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2007 DAILYLAW 2365 (DEL)

MANOHAR LAL AHUJA v. NAND LAL AHUJA

2007-09-21

Mukundakam Sharma, Sanjiv Khanna

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( 1 ) THE appellant-Mr. Manohar Lal Ahuja filed a suit for partition in 1997 against his brothers claiming that property No. 2/22 B, Jangpura A, New Delhi is an ancestral property belonging to Hindu Undivided Family of their father and being a co-parcener, he is entitled to share. Claim was also made in respect of licensed MCD premises at Lajpat Nagar. ( 2 ) ISSUES in the suit were framed on 3rd February, 2006 and interim order in favour of the appellant dated 30th April, 1997 was made absolute till the disposal of the suit. On the same day itself, the Court directed the parties to file list of witnesses and examination-in-chief by means of affidavits within six weeks. The case was listed for cross-examination of appellant's witnesses before the Joint Registrar on 5th April, 2006. ( 3 ) BY impugned order dated 14th May, 2007, the learned Single Judge dismissed the above suit on the ground that the appellant-plaintiff had been negligent and in spite of repeated opportunities and directions had failed to file affidavits by way of evidence. Learned Single Judge also noted the contention of the learned counsel for the appellant-plaintiff that affidavits had been filed on 11th May, 2006, which was a Friday and the matter was listed in the Court on 14th May, 2007 i. e. Monday, 12th May, 2007 and 13th May, 2007 were holidays being Second Saturday and Sunday. Thus, the affidavits were not on record. ( 4 ) LEARNED counsel for the appellant pleaded leniency and stated that after issues were framed, the appellant had filed two applications-one for stay of the suit till probate petition was decided and another application was filed for framing of additional issues. However, it is admitted that both applications were dismissed. ( 5 ) WE have examined the records filed by the appellant and considered the contentions raised. Issues were framed on 3rd February, 2006. While framing the issues, the Court specifically recorded reasons and grounds why no issue in respect of alleged 'will' of late Mr. Kanhaya Lal Ahuja dated 15th March, 1993 was being framed. The only question in the suit was whether the aforesaid property belonging to Mr. Kanhaya Lal Ahuja was his personal property or was ancestral property belonging to the Hindu Undivided Family. Kanhaya Lal Ahuja dated 15th March, 1993 was being framed. The only question in the suit was whether the aforesaid property belonging to Mr. Kanhaya Lal Ahuja was his personal property or was ancestral property belonging to the Hindu Undivided Family. The second issue was in respect of the licensed shop at Lajpat Nagar and whether the same could be partitioned. ( 6 ) THE order dated 3rd February, 2006 also reveals that the appellant was required to file examination-in-chief by way of affidavits within six weeks. This was not done within the specified time. As a result, witnesses of the appellant could not be cross-examined on 24th May, 2006. Another default was made, when the matter was again listed for cross-examination of the witnesses of the appellant on 20th July, 2006. As affidavits were not filed, third opportunity was granted by the Joint Registrar, but again on 29th November, 2006, it was found that affidavits have not been filed. This time cost of rs. 2000/- was imposed and the matter was adjourned to 14th February, 2007. The appellant did not pay the cost and also did not file affidavits, but pleaded that he had moved an application for adjourning the case sine die in view of a plea, which was considered and examined by the Court while framing issues on 3rd february, 2006, but was not accepted. The application for adjourning the case sine die was dismissed by the learned Single on 20th March, 2007. The said order has not been challenged. ( 7 ) ON 24th April, 2007, the Joint Registrar noticed that affidavits by way of evidence have not been filed. Cost had not been paid and matter had been prolonged for nearly a year. Accordingly, the matter was posted before the court on 14th May, 2007. Affidavits by way of evidence were not filed from 3rd february, 2006 till 14th May, 2007 despite repeated opportunities and orders passed by the Joint Registrar. It was stated by the counsel that examination-in-chief by way of affidavits was filed on 11th May, 2007, but the same was not on record as 12th May, 2007 and 13th May, 2007 being Second Saturday and Sunday, were holidays. Cost had also not been paid. It was stated by the counsel that examination-in-chief by way of affidavits was filed on 11th May, 2007, but the same was not on record as 12th May, 2007 and 13th May, 2007 being Second Saturday and Sunday, were holidays. Cost had also not been paid. ( 8 ) KEEPING in view the above factors, we feel that the learned Single judge was fully justified in dismissing the suit as the appellant-plaintiff had failed to lead evidence. There was gross negligence and carelessness on the part of the appellant. Such negligence, recklessness and repeated failures to comply with Court orders for over one year cannot be condoned. There is no justification and reasons why affidavits could not be filed from March, 2006. We do not see any reason to set aside and take a different view than one taken by the learned Single Judge. The appeal has no merit and is dismissed.