NEETY GUPTA Vs. USHA GUPTA AND ORS.

JUDGEMENT

(1.) This is an application filed by the defendant no. 4/applicant for setting aside of the ex parte Judgment and Decree dated 27.9.2011 by which a learned Single Judge of this Court passed a preliminary decree holding that the five parties to the suit, plaintiff and defendant nos. 1 to 4 being real sisters, each have a 1/5th share in the suit properties bearing nos. B -7, 80/2, Safdarjung Enclave, New Delhi -110029 and B -9, Rohit Kunj, Pitampura (Rohtas Cooperative House Building Society), Delhi. The Judgment dated 27.9.2011 was passed after defendant nos. 1, 3 and 4 in the suit were proceeded ex parte and the plaintiff led her evidence. Defendant no. 2 supported the plaintiff. Defendant no. 4/applicant was proceeded ex parte by the Order passed by this Court dated 7.7.2009 noting the endorsement of refusal given by the postman on the postal cover containing the summons of the suit.

(2.) In this application, issue was framed by a learned Single Judge of this Court on 26.11.2012 as to whether the applicant/defendant no. 4 did not refuse to accept the process when tendered by the postman on 29.5.2009. Onus of this issue was put upon the applicant/defendant no. 4. Parties have thereafter led evidence and this application is therefore coming up before this Court to decide the issue framed on 26.11.2012 and which is that whether the defendant no. 4 was or was not served by refusal, and whether the Judgment and Decree dated 27.9.2011 should be set aside on account of the same having been passed without service having been effected upon the applicant/defendant no. 4.

(3.) Learned counsel for the applicant/defendant no. 4 has argued that one endorsement of refusal of the postman should not be taken as a correct basis for proceeding ex parte against the applicant/defendant no. 4 in terms of the Order dated 7.7.2009 inasmuch as the applicant/defendant no. 4 had no reason not to contest the suit because the applicant/defendant no. 4 had a registered Will in her favour from the mother Smt. Tara Gupta with respect to the property at Safdarjung Enclave. It is argued that it does not stand to reason if a person has a registered Will in her favour from the owner/mother Smt. Tara Gupta, such a person would not have appeared to contest the subject suit for partition. Reliance in support of his arguments is placed by the counsel for the applicant/defendant no. 4 on the judgment of a learned Single Judge of this Court in the case of Smt. Madhuri alias Sheela Vs. Kali Charan : 65 (1997) DLT 793 and a judgment of the Supreme Court in the case of Bhagmal & Ors. Vs. Kunwar Lal & Ors. : AIR 2010 SC 2991.