Full Text
HIGH COURT OF DELHI
RAJIV GUPTA ..... Plaintiff
Through: Mr. Rajat Bhalla, Advocate.
(M:9811661193)
Through: Mr. Manish Vashisht, Mr. Sameer Vashisht, Mr. Manashwy Jha and Ms. Urvi Kapoor, Advocates for D-1 to 3.
(M:9013980691)
Mr. P. K. Agrawal, Ms. Mercy Hussain and Ms. Tannya Sharma, Advocates for D-4.
JUDGMENT
1. The present application arises out of a suit for partition, rendition of accounts and injunction involving the family of Mr. L. R. Gupta, a Senior Advocate of this Court. Mr. L.R. Gupta has three children- two sons and a daughter, namely Mr. Rajiv Gupta, Mr. Sanjay Gupta and Ms. Sumangli Gupta @ Sumangli Jain. The present suit was filed by Mr. Rajiv Gupta against Shri L. R. Gupta HUF -Defendant No. 1 and his father and siblings Defendant Nos. 2 - 4. On the first date i.e. on 18th November, 2003, summons were issued to all the Defendants in the ordinary manner as well as registered AD post, returnable on 2nd December, 2003. The summons were also issued dasti to Defendant Nos.[1] & 2. However, the summons 2019:DHC:5157 were accepted by their counsels. Thereafter various efforts were made for amicable resolution of the matter.
2. Vide order dated 9th January, 2006, a settlement was recorded, and the suit came to be decreed on an application filed under Order XXIII Rule 3 CPC. Almost one month after the decree was passed, the present application under Order XXIII Rule 3 CPC and Order IX Rule 13 CPC came to be filed by Ms. Sumangli Gupta – Defendant No.4, daughter of Shri L. R. Gupta seeking setting aside of the decree. The application was preferred on the ground that she had acquired knowledge from family sources of the present suit having been compromised. It is further averred that she had no knowledge of the suit and was also not aware that she had been impleaded as a party. When she tried to make enquiries with her father, her father’s reply was evasive and she was told not to interfere in his affairs. She then found out from the Plaintiff that the suit for partition had been filed and thereafter compromised.
3. It is claimed that thereafter she retained a counsel to inspect the court records, who informed her that a decree had also been passed in terms of the compromise application.
4. She also took the stand that the summons in the suit were never served upon her and that the other Defendants had colluded with each other to keep her out of the loop. She further claimed that she was entitled to her share in the family property in accordance with the Hindu Succession (Amendment) Act, 2005. She further claimed that there was no partition between the parties. She claimed that she was also informed that there were several litigations including land acquisition proceedings, which were being fought by the family and thus, the HUF could not have been wound up. She further claimed that the compromise was illegal, non est and was of no consequence. Since she had no knowledge of the suit, she could not appear to protect her interests. It is also claimed that even if she is deemed to have been served, she had not been proceeded ex-parte. None of the applications were served upon her, and since she was not a party to the compromise, the same is invalid and non est.
5. In the reply filed on behalf of Mr. L. R. Gupta and Mr. Sanjay Gupta to the application filed by Ms. Sumangli Gupta, it has been averred as under: That she always had knowledge of the present proceedings. She was married on 7th December, 1993 and was left with no rights in the property of her father, who is still alive. Since the suit itself stands compromised, the application is not maintainable. An oral family settlement had been arrived at between the members of the HUF, which was later reduced into writing on 21st October 1993, as per which the Plaintiff – Mr. Rajiv Gupta was given three properties along with Rs.3.75 crores. However, thereafter a further agreement was arrived at and certain other properties were also given and exchanged with Mr. Rajiv Gupta. In view of this settlement in October, 1993, the HUF ceased to exist after the said date. Since the HUF had ceased to exist, the provisions of Hindu Succession Act as amended in 2005, have no application. That the suit itself was filed by Mr. Rajiv Gupta in collusion with his sister Ms. Sumangli Gupta, who was aware of the suit all along. That Mr. Sanjay Gupta had filed a probate case being Probate Petition No.197/2005 titled as Sanjay Gupta v. State & Ors. claiming probate of Will dated 23rd March, 1980 and codicil dated 19th October, 1997 of Late Smt. Pramod Gupta – the mother. Ms. Sumangli Gupta had filed her objections to the said probate petition on 24th November, 2005, where there is clearly reference to the present suit. That in the second week of December, 2005, the terms of the compromise were, in fact, arrived at between Mr. Rajiv Gupta and the other Defendants in the presence of Ms. Sumangli Gupta and her husband – Mr. Sanat Jain, along with a common friend, Mr. S. K. Bhatia. That Ms. Sumangli Gupta always had notice of the probate petition, which was filed on 27th May, 2005. In the said proceedings, there was repeated reference to the present partition suit. The objections filed by Mr. Rajiv Gupta, which made reference to the partition suit were served upon Ms. Sumangli Gupta through her counsel, Shri Kalka Prasad Aggarwal. Thus, it is claimed that Ms. Sumangli Gupta always had notice of the various proceedings. She was, in fact, a party to the suit and the probate petition. Thus, she cannot claim ignorance of the pendency of the partition suit. That she has no legitimate right in any of the suit properties belonging either to her father or the HUF. That in fact, the only reason why Ms. Sumangli Gupta was impleaded in the present suit was in view of the fact that she was to succeed to a part of the assets of her mother. It is also submitted that Ms. Sumangli Gupta chose not to appear before the Court, and also chose not to file her written statement. However, she was attending the court proceedings on many occasions and used to support her brother Mr. Rajiv Gupta. Further, relying on the pleadings and objections filed by Ms. Sumangli Gupta in the probate petition, it is averred by the Defendant that Ms. Sumangli Gupta knew about the present partition suit all along.
6. In her rejoinder, Ms. Sumangali Gupta denied that any settlement had taken place in her presence. All the averments made by Defendants are denied.
7. On 18th May, 2009, while this application was being considered by this Court, an order came to be passed to the following effect: “IA No. 1571/2006 (of the defendant No.4 u/O 9 Rule 13 CPC) in CS(OS) No. 1968/2003 The counsel for the applicant/defendant No.4 is stated to be unwell. An adjournment is sought. Though the defendant No.4 was impleaded in the suit but the suit was disposed of on a compromise between the plaintiff and the defendants No.1 to 3. The defendant No. 4 has applied for setting aside of the said compromise decree. Prima facie, it appears that the right, if any, of the defendant No. 4 is by way of an independent suit/proceeding and not by way of this application. This observation is being made since adjournments have been taken in the application for the last nearly three years and which may be affecting the limitation for the independent right if any, of the applicant/defendant No.4 and to enable the defendant No.4 to exercise the choice, if any, immediately after today's order. List on 18th August, 2009.”
8. On 6th November, 2009 arguments were heard by a ld. Single Judge and judgment was reserved in the application. The same was, thereafter, placed before the ld. Single Judge, who had passed the compromise decree. The matter was then reverted to the Roster bench. A Mediator was also appointed in the matter. However, the disputes were not resolved. In the meantime, Ms. Sumangli Gupta also filed a suit for partition being CS (OS) 255/2011, which is also pending before this Court. On 3rd October, 2016 a ld. Single Judge of this Court considered the present application being I.A.1571/2006 and held that Ms. Sumangli Gupta cannot be allowed to pursue parallel litigations in respect of the same matter at the same time. Since none of the brothers or the parties in the said partition suit filed by Ms. Sumangli Gupta had taken a stand that the said suit for partition filed by her was not maintainable, she would be at liberty to agitate her rights in CS (OS) 255/2011. Thus, all the pending applications in the present suit were disposed of, including I.A.1571/2006.
9. This order was challenged before the ld. Division Bench. Vide order dated 25th April, 2017, the ld. Division Bench passed the following directions: “6. Having heard learned counsel for the appellant and the respondent nos. 1,[2] and 3, we are inclined to modify the impugned order dated 3.10.2016 and direct that the IA no. 1571/2006 under order IX, Rule 13 of the Code would be taken up for hearing afresh and be decided on merits. We have passed this order, in view of the statement made by the counsel for the appellant and the respondent Nos.[1] to 3 recorded below.
7. Learned counsel for the appellant has drawn our attention to the order dated 13.4.2015. The appellant had vide this order conceded that CS(OS) No.255/2011 would not be proceeded till the decision in CS(OS) No.1968/2003 i.e. application I.A. no. 15711/2006 and in case the said application is allowed, till the disposal of the suit. Learned counsel for the appellant has stated that CS (OS) No.255/2011 should remain stayed under Section 10 read with section 151 of the Code, till adjudication of IA No.1571/2006 and if the application is allowed till decision of CS(OS) No.1968/2003.
8. Learned counsel for the respondent Nos. 1, 2 and 3 has agreed to the said suggestion. He however, submits that the compromise and settlement between respondent nos. 1, 2 and 3 on the one side and respondent no.4 on the other side would be binding on the said parties.
9. We would only observe that the effect of the said compromise would be examined by the Court, if, considered necessary and required. We clarify that we have not made any comments/observations on merits.
10. The appeal is disposed of in the above terms. No costs.”
10. Thus, as per the Division Bench order, I.A.1571/2006 is to be heard afresh and has to be decided on merits and until then the suit for partition filed by Ms. Sumangli Gupta would not proceed.
11. The present I.A. was, accordingly, heard from time to time. On 15th February, 2019 the following order was passed in I.A.13004/2018 wherein the Defendant Nos. 2 and 3 have prayed that evidence should be led by Ms. Sumangli Gupta before I.A.1571/2006 is heard on merits: “I.A. 13004/2018 The allegations in I.A. 1571/2006 are that Defendant No. 4 – Smt. Sumangli Gupta @ Sumangli Jain had no knowledge of the present proceedings and that the present suit was disposed of on 9th January, 2006, behind her back. The Ld. Division Bench vide order dated 25th April, 2017 has directed that the said I.A. is to be heard by this Court, first. The Defendants have filed I.A. 13004/2018 alleging that Defendant No. 4 had complete knowledge of the proceedings and that she was, in fact, present in the Court at the time when the suit was disposed of. She also had knowledge of these proceedings due to other judicial proceedings, which were going on between the family members. In the facts and circumstances of the case, it is deemed appropriate to direct Smt. Sumangli Gupta @ Sumangli Jain to be present in Court for recordal of her statement.” Accordingly, Ms. Sumangali Gupta was directed to be present for recordal of her statement. On 3rd May, 2019, Ms. Sumangli Gupta appeared before this Court and submitted as under: “Statement of Ms. Sumangli Gupta, D/o Mr. L.R. Gupta, Age: 54 years, Add: 14, Anand Lok, 1st Floor, Front side, New Delhi-110049. On SA I have moved the application seeking setting aside of decree dated 9th January, 2006. Mr. L.R. Gupta is my father. I have two brothers, namely, Mr. Rajiv Gupta and Mr. Sanjay Gupta. I live in a portion of the first floor in property bearing No. 14, Anand Lok, New Delhi-110049. I came to know on 26th January, 2006 from my maternal uncle (Ravi Mama) about the present suit. In para 5 of the application, when I say that I was generally aware of the litigation, I meant that there were many land related cases of my father, for example in Masood Pur, Mehrauli, in respect of which cases were pending. I was aware of these litigations in the Court. My nick name is Gudiya. I do not remember the exact date as to when I spoke to my father about the present suit. I, then, retained Mr. Ajay Verma as my counsel. It is incorrect that my father had given me any information about the pendency of the suit and I came to know of the same after the compromise was entered into. It is correct that there was a probate/succession petition filed by Mr. Sanjay Gupta in which I have filed my objections. I did not come to know in that petition that the present suit was pending. That petition is still pending. I came to know that the suit was compromised, nearly 15 to 20 days after the compromise had been effected. Thereafter, I approached my lawyer. When I approached the lawyer, he took the status of the case from the internet. From my re-collection, I believe that the date when the decree was passed is 9th January,
2006. (The witness confirms the affidavit filed by her.) I am unable to identify Annexure D[1]. I do not know how to take print outs from the internet. Question:- How come when the suit was decreed on 9th January, 2006, the print out of the order placed on record is dated 2nd January, 2006. Ans: I do not operate the internet. I do not know how it bears the date of 2nd I am not sure about L.R. Gupta HUF, however, the compensation money was received in the name of all the five persons, namely, my parents, my two brothers and myself. It is correct that my brother, Mr. Rajiv Gupta, and me had a conversation on 12th November,
2009. In fact, I used to have regular conversations with Mr. Rajiv Gupta. I read the compromise application when my lawyer showed it to me. After that I had come to know that the compromise was entered into. I never visited the Delhi High Court prior to February, 2006”
12. After recordal of the statement of Ms. Sumangli Gupta on 3rd May, 2019, this Court directed as under: “Statement of Ms. Sumangli Gupta has been recorded. Registry to place on record a report as to the status of the various summons, which were issued, since inception in CS (OS) 1968/2003.”
13. The Registry, thereafter, put up a report on 16th May, 2019. After considering the said report, the following order was passed:
2. The Registry is also directed to check up the dak registers of the relevant period in order to further confirm the issuance of the summons, if any, to Defendant Nos.[3] & 4.
3. List on 26th July, 2019.
4. It is submitted that the person, whose name has been referred to in the statement of Mrs. Sumangli Gupta on the last date as her maternal uncle (Ravi mama), had passed away four years ago. Ld. counsel for Defendant Nos.[1] to 3 wishes to file an affidavit of his wife. Let the said Defendants move appropriate application seeking liberty to file the said affidavit.”
14. I.A.9972/2019 was thereafter filed by Defendant No.3 to place on record the affidavit of Smt. Kaushal Bansal to refute the statement of Ms. Sumangli Gupta. On 26th July, 2019, the said affidavit was taken on record and the I.A. was disposed of. Thereafter, judgment in I.A.13004/2018 and I.A.1571/2006 was reserved on the said date. Some proposals for settlement were again exchanged. However, since there was no settlement possible, the matter was reserved for judgment. Submissions of the parties
15. On behalf of Defendant No.4 – Ms. Sumangli Gupta, Mr. P. K. Aggrawal, ld. counsel has submitted that she was never served with the summons in the present suit. Under Order IX Rule 13 CPC, the Court can pass an order setting aside the decree firstly, if summons were not served or secondly, if a party was prevented by any sufficient cause from appearing in the suit. It is contended by him that the applicant was divorced from her husband some time in 2018. She has no children, and lives alone. It is one of the requirements under Order XXIII Rule 3 CPC that settlement has to be signed by all parties. It is clear from a perusal of order dated 9th January, 2006, when the decree was passed, that various misrepresentations were made by the Plaintiff. The ld. Division Bench’s order dated 25th April, 2017 is relied upon to argue that the application has to be decided on merits and merely because Ms. Sumangli Gupta has also filed a suit for partition and sought reliefs against her father and brothers, the present application cannot be disposed of on that ground alone. All the other parties have played a fraud upon the Court and thus, the order deserves to be recalled, and the compromise is liable to be set aside.
16. On behalf of Defendant Nos.[1] to 3, Mr. Manish Vashisht, ld. counsel submits that the applicant has made various false and incorrect submissions. She had complete knowledge that the present suit was pending as she was attending the court proceedings regularly and supporting her brother i.e. Mr. Rajiv Gupta. In fact, she used to sit in the court room on the Plaintiff’s side when the matter was being heard. It is further submitted that she had complete knowledge of the present suit, owing to the pleadings in the probate case filed by Mr. Sanjay Gupta. In the said probate case, she was served with the objections filed by her brother, wherein there was clear mention of the present suit. A copy of the said objections was also served upon her counsel. He further submits that in 2007, efforts to set aside the compromise decree were made by Mr. Rajiv Gupta by filing I.As.11162/2006 and 1004/2007. These applications of Mr. Rajiv Gupta were dismissed. Reliance is placed on the written submissions filed by Shri Rajiv Gupta where he categorically states that Ms. Sumangli Gupta, who was known as Ms. Sumangli Jain at that time was well aware of the present proceedings. Further, reliance is placed on the cross-examination, wherein the version given by the applicant is different from what has been stated by her in the application, as also in the statement recorded on 3rd May, 2019. He submits that in the said cross-examination, she admits that she was always apprised by her lawyer of the proceedings in the probate case. In the crossexamination, she does not mention anything about her uncle (mama) informing her of the partition suit. Finally, it is submitted that the entire attempt of the applicant is to claim a share in the property and to somehow get the compromise decree set aside in order to benefit her brother-Mr. Rajiv Gupta, the Plaintiff. He has also relied upon the following judgments.
(i) Dinesh Chandra Mahendra v Adarsh Priya Srivastava 2008
(102) DRJ 482
(ii) Pranesh Gupta & Anr. v Jagdish Bansilal Khurana CS(OS)
17. None has appeared on behalf of Mr. Rajiv Gupta. Written arguments have been filed by him on record, wherein it is specifically stated by him that the applicant has been suitably compensated, as she has been given two flats in Anand Lok by her father and is also earning rent from one of the flats. She, in fact, resides in one of the flats. She has also been given money and jewellery. The applicant had entered appearance in Probate case No.197/2005 wherein she had objected to the Will and Codicil of the mother - Mrs. Pramod Gupta. It is stated that the pendency of the present suit was disclosed in the said probate petition. Thus, it is incorrect for her to claim that she was not aware of the pendency of the present suit. Findings
18. This Court has perused the original record in order to satisfy itself as to the proceedings that have actually taken place in the suit since its filing, as also whether Defendant No.4 was actually served or not. The office noting in file i.e. Part-V of the suit record shows that the summons were issued on the first date in the present suit. Vide order dated 18th November, 2003, two sets of summons were added and were issued dasti in addition. The said summons were issued to the Defendants on 2nd The noting of the dealing assistant reads as under: “2 set summons issued. Service awaited.”
19. Since defendant 1 and 2 had accepted summons, only two sets of summons i.e., to Defendants 3 and 4 were issued. Again, on 16th January, 2004 pursuant to the order dated 13th January, 2004, three sets of notices were issued in I.A.172/2004 under Order XII Rule 6 CPC. Similarly, on some occasions when notice was issued in a few applications, notices were issued by the Registry. Process fee form, which has been filled up by the Plaintiff’s counsel, also states that the same is being filed for service on Defendant Nos.[3] & 4. The original record does not, however, have any service report of the process server stating that the summons were returned served on Ms. Sumangli Jain at her Niti Bagh address, as is mentioned in the memo of parties.
20. This Court has called for the report of the Registry in respect of service of Defendant No.4. The Registry was asked to verify the dak register, as also the other records available in the Court as to the service of Defendant No.4. The Registry has stated, in its report dated 9th May, 2019 that summons were issued to Defendant Nos.[3] & 4 for 2nd
21. Thereafter only notices have been issued in the applications. The dak register pertaining to 2003 has been weeded out. Vide order dated 16th May, 2019, further checking was directed to be done by the Registry and it is reported that the dak register of the Registry for the relevant period was misplaced during the shifting of the branch and that efforts have been made to trace out the register. Thereafter, the Registry has not placed any further report on record.
22. The conclusion that can be arrived at from a perusal of the original record of the Court is that the summons were, in fact, issued to Defendant Nos.[3] & 4. Since Defendant Nos.[1] & 2 had accepted the summons on the first date, two sets of the summons were prepared and issued, however, the returned service report is not available on record.
23. The Court is, therefore, constrained to decide the application without the complete record of the Registry including the dak register of 2003, which would have conclusively established as to whether the summons, which were issued to Defendant No.4, were served or not.
24. The provisions of Order IX Rule 13 CPC read as under: “13. Setting aside decree ex parte against a defendant In any case in which a decree is passed ex parte against a defendant he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him on such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: [Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.] [Explanation- Where there has been an appeal against a decree passed ex parte under this rule and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.]
25. As per the above provisions, setting aside of the decree can be sought on the following grounds: (1) If the summons were not duly served, or (2) If the Applicant – Ms. Sumangli Gupta was prevented by sufficient cause from appearing when the suit was called for hearing.
26. However, there are two provisos to the said provisions. Under the first proviso, the decree can be set aside against any or all of the Defendants, if it cannot be set aside against only one Defendant. Under second proviso, by way of amendment in 1997, it was provided that the decree would not be set aside merely on the ground that there was irregularity of service, if the Court is satisfied that the Defendant had knowledge of the hearing and had sufficient time to appear and answer the claims in the suit.
27. On an overall conspectus of the provisions, the question simply is not one as to service or non-service of the summons, but as to whether the applicant Ms. Sumangli Gupta had knowledge of the filing of the present suit and had sufficient time to appear before the Court or was prevented by sufficient cause from appearing before the Court.
28. This is settled law, as held in various judgments including Sunil Poddar v Union Bank of India (2008) 2 SCC 326 wherein the Court has held as under:
29. Thus, mere irregularity in service of summons would not result in setting aside of the ex-parte decree, especially if the party had knowledge of the litigation. In the background of this legal position, in the facts of the present case, it is to be considered whether sufficient grounds are made out for setting aside the compromise decree dated 9th
30. The application under Order XXIII Rule 3 CPC has been signed by the Plaintiff – Shri Rajiv Gupta, and Defendant No.2 on behalf of himself and Defendant No.1, as also Defendant No.3. Each of the pages is signed by the father and two sons. The application is accompanied by the affidavits of Mr. Rajiv Gupta, and Mr. L. R. Gupta, on behalf of himself and the HUF, as also Mr. Sanjay Gupta. After recording the entire settlement from paragraphs 1 to 31, in paragraphs 32 & 33, the applicants state as under:
31. It is further prayed that the suit be disposed of in terms of the compromise.
32. At the time when the compromise was recorded on 9th January, 2006 before the ld. Single Judge, Mr. L.R. Gupta, the father was personally present before the Court. Insofar as the Defendant No.4 i.e. the applicant Ms. Sumangli Gupta is concerned, the Court records as under: “Insofar as defendant No.4 is concerned, the learned counsel for the plaintiff states that no relief is claimed against the defendant No.4 and the learned counsel for both the plaintiff as well as the defendants state that there is no dispute with regard to defendant No.4 who happens to be the daughter of Mr L.R. Gupta, the defendant No.2, and the sister of the plaintiff and she has also not chosen to appear in these proceedings throughout, despite service. Therefore, this compromise which is being effected is essentially between the plaintiff on the one hand and defendants 2 and 3 on the other hand. Other terms of the compromise are set out in the application which is exhibited as Exhibit C-1.”
33. This Court was conscious of the fact that the Plaintiff does not claim any rights against Defendant No.4. In effect, therefore, on the said date the suit qua Defendant No.4 stood dismissed. The compromise was entered into only between the Plaintiff and Defendant Nos.[1] to 3, as the Court specifically records that the compromise is essentially between these three parties, and the observation of the Court in respect of non-appearance of Defendant No.4 “despite service” is an observation in passing and does not have any bearing on the merits of the case, inasmuch as in the earlier portion of the said order, the Court records that no relief is claimed against Defendant No.4.
34. Thus, insofar as the rights of Defendant No.4 are concerned, either to challenge the settlement arrived at between her father and brothers or claim any other rights which she may have, are not effected in any manner.
35. Coming to the question as to whether Defendant No.4 had knowledge of the present suit, it is not in dispute that the Plaintiff has taken a categorical stand that she was all along aware of the pendency of the present suit. A transcript of a telephonic conversation recorded on 12th January, 2009 is sought to be placed on record. However, since the veracity of the said transcript has not been tested by the Court, the same is not being considered.
36. The Court has considered the pleadings in the probate petition, wherein the Applicant was a party. The said probate petition was filed by Mr. Sanjay Gupta against his siblings, father and sister. In the said probate petition, the objections filed by Mr. Rajiv Gupta specifically averred as under:
10. That the codicil dated 19.10.1997 has been prepared after 10.11.2003 and before 2.12.2003 i.e. after the filing of the suit No. 1968 of 2003 in the Hon’ble High Court of Delhi and before the filing of the application being I.A. no. 11862/2003 under Order
37. In her cross examination on 3rd April, 2018 conducted in the said probate case, the Applicant stated as under: “03.04.2018 Statement of RW-1-Smt. Sumangli Jain, W/o Sh. Sanat Jain (recalled for cross-examination after 12.11.2013) On S.A. XXXXXX by Sh. Manish Vashisht, Advocate for the petitioner. … I am not aware of as to when my brother Sh. Rajiv Gupta had instituted a suit 1968 of 2003 in the High Court of Delhi. I never received any copy of the said suit filed by Rajiv Gupta. The witness has been shown a certified copy of Ex. PW 2/4 which is the judgment dated 09.01.2006, an application under Order XXIII Rule 3 CPC with index dated 06.01.2006 running into 27 pages, and has been asked the following question:-
38. In the above statement she admits that her counsel always appraised her about the proceedings in the Probate. However, while admitting this, she denies having seen the objections filed by Mr. Rajiv Gupta which specifically mentioned the filing and pendency of the present suit. The statement given by the Applicant in the above cross-examination shows that the applicant is making a deliberate effort to somehow resile from the fact that she had not read the objections filed by Mr. Rajiv Gupta in the probate petition.
39. Further, her version as recorded in the said cross-examination, is different from what is stated by the Applicant in her statement to the Court on 3rd May, 2019. In the statement made before the Court, she has specifically averred that she acquired knowledge about the present suit from her maternal uncle, Ravi mama. She states that her father did not inform her about the pendency of the present suit. She admitted that she has filed objections in the probate case filed by Mr. Sanjay Gupta, which is still pending. She admitted to having regular conversations with her brother – Mr. Rajiv Gupta.
40. A perusal of the order sheet in the probate case shows that on the date i.e. 29th September, 2005, the counsel for Ms. Sumangli Gupta was present. He was again present on 24th November, 2005 when the objections of Shri Rajiv Gupta were filed. The said two orders read as under: Order dated 29th September, 2005 “29/9/2005 Present: - Shri Samir Vasisht, Adv. On behalf of petitioner Shri Rajiv Gupta – respondent in person Shri Kalka Prasad,Adv. For Sumangli Jainrelation Shri RS Kela, Adv. On behalf of relation LR Gupta. Publication and citation effected. Collector served. Valuation report not received. Issue notice to the collector u/o.16 rule 12 CPC vide PF and copies. Affidavit of No objection on behalf of LR Gupta filed. An application u/Section 151 CPC has been filed on behalf of Sumangli Jain for filing Original Will and codicil. Let the same be filed by the petitioner within two weeks and objection if nay be filed by the respondents after inspection of the record by the next date. To come up on 24/11/2005. ” Order dated 24th November, 2005 “Counsel for Petr as well as Objector Rajiv Gupta, LR of Ms. Sumangli Jain and for Resp. NO. 1. Objections filed. Copy given. To come up for filing reply to objections List for framing of issues on 31-1-06”
41. The above two orders clearly establish that the Applicant - Ms. Sumangli Gupta was actively participating in the probate proceedings. She was also served with a copy of the objections filed by Mr. Rajiv Gupta, which had elaborately dealt with the pendency of the present suit and various applications filed in the present suit. She thus had clear notice of the filing of the present suit. All parties to the present suit were parties to the Probate petition. The applicant was duly represented by counsel who were advising her. In the probate proceedings there is detailed reference to the present suit.
42. Moreover, from the replies etc., which have been filed by the other Defendants and the written submissions filed by the Plaintiff, it is not possible to accept the position that the applicant was not aware of the pendency of the present suit. The applicant had knowledge of the present suit and there was nothing that prevented her from entering appearance. In terms of the settled legal position, as held in Sunil Poddar (supra), the applicant cannot be held to have no knowledge of the present suit. The application for setting aside of the compromise decree is thus not liable to be entertained. The rights and remedies of the applicant in the suit for partition, are, however, left open. The application is, accordingly, dismissed. I.A.13004/2018
43. This is an application praying that evidence ought to be led before adjudication of the application I.A.1571/2006. The said I.A. has been dismissed, hence the present application stands infructuous and is disposed of accordingly.
PRATHIBA M. SINGH JUDGE OCTOBER 10, 2019