* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA 75/2012
% Date of Decision: 07.05.2012
BEENA & ANR ..... Appellants
Through : Mr Vikram Jit Saini, Adv.
versus
HARI CHAND ..... Respondent
Through : None
CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL
VEENA BIRBAL, J. (ORAL)
*
1. Present is a second appeal under Section 100 read with Order 42 of CPC against the judgment/decree dated 09.02.2012 passed by the learned ADJ, Delhi in RCA No. 41/2011 whereby the judgment and decree dated 06.08.2009 passed by the learned Civil Judge, Delhi in Suit No. 130/2009 has been upheld.
2. The respondent herein is the father of appellant no. 2 and father-in-law of appellant no. 1 i.e. defendants before the learned trial court. Respondent/plaintiff had filed a suit for mandatory and permanent injunction against both the appellants/defendants stating therein that the respondent/plaintiff is the owner of the property bearing No. P-2/180, Sultan Puri, Delhi. There are various documents, the details of which are there in the plaint. He is an old person and is physically very weak and his half body is paralyzed and he is suffering from starvation. Both the appellants/defendants are not providing food/medicine to him. Accordingly, RSA 75/2012 Page 1 of 4 he had filed the aforesaid suit seeking permanent injunction by directing the appellants not to create any third party or sell the property and also restraining the appellant from ingress and egress permanently in the suit premises. It is also stated in the plaint that the respondent/plaintiff is residing at the first and second floor of the said house whereas appellants/defendants are residing on the ground floor. Initially, they were taking his care but with the passage of time they have stopped providing him food and medicines as a result of which respondent/plaintiff has become very weak. Respondent/plaintiff has alleged that he had also filed a complaint against the appellants/defendants in P.S. Sultan Puri but no action has been taken. The respondent/plaintiff had terminated their licence vide legal notice dated 23.01.2009 and had prayed for passing of a decree in the nature of mandatory injunction in his favour and against the appellants/defendants thereby directing and restraining the defendants, their agents, associates, relatives, representatives etc. not to create third party or sell the suit premises and also for restraining the defendants/appellants from the egress and ingress permanently in the suit premises.
3. In the said suit, appellants/defendants were proceeded ex parte vide order dated 30.03.2009. The ex parte evidence of respondent/plaintiff was recorded and suit was decreed in terms of prayer made in the suit vide judgment and decree dated 06.08.2009 passed by the learned Civil Judge, Delhi. Thereupon, the appellants/defendants moved an application under Order 9 Rule 13 for setting aside of the ex parte judgment/decree. The same was opposed by the respondent/plaintiff and the said application was dismissed vide order dated 27.05.2011.
4. Aggrieved with the same, one of the appellants i.e. appellant no. 2 Sh.Raj Kumar had challenged the same by filing an appeal i.e. RCA No. RSA 75/2012 Page 2 of 4 3/2011 before the learned District Judge, Rohini District Court, Delhi. The said appeal was dismissed vide order dated 17.11.2011. Thereafter, another appeal was filed by both the appellants/defendants i.e. vide RCA No. 41/2011 before Ld. ADJ, Delhi. The same was dismissed vide impugned judgment dated 09.02.2012. The judgments of both the courts below i.e. judgment of ld. Civil Judge and ld. ADJ are challenged before this court.
5. The counsel for appellants/defendants has contended that the summons of suit were never served on the appellants/defendants before the learned trial court as such the courts below ought to have set aside the ex parte judgment/decree dated 06.08.2009 against the appellants/defendants.
6. The material placed on the file has been perused. The learned trial court has dismissed the application under Order 9 Rule 13 of CPC by observing as under:-
"All the defendants have been served through affixation at the given address therefore, the contention of the counsel for the defendant that they have not received the summons has no force. Accordingly application u/o 9 rule 13 CPC is dismissed."
7. The learned ADJ vide impugned order dated 09.02.2012 has noted that the trial court had taken into consideration the report of process server wherein both the appellants/defendants had refused to accept the summons. Thereupon, learned trial court had directed to serve the appellants/defendants through affixation. On 17.03.2009, learned trial court noted that the appellants/defendants were served by affixation and despite that no one had appeared on their behalf. Thereafter, the trial court had recorded the statement of process server on 13.05.2009. Only after recording the statement of process server the trial court has proceeded ex parte against the RSA 75/2012 Page 3 of 4 appellants/defendants. The learned Additional District Judge has held that the trial court has followed the procedure laid down under the law and thereafter passed ex parte judgment/decree on 06.08.2009 decreeing the suit. In the appeal before the learned Addl. District Judge as well as before this court, it is not their stand that the appellants/defendants did not refuse to accept the summons. It is also not their stand that the appellants/defendants were not present at the spot when the process server had come to serve the summons.
8. It may also be noticed that the learned Addl. District Judge has also dismissed the appeal on the ground that the appellant no. 2 had earlier filed a separate appeal i.e. RCA No.03/2011 challenging the impugned judgment of the learned trial court which was dismissed vide order dated 17.11.2011. The said order was never challenged in higher forum and the impugned order passed by the learned trial court had already attained finality qua appellant no. 2. Thereupon, appellant no. 2 is not permitted to file another appeal i.e. RCA No. 41/2011 with appellant no. 1 challenging the order of the learned trial court again.
In view of above discussion, no illegality is seen in the impugned order. No substantial question of law arises which needs consideration of this court.
Accordingly, the appeal is dismissed.
VEENA BIRBAL, J MAY 07, 2012 kks RSA 75/2012 Page 4 of 4