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2019 Supreme(Del) 2324
IN THE HIGH COURT OF DELHI AT NEW DELHI
Prathiba M. Singh, J.
Bhai Balbir Singh - Petitioner
Versus
Bhai Sardar Singh (Deceased) Thr Lrs. - Respondents
Cm (M) 1086 of 2018 & Cm Appls. 37029 of 2018, 30353 of 2019 & 37367 of 2019
Decided On : 18-11-2019
For the Petitioner:Mr. Adit S.Pujari & Ms. Tusharika Mattoo, Advocates
For the Respondent:Mr. Pawanjit S. Bindra and Mr. Lakshay Dhamija, Advocates for Mr. Sanjeev Mahajan, Advocate for Mr. Gaurav Duggal, Advocate for Ms. Anusuya Sadhu Sinha, Mr. Bharat Monga and Mr. Shubhankar, Advocates for Mr. Sujoy Chatterjee, Advocate
The main legal point established in the judgment is the duty of the Plaintiff to pursue the suit with due diligence and the application of strict terms for restoration, emphasizing that disputes should be decided on merits and not on default.
Headnote:
Restoration of Suit - Partition of Joint Family Property - [Code of Civil Procedure, 1908 - Order 9, Rule 9; Order 41, Rule 33] - The court discussed the restoration of a suit for partition of joint family property filed in 1984. The court emphasized the duty of the plaintiff to follow up on the suit with due diligence and alacrity, and imposed strict terms for the restoration of the suit. The court also referred to the Supreme Court judgment in Robin Thapa v. Rohit Dora, emphasizing that disputes should be decided on merits and not on default.
Fact of the Case:
The suit for partition of joint family property was filed in 1984 and had remained pending due to defaults committed by the parties and their counsels. The Plaintiff allowed the suit to be dismissed in default on two occasions, and the application seeking restoration of the suit was also dismissed. The suit was eventually restored, and the present petition was filed to challenge the restoration and review orders.
Finding of the Court:
The court found that the suit had been pending for over 35 years due to the Plaintiff's lack of diligence. The court emphasized the duty of the Plaintiff to follow up on the suit with due diligence and imposed strict terms for the restoration of the suit. The court also referred to a Supreme Court judgment emphasizing that disputes should be decided on merits and not on default.
Issues: The issues included the restoration of the suit for partition and a settlement agreement regarding a specific property.
Ratio Decidendi: The court's decision was based on the Plaintiff's lack of diligence in pursuing the suit, the duty of the Plaintiff to follow up on the suit with due diligence, and the application of strict terms for restoration. The court also emphasized the principle that disputes should be decided on merits and not on default.
Final Decision: The court directed the restoration of the suit on strict terms, including specific timelines for recording evidence, examination of witnesses, and adjudication of the suit. The court also imposed costs on the Plaintiff and emphasized that all issues should be adjudicated on merits by the Trial Court.
JUDGMENT :
Prathiba M. Singh, J.
1. A suit filed in 1984 is the subject matter of the present petition. One Late Bhai Sardar Singh had filed a suit for partition of joint family property against his siblings and other family members, who are legal heirs of Late Bhai Sunder Das. The suit was initially filed before this Court but was later transferred to the District Court, in view of the increase in pecuniary jurisdiction of the High Court. The original parties to the suit, except the Petitioner/Defendant No.3 - Bhai Balbir Singh (hereinafter, “Defendant No.3”), have since passed away.
2. The suit has remained pending all these years. Some part of the blame is on the Plaintiff – Bhai Sardar Singh, who allowed the suit to be dismissed in default on two occasions. The application seeking restoration of the suit was also dismissed. On 8th August, 2018, the suit was restored and on 4th September, 2018, two separate applications, seeking review of the order dated 8th August, 2018, as well as the order dated 1st May, 2018, which allowed the application for restoration of the application seeking restoration of the suit, were dismissed. The said orders have been impugned before this Court.
3. Ld. counsel for Defendant No.3 submits that various members of the family owned several valuable properties at Amrita Shergil Marg, Asaf Ali Road etc., which have been listed in Schedule A to the suit. Ld. counsel submits that his client is more than 80 years of age and despite the suit having been filed in 1984, the Respondents continue to keep it pending, thereby keeping Defendant No.3’s title in property bearing No.9A, Amrita Shergil Marg, New Delhi, in doubt. Hence, he vehemently opposes the restoration of the suit and submits that the reasons given by the Respondents do not justify the restoration of the suit.
4. On the other hand, ld. counsels appearing for the Respondents submit that insofar as the restoration of the suit is concerned, the ld. Trial Court has put the parties to strict terms. Evidence by way of affidavit also stands filed and accordingly, the suit should be allowed to proceed further. Ld. counsels further submit that some of the Respondents have arrived at a settlement in respect of the property bearing No.9, Amrita Shergil Marg, New Delhi, which they have placed on record. It is submitted that since there is no dispute in respect of this property, the said settlement ought to be recorded.
5. There are two aspects to this petition. The first, is in respect of the restoration of the suit and the second, is in respect of the Settlement Agreement qua property bearing No.9, Amrita Shergil Marg, New Delhi.
6. Insofar as the first aspect is concerned, the facts are not in dispute and are borne out from the list of dates itself. The suit was originally filed in 1984 and subsequent amendments were carried out in the same. The Plaintiff has clearly dragged his feet, even in respect of the compliance of orders relating to the issues of summons, notices, process fees etc. Repeated adjournments have also been sought. On 25th January, 2000, the suit was dismissed for non-appearance of the Plaintiff/his counsel. The application for restoration of the suit was also dismissed in default on 11th April, 2001. Thereafter, the application seeking restoration of the application for restoration of the suit was restored on 28th January, 2003 and on 19th August, 2004, the suit itself was restored. The issues were framed in the suit on 29th March, 2005. The evidence by way of affidavit was not filed for a considerable period.
7. The suit was again dismissed on 11th January, 2010 for the second time. During this period, steps were only being taken for impleadment of the legal heirs. An application for restoration of the suit was filed and the said application was dismissed on 28th May, 2015 for non-prosecution. On 1st May, 2018, the application seeking restoration of the suit was allowed to be restored and thereafter, the suit itself was restored on 8th Augu
