INDU SHARMA Vs. UMA SHARMA

JUDGEMENT

(1.) THE challenge by means of this First Appeal under Order 43 CPC is to the impugned order dated 23.8.2010 which dismissed the application of the appellant/defendant no.1 under Order 9 Rule 13 CPC on the ground that the application under the said provision will not lie inasmuch as the appellant/defendant no.1 had entered appearance in the suit, contested the suit, and had not led evidence which had thereafter resulted in passing of the judgment and decree for partition dated 25.11.2009. In fact, the appellant/defendant no.1 was present on 25.11.2009 when the judgment was passed.

(2.) THE facts of the case pertain to dispute with regard to the property no. 7360-7363, Pahari Dhiraj, Gali Teliyan, Sadar Bazar, Delhi. Half share in the property belonged to one Sh. Ram Narain and the other half share in the property belonged to Sh.Daulat Ram Sharma. THE dispute is only with respect to the half share of Sh. Ram Narain and 2/3rd of which share is claimed by the plaintiff/respondent no.1, who was one of the daughters of Sh. Ram Narain. Sh. Ram Narain sired besides the plaintiff two sons namely Sh. Bharat Bhushan Sharma and Sh. Narender Kumar Sharma. THE defendants no. 1 to 4 in the suit were the widow and children of Sh. Bharat Bhushan Sharma. Sh. Narender Kumar Sharma died a bachelor. In view of the aforesaid facts, whereas the plaintiff/respondent no.1 admittedly had 1/3rd share in the suit property, 1/3rd share in the property vested with Sh. Bharat Bhushan Sharma (since deceased) and who was represented thereafter by his widow and children being the defendants no. 1 to 4. THE defendants no. 1 to 4 are the appellants before this Court. Sh. Narender Kumar Sharma did not marry and the plaintiff/respondent no.1 claimed that he executed a Will with respect to his share in the property in favour of the plaintiff/respondent no.1. This Will, dated 18.2.1998 was proved and exhibited in the Trial Court by the respondent no.1/plaintiff as Ex.PW2/1. THE only dispute therefore in the suit was as to who inherited the 1/3rd share of Sh. Narender Kumar Sharma son of Sh.Ram Narain i.e. whether the share of Sh. Narender Kumar Sharma is inherited by the appellants who were the legal heirs of the other son Sh. Bharat Bhushan Sharma or that 1/3rd share of the Narender Kumar Sharma is inherited by the plaintiff/respondent no.1/sister.

(3.) IN my opinion, no fault can be found with the order of the Trial Court inasmuch as provision of Order 9 Rule 13 CPC has been held to be rightly not applicable in the facts of the present case where the defendants contested the suit on merits, filed their pleadings, cross-examined the witness of the respondent no. 1, but thereafter, did not lead any evidence and were proceeded ex parte. IN fact defendant no.1/appellant no.1, and also with their counsel on many dates, after being proceeded ex parte, regularly kept on appearing, but did not make any prayer to lead any evidence. I may note that the Trial Court has in the final judgment dated 25.11.2009 noted that the appellant no.1/defendant no.1 qua the same property had earlier filed a suit and which suit was however got withdrawn although complete trial was conducted in the said case. Learned counsel for the respondent no.1 also states that the sister is a legal heir as per Class II Entry II in the Schedule to the Hindu Succession Act, 1956, and would have in any way inherited the share of the deceased brother, Sh.Narender Kumar Sharma even assuming there was no Will in favour of the respondent no.1/plaintiff. Thus not only the appellant no.1/defendants no.1 withdrew an earlier suit but in the present suit, did not lead any evidence, and therefore the same resulted in the final judgment dated 25.11.2009 granting the appellants/defendants no. 1 to 4 1/3rd share of the half share of Sh.Ram Narain in the property and gave the respondent no.1/plaintiff/sister 2/3rd share of the half share in the property of Sh. Ram Narain, i.e. 1/3 rd share as one of the children of Sh. Ram Narain and plus 1/3rd share of Sh. Narender Kumar Sharma which devolved upon the respondent no.1/plaintiff by virtue of the Will dated 18.2.1998, Ex.PW2/1 of Sh. Narender Sharma S/o Ram Narain.