocate. Thereafter, defendant started negotiating with prospective buyers through property dealers in order to sell the suit property. It is alleged that after the license was terminated defendant has no right to continue to hold possession of the suit property. Besides possession, plaintiff has also claimed damages/mesne `20,000/- per month with effect from 1 st October, 2009 till defendant vacates the suit property. It has been further prayed that by way of decree of permanent injunction, defendant be restrained from selling, alienating or creating third party interest in respect of the suit property. CS(OS) No.2527/2009 Page 3 of 10

4 iii) After the service of summons defendant appeared in the court through his lawyer. Though defendant claimed that written statement had been filed by him but the same was not found on record. Accordingly, defendant s counsel was directed by the Joint Registrar to furnish diary number and date of filing of written statement. However, details were not furnished. Vide order dated 26 th November, 2010 defendant was granted last opportunity to get the written statement placed on record, subject to cost of `5,000/-. Even this order has not been complied with, inasmuch as, defendant stopped appearing thereafter. Consequently, defendant was proceeded ex-parte vide order dated 20 th May, iv) Plaintiff has led ex-parte evidence. Plaintiff (PW1) in her affidavit has supported the averments made in the plaint. She has reiterated that she has purchased the suit property from Shri Ramesh Kumar vide Sale Deed dated 8 th August, Certified copy of the sale deed has been proved by her as Ex. PW1/1. Site plan of the suit property has also been proved by her as Ex. PW1/2. Death certificate of Late Shri Bal Kishan has been proved as Ex. PW1/4. She has categorically deposed that Late Shri Bal Kishan had permitted the defendant to reside in the suit property comprising 3 rooms, 1 bath room, 1 toilet and 1 kitchen as a licensee. She has deposed that the suit property has been shown in red colour in the site plan Ex. PW1/2. She requested the defendant to vacate the suit premises but to no effect. Consequently, she revoked the license by serving a legal notice dated 28 th August, 2009 through her counsel. Copy of the notice has been proved as Ex. PW1/6. Defendant sent a reply to the said notice through his counsel, which she has been proved as Ex. PW1/7. She has also deposed that prevalent rent in the area with regard to similar property was about `25,000/-. She has deposed that rent has further increased in the area and presently the property, under the occupation of the defendant, can easily fetch the rent of `35,000/- per month. Copy of rent agreements of certain flats in the same locality, that is, Sector 14 Rohini have been CS(OS) No.2527/2009 Page 4 of 10

5 placed on record and have been exhibited as Ex. PW1/8 to PW1/11. v) From the ex-parte evidence lead, in my view, plaintiff has succeeded in proving her case that she had purchased the suit property from Shri Ramesh Kumar vide registered Sale Deed dated 8 th August, Defendant was living in the first floor of the suit property as a licensee. She terminated the license by serving a legal notice i.e. Ex. PW1/6 through her counsel. After termination of license defendant has no right to continue to occupy the suit property. Accordingly, plaintiff is entitled to decree of possession as prayed for. vi) As regards mesne profit is concerned, during the course of hearing counsel has given up mesne profit till passing of the decree. He claims mesne profit from the date of decree till the possession of the suit property is handed over by the defendant to plaintiff. Certified copy of the rent agreements i.e. Ex. PW1/8 to PW1/11 clearly indicates that the rent prevalent in respect of the flats is between from `22,000/- and `29,000/- per month. Defendant is occupying an independent floor built on a plot of land measuring sq. mtrs. Thus, mesne profit as claimed by the plaintiff amounting to `20,000/- today appears to be just and proper. In my view defendant also has no right to create any third party interest in the suit property. vii) For the foregoing reasons, I pass a decree of possession in favour of the plaintiff and against the defendant. By way of decree of damages/mesne profit defendant is directed to pay a sum of `20,000/- per month to the plaintiff from the date of decree till he hands over the possession of the suit property to the plaintiff. Defendant is also restrained from creating any third party interest in the suit property. Cost of the suit is also awarded in favour of the plaintiff. Decree sheet be drawn accordingly. CS(OS) No.2527/2009 Page 5 of 10

6 8. In the month of April, 2012, the defendant/applicant filed the abovementioned applications being I.A. No.16571/2012 under Order 9 Rule 13 CPC and I.A. No.16572/2012 under Section 5 of Limitation Act which were listed before Court on 7 th September, 2012 and notice was issued to the plaintiff through counsel. Copy of the written statement was also filed along with list of documents. The defendant subsequently filed an application being I.A. No.21689/2012 under Order 39 Rule 1 and 2 CPC for stay of execution of decree which was listed on 4 th December, Notice was issued for the next date i.e. 5 th February, The pleadings were completed. The defendant yet filed another application being I.A. No.1914/2015 under Section 151 CPC on 14 th January, 2015 i.e. after a period of more than three years and two months for seeking to place on record additional documents as well as the signed written statement filed in the Registry on 12 th March, 2010 which could not be brought on record for the last five years. The said written statement was enclosed with the application. 9. The main grounds taken by the defendant in his application under Order 9 Rule 13 read with Section 151 CPC are that the suit property belongs to all the legal heirs of Late Bal Krishan, as the same was purchased by him from the sale proceeds of the shop at Ambala that was allotted under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 on 30 th July, 1966 in lieu of the satisfaction of his claims of the properties left behind in Pakistan and plaintiff s husband, without any legal authority and on CS(OS) No.2527/2009 Page 6 of 10

7 the basis of a forged Will in his favour and without obtaining a probate transferred it in the name of his wife. 9.1 The counsel, Mr. Ketan Malhotra appeared before the Court on 12 th May, 2010 received the written statement from the filing counter to take the requisite steps but before the corrective steps could be taken, he misplaced the entire file. 9.2 The said counsel did not reveal the said fact to the main counsel and informed him that the objections were removed and the matter has been streamlined, however, in fact he neither filed the written statement nor marked his presence in the subsequent date and the main counsel informed that the matter was proceeding in routine. 9.3 Main counsel as per the bonafide impression formed on the basis of information provided by the junior counsel, made the postings in his legal diary. In the meantime for certain personal difficulties and otherwise, the said junior counsel left the company of the main counsel in the end of February or beginning of March. As per the postings made in the case dairy the matter was supposedly coming up for hearing on 3 rd April, Upon checking the cause list, the counsel for defendant was shocked to learn that the matter had already been decreed as exparte on 2 nd November, Upon inspection of the Court record it was discovered that the written statement was still not there on the record. After many efforts, the file could be located and the same is now in possession of the CS(OS) No.2527/2009 Page 7 of 10

8 main counsel. The defendant had every intention to participate in the impugned suit and raise his defence. 10. Admittedly, the application for setting aside the decree was filed in August, 2012 and the signed written statement is sought to be brought on record by filing an application in January, Before considering the grounds stated in the application, it is necessary to mention here that from the record it appears that a notice dated 15 th December, 2014 was issued by the Bar Council of Delhi to the defendant on his complaint made against his counsel which reads as under : Ref No.1330/SFC/2014 Dated : To Mr.Krishan Lal Wadhwa, D-48, 1 st Floor, Prashant Vihar, Delhi Subject : Complaint No.150/2012 This has reference to your letter dated nil on the above cited subject received in the office of Bar Council of Delhi on , I am to inform you that your complaint has been considered by the Bar Council of Delhi in its meeting held on and passed following order Present complainant in person. Respondent is not present despite repeated calls. Complainant heard. Records perused. Prima facie case of professional misconduct is made out against the respondent. Accordingly, matter is referred to Disciplinary Committee- IX. CS(OS) No.2527/2009 Page 8 of 10

9 This is for your kind information and perusal please. Yours sincerely, Sd/- Puneet Mittal Hony. Secretary 12. The record of the suit file reveals that the defendant was served on 25 th January, 2010 with the summons. One Mr. Ketan Malhotra, Advocate appeared before Court on 12 th May, 2010 without vakalatnama. There was no vakalatnama or memo of appearance before Court upto 17 th October, The suit file was inspected by the counsel on 27 th April, The application was filed by one Mr.Pankaj Malik, Advocate and Mr.Pramod Kumar Oberoi. It was again inspected on 2 nd June, 2012, 28 th August, 2012 and 10 th October, 2012 by Mr. A. Tewari, Advocate. The vakalatnama was first time filed on 18 th October, 2012 in favour of Mr. A. Tewari. The present application was filed in the Registry on 21 st August, As per admission made in para 17 of the application, it came to the knowledge of the defendant on 3 rd April, 2013, the counsel had inspected the file for the first time on 27 th April, 2012, it is evident that the application was filed after four months and 15 days from the date of knowledge. Under Article 123 of the Limitation Act, 1963 the time prescribed is thirty days to set aside a decree passed ex-parte from the date of the decree or where the summons or notices were not duly served, when the applicant had the knowledge of the decree. The application was filed more than 11 months from the date of CS(OS) No.2527/2009 Page 9 of 10

10 decree and more than 2 years and 7 months from the date of service of summons and two years and 3 months from the date of first appearance in Court i.e. 12 th May, Thus, even the application under Order 9 Rule 13 CPC is time barred. 15. The application under Order 9 Rule 13 CPC for setting aside the decree was filed without the vakalatnama. The same is not filed within 30 days from the date of knowledge. Four times the file was inspected with the vakalatnama. The signed written statement was brought on record after four years and ten months when the decree was already drawn in November, 2011, no valid justification has been given by the defendant. The judgment was passed on merit under the provision of Order 17 Rule 2 CPC after recording the evidence. The said judgment and decree has not been challenged by the defendant in appeal. Hence, the application filed by the defendant is not maintainable as all the grounds raised in the applications are vague and flimsy. It appears that the application is filed when the complaint was filed before Bar Council of Delhi. The conduct of the defendant and his counsel speaks for itself. Now after the expiry of more than four years, the decree passed by the Court on merit cannot be set-aside in the absence of valid ground(s). For the aforesaid reasons, I do not find any merit in the applications, the same are dismissed. 16. No costs. AUGUST 04, 2015 (MANMOHAN SINGH) JUDGE CS(OS) No.2527/2009 Page 10 of 10

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