Full Text
HIGH COURT OF DELHI
Date of order : 30th January, 2023
1743/2023 SMT.NEHARIKA GURNANI ..... Plaintiff
Through: Mr. Ashok Gurnani, Advocate
Through: Counsel for D-4 (Appearance not given)
Mr. Kirti Uppal, Sr. Advocate with Mr. Shekhar Kumar and Ms. Riya Gulati, Advocates for D-9 to D-11
CHANDRA DHARI SINGH, J (Oral)
JUDGMENT
1. The instant application has been filed on behalf of defendant no.4/applicant under Section 12 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter “CPC”) seeking the indulgence of this Court for setting aside the consent order/judgment/decree dated 18th December 2019 passed by the Co-ordinate Bench of this Court in CS (OS) 2191/2009 titled as Neharika Gurnani vs Rameshwar Gopal and Ors.
FACTUAL MATRIX
2. The plaintiff had filed the captioned suit seeking partition, declaration, rendition of accounts and permanent injunction with respect to the Ancestral Property bearing No. WZ-296, G-Block, Jail Road, Hari Nagar, Delhi-110048, admeasuring 6000 square yards out of Khasra No.835/1/2, 836 & 837 situated in the revenue estate of Village Tihar, Tehsil Rajouri Garden, Delhi (West) (hereinafter “the said property”) against a total of 51 defendants which after a period of 10 years reached the settlement under Order XXIII, Rule 1 and 3 of the CPC. The suit was amicably settled between the plaintiff and the defendants no. 1, 9, 10, and 11 (hereinafter “settling defendants”) and the counsel for other few defendants namely defendant no. 18, LR of 17 and LRs of 19 stated their wish to not pursue the captioned suit. The suit against other defendants was therefore, dismissed as withdrawn by the Co-ordinate Bench of this Court vide order dated 18th December 2019.
SUBMISSIONS
3. It is the case of the applicant that the impugned consent order/judgment/decree dated 18th December 2019 passed by the Co-ordinate Bench of this Court was obtained by concealment of entire proceedings and decisions of various courts including the Hon‟ble Supreme Court from the applicant. It is submitted that plaintiff had admitted in her suit that applicant has the absolute right in the said property on the basis of the statement dated 13th September 1976 of the Karta of the property and father of the applicant Late Sh. Bans Gopal in which he has stated that he along with his wife, four sons and two daughters had 1/8th share each in the said property and the same was also affirmed by mother of the applicant vide her reply dated 19th October 1982 to the Commissioner, MCD, Town Hall, Chandni Chowk, Delhi. It is submitted that the Hon‟ble Court of Sh. M. K. Chawla, Additional District Judge, Delhi passed Judgment/Decree dated 14.01.1980 in RCA No. 44 OF 1979 titled as Shri Bans Gopal (Deceased) now represented By Smt. Kalawati & Ors. Versus Delhi Development Authority & Another in favour of the Legal Representatives of Late Sh. Bans Gopal, i.e., legal representatives namely (1) Smt. Kalawati (Widow), (2) Sh. Rajeshwar Gopal (Son), (3) Shri Rameshwar Gopal (Son), (4) Shiveshwar Gopal (Son), (5) Manmohan Gopal (Son), (6) Rama Gopal (Daughter) & (7) Smt. Prabha Rani and upheld the ownership of the plaintiff for the said property.
4. It is submitted that during the period of November-December 2011, the applicant sold his house in Rohini, Delhi and shifted to Australia to live with his son (defendant no. 14) along with his wife (defendant no. 13). Thereafter, defendant no. 6 sent a legal notice dated 30th November 2013 claiming coparcenary rights in the said property at the email address of defendant no. 14 through her advocate which also included the name of the applicant and thereafter, applicant on his visit to India appointed his counsel on 14th August 2014. It is further submitted that defendant no.1 in the captioned suit filed the written statement dated 10th November 2016 falsely and collusively denying the shares of the applicant on the basis of a forged, fabricated, unregistered untested Will in respect of the Ancestral property as the legality, veracity and genuineness of the said Will is disputed. It is submitted that the existence of the Will was never disclosed in the past proceedings before various courts and the same fact did not come into the knowledge of the applicant as he never received the copy of the written statement. It is submitted that defendant no. 14 (son of the applicant) had coparcenary rights in the said property but he was never served any notice and therefore no counsel was engaged for him, but, the counsel who appeared for applicant falsely submitted for the reasons unknown that he appeared for defendants no. 13 and 14 as well, all residing in Australia at that point of time.
5. Learned counsel on behalf of the applicant submitted that the son of applicant, i.e., defendant no. 14 got married on 18th October 2012 but the relationship between them became strained and thereafter they parted ways on 29th September 2014. It is submitted that the daughter-in-law of the applicant came back to India and in the year 2016, she filed several matrimonial and criminal cases against the applicant, defendant no.13 and defendant no. 14, which remain pending till date in the Courts of Chattisgarh. It is further submitted that the applicant along with his wife, defendant no. 13, was running from one court to another due to multiple charges framed against them by their daughter-in-law and when his anticipatory bail was rejected, he along with defendant no.13 were taken into judicial custody in Bilaspur Central Jail, Chattisgarh. It is submitted that during the period of judicial custody, the plaintiff and settling defendants entered into a Memorandum of Understanding dated 11th December 2019 and settled the dispute on basis of the forged and fabricated Will with respect to the Ancestral Property depriving the applicant of his coparcenary rights in the said property and thereafter obtained the impugned consent order/judgment/decree dated 18th December 2019 in the captioned suit.
6. It is submitted that the applicant had been taken into judicial custody on 5th December 2019 and remained in jail till 27th January 2021 and thereafter defendant no. 13 succumbed to Covid-19 pandemic on 9th April
2021. Learned counsel on behalf of the applicant submitted that the applicant came to know for the first time on 11th November 2021 from the affidavit of Sh. Rameshwar Gopal (brother of the applicant) about the impugned consent order/judgment/decree dated 18th December 2019 when his daughter-in-law moved an application for attachment of the share of defendant no.14 in the said property.
7. It is the case of the applicant that due to attending various proceedings instituted by the daughter-in-law, the applicant could not take the required action in the due course of time as he was running from district court in Chattisgarh to the Hon‟ble Supreme Court of India. Therefore, it is submitted that given the aforementioned facts and circumstances and the law of succession, the plaintiff and the settling defendants in the captioned suit cannot be permitted to withdraw the suit by way of a settlement as the same would prejudice the rights of other defendants.
8. Accordingly, learned counsel for the applicant submitted that the consent order/judgment/decree dated 18th December 2019 passed by the Coordinate Bench of this Court is liable to be set aside.
9. Per Contra, learned counsel on behalf of the non-applicant vehemently opposed the instant application on the ground that the application has been filed after a lapse of appropriate time as prescribed under the Limitation Act, 1963. It is submitted that the instant application is not maintainable and same is liable to be dismissed on the sole ground of limitation.
ANALYSIS
10. Heard learned counsel for both the parties and perused the record. The primary issue before this Court is the question of maintainability of the instant application on the ground of prescribed period of limitation.
11. The instant application has been filed in the captioned suit which was disposed of in the year 2019 by the Co-ordinate Bench of this Court by way of a consent decree. The applicant amongst various other grounds contended that he came to know about the consent decree dated 18th December 2019 on 11th November 2021 from the affidavit of his brother given during the proceedings invoked by his daughter-in-law and thereafter now, in the year 2023, he has filed the application for setting aside of the impugned consent decree.
12. Given the abovementioned facts of the case at hand, it is important to refer Article 123 of the Schedule of the Limitation Act, 1963 which provides the period of limitation for filing an application “to set aside a decree passed ex parte or to rehear an appeal decreed or heard ex parte” to be “thirty days” commencing from “the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree”.
13. The law of limitation has been recognized as the window of opportunity during which a party who has suffered harm may seek remedies from the Court. When interpreted literally, the word "limitation" refers to a restriction or restricted circumstances and the application of law of limitation is based on the premise of the legal maxim „interest reipublicae ut sit finis litium‟ which means that it is in the interest of the state that there should be a limit to litigation. The law of limitation further entails another principle of law which is the common rationale behind the limitation law i.e., “Vigilantibus non dormientibus jura subveniunt”, which means “laws serve the vigilant, not those who sleep”.
14. It is pertinent to note that the aforementioned Article provides for setting aside a decree passed ex-parte within a period of thirty days on basis of commencement of two distinct situations:
1. Either from the date of decree, i.e., 18th December 2019 in the instant application, Or
2. From the date of knowledge of decree, in case summons or notice was not duly served, i.e., 11th November 2011 in the instant application. Even if the latter date of knowledge of the decree is taken into consideration, it is difficult for this Court to accept the contentions made on behalf of the applicant on the ground of limitation. The Hon‟ble Supreme Court in the case of State of Punjab v. Gurdev Singh (1991) 4 SCC 1 held as under:
15. In Sneh Gupta v. Devi Sarup, (2009) 6 SCC 194, The Hon‟ble Supreme Court while examining the applicability of Article 123 of the Schedule of the Limitation Act, 1963 has held as under:
summons have not been served, the second part shall apply. In this case, summons were served upon the appellant. They knew about the proceedings. They had engaged a lawyer. Indisputably, the case was fixed in July 1998. The only question, which would, thus, arise for our consideration is the effect of the preponement of the date.
58. If the compromise has been accepted in absence of all the parties, the same would be void. But if the same having resulted in grant of a decree, the decree based on compromise was required to be set aside. The compromise may be void or voidable but it is required to be set aside by filing a suit within the period of limitation. (See Mohd. Noorul Hoda v. Bibi Raifunnisa [(1996) 7 SCC 767].)
59. Limitation is a statute of repose. If a suit is not filed within the period of limitation, the remedy would be barred. As the appellant had appeared in the appeal, as indicated hereinbefore, the first part shall apply. The suit was filed on 28-2-2002 i.e. after a gap of four years. There is no reason as to why the factum in regard to passing of the decree could not have been known in July or soon thereafter.
67. We are concerned herein with a question of limitation. The compromise decree, as indicated hereinbefore, even if void was required to be set aside. A consent decree, as is well known, is as good as a contested decree. Such a decree must be set aside if it has been passed in violation of law. For the said purpose, the provisions contained in the Limitation Act, 1963would be applicable. It is not the law that where the decree is void, no period of limitation shall be attracted at all…"
16. Even if it is admitted that the applicant had no knowledge of the proceedings in the captioned suit, the instant application has been filed by the applicant after more than one year from the lapse of the prescribed limitation period under the Limitation Act, 1963. It is further observed that the applicant has even failed to file the appropriate application for condonation of delay in filing the instant application and therefore, made the way for a procedural lacuna as well, apart from the bar of limitation. Section 3 of the Limitation Act, 1963 empowers the Court to dismiss any suit/appeal/application if it is not filed within the time prescribed and the party fails to satisfy the Court of just and sufficient reasons which had caused such delay. The reason stated by the applicant in the instant application that he was involved in other proceedings instituted by his daughter-in-law and therefore, could not pursue the captioned suit, is not sufficient in the opinion of this Court to allow the instant application.
17. Therefore, in light of the abovementioned facts, circumstances, contentions of the parties and detailed discussion, this Court finds no cogent reason to entertain the instant application. This Court in accordance with Section 3 read with Article 123 of the Schedule of the Limitation Act, 1963 is inclined to dismiss the instant application.
18. Accordingly, the instant application being barred by the limitation is dismissed.
19. Pending applications also stand dismissed in the aforesaid terms.
20. The order be uploaded on the website forthwith.