Lakhmi Chand (Through Its Legal Heirs) v. Mr. Sube Singh

1. This petition filed under Article 227 of the Constitution of India impugns the orders dated 03.04.2023, 16.07.2022 and 19.02.2022 passed by theADJ-09, CentralDistrict,Tis HazariCourts,Delhi(‘TrialCourt’), in civil suit no. 15766/2016, titled as ‘Sube Singh v. Lakhami Chand’.

1.1. The Trial Court vide impugned order dated 03.04.2023 has dismissed theapplicationdated 17.12.2022filed by thePetitionersherein under Order 9 Rule 7 of Codeof Civil Procedure, 1908(‘CPC’), for settingasideof theexparte order dated 19.02.2022.

1.2. The Trial Court vide order dated 16.07.2022 has accepted the objections filed by Respondent (i.e., the plaintiff) to the report of the Local Commissioner and passed directions with respect to division of the suit properties between the plaintiff and the defendant.

1.3. The Trial Court vide order dated 19.02.2022 has proceeded ex-parte against thelegal heirs of the originaldefendant (i.e., the Petitioners herein).

2. Thelearned counselfor thePetitionersstates thatthePetitionersherein are two (2) of the legal heirs of late Mr. Lakhmi Chand i.e., the original defendant in the civil suit for partition. 2.[1] He states thatafterthedeathoflateMr. LakhmiChand, theapplication for bringing on record his eight (8) legal representatives was allowed by the TrialCourton 08.08.2018. Hestates that, however, afterimpleadingthelegal heirs no summonswereissued by theTrialCourt. Hestates thatneitherat the stageadjudication ofapplicationunderOrder 22 Rule 4 of CPC nor after the legal heirs were broughton record, anynoticewas issued by the TrialCourt. He statesthatin thesecircumstances, thePetitioner herein werenotawarethat the proceedings before the Trial Court were continuing. 2.[2] The learned counselfor thePetitionerfairly concedes that theplea that no notice was issued to the legal heirs after they were brought on record 08.08.2018, was not raised in the application filed before the Trial Court on 17.12.2022. 2.[3] He states that though oneofthelegal heirs, Mr. Dharmender Singh,the son of Petitioner No.1 and the brother of Petitioner No.2 was regularly appearingin thesuit proceedings, thePetitionersherein werenot awareabout thependency ofthecivilsuit proceedings. Hestates thatthePetitionersherein are estranged from Mr. Dharmender Singh. The learned counsel for the Petitioner fairly concedes that no such plea of the estrangement has been raised in this petition or before the Trial Court. 2.[4] Hestates that thePetitionerslearntaboutthependency ofthesuit, when the Local Commissioner appointed by the Court visited the suit property in themonthofMarch, 2022. Hestates that in fact PetitionerNo.2dulyappeared in the suit proceedings on 24.08.2022and an applicationfor settingasidethe ex-parte order dated 19.02.2022 was filed.

3. In reply, Ms. Priyanka Yadav, Advocate, enters appearance on behalf of Respondent (i.e., the plaintiff herein) and states that the matter is listed before the Trial Court today for enabling the Petitioners to deposit the appropriate stamp duty. 3.[1] She states that the Petitioners have come to the Court with unclean hands.ShestatesthatthePetitioners herein wereduly presentwhentheLocal Commissioner had visited the suit properties in the year 2018 and they have been personally awareaboutthependency ofthesuit. Shestatesthattheplea that they became aware in the year 2022, is false and misleading. 3.[2] She states that the plea of the Petitioners that they are estranged from Mr. Dharmender Singh is false. She states that Mr. Dharmender Singh has been regularly appearingin theseproceedings for andon behalfofallthelegal heirs of the late defendant. She states that Mr. Dharmender Singh has also engaged an advocate to represent the interests of the legal heirs. 3.[3] She states that the impugned order duly records that Mr. Dharmender Singh was regularly appearing either personally or through his counsel. She states that this petition has been filed at the eleventh hour to obstruct the proceedings before the Trial Court.

4. This Court has considered the submissions of the parties and perused the record.

5. The Petitionersherein through this petition areseekingan opportunity to file objections to thereportofthe Local Commissioner dated 16.10.2018.

6. TheLocalCommissionerreport is dated16.10.2018, therefore, theplea raised by thecounselfor thePetitionersthatthePetitioners herein havelearnt aboutthependency ofthe proceedingsonly in March, 2022,duringthelocal Commissioner visit is ex-facie incorrect.

7. This Courthasalso perusedtheimpugnedorder dated 03.04.2023. The said order, in detail, records each date on which Mr. Dharmender Singh, the son of Petitioner No.1 and brother ofPetitioner No.2, was presenthimselfor represented through a lawyer;and therefore, theallegationthattheTrialCourt proceedings have been conducted without notice of the legal representatives of late Mr. Lakhmi Chand (i.e., the defendant) is ex-facie incorrect. The relevant portion oftheimpugned order dated 03.04.2023 reads as under: - “I have gone through the material on record and submissions forwarded by Ld. Counsels for parties. In this case, the ex-parte order was passed on 19.02.2022, after calling the matter four times. Thereafter, Sh. Dharmender Kumar son of the defendant appeared on 31.03.2022 and the matter was listed for 21.04.2022, at his request, for consideration on the objection of report of local commissioner. On 21.04.2022, nobody appeared and the matter was listed for 26.04.2022. On 26.04.2022, only counsel for plaintiff appeared and arguments were heard on objection to the report of local commissioner (opportunity was not kept for defendant as they were already ex-parte, but allowed to join proceedings). On 16.07.2022, the objections to the report of local commissioner report was decided and the matter was listed for 24.08.2022 for valuation report. On 24.08.2022, Sh. Dharmender Kumar son of defendant appeared and the matter was listed for 12.09.2022 for valuation report. On 12.09.2022, Sh. D. C. Sharma, Advocate for defendant along with son of defendant appeared. Parties have taken some more time to file valuation report. Matter was listed for 30.09.2022. On 30.09.2022, Sh. D.C. Sharma, advocate for defendant along with son of defendant appeared. Valuation reports were filed. Parties were directed to file appropriate stamp duties as per their shares and the matter was listed on 03.11.2022. On 03.11.2022, fresh vakalatnama filed on behalf of defendants and matter was listed for 19.12.2022. On 19.12.2022, this application u/o.[9] rule 7 CPC was filed. So, from the record, it appears that after passing ex-parte order on 19.02.2022, between 19.02.2022 and 16.07.2022, there was appearance of Sh.Dharmender son of defendant who himself requested for putting the matter on hearing objection petition. Even thereafter, between 16.07.2022 and 19.12.2022 (when this application was moved), three times there was representation on behalf of defendant. Even counsel for defendant and the son of the defendant appeared and participated in the proceedings. From order dated 24.08.2022, 12.09.2022 and 30.09.2022, there does not appear any grievance on behalf of defendant to the order dated 16.07.2022 or to the ex-parte order dated19.02.2022. This alleged grievance on the objection petition appears to have been arisen only when there was change of counsel. So, it appears that the application is moved without any merits and just to delay the proceedings. Moreover, the application is also time barred since the defendants have knowledge of ex-parte order since 31.03.2022 (when son of defendant appeared). Accordingly, the application /o.[9] rule 7 CPC dated 17.12.2022 filed by LRs defendants is dismissed.” (Emphasis supplied)

8. The record of the Trial Court shows that even after Mr. Dharmender Singh, the son of Petitioner No.1 and brother of Petitioner No.2 entered appearance in August, 2022, the Petitioners failed to take any steps to file objections to the Local Commissioner’s report.

9. This Court also finds that the plea that Petitioner No.1 and Petitioner No.2 are estranged from Mr. Dharmender Singh is untrue. No such plea has been raised in this petitionor before the TrialCourt. It is therefore, apparent that thePetitioner is abusingtheprocessoftheCourt by raising false pleas.

10. This Courtalsofinds thattheplea thatno noticewas issued to thelegal heirs to be untrue. No such plea was raised in the applicationfiled beforethe TrialCourt.Mr. Dharmender Singh has been duly appearingbeforetheTrial Court.It is therefore, apparent thatthePetitionersand thelegalrepresentatives of late defendant are aware of the Trial Court proceedings.

11. The Petitioners want to file objections to the Local Commissioner’s report. However, the Trial Court has already examined the said report and passed a detailed order of division on 16.07.2022. The Petitioners have not addressed any argumentsbeforethisCourtwithrespect toanyinfirmityin the division proposed by the Trial Court in its order dated 16.07.2022. This petition filed after one (1) year seeking to undo the orders of the Trial Court is an abuse of process.

12. This Courtis therefore, oftheopinionthatthePetitionersin this petition haveapproachedthis Court with unclean handsand haveraised pleas, which were not raised before the Trial Court either in the application dated 17.12.2022 or during the hearing dated 03.04.2023.