JUDGMENT : VALMIKI J. MEHTA, J. IA Nos. 17291/2015 and 17292/2015 1. These are two applications which are filed under Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC) and under Section 5 of the Limitation Act, 1963 for condonation of 734 days’ delay in filing of the application under Order IX Rule 13 CPC. By these applications, delay is prayed to be condoned and the ex parte preliminary decree of partition dated 12.7.2013 is prayed for being set aside. 2. The ex parte preliminary decree dated 12.07.2013 has been passed with respect to two properties which were the subject matter of the suit, and which are mentioned in para 7 (II) and (III) of the plaint as under:- “(II) Land, bearing Khasra No. 260 Mauza Bahapur (Ishwar Nagar) total area 4 bighas 16 biswas in Ishwar Nagar, New Delhi; (III) 1/4th share in Khasra no. 261, Mauza Bahapur (Ishwar Nagar) total area 1 bigha 14 biswa in Ishwar Nagar, New Delhi.” 3. The subject suit is a suit between the plaintiffs on the one hand who represent the branch of Sh. Vinay Bhaskar; Sh. Vinay Bhaskar being the son of Sh. T.N. Bhaskar, the defendant no.1 Sh. Bharat Bhaskar; another son of Sh. T.N. Bhaskar on the other hand, and thirdly the defendant no.2; the mother of Sh. Vinay Bhaskar and Sh. Bharat Bhaskar, namely, Smt. Gargi Devi Bhaskar and wife of late Sh. T.N. Bhaskar. 4. The mother/defendant no.2/Smt. Gargi Devi Bhaskar has expired during the pendency of the suit. The legal heirs of the mother have not been brought on record, but the legal heirs of the mother are already on record with plaintiffs representing the branch of Sh. Vinay Bhaskar, the defendant no.1 being the son, and the defendant nos. 3 to 5 being the daughters of late Sh. T.N. Bhaskar and Smt. Gargi Devi Bhaskar. 5. The defendant no.1 Sh. Bharat Bhaskar appeared in the suit and filed IA No. 16692/2009 for rejection of the plaint under Order VII Rule 11 CPC. This application filed in the year 2009 remained pending and was adjourned till 21.2.2012, when the same was dismissed in default on account of non-appearance of anyone on behalf of defendant no.1. By the same Order dated 21.2.2012, the defendant no.1 was proceeded ex parte. This application filed in the year 2009 remained pending and was adjourned till 21.2.2012, when the same was dismissed in default on account of non-appearance of anyone on behalf of defendant no.1. By the same Order dated 21.2.2012, the defendant no.1 was proceeded ex parte. The plaintiff thereafter led evidence resulting in passing of the preliminary decree by a learned Single Judge of this Court dated 12.7.2013. 6. As stated above, the preliminary decree was passed with respect to two properties totalling to 1148 sq. yards of land situated in Khasra Nos. 260 and 261, situated in Village Bahapur (Ishwar Nagar), New Delhi and which are the properties mentioned in para 7 (II) and (III) of the plaint. 7. The case set up by the defendant no.1 is that that none appeared on behalf of the defendant no.1 because the defendant no.1 was under the bona fide belief that the plaintiff will in fact withdraw the suit in view of the written Settlement Agreement entered into between the parties on 5.10.2011. This settlement agreement is admittedly signed by all the plaintiffs as also the other persons including the defendant no.1. This agreement as a whole is reproduced as under:- “Minutes of the meeting held on October 5th, 2011 at J 12, Green Park, New Delhi 5 PM. Present in the Meeting: Mr. Bharat Bhaskar, Mrs. Kiran Bhaskar, Mr. Ashish Bhaskar, Mr. Abhinav Bhaskar, collectively (BB Group). Mrs. Madhu Bhaskar, Mr. Apurv Bhaskar, Miss Akansha Bhaskar, Mr. Akshat Bhaskar, copllectively (MB Group). Dr. O P Sharma, Mr. Tarun Oberoi, Mr. Rajendra Sharma. In an endeavour to resolve the issues and on going litigation in Ishwar Industries Limit4ed, TNB Investments Pvt. Ltd and T N Bhaskar and Sons (HUF) between the BB and MB Group a meeting was held where on all the parties brought in their view points and suggests. After deliberation, the meeting was concluded with the following understanding : 1. MB Group will take 50% of the land and building as full and final settlement, free of any liabilities in Block Number 6, Tribhuvan Complex, Ishwar Nagar, New Delhi-85. BB Group will take over all the litigations, liabilities and other connected matters of the Ishwar Industries Limited, TNB Investments Pvt. Ltd. and T N Bhaskar & Sons (HUF). 2. MB Group will take 50% of the land and building as full and final settlement, free of any liabilities in Block Number 6, Tribhuvan Complex, Ishwar Nagar, New Delhi-85. BB Group will take over all the litigations, liabilities and other connected matters of the Ishwar Industries Limited, TNB Investments Pvt. Ltd. and T N Bhaskar & Sons (HUF). 2. All the remaining assets and liabilities of Ishwar Industries Limited TNB Investments Pvt. Ltd and T N Bhaskar & Sons (HUF) will be the responsibility of BB Group. 3. The division of Block Number 6, Tribhuvan Complex, Ishwar Nagar, New Delhi – 110 065 is excluding the area belonging to Mr. Sanjay Bhaskar, An Architect will be appointed to identify entry to the MB Group and the BB Group along with their respective areas which has to be mutually accepted by both the parties. Any expenses incurred shall be the borne equally of both the parties. The settlement of Mr. Vidhur Bhaskar is the responsibility of the BB Group. 4. The stay order obtained in the Delhi High Court in the matter of M/s. Magpie Developers Pvt. Ltd Vs. Ishwar Industries Ltd. and any other shall be got vacated and / or settled by BB Group with respect to Block No. 6, Tribhuvan Complex, Ishwar Nagar, New Delhi – 110 065. 5. That this MOU/Agreement will be filed before the Company Law Board jointly by both the BB Group and MS Group,, on the next date of hearing that is October 10th, 2011 for a decree to be passed accordingly. 6. Formal agr3eement with necessary resolutions as required under law will be prepared within 15 days hereof and filed before the Company Law Board and wherever necessary. 7. It is expressly understood that all expenses, professional, architect fee, legal and any other taxes that may be levied for the above understanding only shall be borne in equal proportion by both the parties. 8. A reference to the introductory first para of the Settlement Agreement dated 5.10.2011 shows that all the disputes between the parties, be they of the companies of the parties or of T.N. Bhaskar & Sons (HUF), were finally settled by the said Settlement dated 5.10.2011. Admittedly, the present suit is qua the properties of T.N. Bhaskar and sons (HUF). The dispute qua these properties is also stated to be settled in terms of the Settlement dated 5.10.2011. 9. Admittedly, the present suit is qua the properties of T.N. Bhaskar and sons (HUF). The dispute qua these properties is also stated to be settled in terms of the Settlement dated 5.10.2011. 9. It is the case of the applicant/defendant no.1 that it is on account of this final settlement entered into between the parties and signed by them that defendant no.1 did not appear believing that the suit will be withdrawn by the plaintiff in view of the Settlement arrived at between them dated 5.10.2011. 10. The defendant no.1/applicant came to know of the continuation of the present suit only when the defendant no.1 received a notice from the Local Commissioner appointed for partitioning of the property in view of the Preliminary Decree passed by a learned Single Judge of this Court on 12.7.2013. On receiving a copy of the Notice dated 24.1.2014 from the Local Commissioner, the applicant/defendant no.1 realised that the suit was pending and hence the present applications were filed under Order IX Rule 13 CPC and Section 5 of the Limitation Act for condonation of delay. 11. Learned senior counsel for the plaintiff has argued three aspects for seeking dismissal of the application. The first aspect which is argued is that the suit property was not a part of the Settlement dated 5.10.2011. The second aspect argued is that in any case the terms of the settlement were never acted upon and hence not final. The third aspect argued was that the applicant/defendant no.1 is negligent in not pursuing the suit for the reason that the plaintiff would withdraw the suit and reliance in this regard is placed upon a judgment delivered by this Court in the case of Suresh Kumar & Anr. Vs. Dileshwari Devi, 2014 SCC OnLine Del 35. 12. In my opinion, both the application under Order IX Rule 13 CPC along with the connected application for condonation of delay are bound to be allowed and are accordingly allowed for the reasons given hereinafter. 13. Vs. Dileshwari Devi, 2014 SCC OnLine Del 35. 12. In my opinion, both the application under Order IX Rule 13 CPC along with the connected application for condonation of delay are bound to be allowed and are accordingly allowed for the reasons given hereinafter. 13. The first argument urged on behalf of the plaintiffs that the suit property did not form part of the Settlement dated 5.10.2011 is clearly false on the face of it because the introductory first para of the Settlement dated 5.10.2011 talks of disputes and the ongoing litigations which were the subject matter of the settlement and which will include the present suit properties of T.N. Bhaskar and Sons (HUF), viz the suit properties stated in para 7(II) and (III) which are stated to be owned by T.N. Bhaskar & Sons (HUF) as the plaintiffs are claiming rights in the same as they are coparceners etc of T.N. Bhaskar & Sons (HUF) as their predecessor-in-interest. Sh. Vinay Bhaskar is stated to be the coparcener in the HUF. Para 1 of this Settlement dated 5.10.2011 specifically records that in lieu of the rights of the plaintiff, pertaining to either the companies or the properties of T.N. Bhaskar & Sons (HUF), the plaintiffs will get 50% of the land and building of Block Number 6, Tribhuvan Complex, Ishwar Nagar, New Delhi-110065 in full and final satisfaction of their claims. Taking this as correct it means that plaintiffs have received their rights under the settlement on account of ongoing litigations, the companies in question as also the properties of T.N. Bhaskar & Sons (HUF), and the defendant no.1 was hence entitled to have the belief that the said suit would not be pursued by the plaintiff. 14. No doubt, the plaintiffs have claimed that the Settlement Agreement dated 5.10.2011 was not acted upon, but on the other hand, the defendant no.1 claims that the Settlement Agreement dated 5.10.2011 has been acted upon. I note that the dismissal in default of the application under Order VII Rule 11 CPC filed by the defendant no. 14. No doubt, the plaintiffs have claimed that the Settlement Agreement dated 5.10.2011 was not acted upon, but on the other hand, the defendant no.1 claims that the Settlement Agreement dated 5.10.2011 has been acted upon. I note that the dismissal in default of the application under Order VII Rule 11 CPC filed by the defendant no. 1 is on 21.2.2012, i.e in proximation of time period of the Agreement/Settlement dated 5.10.2011, and hence, there is a ring of truth in the stand taken up by the applicant/defendant no.1 that it is because of the settlement that the defendant no.1 was under an impression that the subject suit would be withdrawn and consequently the applicant/defendant no.1 did not follow the suit. 15. The aspect that plaintiffs claim that the settlement agreement was never acted upon, this aspect would be a seriously disputed question of fact requiring trial, however for the purpose of decision of the present applications, in view of the facts stated above this cannot be the ground for dismissing the stand of defendant no.1 because of the relevant stage when the defendant no.1 did not pursue the present suit and his pending application under Order VII Rule 11 CPC, the defendant no.1 on the ground that there was a written Settlement Agreement dated 5.10.2011 satisfying the shares of the plaintiff with respect to the claim of the properties in T.N. Bhaskar and Sons (HUF) was entitled to believe that the suit would be withdrawn by the plaintiff. 16. Reliance placed by the plaintiffs upon the judgment in the case of Suresh Kumar & Anr. (supra) is misconceived because in the facts of Suresh Kumar & Anr.’s case (supra) it was not found that there was any written agreement signed by the parties, and there was pleaded only an oral assurance that the parties had settled their dispute, and thus it was held that the oral agreement for non appearance cannot be a good ground for allowing of an application under Order IX Rule 13 CPC. 17. In view of the above, the applications are allowed. The ex parte Preliminary Decree dated 12.7.2013 passed against the defendant no.1 is set aside. 17. In view of the above, the applications are allowed. The ex parte Preliminary Decree dated 12.7.2013 passed against the defendant no.1 is set aside. Anything contained in the present order is no reflection of the merits of the case with respect to the validity and/or binding ness of the Settlement Agreement dated 5.10.2011, and which dispute will be seen and decided finally as per the defence and other aspects of merits which would be raised by the plaintiffs and the defendant no.1. 18. Suit is restored back to the stage as it was on 21.2.2012 i.e the pendency of the application filed under Order VII Rule 11 CPC i.e IA No. 16692/2009 filed by the defendant no.1 is being restored, and the ex parte proceedings and Preliminary Decree dated 12.07.2013 against the defendant no.1 are set aside. 19. Parties are left to bear their own costs. IA No. 16692/2009 20. List for further proceedings on 4.8.2016. CS(OS) No. 2090/2008 21. Learned senior counsel for the plaintiffs says that defendant no.1 should now file the written statement and no delay should be caused with respect to further proceedings of the suit, and accordingly, the defendant no.1 shall positively file written statement within six weeks from today, failing which the right to file written statement will be deemed to be closed. 22. Replication be filed within four weeks thereafter. 23. Parties will file the documents along with their pleadings and admission/denial of documents be done within two weeks thereafter by filing an affidavit attaching thereto an index of documents of the other side with an additional column of endorsement of admission/denial. 24. List before the Joint Registrar for marking of exhibits on 14.7.2016. 25. List before Court for framing of issues and disposal of the pending IAs on 4.8.2016.