Interim Order 7

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: CS DJ NO. 307/23
JODHRAJ Vs. GOPAL AND ORS.
28.02.2024
Present : Sh. Nitya Sharma, Ld. Counsel for plaintiff along
with the plaintiff.
Ms. Savita Yadav, Ld. Counsel for the defendants
no. 3 Meena, 5 Poonam, 6 Susheel and 7 Deepak
along with defendants no. 3, 6 and 7 in person.
Sh. Anil Nitin Ld. Counsel for defendants no. 1, 2, 8
to 16 along with defendant no. 1, 2, 8, 11, 13 and 16
in person.
Sh. Parikshit Mahipal, Ld. LA C for the defendant
no. 4 along with defendant no. 4 in person.
The matter is listed for framing of issues, however an
application under Order 8 Rule 9 and 10 r/w Section 151 CPC and
Section 5 of the Limitation Act for setting aside and recalling order
dated 27.09.2023 and seeking the written statement of the defendant
no. 4 to be taken on record was filed in between on behalf of the
defendant no. 4 along with the written statement of the defendant no.
4.
Ld. Counsel for the plaintiff has advanced arguments on
the application straightaway.
Arguments have been advanced by Ld. Legal Aid
Counsel (LAC) for the defendant no. 4 as well.
It is averred in the present application that due to
financial constraints the defendant no. 4 could not engage a private
counsel and hence, requested the Ld. Predecessor that he required
legal aid facility and was advised to approach DLSA. On 04.08.2023,
the defendant no. 4 was provided LAC and he requested the LAC to
file the written statement but due to certain circumstances the WS
could not be filed. On 27.09.2023, the defence of the defendant no. 4
was struck off. Being a layman the defendant no. 4 was not aware
about the nonfiling of his WS and approached the legal aid cell again
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(2)
and got transferred his case from the earlier counsel to the present
counsel on 23.02.2024. Reference to the judgments of Hon’ble
Supreme Court of India titled as Bharat Kalra Vs. Raj Kishan
Chabra CA No. 3788 of 22 dated 09.05.2022, Kailash Vs. Nanhku &
Ors. Vs. AIR 2005 SC 2441 (2005) 4 SCC, Shaikh Salim Haji Abdul
Khayumsab Vs. Kumar AIR 2006 SC 396 (2006) 1 SCC 46 and R.
N. Jaidi Vs. Subhash chandra AIR 2007 SC 2571 (2007) 6SCC has
been made in the present application. It is prayed that the order dated
27.09.2023 may be recalled and the delay of more than 120 days may
be condoned and written statement of the defendant no. 4 may be
taken on record.
Ld. LAC for defendant no. 4 has reiterated the
averments made in the present application, in the oral arguments
advanced. Ld. Counsel for the plaintiff on the other hand, submits that
the grounds taken in the present application are frivolous and not
supported by any documentation in as much as it is not the case that
the defendant no. 4 filed any complaint regarding the previous LAC
for nonfiling of his WS.
Heard. Perused.
Record shows that the defendant no. 4 was duly served
with the summons on 12.05.2023. It was only on 19.07.2023, after the
statutory period of 30 days had expired, that the defendant no. 4 made
the submission that he required the legal aid facility and was advised
to approach DLSA.
On the same date, Ld. Predecessor Court gave last
opportunity to the defendants who had not filed the WS till then for
filing the WS within three weeks from that date. Inspite of the
opportunity so granted, the defendant no. 4 failed to file the WS and
on 27.09.2023, the defence of the defendants who had not filed the
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(3)
WS (which includes the defendant no. 4 ) was struck off. As to what
were the circumstances due to which the WS of the defendant could
not be filed by the previous LAC are nowhere mentioned in the
present application. It is well settled that ignorance of law is no
excuse. The defendant no. 4 was required to file the WS within the
statutory period or atleast the extended time period which had been
granted by the Ld. Predecessor Court but he failed to do so, to his own
peril.
Furthermore, the order striking off the defence of the
defendants who had not filed the WS was passed on 27.09.2023 and
the application for setting aside of such an order should have been
filed within 30 days therefrom, but the present application has been
filed only on 27.02.2024, without any cogent reason being provided
for the same in the entire application. The judgments relied on by the
defendant no. 4 are authorities for what they hold, however are
distinguished on facts as in the present case, the defendant no. 4 has
not been able to show any sufficient cause warranting condonation of
delay in filing of the WS.
Consequently, the application of the defendant no. 4
under Order 8 Rules 9 and 10 r/w Section 151 CPC and Section 5 of
the Limitation Act stands dismissed. The WS of the defendant no. 4 is
hence not taken on record.
The pleadings are complete.
From the pleadings of the parties and documents on
record, the following issues are framed:
(1) Whether Late Ratan Lal and Late Dhapo Devi
were the owners of the suit properties bearing no. O8979,
Shidipura, Gali no. 14, Raja Lane, Karol Bagh, Delhi and no. O
8855, Shidipura, Gali no. 14, Raja Lane, Karol Bagh, Delhi? OPP
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(4)
(2) Whether the plaintiff is entitled to a preliminary
decree of partition in relation to both the suit properties?OPP
(3) Whether the plaintiff is entitled to a decree of
permanent injunction against the defendants as sought in prayer
clause (d) of the plaint?OPP
(4) Whether the suit property bearing no. O8979,
Shidipura, Gali no. 14, Raja Lane, Karol Bagh, Delhi was owned by
brother of Late Dhapo Devi disentitling the plaintiff from seeking
partition thereof? OPD 3, 5, 6 & 7
(5) Relief.
No other issue arises or is pressed for. List of witnesses
be filed by the plaintiff by the next date of hearing with advance copy
to the opposite parties.
Affidavits of all the witnesses whom the plaintiff wishes
to examine be filed by the next date of hearing with advance copy to
the opposite party.
Put up for PE on 22.05.2024 at 12:00 noon.
(Anjani Mahajan)
ADJ12 Central, THC,
Delhi/28.02.2024
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