Jyoti Rajinder WijVsDeepak Yagdutt Bhatia and Ors.

Date: 16-02-2018
Business: PO is on training.
Adjd to 16.4.2018
Next Purpose: FRAMING ISSUES
Next Hearing Date: 16-04-2018

Date: 16-04-2018
Business: At 11.00am
Adv. Vyas for defendant no.6 present.
L.O. at 2.45pm.
Adv. Ram Singh for Defendant no.9 present.
He tendered register N/M no.574/18.
Adjd. to 25/06/2018 for N/M service / Reply.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 25-06-2018

Date: 25-06-2018
Business: As court is on leave
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 21-07-2018

Date: 21-07-2018
Business: H. H. J. is Nominated as trainer for training on Mediation hence today Board is discharged
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 27-08-2018

Date: 27-08-2018
Business: Adv.Mr.Upadhyay for Plff.present.
Adv.Mr.R.U.Singh for deft.present.
Adv.Ms.Lata Kharva for Deft.no.6 present.
Adjd.for N/m service on 03.09.2018.
Next Purpose: SERVICE
Next Hearing Date: 03-09-2018

Date: 03-09-2018

Date: 12-09-2018
Business: None for Plaintiff.
Adv.Mr.Ram Singh for defendant present.
Adjd.for N/m hearing on 17.09.2018.
Next Purpose: NM FOR HEARING
Next Hearing Date: 17-09-2018

Date: 17-09-2018
Business: Adv. Mangesh Patel for the  Plaintiff present.
Adv.Ramsingh  for the  defendant present.
Adjd. To 21/09/2018 for Notice of Motion reply
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 21-09-2018

Date: 21-09-2018
Business: None for Plaintiff.
Adv.Mr.Vaibhav Singh for Deft.no.9 present.
Adjd.for N/m reply on 23.10.2018.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 23-10-2018

Date: 23-10-2018
Business: Adv.Mr.Mangesh Patel for Plff.present.
None for defendant.
Adjd.for N/m reply on 15.04.2019.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 15-04-2019

Date: 15-04-2019
Business: Adv. Mangesh Patel for Plaintiff present.
Adv. Ramsingh for Defendant no.9 present.
Adv. Kavita Rajpurohit for Defendant no.6 present.
Ld. Adv for Plaintiff submitted that appeal filed by one of the defendants in relation to temporary injunction order passed by this Court has been dismissed recently and she has yet not received certified copy of said order and requested to grant time to file reply. In the facts of matter, short time is granted to file reply as last chance.
Adj for reply to 24.04.2019.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 24-04-2019

Date: 24-04-2019
Business: Plff and Adv absent.
Adv. Gandhi with Adv. R.U.Singh for Defendant no.9 present.
Adv. Kavita Raj Purohit for Defendant no.6 present.
Adj for NM reply to 30.04.2019.
L.O.
Plaintiff is Senior citizen. In view of office order No.66 of 2019 dtd.04.04.2019 and also in view of oral communication from department, present case is to be forwarded to Court Room no.9.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 30-04-2019

Date: 30-04-2019
Business: Plff and Adv absent.
Adv. Kavita Rajpurohit for Defendant no.6 present.
Adv. Ram Singh for Defendant no.9 present.
K.B.
L.O.
Plaintiff and her Adv are absent.
Plff failed to file reply to NM of defendant no.9.
Therefore, NM No.574/18 is to proceed without reply of Plaintiff and matter is adj for NM hearing to 03.05.2019.
Next Purpose: NM FOR HEARING
Next Hearing Date: 03-05-2019

Date: 03-05-2019
Business: Adv. Mangesh Patel for Plaintiff present.
Adv. Arvind Mishra for Defendant no.9 present.
Adv. Kavita Rajpurohit for Defendant no.6 present.
Plaintiff filed application for taking reply on record t.o.r.
He also annexed reply to said application.
Other side to say.
Adj for hearing to 03.06.2019.
Next Purpose: NM FOR HEARING
Next Hearing Date: 03-06-2019

Date: 03-06-2019
Business: Matter is already transferred in CIS to C.R.no.2 but physically record could not be sent as it is lying in copying section.
Adv. Mangesh Patel for plff present.
Adv. Ram Singh for deft no.9 present.
Adj for NM hearing to 13.06.2019.
Next Purpose: NM FOR HEARING
Next Hearing Date: 13-06-2019

Date: 13-06-2019
Business: Matter is already transferred in CIS to C.R.no.2 but physically record could not be sent as it is lying in copying section.
Plaintiff and his Adv absent.
Deft and his Adv absent.
Hence, adj for NM hearing to 17.07.2019.
Next Purpose: NM FOR HEARING
Next Hearing Date: 17-07-2019

Date: 17-07-2019
Business: None present for Plaintiff.
Advocate Mr. P. D. Gandhi for Defendant no.9 present
L.O.
At 3.25 p.m. after writing extension letter to Hon\''ble High Court, advocate Mr. Patel for Plaintiff present.
Heard advocate Mr. Gandhi in respect of NM no.574/18 filed by Defendant no.9.  In the first part of argument he referred order dated 24/08/2018 passed by Hon\''ble High Court in NM no.396/17 in commercial suit no.524/17.  It is submitted that in view of said order Defendant no.9 has taken out this NM.  By referring para nos.5,6,7 of the plaint and prayer clauses from the plaint advocate Mr. Gandhi continued with his argument and submitted that order dated 26/06/2015 was obtained by Plaintiff without serving writ of summons and the NM upon Defendant no.9.  Mr. Gandhi also referred roznamas dated 25/06/2015 and 26/06/2015.  Advocate for Defendant no.9 referred page no.67 annexed to the affidavit filed in support of NM. Said declaration is signed by Plaintiff by accepting amount of Rs.2 Lakhs from Plaintiff\''s brother Chandrashekhar and Defendant no.9.  The conveyance deeds of suit property from survey no.62 are also referred and it is argued that properties in question were purchased by mother of Plaintiff and mother of Chandrashekhar. The mother of Chandrashekhar has executed Will deed and bequeathed in favour of Chandrashekhar the properties in question to which Defendant no.9 is related.  Advocate Mr. Gandhi also referred various documents annexed to the plaint and to the affidavit filed in support of NM.  According to Mr. Gandhi Plaintiff has obtained order dated 26/06/2015 by playing fraud upon the court and by misleading the Court.  It is pertinent to note here that in the course of argument court has raised the query with advocate for Defendant no.9 that whether Chandrashekhar has obtained the probate in respect of the Will deed allegedly executed by Mother of Chandrashekhar. Advocate Mr. Gandhi fairly submitted that such a probate is not obtained by Chandrashekhar however, such a probate is not necessary in view of declaration which was allegedly signed by Plaintiff  by obtaining Rs.2 Lakhs from Chandrashekhar. Lastly, by referring bank statement of Defendant no.2 Chandrashekhar it is pointed out that amount of Rs.2 Lakhs was debited from the account of Chandrashekhar in the name of Plaintiff, hence according to advocate Mr. Gandhi NM filed by Defendant no.9 is necessary to be made absolute.   It is also pointed out that probate was not necessary to be obtained by Chandrashekhar because all the brothers and sisters of Plaintiff have signed declaration as like Plaintiff and therefore Will deed in question does not remain in existence.
   In reply advocate Mr. Patel has referred the order passed by Hon\''ble High Court in AO stamp no.26251/15, CA no.1369/15 and pointed out that said appeal filed by Defendant no.6 was dismissed in default, hence according to advocate Mr. Patel this Court can not make absolute the NM filed by Defendant no.9 as this Court has become functus officio in view of dismissal of appeal no.26251/15, CA no.1369/15.  Advocate Mr. Patel referred the letter of administration which is filed along with plaint and pointed out that the property in question was owned by Plaintiff\''s father therefore only the letter of administration in respect of property of Plaintiff\''s father was granted in favour of Defendant no.1.   advocate Mr. Patel referred page no.17 annexed to the affidavit filed in support of NM and it is argued that said mutation entry no.990 is pertaining to survey no.62 in which the property in question is situated.  It is pointed out that in said mutation entry name of Plaintiff is appearing as co owner in respect of land from Survey no.62.  Hence, according to  advocate Mr. Patel Plaintiff has not played any fraud upon court and Plaintiff\''s claim is perfectly proper.  Lastly, it is argued on behalf of Plaintiff that alleged declaration is challenged by Plaintiff in this suit on the ground that Defendant nos.1 and 2 have played fraud upon Plaintiff and made her false signatures upon alleged declaration and other documents.  Hence, according to advocate Mr. Patel as Chandrashekhar himself was not having authority to enter into any agreement with Defendant no.9 no question arises of setting aside order dated 26/06/2015 passed by this court.  At 5.15 p.m. advocate Mr. Patel submitted that he will point out few documents to the court in respect of Plaintiff\''s legal claim and in respect of falsity of contentions raised by Defendant no.9.
   Meanwhile, advocate Mr. Gandhi has replied arguments of advocate Mr. Patel and submitted that the letter of administration is not related to the property in which Defendant no.9 is claiming his interest on the contrary said letter of administration is related to the property having different City Survey numbers.  Advocate Mr. Gandhi further submitted that the fact that Chandrashekhar has not obtained probate will not be helpful to Plaintiff because Plaintiff with her all brothers and sisters have had executed the declaration for transactions with Defendant no.9 and other Defendants. At 5.25 p.m. case is adjourned to 22/07/2019 for further arguments by  advocate Mr. Patel.
Next Purpose: ARGUMENT P.H.
Next Hearing Date: 22-07-2019

Date: 22-07-2019
Business: Advocate Mr. Patel for Plaintiff present
Advocate Mr. P. D. Gandhi for Defendant no.9 present
Advocate Mr. Patel submitted that when order dated 26/06/2015 was passed admittedly as contended by Defendant no.9 service was not made on Defendant no.9. This suit was originally filed before Hon\''ble High Court as suit no.29/12.  However summons were sent through Sheriffs office and envelopes to that effect with list will be filed.  On 26/07/2012 matter was moved before Hon\''ble High Court and Defendant nos.1 to 6 through their advocate appeared before Hon\''ble High Court and Defendant no.1 to 9 sought time to file their reply to NM.   Hence matter was adjourned and meanwhile it is transferred to this Court.  On 25/06/2015 this Court passed order on NM of Plaintiff.  Advocate Mr. Patel referred NM no.4137/15, page no.1 para no.2 of its affidavit and argued that it shows that plaint and NM was not served upon Defendant no.9.  In said para Plaintiffs attorney stated that address and name of Defendant no.9 was shown wrong but said attorney admitted Mr. Ratilal as same person as Defendant no.9.  Advocate Mr. Patel referred Order 7 Rule 1(c) of CPC and pointed out that as per said rule provides that name, description and place of residence of Defendant so far as they can be ascertained.  Para 8 of Said affidavit is also referred and it is pointed out that in said para said attorney stated that Defendant no.9 came to know about service from Defendant no.2.  Hence, it becomes clear Defendant no.9 had watch upon the proceedings before the Court and he approached to the Court with motion and Written Statement after disputed order came to be passed.  Even though Defendant no.9 contended that there was no service of summons upon him he has filed detailed Written Statement hence this conduct shows that Defendant no.9 has knowledge of this suit and he had joined his hands with Defendant no.2.  It is pointed out that NM no.4137/15 was filed in 2015 and NM no.574/18 was filed in January 2018 i.e. about 3 years of previous NM.  Order of 26/06/2015 is appealable order.  Inspite of it Defendant no.9 has not filed appeal.  Further, this NM was possible to be filed immediately after 26/06/2015.  Article 123 and 124 of the Limitation Act both provide limitation for such appeal as 30 days from date of knowledge of such order.  Affidavit of this NM is drafted cleverly to avoid explanation about limitation and theory of fraud is pleaded.  Hence, alleged fraud can not be believed unless it is proved.
Declaration at page no.184 of plaint and page no.67 of affidavit in support of NM reply are necessary to be compared.  Signatures of Plaintiff and signatures of Plaintiff from page no.185 of plaint and page no.69 of affidavit are different.  Both documents were executed with the help of different advocates and different notaries. Further, both those documents do not have serial numbers mentioned by notaries.  As such, according to advocate Mr. Patel fact about preparation of false documents by Defendant no.2 is pleaded in plaint and NM.  Hence, alleged fraud can not be believed.  It is argued that Defendant no.6 and 9 are selling in same boat.  Hence Defendant no.9 is not bonafied purchaser.
Para no.2, page 68 of affidavit in support of NM is referred and it is pointed out that Plaintiff has specifically referred the Will in question and it is stated that said Will is not probated.  Defendant no.9 can not claim any right on the basis of non-probated Will. Page no.11 of affidavit of NM is referred and it is pointed out that Defendant no.9 is intending to rely upon disputed Will.  Hence, Defendant no.9 who has purchased suit property can not have benefit of his innocence about not obtaining probate of disputed Will.  Page no.194 of plaint is referred.  It is dated 06/12/2010 and its para no.4 shows that in said paragraph complaint about breach of trust was made by Plaintiff against Defendant no.2 long back in the year 2010.  Para no.5 from page no.195 refers for payment of distribution of collect rent by Defendant no.2 hence according to advocate Mr. Patel amount of Rs.2 Lakhs referred in page no.67 of affidavit of Defendant no.9 may be such rent amount.  Page no.28 of plaint i.e. notice dated 23/10/2009 is referred and it is argued that prior to filing complaint Plaintiff sent notice to Defendant nos.1 and 2.  Defendant no.1 and 2 have not replied said notice.  Defendant no.2 can not rely upon declaration which is at page no.67 of affidavit of Defendant no.9.  It is argued that Defendant no.9 has nothing to show that Plaintiff has obtained disputed order dated 26/06/2015 by misleading court.  Lastly advocate Mr. Patel referred 3 case laws and 2 more case laws academically and submitted that the NM is necessary to be dismissed.
In rejoinder, advocate Mr. P. D. Gandhi submitted that prayer clause C from the plaint is drafted with loose words, declaration about bundle of documents is claimed without giving specification of such documents, without explaining the valuation of the properties from such documents.  It is also argued that NM no.4137/15 was filed for condonation of delay for accepting Written Statement and this NM is taken out for setting aside varying order dated 26/06/2015, hence article 123 and 124 of Limitation Act can not be made applicable in this case.  Lastly, advocate Mr. Gandhi submitted that Plaintiff has not explained anything in the plaint about the amount of Rs.2 Lakhs received by her from Defendant no.2 hence, said silence of Plaintiff can be considered as her admission.
Case is adjourned to 31/07/2019 for Order on NM.
Next Purpose: NM  ORDERS
Next Hearing Date: 31-07-2019

Date: 31-07-2019
Business: None present for Plaintiff.
Advocate Mr. Ram Singh for Defendant no.9 present
Order in respect of Notice of Motion no.574 of 2018 is partly dictated.
Case is adjourned to 01/08/2019 for Order on Notice of Motion no.574/18.
Next Purpose: NM  ORDERS
Next Hearing Date: 01-08-2019

Date: 01-08-2019
Business: None present for Plaintiff.
None present for Defendants.
F.R.S.R. following order has passed-
                                     ORDER
Notice of Motion no.574 of 2018 stands disposed off / dismissed.
Parties are directed to file draft issues on next date.
Case is adjourned to 03/10/2019 for draft issues.
Nature Of Disposal: DISMISSED
Disposal Date: 01-08-2019

Main Case No: SUIT/0102489/2012
Main Cnr: MHCC010054072011
Main Filing No: 111447

Registration Number: 100574/2018
Transfer Date: 16-05-2019
From Court: 2 - COURT 02 ADDL SESSIONS JUDGE
To Court: 9 - COURT 09 ADDL SESSIONS JUDGE

Registration Number: 100574/2018
Transfer Date: 03-06-2019
From Court: 9 - COURT 09 ADDL SESSIONS JUDGE
To Court: 2 - COURT 02 ADDL SESSIONS JUDGE

Registration Number: 100574/2018
Transfer Date: 13-06-2019
From Court: 2 - COURT 02 ADDL SESSIONS JUDGE
To Court: 9 - COURT 09 ADDL SESSIONS JUDGE

Filing Number: 102350/2018
Filing Date: 12-02-2018
First Hearing Date: 16th February 2018
Decision Date: 01st August 2019
Court Number And Judge: 9-COURT 09 ADDL SESSIONS JUDGE