Veena Monga vs Hari Mohan Monga and Others <BR> Man Mohan Monga Vs Ravi Mohan Monga and Others

K. Kannan J.

CM. Nos. 31287-CII of 2012, CM. No. 31275-CII of 2012, CM. No. 16911-CII of 2013 and CM. No. 31285-CII of 2012

Applications for impleadment of the legal representatives of deceased petitioner/respondent are allowed subject to all just exceptions and the legal representatives are brought on record.

Main Cases

All the four civil revisions are between the same parties and they arise against interim orders passed by the appellate court. The suit had been with reference to the estate of one Pushpawati. The litigating parties are sons, daughters and grand children of Pushpawati. At the time of trial, the contest was essentially between all the sons on one side and one son namely Ravi Monga and his wife Manju Monga, who were defendants No. 1 and 2, on the other side. The daughters of Pushpawati have divided loyalty, some supporting the plaintiffs and some the defendants No. 1 and 2. Over a period of time at the Appellate Court all the sons, grand sons and daughters see themselves aligned against defendants No. 1 and 2. In the manner in which the ligation was fought out before the trial Court, there were two rival claims; one at the instance of the plaintiffs Gopal and Amrit contending that the property which was a residential house with appurtenant land at Panchkula belonged to the family of father and son and the mother had been a name lender. In any event, according to the plaintiffs, the mother had executed a Will on 4.4.1998 bequeathing the property equally among all the five sons. The defendants No. 1 and 2 set up a registerd Will dated 5.12.1990 under the terms of which the property was exclusively granted to the grand son through defendants No. 1 and 2. The plaintiffs who were two amongst the sons sought for a declaration that they were entitled to 2/5th share as co-owners in possession and sought for the relief of injunction from in any way being disturbed in their possession. The defendants No. 1 and 2 and their son who was also one of the defendants were themselves in a portion of the property and they have filed a counter claim seeking for a declaration of exclusive title of the whole of the property under the Will dated 5.12.1990 and for possession of the property in the hands of the plaintiffs. One of sons amongst them, namely Man Mohan Monga, was served and had engaged a counsel. All the daughters had also been served but some of them did not enter any contest. In the course of trial when Man Mohan and some of the daughters did not lead evidence they were reported to have been set ex parte. The trial however proceeded on full fledged contest by the plaintiffs on the one hand and defendants No. 1 and 2 on the other pleading for adjudication of the respective Wills propounded by them. The trial Court passed a decree dismissing the plaintiffs'' suit and finding the Will to be a fabrication. It held on the other hand that the Will propounded by the defendants No. 1 and 2 was true and allowed the counter claim granting the relief of declaration and for recovery of possession from the plaintiffs. The prayer for mesne profits sought against the plaintiffs was, however, declined.

There were three appeals filed against the trial Court judgment, one at the instance of Gopal''s widow Veena Monga and another at the instance of Amrit, who was one of the plaintiffs both of them pleading for reaffirmation of their contentions and for decree in terms of the Will propounded by them and the third one at the instance of Ravi Monga against the relief declining mesne profits. At the Appellate Court, there were two applications which formed the subject matter of the civil revisions. Man Mohan who had been reported to have been set ex parte filed a petition before the trial Court to set aside the alleged ex parte decree. Veena Monga, therefore, filed an application at the appellate court to contend that the appeal should not be heard till the outcome of the application for setting aside the alleged ex parte decree. The daughters had filed another application before the trial Court for setting aside ex parte decree and a similar prayer was sought in appeal for stay of hearing of the appeal till their applications were disposed of. There was another prayer at the Appellate Court that the Court shall relegate the parties for adopting one of the modes of settlement u/s 89 CPC and that the appeal shall not be heard till the scope of settlement was explored. Such a prayer taken before the Appellate Court had been earlier rejected and therefore, there had been a revision before this Court in C.R. No. 4350 of 2007 and this Court by its order dated 30.04.2008 had remitted the matter to the Appellate Court with a direction that it shall consider the pleas for a settlement before appeal was taken. The Appellate Court had called for objection to the application from Ravi Monga and his wife and after three or four attempts merely adjourned the applications to be taken up along with the appeal. There are three civil revisions in such a situation where C.R. No. 5485 and 5486 of 2008 are against the orders dismissing the applications for staying the hearing in appeal till the disposal of Order 9 Rule 13 applications. C.R. No. 5464 is against the order directing the applications for settlement u/s 89 CPC to be posted along with the appeal. At the Appellate Court there was a prayer for stay by the appellants against the decree in counter claim for recovery of possession. The Court has directed security for Rs. 1 crore to be deposited that is subject of revision in C.R. No. 3483 of 2007.

C.R. No. 5485 and 5486 of 2008 which deal with applications for stay till disposal of Order 9 Rule 13 application would first be required to be seen of whether there is any merit in a plea that the disposals of appeals should await the applications filed before the trial Court for setting aside the alleged ex part decrees. I would preface the discussion on this as only for the purpose of these revision petitions and they will not fetter an adjudication before the trial Court in the applications except to the extent to which this judgment itself contains some directions. They are on a prima facie consideration of whether the court''s discretion must be extended to stay the disposal of appeals till a conclusion is reached by the trial court. I have already observed that the respective applicants who have approached the trial court for setting aside the alleged ex parte decrees were all served and they had also engaged their respective counsel. It was only in the course of trial that they did not allow themselves the opportunity of cross examination of witnesses brought by the principal warring parties namely the plaintiffs and the defendants No. 1 and 2. The suit ended in dismissal of the plaintiffs'' action. The first inference therefore shall be that there was no decree against any of the defendants to merit an application for setting aside ex parte decree. It is too fundamental a position to miss that a party set ex parte in the course of trial after service suffers first an ex parte order which is capable of being set aside under Order 9 Rule 7 at any stage of the proceedings and participate at the trial. Order 9 Rule 13 contemplates a different situation of a party who is set ex parte later comes by an adverse decree against him which could be set aside after the decree for sufficient cause shown in the manner contemplated under Order 9 Rule 13. If there was no decree, there is no scope for setting aside an alleged ex parte decree.

In this case, there has been a counter claim by defendants No. 1 and 2 contending that the mother had executed a Will in favour of their sons and that the plaintiffs'' possession was not lawful and hence liable to hand over possession. Here it cannot be missed that a counter claim by a defendant could be filed only against plaintiffs and not against co-defendants. If the counter claim was allowed and a decree for recovery of possession was also granted, it must be taken as a decree against the plaintiffs who were liable to surrender possession of property actually held by them, claiming to be co-owners. It has been held in Rohit Singh and Others Vs. State of Bihar (Now State of Jharkhand) and Others, that a counter claim has necessarily to be directed against the plaintiffs in suit though incidentally or along with it, it may also claim relief against co defendants in suit. The Supreme Court cautioned that a Court cannot proceed and grant a decree in favour of said co-defendants only on the basis that no answer has been filed to their counter claim by other defendants. The legal fall out is that the decree that defendants No. 1 and 2 obtained in counter claim was only against the plaintiffs though incidentally it may have a ramification against co-defendants in so far as it upheld the claim fo defendants No. 1 and 2 as exclusive owners of the property and rejected any scope for claiming any share by other co-defendants namely of other brothers and sisters. Here again the decree is only against the plaintiffs and it cannot be stated that the defendants namely Man Mohan Monga and the sisters who had remained ex parte after service of notice had suffered any decree. Consequently, it is doubtful whether there is any legal basis for applications to be filed before the trial Court for setting aside the alleged ex parte decree.

The nature of order that could be passed in situations where only some of the defendants remained ex parte while other defendants contest the claim is laid through a procedure set out under Order 9 Rule 11.

Procedure in case of non-attendance of one or more of several plaintiffs. Where there are more plaintiffs than one, and one or more of them appear, and the others do not appear, the Court may, at the instance of the plaintiff or plaintiffs appearing, permit the suit to proceed in the same way as if all the plaintiffs had appeared, or make such order as it thinks fit.

This provision would make it clear that the Court at the time of pronouncing a judgment is at liberty to either pass an ex parte decree without reference to merits against non contesting defendants or it can pronounce a judgment on merits against the non contesting defendants also, a la a procedure set out under Order 17 Rule 3 in a different situation, where there is evidence on record and one of the parties is unwilling to prosecute or defend the case. The attempt here is only to show that a defendant that remains ex parte does not at all times come by ex parte decree without merit. What law contemplates under Order 9 Rule 13 is not reopening a case which is disposed of on merits but a disposal otherwise than on merits. I do not have the entire case records of the trial Court about how and at what stage some of the defendants had been set ex parte. I have gone through the judgment and the decree available in the case file. The entire text of the judgment refers to the disposal of the case as on merits. The decree drafted also does not state any where that ex parte decrees had been passed against Man Mohan Monga or the other daughters of Pushpawati. The Court is not without power to pass a judgment on merits that can affect all parties when only some of the defendants remained ex parte in terms of Order 9 Rule 11 CPC.

When the maintainability of the applications before the trial Court is seriously in doubt and could come up with several legal objections, I do not think that there is prima facie a merit in the contention of either of the petitioners to seek for stay of the appellate court proceedings to await the orders that may be passed under applications Order 9 Rule 13. However, I wanted to elicit whether there was any scope for a quick disposal of the applications before the trial Court so that the appeals could be disposed of after the disposal before the trial Court and therefore, the objections of the petitioners could be redressed in another way by a direction or quick disposals of the applications. I have elicited from the respective counsel appearing for the petitioners that they will require just one opportunity for examining the respective applicants and two of the respective counsel who had been engaged to defend them but who had later reported no instructions that led to the parties being set ex parte. I will therefore set the following parameters for conclusion of the applications before the trial Court.

(i) set the following dates for hearing 5th October, 8th October, 14th October and 16th October, 2013 for letting in evidence. The respective applicants are at liberty to take dasti summons for examination of their respective counsel in Court on any of the dates fixed by this Court now. The Court shall not grant any adornment on the dates which are fixed and shall conclude the oral evidence within the dates as stipulated. If the parties cannot secure the attendance of the witnesses they shall lose the opportunity given under this Court. The court shall pronounce an order before 31st October, 2013. This strict regimen becomes necessary only in view of the fact that applications for setting aside ex parte decree are made to appear as though they would themselves require elaborate evidence, which they shall not, and would take a long period for disposal, which again they shall not.

(ii) The court shall also examine the nature of orders passed by the trial Court when the applicants were set ex parte and also see whether the judgment passed by the trial Court and the decree drafted have stated anywhere that the applicants were set ex parte and the decision against them were rendered otherwise than on merits.

(iii) The court shall also examine whether they were prevented by any sufficient cause in causing attendance in Court.

(iv) The Court may receive written arguments and save time from prospect of lengthy oral submission.

Even a stay of further proceedings in appeal would become necessary only if there could be any prejudice to the applicants before the appellate court. As respondents in appeal they are entitled to support the case of the appellants and seek for modification of the decree and the appellate court shall not be fettered by the fact that some of the defendants did not appear as any circumstance against them and would have all the powers to grant such reliefs as are possible under Order 41 Rule 33 CPC. The applications to stay the appeal were under such circumstances not bona fide at all. The revisions are brought in a strange way at the instance of not merely the applicant Veena Monga whose application at the appellate court was dismissed. She was pleading for the benefit of her brother in law Man Mohan Monga. Man Mohan Monga has himself preferred the civil revision against dismissal of the application filed at the appellate court although he was himself not the party. I find that even as matter of procedure Man Mohan had not even sought sanction of Court in civil revision for accepting the civil revision when he was not the applicant in the appellate Court. The civil revision petitions are thus deliberate attempts to further prolong the proceedings.

It can be further noticed that even the revision against the order of the Appellate Court directing the application for settlement u/s 89 to be taken along with the appeal is not bona fide. Since this Court has already issued a direction in C.R. No. 4350 of 2007 that the application must be disposed of and parties could be directed for mediation or any other formulation u/s 89 CPC, I wanted to give that opportunity at this Court itself. The Senior Counsel Sh. Ashok Aggarwal appearing for Veena Monga would state that the party will not mind even forsaking her claim to the property provided the defendant does not precipitate any further litigation. The Senior Counsel Sh. Arun Palli appearing for the daughters also has similar contention to make that their parties will not mind accepting the title of the defendants No. 1 and 2 and their son provided that there is a complete satisfaction recorded on such basis. The contest before this Court is only with reference to the house property in Panchkula and both the counsel emphasized that this settlement could, if at all, be a settlement for this property in suit alone and there are other properties in Delhi in respect of which there are other litigations and their own offer to forsake their claims shall be confined only to the property in Panchkula and not to other properties. They would also state that the compromise would require no adjudication regarding the genuineness or validity of the respective wills. I put it across to the party Ravi Monga who has been passionate about his defence but he will have nothing of any settlement otherwise than through an adversarial court process. He feels himself much too wronged to be in a position to accept any dialogue with his brothers and sisters. His sense of outrage has been accentuated by the fact that this legal battle has drawn his blood, as it were and put him in incarceration for more than five weeks. I would not have thought of referring to these dialogues in Court if it was not for my desire to see that parties must still have an opportunity to bury their hatchet and move on peacefully for future. One can take the horse to water but never force it drink, if it does not want. A peaceful settlement is what the parties must desire. Section 89 ought not be understood as an opportunity to abdicate the judicial function. Courts do not exist but for litigants. Section 89 must also be understood as meant for a litigant''s benefits and not as an apology for Court''s inability to decide cases expeditiously. Arrears in Court are no justification for pushing parties for settlement. Settlement shall be for what parties desire and what they deserve. Here after seeing the umbrage expressed by the defendants No. 1 and 2, I am of the view that it will mean an abdication of judicial function by any Judge not to decide the case on merits and insist that the party should only have a forced settlement.

Mediation, as we conceive of is a settlement brought about where a mediator acts as facilitator that helps parties generate their own alternatives and finally arrive at a settlement. The inaugural sessions are invariably carried out after a compulsory regimen of disclosure of the voluntary nature of the mediatory exercise. Parties are informed that any one of them is at liberty to quit mediation at any stage and seek for an adjudication through Court. If the parties call it quits, there is no further scope for a mediator to still force a settlement. Conciliation and arbitration are different procedures but that would require both parties to put in writing for their consent. Mediation and settlement are the only formulations that can obtain referrals even without consent of parties. The occasion which is propitious is before the gall is spilt. In Afcons Infrastructure Ltd. and Another Vs. Cherian Varkey Construction Co. (P) Ltd. and Others, the Supreme Court itself suggested appropriate times when the reference can be made for mediation. The best time is before the trial begins. If the trial is already in progress after parties have filed the statement, it is difficult to force a settlement. Settlements in such occasions arise only when there is litigation fatigue; where the parties see the futility of time and money spent in Courts; where settlements themselves emerge as Hobson''s choice. There the parties inflict upon themselves the choice which is the only way to end the litigation. I cannot see in the present situation that any meaningful settlement as possible. The previous direction given by this court was made on 30.04.2008. Five more years have not brought the parties to sink their differences. Their respective animosity of one amongst other has only deepened further. I direct the Appellate Court to take up the appeals and dispose them of on merits. If any settlement emerges before the judgment by the parties themselves, the same will be recorded in the manner contemplated under Order 23 Rule 3 CPC but beyond that I find no reason to make any initiative in that regard. This ought not to be taken as causing a fetter on the Appellate Court to use its ingenuity to secure a settlement between parties but such an initiative shall not be at the expense of its duty to adjudicate.

I do not find any of the civil revisions to be bona fide. They are hopeless exercises to taunt defendants Nos. 1 and 2 who have obtained a decree. When the defendants have obtained a decree for recovery of possession, the Appellate Court was justified in issuing direction for security. It must have a bearing however to the reliefs which are possible for a successful party to secure and a recompense for a delay in securing a relief already granted. A direction for Rs. 1 crore as security to deposit does not seem to have any bearing to the likely benefit which he would have got. Considering the fact that the case is pending for the last 16 years and the possible benefit that the defendants No. 1 and 2 could have if they had secured possession at not an average of not less than a modest amount of Rs. 15000/- per month and considering further the fact that the plaintiffs have been in possession of a larger portion of property then even the defendants No. 1 and 2 are, I direct the plaintiffs appellants to furnish security for Rs. 25 lacs within four weeks from the date of receipt of copy of the order failing which the stay granted shall stand vacated. All the civil revisions No. 5464, 5485 and 5486 of 2008 are dismissed with costs assessed at Rs. 10,000/- in each case in favour of the respondents No. 1 and 2 and against the respective petitioners. C.R. No. 3483 of 2007 is ordered in terms of the directions in modification of the order passed by the Court below. There shall be no direction as to costs in the said civil revision only. The case papers are directed to be sent by the registry immediately to Panchkula. The trial Court shall be informed about the directions contained in para No. 7 by a separate communication. The Appellate Court may set dates of hearing of appeals after 31st October, 2013 and dispose of the appeals as expeditiously as possible.