ACHERAJ LAL LAMBA v. TILAK RAJ LAMBA AND ANOTHER

1. Vide order dated 16.10.2014, a preliminary decree was passed in respect of the residential premises No.1/7033, Shivaji Park, Shahdara, Delhi, measuring 157 sq. yards comprised in Khasra No.244-245 situated in village Sikdarpur, Shivaji Park, Shahdara, Delhi, declaring inter alia that the plaintiff is entitled to the relief claimed in prayers clause (a), (b) and (c) of the plaint, i.e., to a decree of declaration declaring him as a joint shareholder of the subject premises owned by late Smt. Vidya Wanti (mother of the parties) to the extent of 1/3rd share therein.

2. Learned counsel for the plaintiff states that the aforesaid order 2015:DHC:4167 was passed after considering the ex parte evidence that was led by the plaintiff. Pertinently, despite service, none had appeared on behalf of the defendants No.4 to 6 and vide order dated 02.05.2012, they were proceeded against ex parte. On 06.05.2014, all the defendants, except for defendant No.3 were proceeded against ex parte. None had appeared on behalf of the defendant No.3 when the matter was taken up on 16.10.2014. After passing a preliminary decree on 16.10.2014, a Local Commissioner was appointed to visit the suit premises and file a report as to whether it is feasible to partition the same by metes and bounds.

3. The Local Commissioner has submitted a report dated 05.05.2015 stating inter alia that she had visited the suit premises on 13.03.2015 and 05.04.2015 and having regard to the built up structure existing on the suit property comprising of a single floor, she opined that the same cannot be partitioned by metes and bounds.

4. At this stage, Ms. Madhu Lamba intervenes and states that she is the wife of the defendant No.2. She submits that her husband proposes to file objections to the Local Commissioner’s report.

5. It is relevant to note that the defendant No.2 was served with the summons in the suit as long back as on 01.07.2010 but he elected not to enter appearance or file the written statement. Nor has the said defendant taken any steps till date for setting aside of the ex parte order. As a result, this Court is not in a position to entertain the request made by Smt.Madhu Lamba, for and on behalf of the defendant No.2.

6. Counsel for the plaintiff states that he has no objection if the preliminary decree dated 16.10.2014, is converted into a final decree and the plaintiff and the defendants No.1 and 2 are left to explore all options for partitioning the suit premises, including buying out each other’s shares and if they are unable to negotiate an out of court settlement, then they shall seek execution of the judgment and decree, as per law.

7. Ordered accordingly. The preliminary decree dated 16.10.2014 is converted into a final decree. If the parties are unable to work out a settlement as to the mode of partition, then they shall be at liberty to seek execution of the decree in accordance with law.

8. The suit is disposed of. Decree sheet be drawn accordingly. No order as to costs. HIMA KOHLI, J MAY 07, 2015 rkb