Sarvesh Bhatnagar and Ors. v. M S Bhatnagar and Ors.

1. This is an application filed by Smt. Madhulika Bhatnagar i.e., daughter of late Mr. I.S. Bhatnagar for seeking modification of the order dated 26.05.2023 passed in this petition, whereby the Trial Court was requested to dispose of proceedings pending before it within 30 days from 26.08.2023.

2. The learned counsel for the Applicant states that the Applicant has been impleaded as a defendant in the civil suit on 05.09.2023 after death of her father late Mr. I.S. Bhatnagar. It is a matter of record that Mr. I.S. Bhatnagar was impleaded as defendant no.2 in the civil suit for partition filed in 1999.

2.1. He states that due to the time bound directions issued by this Court vide order dated 26.05.2023, the Trial Court is proceeding with the matter expeditiously which is causing prejudice to the Applicant herein.

2.2. He states for instance the Applicant is aggrieved by the Trial Court declining an opportunity to file a written statement on the ground that it has to expeditiously decide and pass the preliminary decree.

3. This Court has heard the counsel for the Applicant.

4. At the outset, it needs to be recorded that the Applicant states that he is not impugning before this Court the order dated 05.09.2023 insofar as it denies her the right of filing written statement. In fact, the learned counsel for the applicant states that limitation for challenging the order declining him an opportunity to file written statement has not expired and he will avail his remedy in accordance with law. He states that he is not seeking the relief of filing written statement from this Court.

4.1. Thus, the limited relief sought from this Court is to issue a direction to the Trial Court to defer the re-drawing of the preliminary decree until the written statement of the Applicant is filed.

4.2. The counsel for the applicant also fairly admits that the Applicant does not dispute that her father late Mr. I.S. Bhatnagar was entitled to 1/9th share in the suit property. This is significant as discussed hereinafter.

5. In this matter, the suit which is pending before the Trial Court was filed for partition, declaration and injunction in respect of the property bearing NO. 1603-1604, Madarsa Road, Kashmere Gate, Delhi-110006 (‘suit property’). The suit property belonged to late R.D. Bhatnagar who died intestate in the year, 1963 leaving behind 4 sons and 5 daughters who as per the plaintiffs are entitled to equal 1/9th share each as the property devolved on all of them.

5.1. Thus, as per the plaintiffs the father of the Applicant i.e., late Mr. I.S. Bhatnagar was also accordingly entitled to 1/9th share in the suit property being one of the sons of late Mr. R.D. Bhatnagar. To this extent there is no dispute raised by the Applicant herein and this is also noted by the Trial Court in its order dated 05.09.2023.

6. The suit was instituted on 30.10.1999 and the preliminary decree holding that the nine (9) children of a late R.D. Bhatnagar are entitled to 1/9th share each was passed on 21.11.2001. The final decree has not been passed and the suit remained pending before the Trial Court.

7. Thereafter, steps were taken to implead the legal heirs of the deceased children of late Mr. R.D. Bhatnagar. In the meantime, upon an application filed by one of the legal heirs of late Mr. A.S. Bhatnagar (s/o late Mr. R.D. Bhatnagar) on 08.10.2018, the preliminary decree dated 21.11.2001 was set aside as his share had not been identified. The matter therefore, remained pending before the Trial Court for re-drawing the preliminary decree after duly accounting for the shares of the parties (i.e., the children and grandchildren of late Mr. R.D. Bhatnagar). Thus, though the suit was filed 30.10.1999, no preliminary decree was passed pending procedural compliances and the matter remained pending for arguments.

8. It was in these circumstances that the predecessor Bench of this Court passed the direction on 26.05.2023 in the present petition, directing the Trial Court to hear and decide the issue of preliminary decree expeditiously and in accordance with law. The said direction was issued considering that the suit was pending for last 20 years.

9. The Trial Court in the impugned order has recorded that the share of late Mr. I.S Bhatnagar, the father of the Applicant has been determined as 1/9th share. The Applicant does not dispute the entitlement of her father. The Applicant does not claim before this Court that her father had a larger share in the suit property. The Trial Court has observed that it does not intend to decide in this suit the inter-se claim to the share of late Mr. I.S. Bhatnagar. Thus, no prejudice is being caused to the Applicant as the rival claims to the share of late Mr. I.S. Bhatnagar are not being determined by the Trial Court. It is in the interest of the of the Applicant that the share of Mr. I.S. Bhatnagar is decreed at the earliest. This suit filed for determining the shares of the children of late Mr. R.D. Bhatnagar cannot be converted into a suit for determining the inter-se shares of the legal heirs of the deceased children of late Mr. R.D. Bhatnagar. As rightly held by the Trial Court, the inter-se disputes or claims to the share of late Mr. I.S. Bhatnagar would have to be determined in the separate suit.

10. This Court therefore, finds no cause for modifying the order dated 26.05.2023.