The importance of full disclosure of facts, justification for ex-parte orders, and assessment of capacity to maintain the petitioner financially.

JUDGMENT :

1. Vide the present petition, the petitioner seeks direction thereby to set aside the impugned judgment and order dated 24.10.2017 and further to set aside the order dated 15.11.2017 passed by the Court of Ld. ASJ-02, South East, Saket Court, New Delhi in CA. 69/2017.

2. The present petition has been filed on the ground that the learned Appellate Court erroneously turned a blind eye to the forged and fabricated agreement to sell dated 09.10.2015. The Respondent had filed two different versions of agreement to sell dated 09.10.2015 on the basis of which the Respondent was intending to sell the property.

3. Learned senior counsel appearing on behalf of petitioner submits that the Ld. Appellate Court erroneously dismissed the application under section 340 Cr.P.C wherein the various contradictory stands as per the convenience of Respondent has been taken by him. The said affidavits clearly show that the respondent has been filing affidavits as per his convenience, merely to frustrate the end of justice.

4. During arguments, learned counsel for the petitioner submits that the memorandum of family settlement which took place between the family members of the respondent is forged and is created in the year 2015 but given a back date of 10.10.2012.

5. To satisfy the aforesaid aspect, this Court passed order on 11.09.2019 as under:-

“1 Vide the present petition, the petitioner has challenged the order dated 24th October, 2017 whereby the learned Court disposed of the appeal filed by the petitioner by recording that the ex-parte order dated 11th January, 2017 which restrained the appellant as well as the respondent from selling/ alienating/transferring or creating any third party interest in property No. 2009, Bank Street, Karol Bagh, New Delhi was set aside and only after hearing the other party i.e. the respondent herein, the learned Metropolitan Magistrate will considered such a prayer before passing the order under Section 23 (2) of DV Act. It is clarified by the learned Court that in case the property is disposed off then 1/3rd of the sale proceeds thereof, out of the share of the appellant shall be kept in a fixed deposit by the appellant in any Nationalized Bank under intimation to trial court and the amount so kept shall not be utilized in any manner by the appellant without the permission of the trial court and the trial court shall pass appropriate order qua this amount at appropriate stage.

2. Mr. K.K. Manan, Senior Counsel for the petitioner submits that he admitted at various stages the in Court of DV proceedings and in matrimonial Court that the respondent has 1/3rd share in the property in question, however, the respondent has deposited an amount of Rs.13,88,890 Lacs which is contrary to the order passed in appeal filed by the respondent.

3. In Para-26 of the impugned order it is submitted by the counsel for the respondent that the respondent has 1/3rd share in the property in question but a family settlement was entered between the respondent/appellant and his father and brother, by virtue of which, the respondent has shared his 1/3rd share in the property with his father and brother, therefore, in fact, his share in the property would remain ultimately as 1/9th share. It is not in dispute that the petitioner herein filed the petition under Section 340 Cr.P.C. against the forgery made by the respondent, however, the same has been dismissed and the order of the same has not been challenged.

4. Learned counsel for the petitioner still argued strongly that the respondent has 1/3rd share in the property in question, however, the said respondent has prepared the MOU/ family settlement deed on 10th October, 2012 but in the year 2010 to frustrate the claim of the petitioner.

5. Learned counsel for the respondent submits that the issue on the property started somewhere in the year 2014. The mother of the petitioner raised the issue in the year 2014 and the petitioner filed the DV petition in the year 2015. Thus, there was no oc