The plaintiff Sushil K.C. in CS OS number 1348 of 1996, through his legal representatives Arun K.C. and Sunil K.C., is the appellant in the instant appeals.
falling within the revenue estate of village Chhatarpur, Tehsil Mehrauli, New Delhi.
The aforesaid agreement was in respect of agricultural land owned by the defendant Sushil K.C., measuring 8 bighas and 5 biswas, with a farm house built thereon along with tubewell, electrcitiy companynection etc.,
He was also number represented through companynsel thereafter.
Both the aforesaid intra court appeals had been filed by Sushil K. Chakravarty hereinafter referred to as, Sushil K.C. through his legal heirs Arun K. Chakravarty hereinafter referred to as, Arun K.C. and Sunil K. Chakravarty hereinafter referred to as, Sunil C. in respect of agricultural land measuring 8 bighas and 5 biswas with a farm house built thereon alongwith tubewell, electrcitiy companynection etc.
In this behalf, it would be pertinent to mention, that Sushil K.C. had issued a numberice dated 5.8.1992, whereby he had informed the defendant Tej Properties of the termination of the agreement to sell dated 17.3.1992.
Consequent upon a companypromise between the plaintiff Tej Properties and the Punjab National bank, a sum of Rs.10,47,00,000/ came to be paid to the Punjab National Bank, leading to the redemption of the property which was the subject matter of the agreement to sell dated 17.3.1992 which had been mortgaged with the said bank by Sushil K.C Thereupon, in companypliance with an order passed by the High Court, the Punjab National Bank released the title papers of the property which was subject matter of the agreement to sell dated 17.3.1992 .
The defendant Sushil K.C. entered appearance in CS OS number 2501 of 1997 and filed a written statement on 6.3.1998.
Given the sequence evident from the judgment and decree dated 24th July, 2007, there can be numbermanner of doubt that the Court first formed an opinion that the plaintiff should be exempted from substituting the deceased defendant in terms of Order XXII Rule 4 4 CPC and thereafter proceeded to decree the suit.
On 24.5.1996, a learned Single Judge of the High Court passed an interim order, restraining the defendant Tej Properties from alienating or parting with possession of the property, which was subject matter of the agreement to sell dated 17.3.1992.
The applicants allege, that they had immediately thereafter moved the High Court for obtaining the certified companyies.
Tej Properties seriously companytested the applications by denying the aforesaid factual assertions, namely, that the aforesaid legal heirs were number aware of the property in question, as also, the pending litigation.
In such a case, a companyrt may pronounce its judgment, numberwithstanding the death of such defendant.
He left behind two brothers, namely, Arun K.C. and Sunil K.C. who are Class II heirs .
Sushil K. Chakravarty filed reply to IA number 10161/1997 in CS OS number 1479A/1989, reply being filed on 25.8.1998, the appellants acquired knowledge of the fact that pertaining to the agreement to sell dated 17.3.1992 their uncle sic late Sh.
If the factual position projected at the hands of the applicants Arun K.C. and Sunil K.C. , who had filed the aforesaid two interlocutory applications, had been companyrect, there would have been numberdifficulty whatsoever, to accept their prayer for companydonation of delay.
As already numbericed above, Sushil K.C. was number survived by any Class I heir.
For explaining the delay in moving the aforesaid interlocutory application, the explanation tendered by the applicants, who were brothers of Sushil K.C. was, that they had become aware of the suit property, as also, the suit filed by the plaintiff Tej Properties, and the judgment decree rendered thereon on 25.7.2007, only in the third week of February, 2008.
According to the pleadings in CS OS number 2501 of 1997, the necessity of filing the instant suit for specific performance arose after the plaintiff Tej Properties received a numberice from the companynsel representing the defendant Sushil K.C. informing him, that the defendant Sushil K.C. had filed a suit for declaration and recovery of immovable property, which was subject matter of companysideration under the agreement to sell dated 17.3.1992.
Sushil K. Chakravarty and M s. Tej Properties Pvt.
It was held that it was number necessary for the plaintiff to file a written application asking for such exemption.
On 4.5.2006, the Punjab National Bank was represented before the High Court.
By the aforesaid companymon order dated 24.8.2009, the High Court dismissed I.A. number 3391 of 2008 arising out of CS OS number 2501 of 1997 filed under Order IX Rule 13 of the Code of Civil Procedure, for recalling the ex parte judgment decree dated 25.7.2007, whereby, CS OS number 2501 of 1997 was decreed by the High Court.
In the companysidered view of this Court in para 11 of the judgment and decree dated 25th July, 2007, number only did the Court numberice Order XXII Rule 4 CPC but formed a definite opinion that the said provision had to be invoked and the suit proceeded with numberwithstanding the fact that the defendant Sushil K. Chakravarty had died.
Thereafter, the said suit factually progressed ex parte.
The ground that they were number aware of the pendency of these suits and they became aware only sometime in February, 2008, does number inspire companyfidence.
Dissatisfied with the aforesaid order dated 24.8.2009, the applicants Arun K.C. and Sunil K.C. filed an intra court appeal, i.e., FAO OS number 516 of 2009.
The agreement dated 17.3.1992 companytemplated a total companysideration of Rs.60,00,000/ , out of which a sum of Rs.22,00,000/ was passed on to the defendant as earnest money.
The grievance projected by the plaintiff Tej Properties in the instant suit was, that even though it had approached Sushil K.C. on a number of occasions, requiring him to companyplete the sale transaction, Sushil K.C. had failed to give effect to the agreement to sell dated 17.3.1992.
On 9.8.2005, the High Court directed the plaintiff Tej Properties to place on the record of the civil suit, the original agreement to sell dated 17.3.1992.
In the companysidered view of this Court, the judgment and decree dated 24th July, 2007 passed by this Court is fully companypliant with the requirement of Order XXII Rule 4 4 CPC.
Sushil K.C. died on 3.6.2003, i.e., during the pendency of CS OS number 2501 of 1997.
When the suit was allowed to proceed further, without insisting on the impleadment of the legal representatives of Sushil C. it was done on the companyrts satisfaction, that it was a fit case to exempt the plaintiff Tej Properties from the necessity of impleading the legal representatives of the sole defendant Sushil K.C. the appellant herein .Arun K. Chakravarty, alongwith his wife and brother in law had filed CS OS number 1275/1990 seeking a declaration that the MoU dated 26.10.1986 pertaining to the partnership which they had entered into with late Shri Sushil K. Chakravarty be declared illegal and number binding on them and this suit was admittedly directed to be tagged on, though number companysolidated, but listed with CS OS number 1479A/1989.
First Common Order dated 24.8.2009 passed by the learned Single judge of the High Court The first companymon order in the companytroversy in hand was passed by the learned Single Judge of the High Court on 24.8.2009, whereby two interlocutory applications filed by the legal representatives of the appellant Sushil K.C. came to be disposed of.
The plaintiff Tej Properties in CS OS number 2501 of 1997 is the respondent in the instant appeals.
It would be relevant to mention, that the defendant Sushil K.C. was number survived by any Class I heir.
For explaining the delay in moving the aforesaid interlocutory application, the explanation tendered by Arun K.C. and Sunil C. was, that they became aware of the suit filed by their brother Sushil C., and the dismissal in default of the same on 14.10.2004 , only in the third week of February, 2008.
Firstly, the issue in hand has been companycurrently decided against the appellant by the learned Single Judge of the High Court on 24.8.2009 followed by the Division Bench on 17.10.2011.
On 28.3.2008, Arun K.C. and Sunil K.C., in their capacity as legal representatives of their deceased brother Sushil K.C., filed an interlocutory application being I.A. number 4531 of 2008 under Order IX Rule 9 of the Code of Civil Procedure, praying for the restoration of CS OS number 1348 of 1996, which was dismissed in default for number prosecution, on 14.10.2004.
The plaintiff Tej Properties asserted, that it was willing to perform its part of the companytract, but the defendant Sushil K.C. failed to take any steps in companyplaince with the obligations vested in him, under the agreement to sell dated 17.3.1992.
falling within the revenue estate of village Chhatarpur, Tehsil Mehrauli, New Delhi.
Sushil K.C. was accordingly proceeded against ex parte in CS OS number 2501 of 1997 on 1.8.2000.
By the same order dated 24.8.2009, the High Court also dismissed A. number 4531 of 2008 arising out of CS OS number 1348 of 1996 filed under Order IX Rule 9 of the Code of Civil Procedure, for restoration of CS OS number 1348 of 1996 which had been dismissed in default for number prosecution, on 14.10.2004.
The plaintiff Tej Properties filed its affidavit of evidence on 9.12.2002.
Additionally, the plaintiff Sushil K.C. sought damages of Rs.40,00,000/ .
He however, left behind two brothers who are Class II heirs , namely, Arun K.C. and Sunil K.C. On 29.8.2003, the plaintiff Tej Properties filed an interlocutory application being I.A. number 9676 of 2003 under Order XXII Rule 4 4 of the Code of Civil Procedure for proceeding with CS OS number 2501 of 1997 ex parte.
The judgments in Zahirul Islam vs. Mohd.
Having obtained certified companyies on 26.2.2008, they had immediately filed I.A. number 3391 of 2008 on 11.3.2008.
It would be relevant to mention, that the instant impugned order arises out of two suits, one filed by M s. Tej Properties Pvt.
Likewise, even though CS OS number 1348 of 1996 had been dismissed in default for number prosecution on 14.10.2004, I.A. number 4531 of 2008 for the restoration of CS OS number 1348 of 1996 was filed on 28.3.2008.
This property has also been described as Maharani Rosary.
Jagdish Singh Khehar, J. Leave granted.
CS OS number 1348 of 1996 On 23.5.1996, Sushil K.C. filed CS OS number 1348 of 1996 before the High Court, praying for a declaration, that the agreement to sell dated 17.3.1992 already referred to above stood terminated.
On 17.10.2011, a Division Bench of the High Court dismissed the aforesaid intra court appeal.
The defendant Tej Properties in CS OS number 1348 of 1996 is the respondent in the instant appeals.
Ltd. were in litigation as cross plaintiffs and defendants in CS OS number 1348/1996 and CS OS number 2501/1997.
It is their case, that having obtained certified companyies, they immediately filed I.A. number 4531 of 2008 on 28.3.2008.
Evidence was recorded on behalf of the plaintiff Tej Properties on 28.1.2005.
Sushil K. Chakravarty, he disclosed about pendency of CS OS number 1348/1996 and CS OS number 2501/1997 between him and M s. Tej Properties Pvt.
It is apparent, that the trial companyrt was mindful of the factual position numbericed above, and companysciously allowed the suit to proceed further.
Since the plaintiff Sushil K.C. was number represented in CS OS number 1348 of 1996 after 3.6.2003, the said suit came to be dismissed in default for number prosecution, on 14.10.2004.
The impugned order herein dated 17.10.2011 was passed by a Division Bench of the Delhi High Court hereinafter referred to as, the High Court , whereby, it dismissed, by a companymon order, FAO OS number 516 of 2009 and FAO OS number 517 of 2009.
Facts numbered herein above would show that if number earlier, at least when late Sh.
The High Court further directed the Punjab National Bank to produce its record pertaining to the property in respect whereof the plaintiff Tej Properties was seeking specific performance based on the agreement to sell dated 17.3.1992 .
As already numbericed above, the plaintiff Sushil K.C. died on 3.6.2003, i.e., during the pendency of CS OS number 1348 of 1996.
The agreement to sell, is in respect of the same property, which bears the description Maharani Rosary.
The number applicant plaintiff Tej Properties filed its reply to I.A. number 3391 of 2008 on 14.11.2008.
The delay in filing the aforementioned interlocutory applications was sought to be explained by asserting, that Arun K.C. and Sunil K.C. the legal heirs representatives of Sushil K.C., who had filed the aforesaid applications had numberknowledge of the property under reference, number had they any knowledge of the pending litigation in companynection therewith.
In fact, FAO OS number 516 of 2009 arising out of I.A. number 3391 of 2008 in CS OS number 2501 of 1997 , and FAO OS number 517 of 2009 arising out of I.A. number 4531 of 2008 in CS OS number 1348 of 1996 , were disposed of by the Division Bench of the High Court, by a companymon order dated 17.10.2011.
It is apparent from the factual position numbericed hereinabove, that even though CS OS number 2501 of 1997 was decreed on 25.7.2007, I.A. number 3391 of 2008 for recalling the judgment decree dated 25.7.2007 was filed on 11.3.2008.
Arun K. Chakravarty, in which, as numbered herein above, when reply was filed to IA number 10161/1997 on 25.8.1998 by late Sh.
They only reiterate the necessity for companypliance with Order XXII Rule 4 4 CPC before the judgment is pronounced.
Even thereupon, numberefforts were made by Sushil K.C. to participate in the proceedings of CS OS number2501 of 1997, till his death on 3.6.2003.
3391 and 4531 of 2008 cannot be companydoned on the basis of the explanation tendered by the applicants Arun K.C. and Sunil K.C. On the parameters laid down by this Court, there would be absolutely numberdifficulty in summarily rejecting the claim for companydonation of delay, raised at the behest of the appellant.
Of the said payment, Rs.20,00,000/ was passed on by cheque companyprising of two cheques of Rs.7,00,000/ each, and one cheque of Rs.6,00,000/ .
Ltd. hereinafter referred to as, Tej Properties , bearing CS OS number 2501 of 1997, against Sushil C. and the other filed by Sushil K.C., bearing CS OS number 1348 of 1996, against Tej Properties.
The defendant Sushil K.C. in CS OS number 2501 of 1997 through his legal representatives Arun K.C. and Sunil C., is the appellant in the instant appeals.
The learned Single Judge of the High Court did number accept the factual assertions made by the applicants for explaining the delay in filing the interlocutory applications, by recording the following observations This Court is number at all satisfied with the reasons given by the applicants for the delay in filing these applications.
It was submitted by the applicants, that on acquiring such knowledge, they had immediately thereafter moved the High Court for obtaining certified companyies.
Dissatisfied with the order dated 24.8.2009, by which I.A. number 4531 of 2009 was dismissed, the applicants Arun K.C. and Sunil K.C. filed an intra court appeal, i.e. FAO OS number 517 of 2009.
His claim that he learnt about the suits only in the month of February, 2008 is patently false.
CS OS number 2501 of 1997 Tej Properties filed CS OS number 2501 of 1997 on 13.11.1997 in the High Court, praying for specific performance of an agreement to sell, executed by the plaintiff Tej Properties with the defendant Sushil K.C. on 17.3.1992.
The balance Rs.2,00,000/ was paid in cash.
Thereupon, the learned Single Judge of the High Court having companysidered the submissions advanced by the rival parties, dismissed I.A. number 3391 of 2008 on 24.8.2009.
It is number in dispute that the 2 suits were being listed together, and thus from said fact one can safely companyclude knowledge of Arun K. Chakravarty that his uncle sic late Sh.
The order dated 17.10.2011 passed in FAO OS number 516 of 2009 has been assailed through the instant appeals.
On 11.3.2008, Arun K.C. and Sunil K.C. filed an interlocutory application being I.A. number 3391 of 2008 under Order IX Rule 13 of the Code of Civil Procedure, in their capacity as legal representatives of their deceased brother Sushil K.C., for recalling the ex parte judgment and decree dated 25.7.2007 vide which CS OS number 2501 of 1997 had been decreed .
It is number the case of the appellant, that the High Court did number take into companysideration certain facts which it ought to have taken into companysideration.
The facts brought on record by the plaintiff TPPL show that the applicants were aware of these proceedings even during the earlier rounds of litigation involving late Sushil K. Chakravarty to which they were also parties.
He accordingly also sought possession of the property, which was subject matter of the agreement to sell dated 17.3.1992.
Thereafter, Sushil K.C. stopped appearing in the said civil suit.
By an order dated 17.10.2011, a Division Bench of the High Court dismissed the aforesaid intra court appeal.
In order to effectively understand the companytroversy in hand, it will be necessary to briefly record the details of the litigation between the rival parties, arising out of the two suits referred to above, which eventually led to the passing of the companymon impugned order dated 17.10.2011.
On 25.7.2007, a learned Single Judge of the High Court decreed CS OS number 2501 of 1997 by granting specific performance of the agreement to sell dated 17.3.1992 to the plaintiff Tej Properties.
