Mina Gupta vs Sanjay Mahajan And Anr.
2003 Latest Caselaw 82 Del

JUDGMENT

Khan, J.

1. Plot No. 17 measuring 350 sq.yards along with a structure on it at defense Enclave, Vikas Marg, Delhi is at the root of controversy. The property admittedly belonged to one G.N. Gupta on whose death it devolved on his legal heir Ms. Mina Gupta, a 50 year old unmarried lady in whose name it was mutated by mutation letter dated 27.1.97 and who filed this Appeal sometime in 2000. Her story, as gathered from the record is that she was living in the front portion of the structure and Respondents who are property dealers in the locality had occupied the rear portion. They later fraudulently opened a bank account in her name and deposited some money in it and fabricated documents to claim that they had purchased the suit property for Rs. 12 lakhs. She lodged FIR No. 146/97 against them in which all such documents were seized.

2. Respondents version, as is contained in their Suit on the other hand is that they had entered into an agreement for purchase of the entire built-up property for a consideration of Rs. 12 lacs with Mina Gupta who had executed an agreement to sell, a registered General Power of Attorney, a registered a Conveyance Deed dated 29.1.97 and had received consideration amount of Rs. 12 lakhs through cheques drawn on two different banks which were encashed by her. She had also handed over the possession of the Suit property to them on 29.1.97, but was allowed to retain a portion of the property consisting of two rooms, kitchen, latrine and a bath in her possession for two months which she later failed to vacate leading to filing of the suit No. 189/97 for recovery of possession and mesne profits by them.

3. This suit was decreed by ex-parte judgment and decree dated 25.9.1997. The Defendant Mina Gupta first filed an application to set it aside on 12.1.99. Her application was but dismissed as withdrawn by order dated 27.1.99 upon some alleged compromise between the parties and she was eventually evicted pursuant thereto on 3.4.99. This order incidentally makes an interesting reading. It neither records the party's presence or their counsel, nor provides any clue about the alleged compromise said to have been reached by them to justify the withdrawal of application for setting aside the ex-parte decree.

4. Faced with this, Defendant Mina Gupta then filed this appeal against the ex-parte decree dated 25.9.1997 in which delay in filing was condoned by this court. She also filed several miscellaneous applications for appointment of Receiver and for calling the report of forensic laboratory to test the genuineness of documents produced by plaintiffs which remained pending. She meanwhile died during the pendency of this appeal and her LRs are now substituted for her.

5. Notwithstanding the merit of rival claims, we are only seized of the validity of impugned judgment and decree and all that falls for consideration at this stage is whether it was an order that whether it could sustain in the facts and circumstances of the case.

6. Appellant's case, in nutshell, is that trial court had passed the impugned decree in an unfair trial and in contravention of the procedure prescribed by law and the rules of evidence. It had taken ex-parte proceedings against the Defendant without exhausting the available modes of service and without ensuring whether summons were duly served on her or not. It had then recorded the evidence of plaintiffs in ex-parte and had declared the photocopies of the documents produced by them as proved on their testimony when the original documents were admittedly in police custody since 9.9.1997 and when plaintiffs application for their return was pending before the Metropolitan Magistrate.

7. L/C for respondents Mr. Sethi justified the impugned judgment and decree on the plea that Defendant Mina Gupta had entered into a compromise with plaintiffs which had resulted in the withdrawal of her application for setting aside the impugned decree and on the basis of which a Ld.Single Judge of this court had quashed the FIR No. 146/97 against the plaintiffs. He referred to the relevant judgment to show that plaintiffs (respondents) had entered into a bona fide transaction with the Defendant and that there was nothing wrong with the impugned ex-parte decree which was validly passed.

8. As already indicated, the issue before us is not whether the claim of the plaintiffs was good or bad and whether the transaction in question was bonafide and above-board but whether the trial conducted by the Trial Court was in accordance with law and whether the ex-parte decree passed against the Defendant was valid. This required to be tested on the touchstone of the provisions of the Civil Procedure Code and the Evidence Act and even the quashing of the FIR against plaintiffs would also not constitute a relevant factor for this, though it might be set up as a circumstance at trial to support and strengthen the plaintiffs' claim.

9. Proceeding thus, the whole focus turns on the impugned ex-parte judgment which tells its own tale and exposes the manner and method adopted by the Trial Court in dealing with the suit. Its perusal makes it loud and clear that the court had acted in hot haste and had thrown the established norms of procedure and rules of evidence to winds. It had neither exhausted the available modes of service, nor satisfied whether the summons were duly served on the Defendant and yet had taken ex-parte proceedings against her in a huff. It had then proceeded in a cavalier manner to record the evidence of plaintiffs ex-parte and had declared the copies of documents produced by them as proved on their testimony without asking for the original documents which were admittedly in police custody in FIR No. 146/97. It had not even taken recourse to the procedure for examining any secondary evidence.

10. The trial court should have known that even if original documents were before it, these were required to be proved according to the rules of evidence, through the scribes, the executant and the original witnesses, as the case would be, to qualify as proof for transferring the Defendant's interests and rights in the property. It had also ignored and omitted to seek any proof on plaintiffs' claim that they had paid and Defendant had received the consideration amount of Rs. 12 lacs from them. The Trial Court had overlooked all this and given a go-bye to the all established prescribed procedure and the rules of evidence rendering the whole trial conducted by it to a sham trial so to say and had passed the ex-parte decree divesting a hapless woman of the suit property. It had steadily followed it up, as if true to the pattern by dismissing Defendant's application for setting aside the ex-parte decree as withdrawn on the plea of some compromise between the parties. This order requires to be reproduced only to expose cavalier approach of the court in dealing with the defendant's case. The order reads thus:-

"27.1.99 File is taken up on the application of JD u/s 151 CPC with the request that his application u/o 9 R 13 CPC pending in this court may be dismissed as withdrawn. The application is duly supported by the affidavit. Consequently, the same is dismiss as withdrawn. File be consigned to R.R."

11. As is apparent, this order neither records the appearance of the parties or their counsel. Nor does it make any mention of any terms of compromise on the basis of which Defendant was allegedly withdrawing her application.

12. It is not known if the trial court had done all this out of ignorance or for whatever reasons best known to it. In the former case, it had only exposed itself to the charge that it was not even conversant with the elementary norms of conducting the trial and rules of prescribed procedure and evidence. The judgment and decree passed by it, therefore, becomes the product of a sham trial and illegal and invalid. It accordingly deserves to be set at naught and is hereby set aside. Respondents' suit No.189/97 shall consequently revive and be proceeded with and disposed of under law afresh. The suit property which may have changed hands meanwhile is required to be restored to the position as prevailed on 2.4.1999 when deceased Mina Gupta was evicted pursuant to the impugned decree. Trial court is accordingly directed to take over the custody of the suit property till any interim arrangement is made by it after hearing the parties who shall be free to seek appropriate orders for such arrangement to secure their interests and to preserve the property till the disposal of the suit.

13. Registry is directed to send a copy of this judgment to the Ld. Trial Judge and his Inspecting/Ld. Administrative Judge also.

14. Parties to appear before Trial Court on 19th February 2003.