* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 15.12.2016
% Decided on: 21.12.2016
+ CS(OS) 773/2013
ANUP SHARMA & ORS ..... Plaintiffs
Through: Mr. Sudhir Kumar Sharma, Advocate.
versus
NAGENDRA PRASAD YADAV ..... Defendant
Through: Ms. M.C. Dhingra, Advocate along
with Mr. Shahid Anwar, Advocate.
Mr. Nagendra Prasad Yadav in
person.
CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA
JUDGMENT
I.A. 2588/2016 (Order 9 Rule 13 read with Section 151 CPC for setting aside the Ex-parte decree and order dated 21.05.2014) and I.A. 2590/2016 (for condonatation of delay in restoration of appeal)
1. In this case, an ex parte judgment and order was passed by this Court on 21.05.2014, whereby the suit for specific performance of the plaintiffs was decreed.
2. The said order has been challenged by the defendant by filing the present application. It is submitted that he had never executed any CS(OS) No.773/2013 Page 1 vakalatnama in favour of Shri R.K. Singh and never authorized him to appear on his behalf. It is submitted that the plaintiffs had fraudulently made Shri R.K. Singh to appear on behalf of the defendant and sought an ex parte decree against him. It is submitted that in the month of October, 2015, he received one notice from the Court in the execution petition. Since he was illiterate in English, he could not understand the contents of the said notice. He was also facing difficulties and problems on account of serious illness of his daughter-in-law who was suffering from kidney problem for more than a year and so he could not contact any counsel pursuant to the said notice. On 29.01.2016 when he was in his native village, a bailiff took possession of the house from his daughter and daughter-in-law and the possession was handed over to the plaintiffs and the bailiff at that time orally informed about the details of the suit. When he was informed, he reached Delhi on 30.01.2016 and engaged a counsel who filed his vakalatnama on 01.02.2016 in execution petition and appeared in the Court on 02.02.2016 when the matter was adjourned to 14.07.2016. Certified copies of the suit were also obtained which were supplied to him on 08.02.2016 and thereafter, he immediately filed the application. It is further submitted that the defendant-applicant had agreed to sell his house to the plaintiffs for a sum of Rs.1 crore 10 lakhs, but CS(OS) No.773/2013 Page 2 the plaintiffs fraudulently changed the consideration amount to Rs.45 lakhs by changing the first page of agreement to sell and also forging his signature on that page. He also made a police complaint to this effect on 11.02.2016. It is further submitted that the plaintiffs has started demolishing the house. It is also submitted that since the decree has been obtained by misrepresentation and, therefore, the same should be declared null and void (Reliance is placed on Indian Bank v. M/s Satyam Fibres (India) Pvt. Ltd. AIR 1996 SC 2592 and Ramji Gupta & Anr vs. Gopi Krishan Agrawal (D) & Ors, decided on 11.04.2013 in Civil Appeal No.629/2004. It is further submitted that due to ill health of his daughter-in-law, he could not file the application for setting aside ex-parte decree and that the delay of about 122 days in filing it, was unintentional and due to the personal difficulty he was having. On these facts, it is submitted that delay in filing the application for setting aside the ex parte decree of 122 days be condoned and the ex parte order be set aside and meanwhile the plaintiffs be restrained from creating third party interest in the suit premises.
3. Three applications have been contested by the plaintiffs. It is submitted that the application is hopelessly barred by limitation and the defendant-applicant has failed to explain the delay of 122 days from the date CS(OS) No.773/2013 Page 3 he alleged knowledge i.e. October 2015 when he received summon of execution petition. It is further submitted that in fact the summons of the suit were also duly served upon the defendant on 10.08.2013 at 10.45 a.m. by the bailiff of the Court along with complete set of plaint and documents. The report of the bailiff is already on record and the defendant did not appear on 10.08.2013 despite receiving the summons. Also, the notice of the application of the plaintiffs under Order 39 Rule 1 and 2 CPC was issued and personally served upon the defendant. This Court had also vide its order dated 29.04.2013 retrained the defendant from creating any third party interest in respect of the suit property and directed the plaintiffs to comply with Order 39 Rule 3 CPC. The plaintiffs had duly complied with that and also submitted his affidavit of compliance under Order 39 Rule 3 CPC. It is further submitted that Shri R.K. Singh had appeared on behalf of the defendant on 25.10.2013 and this fact was recorded by the Court and that plaintiffs had no role to play in the appearance of Mr R.K. Singh, Advocate. It is submitted that defendant needs to explain the reasons of his non- appearance from the date 10.08.2013 when summon of suit was served on him. His denial that he did not receive the summon is contrary to record because his signature on the summon of execution petition (which he admits CS(OS) No.773/2013 Page 4 he received) and summon of suit dated 10.08.2013 (which he denied having received) are identical. It is submitted that the defendant had agreed to sell the suit property vide sale agreement dated 30.08.2012 to him for a sum of Rs.45 lakhs, but he avoided to execute the sale deed and even the date of execution of the sale deed was extended from 02.01.2013 to 06.02.2013 on his request and he had executed an undertaking to this effect under his signature and thumb impression in the presence of witnesses. It is further submitted that agreement to sell dated 30.08.2012, besides bearing the signature of the defendant also bears his thumb impression. A legal notice dated 15.03.2013 was also sent by speed post and Registered A.D. to the defendant asking him to execute the sale deed which was duly served upon him on 19.03.2013. It is submitted that all these facts have been suppressed by the defendant. These facts also show that defendant was aware that plaintiffs were resorting to legal recourse. It is further submitted that despite the fact that notice of execution petition was served and received by him in the month of October, 2015, he waited for 122 days before moving this application and no reasonable reasons have been shown for such delay. It is submitted that his contention that he is illiterate in English and, therefore, unable to understand the notice is of no consequence as he resides with his CS(OS) No.773/2013 Page 5 children who are well-versed in English and all of them are employed and settled. It is submitted that plaintiffs is now in possession of the suit property. It is further submitted that no fraud has been played by the plaintiffs. The applications have no merit and are liable to be dismissed.
4. I have heard the arguments and perused the file.
5. The applicant-defendant has contended that he became aware of the decree when he received the notice of execution petition in October, 2015. He, however, moved the present application after about 122 days of this knowledge. His explanation to such delay was that he could not understand the notice received by him in October, 2015 because he was not well-versed in English language. He could only understand the gravity of the matter when on 29.01.2016, bailiff of the Court took possession of the suit property in execution of the ex parte decree and handed it over to the plaintiffs. He states that at that time he was away to his native village. He also states that he was facing some difficulties as his daughter-in-law was unwell and it is argued that he was to attend to her and it was he who used to take her to the hospitals as her husband, i.e., his son was employed and did not have time. It is submitted that for these reasons, delay in filing the present application had occurred and the same be condoned. Learned counsel for the plaintiffs CS(OS) No.773/2013 Page 6 during the course of arguments, has presented certain documents which he obtained through RTI showing that the defendant was working in Venkteshwara College since 13.09.1973 as a Gas Mechanic and he retired on 31.12.2014. It is further submitted that as per this information, his daughter was also working as contractual employee with Venkteshwara College. It is submitted that his son Sanadeep Kumar was also in the employment of Venkteshwara College as Lab Assistant and he was under suspension as per the order of the college dated 18.05.2015. It is argued that according to defendant, the notice of execution petition was received by him in October 2015 and at that time, his son was under suspension and available to take care of the medical condition of his wife and, therefore, the contention of the defendant-applicant that he was busy in taking care of his daughter-in-law has no force in it. It is further argued that the defendant- applicant is required to explain the delay of each day and there is nothing in the medical record submitted of his daughter-in-law to show that the defendant remained busy with the illness of his daughter-in-law for all 122 days.
6. Admittedly, the applicant-defendant was served of the execution petition in October, 2015. He, therefore, had the knowledge of the ex parte CS(OS) No.773/2013 Page 7 decree against him in October, 2015. The only explanation of not approaching the Court immediately is that he could not understand the notice being in english language and he being non-conversant with English language, is not a sufficient explanation. Admittedly, he himself had worked in Venkteshwara College and his son was also employed in the Venkteshwara College and his daughter was also employed therein. It is also a fact that he had been staying with his children. It is a settled proposition of law that the condition precedent for exercising the discretion by court for condoning the delay, the applicant has to establish the sufficient cause for exercising such discretion. In case, he fails to explain the delay and the reason which stopped him from coming to the court at a belated stage, he cannot be allowed to take benefit of his own wrong. In Esha Bhattacharjee v. Raghunathpur Nafar Academy and Ors., (2013) 12 SCC 649 has propounded various principles dealing with the issue of condonation of delay and held that "lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact" and that "the concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play" and also observed that "the conduct, behaviour and attitude of a party relating to CS(OS) No.773/2013 Page 8 its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach". The Apex Court has further observed that "the increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical, propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters". Therefore, when the delay is not properly, satisfactorily and convincingly explained, the Court cannot condone the delay on sympathetic grounds alone. It is a well-settled proposition of law that when a person seeks a relief approaching the Court, he is required to do so immediately and where it is done at a belated stage for the reasons, the courts are to employ the principle of a diligent person. If a diligent person, under the facts and circumstances, would have acted the way, the applicant has behaved which had caused the delay in approaching the court, then the applicant has the case for condonation o the delay but if the facts and circumstances put forward by the applicant does not satisfy the rule of some diligent person, then such delay and laches cannot be a ground for condonation of a delay. The law casts a duty on a person who comes before CS(OS) No.773/2013 Page 9 the Court asserting a right to be more vigilant and a litigant who is not vigilant about his rights and sleeps over it is not entitled to come forward at a later stage and seek condonation of his conduct which is not in consonance with a reasonable and a diligent person. The plea that the applicant, not able to read and understand english, did not come to know of the contents of the notice received by him in October 2015 despite the fact that not only him but his family members were working in a college, is not the behavior of the reasonable and a diligent person and does not appeal to the court. A diligent reasonable man on receiving a notice from Court would have immediately tried to find out about it and then take appropriate steps. Instead, defendant had slept over it and woken up only after 29.01.2016 when the Court executed the decree and handed over the possession of the suit property to the plaintiffs. The medical records placed on record by the defendant do not appropriately show that it kept him busy every day. Moreover, this document pertains to his daughter-in-law who is married to his son Sandeep Kumar. The arguments of learned counsel for the applicant that it was defendant who was available for taking care of his daughter-in-law because his son was employed and could not take leave, falls to the ground because CS(OS) No.773/2013 Page 10 the document issued by Venkteshwara College dated 18.05.2015 clearly show that his son was under suspension.
7. In these circumstances, I do not find the explanation given by the defendant-applicant for condonation of delay of 122 days reasonable and sufficient. The application for condonation of delay in filing the application under Order 9 Rule 13 therefore is dismissed.
7. Since the application for condonation of delay is dismissed, the application under Order 9 Rule 13, filed beyond the period of limitation is also dismissed. No order on this application is passed on merit.
8. No order as to cost.
I.A. No. 2589/2016 (application for decree of permanent injunction against plaintiffs to restrain plaintiffs to create third party interest) In view of the above order, this application has become infructuous and is therefore dismissed.
DEEPA SHARMA
(JUDGE)
DECEMBER 21, 2016/BG
CS(OS) No.773/2013 Page 11