CM(M) 923/2022

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$~63

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IN THE HIGH COURT OF DELHI AT NEW DELHI

+

CM(M) 923/2022, CM APPL. 39418/2022 and CM APPL.

39419/2022

PRIYA KHOSLA & ANR.

..... Petitioners

Through:

Mr. Siddhant Sharma, Adv.

versus

RAKESH KHOSLA

..... Respondent

Through:

Mr.

Ankur

Mahindra,

Mr.

Shresth Choudhary and Mr. Aditya Kapur,

Advs.

CORAM:

HON’BLE MR. JUSTICE C. HARI SHANKAR

%

J U D G M E N T (ORAL)

08.09.2022

1.

This petition under Article 227 of the Constitution of India

assails order dated 13^th May 2013 passed by the learned Joint

Registrar of this Court in CS (OS) 1478/2011, which was the earlier

avatar of the suit instituted by the respondent against various

defendants of which the petitioners were Defendants 9 and 10.

Consequent to enhancement of pecuniary jurisdiction of District

Courts, the suit was transferred to the Court of the learned Additional

District Judge (―the learned ADJ‖) and renumbered CS DJ

10027/2016.

Facts

The first impugned order – dated 13^th May 2013

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/003522

CM(M) 923/2022

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2.

At the time when the suit was pending before this Court as CS

(OS) 1478/2011, the learned Joint Registrar in this Court, vide order

dated 20^th September 2012, condoned the delay of 106 days in filing

of written statement by the petitioners (who are Defendants 9 and 10

in the suit) subject to payment of costs. Costs not having been paid, a

last opportunity to do so was granted to the petitioners by the learned

Joint Registrar on 26^th November 2012. Instead of paying the costs,

an application was preferred by the petitioners seeking waiver of

costs, which was also dismissed by order dated 5^th December 2012.

3.

Despite this, the petitioners did not pay the costs as directed on

20^th September 2012. In view thereof, following the judgment of the

Supreme Court in Manohar Singh v. D.S. Sharma¹, the learned Joint

Registrar vide order dated 13^th May 2013, struck the written statement

filed by the petitioners (as Defendants 9 and 10) off the record.

4.

This is the first order under challenge in the present petition.

The second impugned order – dated 17^th October 2017

5.

Consequent to the aforesaid order, on 13^th May 2013, a

preliminary decree was passed by a learned Single Judge of this Court

on 5^th September 2013, partitioning the suit property amongst various

legal heirs, and referring the matter to a Local Commissioner to file a

report regarding possibility of partition by metes and bounds.

1 (2010) 1 SCC 53

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/003522

CM(M) 923/2022

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6.

The aforesaid order dated 5^th September 2013 was challenged,

by the petitioners, by way of two proceedings, one by an application

under Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC),

(as the preliminary decree had been passed in the absence of the

petitioners) and the second by way of a review application. The

review application also assailed the order dated 13^th May 2013, which,

as already noted, is the first order under challenge in the present

petition.

7.

The application under Order IX Rule 13 of the CPC was filed

by the petitioners on 7^th November 2013 and the review application,

challenging the order dated 13^th May, 2013 and the preliminary decree

dated 5^th September 2013, was filed on 26^th October 2016.

8.

In the interregnum, consequent to enhancement of pecuniary

jurisdiction of District Courts, CS(OS) 1478/2011 was transferred to

the learned ADJ on 14^th January 2016 and was renumbered as CS DJ

10027/2016.

9.

Even while, the application filed by the petitioners on 7^th

November 2013 under Order IX Rule 13 of the CPC was pending, the

learned ADJ, vide order dated 17^th October 2017, dismissed the review

application, preferred by the petitioners on 26^th October 2016 seeking

review of the order