Mohd Iqbal & Ors. v. Najma (Deceased) Thr LRs & Ors.

1. The present petitions have been filed challenging the impugned orders dated 19th January, 2019 and 17th August, 2019.

2. A suit for partition came to be filed in respect of the assets of Late Mohd. Ahmed (‘the deceased’) being CS (OS) 572/1990 titled Mohd. Iqbal & Ors. v. Mst. Najma & Ors. The main dispute in the suit was as to whether or not Mst. Najma was the wife of Late Mohd. Ahmed, and whether 2019:DHC:5888 her children are also entitled to a share in the property of the deceased. In the suit, the suit properties of which partition was sought, were as under: “(A) 1/3rd undivided share in property No.7649, Gali Munshi Abdul Rahim, Quresh Nagar, Sadar Bazar, Delhi; and (B) Share as co-lessee in leasehold property No.A- 96/10, Wazirpur Industrial Area, Delhi, admeasuring

457.80 sq. yards with the Plaintiff No.2 being the other co-lessee.” In respect of the Wazirpur property, the suit was dismissed and the decree was passed only in respect of the Sadar Bazar property. By a detailed judgment of a ld. Single Judge of this Court on 14th December, 2012, a preliminary decree was passed in respect of one of the properties, which is located in Sadar Bazar. The operative portion of the said preliminary decree reads as under:

3. The decree was to be in terms of paragraph 4 of the plaint, wherein the shares were pleaded as under: “1. Defendant No.1 (widow) 1/8th share

4. After passing of the preliminary decree, Plaintiff No.2 – Mohd. Akhlaq has passed away, and his legal heirs have been impleaded as Defendant Nos.7(i), (ii), (iii).

5. Two of the Defendants, in whose favour the decree has been passed, are residents of Pakistan i.e. Defendant Nos.[4] & 5.

6. The suit, in view of the increase in the pecuniary jurisdiction of the Delhi High Court, was transferred to the District Court. Thereafter, the parties explored modes for partitioning the properties by metes and bounds, by appointing a local commissioner. The order dated 5th September, 2017 reads as under: “I heard arguments on the application made on behalf of the plaintiff under order 22 rule 4 (1) & rule 4 (4) CPC seeking therein exemption from substitution of LRs of deceased defendant no. 4. In the application it is stated that defendant no. 4, namely, Huma Bano died on 06.04.2016 at Lahore, Pakistan and during her life time, she did not file WS nor entered her appearance in the present suit despite service. Thus, the plaintiff has sought exemption from impleadment of LRs of deceased defendant no. 4. Application is supported by the affidavit. Let us go through the relevant provision of law as under Order 22 rule 4 (4) CPC says that- "The court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representative of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same and force and effect as if it has been pronounced before death took place" Considering the circumstances mentioned in the application and the above legal position in this regard, I exempt the plaintiff from impleading the LRs of deceased defendant no.4. Application accordingly, stands disposed of. Further, I heard arguments on the another application of the plaintiff under order 22 rule 4 (1) & rule 4 (4) CPC seeking therein exemption from substitution of LRs of deceased defendant no.- 6 Vinod kumar. In the application it is stated that defendant NO. 6, namely, Vinod Kumar, who was the tenant in one of the properties in question, has passed away and during his life time, he did not file WS nor entered his appearance in the present suit despite service. Thus, the plaintiff has sought exemption from impleadment of LRs of defendant no.6. Application is supported by the affidavit. Considering the circumstances mentioned in the application, I exempt the plaintiff from impleading the LRs of deceased defendant no.6 also. Application accordingly, stands disposed of. Further, Ld. Counsel for the plaintiffs made an application under order 26 rule 13 and 14 r/w section 151 CPC for appointment of Local Commissioner. In the said application it is stated that the present suit was filed for partition of two properties. However, by preliminary decree dated 14.12.2012, the suit was partly decreed in respect of partition of property bearing no. 7649, Gall MunshI Abdul Rahim Qureshi Nagar, Delhl-110006 and the suit for partition pertaining to other property was dismissed for which the appeal is pending before the Hon'bie High Court. Thus, the counsel for the plaintiff requested for appointment of a Local Commissioner to suggest the mode of partition in accordance with the shares defined in preliminary decree dated 14.12.2012 passed by the Hon'ble High Court. I heard the submissions and perused the record. In view of the submissions, I appoint Shri. Yashvant Singh, Advocate, Enrollment No. D/327/95 Chamber No.K-53, District Courts, Tis Hazari Courts, Delhi-54, Mobile Nos. (i) 9310096440 as Local Commissioner to visit and inspect the suit property property bearing no. 7649, Gali Munshi Abdul Rahim Qureshi Nagar, Delhi-110006. The L.C. shall submit his report, after taking suggestions from the parties to the suit, for partition of the abovestated suit property by metesand-bounds. Fees of the Local Commissioner is fixed at Rs.20,000/- to be borne by the plaintiffs. All the parties to the suit are directed to co-ordinate and cooperate with the Local Commissioner. The plaintiff shall also facilitate for LC's visit to the site.. Now, matter be listed for filing of status report by Local Commissioner/further proceedings on 26.09.2017 Copy of this order be given dasti to the parties.”

7. Vide the above order, it is evident the Court also granted exemption from substitution of the legal heirs of Defendant No.4 namely Mst. Huma Bano and Defendant No. 6 – Mr. Vinod Kumar.

8. The Local Commissioner, who was appointed, thereafter visited the property. Various parties including Mst. Najma Begum and Mst. Ayesha Nadeem were present and their presence, the local commission was executed. The Local Commissioner finally suggested that 1/3rd of the property could be sold by way of auction, and sale proceeds would be distributed between the legal heirs. Relevant portion of the report of the Local Commissioner reads:

9. After submission of the report of the Local Commissioner, which was dated 31st October, 2017, the matter continued to remain pending before the Trial Court as, repeatedly, on one ground or the other, the final decree was not passed. The Plaintiffs are aggrieved by the delay in passing of the final decree and further that recently, two orders have been passed by which the office of the Administrator General has been directed to appear and make submissions in respect of Defendant nos 4 and 5.

10. In order dated 19th January, 2019, the Trial Court has held that the estate of Defendant Nos.[4] & 5 has not been represented and hence, impleadment of the Administrator General would be necessary. This is challenged in CM (M) 1600/2019 on the ground that the Trial Court has completely changed the direction of the matter. The suit property did not belong to Defendant Nos.[4] & 5. Most of the legal heirs of the deceased are in India and only two of the legal heirs have moved to Pakistan. However, the preliminary decree needs to be given effect to, and hence the manner in which delay has been caused due to repeated procedural and technical issues is, irreparable injury is being caused to the Plaintiffs, who are all senior citizens. Mr. Mirza, ld. counsel submits that one of the Plaintiffs is over 70 years of age and Defendant No.1 has already passed away this year, thus, owing to the age of the parties, no purpose would be served in keeping the matter pending.

11. Ld. counsel appearing for the Administrator General submits that the position of the Administrator General is vacant at this point and so he does not have proper instructions in the matter. He further submits that he has no objection in being present at the time of auction.