JAGDISH KAUR Vs. RABINDER SINGH MATHODA

JUDGEMENT

(1.) Defendant has moved this application under Order 9 Role 7 read with Section 151 of Code of Civil Procedure (hereinafter referred to as 'Code') for the setting aside the order dated 18-9-1989 by virtue of which the applicant/defendant was proceeded ex-parte. It is stated that OB 2nd November, 1989, defedant came to know that suit had been filed against him by the plaintiff and was listed before this Court on 3rd November, 1989. The defendant, it is further alleged, is serving as Deputy Commissioner of Income Tax and posted at New Delhi. He filed a petition for grant of probate on the premises that Sh Gurcharan Singh son of late Major Suhel Singh as owner of D-174, Defence Colony, New Delhi and being the real maternal uncle ot the defendant-applicant executed and signed last Will on 8th January, 1985 at Delhi by virtue of which the right in the said property vested in the applicant. The testator died on 11th August, 1983 in an accident Practically, this application narrates all the pleas which the applicant/ defendant should have actually taken in written statement. In this application the only question to be seen is whether the ex-parte order dated 18-9-1989 should be set aside against him and if so on what terms and conditions.

(2.) In that respect he claimed to have gained the knowledge of the pendency of the present suit on and November, 1989 when he came to the office ot his lawyer Sh. G.L. Rawat for seeking further instructions in another matter filed by him While sitting in the chamber of the counsel and when the leamed counsel wa s busy in doing some other work he found that this case was listed on the board of this Court and that is how be came to know of the pendency of the suit.

(3.) This application has been hotlyontested on behalf of the plaintiff who happens to be the widow of the deceased alleged testator. In the preliminary objections it is stated that the application filed on behalf of the applicant is in nature of written statement and as such should be dismissed. On merits she had to reply to all the allegations made by the defendant applicant wherein, in short she claimed that in fact the late testator Sh. Gurcharan Singh had finally executed a Will dated 30-8-1984 in her favour bequeathing the properties at Delhi and in Village Madan Hari, Tehsil Kharar, District Ropar. This Will was duty registered. Regarding knowledge of the defendant-applicant, it is stated that the applicant has concocted a story only to show that he was not aware of the present suit. The case had actuary been shown earlier in the list presided over by Hon'ble Mr. Justice P.N. Nag and not before me. The ultimate prayer in this reply is that it should be dismissed or in the alternative the defendant be asked to pay RS.10,000.00 per month from 1984 onwards and Rs. 20,000.00 per month fop wrongful use and occupation of the premises which amount can now be fetched as rent. The dispute between the parties in this suit pertains to house No. D-164, Defence Colony. New Delhi.