SAMBITA MEHTA vs SABITA BOSE AND ANR

$~20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 24th April, 2024
+ CS(OS) 389/2022 and I.A. 3206/2023, 19532/2023, 25817/2023
SAMBITA MEHTA ….. Plaintiff
Through: Mr. Nipun Katyal, Ms. Anam Siddiqui, Mr. Pushkar Mehta, Ms Kismat Chauhan, Advocates (M-99993 46557).
versus

SABITA BOSE AND ANR ….. Defendants
Through: Mr. Pragyan Pradip Sharma, Mr. Hardik Vashisht & Mr. Harshit Vashisht, Advs. for D-2. (M: 8510004533)
Mr. Gurmehar Sistani & Mr. Divyansh Arora, Advs. with Mr. Sanjay Sharma (Party in person). (M: 8800565804)
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through hybrid mode.
2. The present suit concerns the suit property situated at ‘B-296, Ground Floor, Chittaranjan Park, New Delhi’. According to the Plaintiff, the admitted owner of the suit property, the late Shri Salil Kumar Bose (@S.K. Bose), sold the suit property to Smt. Basanti Bose vide sale deed dated 10th November, 2008.
3. The Plaintiff-Sambita Mehta is the daughter of Smt. Basanti Bose. According to the facts that have emerged from the record, and the submissions of the parties, the said sale deed was challenged by late Mr. S.K. Bose during his lifetime in 2011/2012 before the ld. Addl. District Judge-03, South District, Saket Courts, New Delhi in Basanti Bose v. S.K. Bose [Suit No. 185/2010]. However, in the said suit, the plaint was returned in 2012, vide judgment dated 14th September, 2012.
4. Thereafter, Mr. S.K. Bose died on 17th August, 2014. Prior to his demise, according to Defendant No. 2, a Will dated 13th November, 2013, which granted a life estate in favour of Smt. Sabita Bose (wife of the late Mr. S.K. Bose) was executed. Further, a Power of Attorney dated 16th November, 2013 is claimed to have been executed by Late S.K. Bose in favour of Defendant No. 2-Mr. Sharad Bhatt, who is an Advocate who was representing Mr. S.K.Bose. Another General Power of Attorney dated 25th August, 2014 was reportedly executed by Smt. Sabita Bose in favor of Defendant No. 2 who also claims that under the Will of 13th November, 2013, a bequest was made in favor of one Shri Sanjay Sharma, who is in the real estate business in the local area.
5. I.A.2906/2023 has been filed by Defendant No. 2 on his own behalf, and on behalf of Defendant No. 1 seeking the impleadment of Mr. Sanjay Sharma in the present suit.
6. Considering the nature of the allegations, this Court is of the opinion that presence of the said Mr. Sanjay Sharma is necessary for effective adjudication of the disputes between the parties.
7. Accordingly, without going into the merits of the allegations raised in the application or Mr. Sanjay Sharma’s stand, he is impleaded as Defendant No.3 in the present case. The application I.A.2906/2023 is allowed and disposed of. All contentions left open. Let the amended memo of parties be filed within one week.
8. An application, I.A.3206/2023 under Order VII Rule 11 CPC, has also been filed by Defendant No.2 on his own behalf and on behalf of Defendant No.1, on the ground that the present suit is barred by res judicata under Section 11 CPC due to the dismissal of the earlier suit, Suit No. 185/2010, by the ld. Addl. District Judge owing to non-filing of evidence by the Plaintiff. Mr. Pragyan Sharma, ld. Counsel for Defendant No.2, points out that this order dismissing the suit was challenged before this Court in RFA 65/2013 titled ‘Basanti Bose v. S.K. Bose’. In the said RFA, vide order dated 30th July, 2013, an opportunity was given to the Plaintiff in the said suit, who is the mother of the Plaintiff in the present suit, to lead evidence. However, this opportunity was not availed of, and the suit was finally dismissed vide order dated 20th November, 2013 in Suit No. 606/13 titled ‘Basanti Bose v. S.K. Bose’ passed by the ld. Addl. District Judge-01, South District, Saket Courts. In view of this, it is submitted that the present suit is not maintainable and deserves to be rejected.
9. On the issue of whether a suit, which has been dismissed for non-filing of evidence, operates as res judicata, ld. Counsel for the parties may cite relevant case laws.
10. Insofar as the application being I.A.19532/2023 is concerned, the same has been filed by the Plaintiff seeking vacation of the suit property by Defendant No.2.
11. According to the written statement filed by Defendant No. 2, the Defendant No.2 is occupying the suit property as a permissive user of Defendant No.3, who was bequeathed the said property in terms of the alleged Will dated 13th November, 2013. The main objection raised by the Plaintiff is that the said Defendant No.2 was a lawyer, appearing for Defendant No.1 in a number of cases before the District Court. He was also acting as a Power of Attorney holder for Defendant No.2, while simultaneously appearing as a lawyer. The fact that a lawyer who was representing Mr. S.K.Bose has a power of attorney in respect of valuable property executed in his favour is a cause for concern. Moreover, in the Will dated 13th November, 2013, one Mr. Arjun Mitra, Advocate is stated to have been made the executor, who is also an Advocate and a colleague of Defendant No.2. The Plaintiff is the niece of the deceased Mr. S.K.Bose and he had no children.
12. Under such circumstances, this Court deems it appropriate to direct that the Defendant Nos.2 & 3- Mr. Sharad Bhatt and Mr. Sanjay Sharma shall remain present in Court, on the next date of hearing. The said executor-Mr. Arjun Mitra shall also remain present in the Court, on the next date of hearing along with the original Will, of which he had been made an executor.
13. In the meantime, let the written statement on behalf of the Defendant No.3 be filed in terms of the timelines prescribed under the Delhi High Court (Original Side) Rules, 2018.
14. Before the next date of hearing, Defendant Nos.2 & 3 shall place their affidavits on record giving details regarding the current status of the suit property. All original documents relied upon by Defendant Nos.2 & 3 including the Power of Attorney(ies), Will(s), Sale Deed(s), etc. shall be produced on the next date of hearing.
15. Let a copy of this order be served dasti upon Mr. Arjun Mitra by ld. Counsel for the Plaintiff. The Registry is directed to serve a copy of today’s order on Mr. Arjun Mitra on the following mobile number: M:9313521036.
16. List on 27th May, 2024.
17. The Plaintiff and the Defendant No.3, who are present today, shall also remain present in the Court on the next date of hearing.

PRATHIBA M. SINGH
JUDGE
APRIL 24, 2024/dk/dn

CS(OS) 389/2022 Page 2 of 2