Rajiv Oberio v. Jatinder Oberio & Anr

V. KAMESWAR RAO, J

SEPTEMBER 19, 2018/ns

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 19.09.2018 + RAJIV OBERIO ..... Appellant Through: Mr. Raghvendra Singh, Advocate versus JATINDER OBERIO & ANR ..... Respondents Through: CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE V. KAMESWAR RAO RAJENDRA MENON, CHIEF JUSTICE (ORAL) CM APPL. 38432/2018 (condonation of delay in filing) For the reasons stated in the application, delay of 20 days in filing the appeal is condoned. The application stands disposed of. CM APPL. 38433/2018 (condonation of delay in re-filing) For the reasons stated in the application, delay of 21 days in re-filing the appeal is condoned. The application stands disposed of. 1. This appeal by the appellant calls in question judgment dated 30.05.2018 passed in CS(OS) 140/2012 rejecting an application being IA No.7671/2018 filed by the appellant. Appellant and respondent No.1 are brothers and claimed to be joint owners and in joint possession of a property bearing No.L-10, Kalkaji, New Delhi. 2. It is stated that the immoveable property is a dwelling house belonging to the undivided family. It is further averred that late Shri Gulshan Oberoi, father of the appellant and respondent No.1 had purchased the property on 12.10.1970 and had been living there since then. Late Shri Gulshan Oberoi expired on 17.02.2000 and the appellant, his mother and other family members claimed to be the Class-I legal heirs. On 08.08.2000 mother and daughter of late Shri Gulshan Oberoi released their shares in the immoveable property in favour of wife of late Shri Gulshan Oberoi. 3. On 29.10.2007 wife of late Shri Gulshan Oberoi executed a gift deed of her share jointly in favour of appellant and respondent No.1. It seems that certain dispute has arisen with regard to the property between the brothers and therefore on 15.11.2011 respondent No.1 filed a suit for partition by metes and bounds through appointment of a local commissioner. Summons were issued and status quo was directed to be maintained until further orders on 18.01.2012. 4. Respondent No.2 on 05.07.2013 filed an application under Order 1 Rule 10 CPC seeking impleadment as a defendant in the partition suit on the ground that he has purchased defined portions of the suit property from respondent No.1 by two sale deeds executed on 02.05.2011 and an agreement to sell executed on 20.05.2011. He also claimed possession of the property. On 12.02.2015 a counter claim filed by the present appellant was admitted by the Court and thereafter on 30.05.2016 a preliminary decree declaring the rights and interests of all the parties in the partition suit filed. Plaintiffs were awarded 50% share in the undivided property and the remaining 50% share in the undivided suit property fell in the name of defendant No.1 – Shri Rajiv Oberoi. Thereafter a final decree and judgment was passed on 29.11.2017 as is evident from Annexure-3. However, on the ground that despite admitting the counter claim on 12.02.2015, the same was not adjudicated upon, IA No.7671/2018 was filed under Section 151 CPC and the same having been rejected with costs of Rs.2 lac, the present appeal filed by the appellant under Section 10(1) of the Delhi High Court Act, 1966. 5. Learned counsel for the appellant at length pointed out that the counter claim was filed well within time and it was not considered by the learned Court and therefore there is an error and the right of the appellant based on the counter claim was not adjudicated while passing of the the final decree. 6. We have considered the submissions made and we find that while considering the same averments that were made before the learned Single Judge, the learned Single Judge has taken note of each and every aspect of the matter and the law relating to deciding a counter claim after its admission in a proceeding. The learned writ Court goes on to discuss the same. The conduct of the counsel for the appellant when the preliminary decree was passed, the final decree was passed and their s