Chamanlal Yadav vs K.L. Johar
2006 Latest Caselaw 274 Del

JUDGMENT

R.S. Sodhi, J.

1. RSA 11/1996 seeks to challenge the judgment and order dated 07.10.1995 of the Additional Senior Civil Judge, Delhi whereby the learned Judge has dismissed the appeal being barred by time and also gone on to dismiss the appeal on the ground that the order dated 30.11.1993 of the Civil Judge, Delhi disposing of the suit by an ex-parte decree was valid as the appellant herein was aware of the pendency of the suit and deliberately chose not to appear before the trial court.

2. Vide order dated 01.02.1996 the following question of law has been formulated:-

Whether in the facts and circumstances of the case, the findings recorded in the impugned judgment of the lower appellate court, that the appellant/defendant had refused service of summons and had knowledge of the suit and the ex-parte judgment and decree dated 30th November, 1993, are perverse

3. Facts of the case as noted by the Senior Civil Judge are as follows:-

A suit was filed against the appellant-defendant for permanent injunction restraining him from taking forcible possession of the suit premises No. 4/9 out of Khasra No. 772 Village Chandrawali, Shahdara, Delhi in the abadi of Sarvariya Market, Vishwas Nagar, Shahdara, Delhi-32. On an application under Order 39 Rules 1 and 2 CPC Sh. G.S.Jugti, ld.Addl.Distt. Judge, Delhi, vide his order dated 4.6.1993 ordered the appellant-defendant to maintain status quo in respect of the suit property and a report of the Local Commissioner was also called. On 7.6.1993 the appellant-defendant did not appear and refused to receive the summons. The report of the Local Commissioner was perused and the appellant- deft.was restrained from interfering and taking forcible possession of the suit premises till 16.7.1993. Thereafter, the suit was transferred to the Court of Ms. Anju Bajaj Chandana, ld.Civil Judge, Delhi who aslso proceeded exparte against the appellant-defendant since he was not present despite service. This order was passed by the ld.trial court on 13.8.1993. Thereafter, after recording the exparte evidence, the impugned judgment and decree was passed.

4. Counsel contends that at no point of time was the appellant aware that the suit was pending and that he came to know of the ex-parte decree on 20.07.1995 whereupon he filed an appeal on 26.07.1995. He contends that the first appellate court was wrong in relying upon the Local Commissioner's report to derive support that the appellant herein was served with a stay order on 05.06.1993.

5. Counsel contends that the report of the local commissioner clearly mentions - 'at the time of my inspection, the following persons were present and the defendant is not present at the spot. The persons, namely, Roshan Lal, Ratan Lal Sharma, Kishan Singh, Ramesh Chander, Om Prakash, Hakeem, were present at the time of my inspection.'

6. Counsel submits that the aforesaid finding is perverse. Nobody appears on behalf of the respondent in spite of the matter having been listed in this court for sufficiently long time. In any event, the matter has been pending in this court since 1996 and I find the respondent is least concerned with coming to defend the same. Consequently, having heard counsel for the petitioner, I have been taken through the record of the case with his assistance.

7. The appellate court does not advert to any evidence on record to support its finding that the appellant herein was served and refused to attend proceedings in the suit before the trial court. The only reference made in the judgment is to the report of the Local Commissioner, wherein, it is specifically mentioned that the appellant herein was not present at the time when the Local Commissioner visited the spot on 05.06.1996. The deduction that since other people knew of the stay order the appellant was deemed to have knowledge of the pendency of the suit can hardly be a fair deduction.

8. In that view of the matter, I find that the order under challenge is not supported by any material on record. Consequently, the findings are based on surmises and conjectures and, therefore, need to be set aside. The order dated 07.10.1995 of the Additional Senior Civil Judge, Delhi in RCA No. 151/95 is set aside and RSA 11/96 is allowed and disposed of.

9. The parties are directed to appear before the trial court on 07.03.2006 when the trial court shall proceed with the matter in accordance with law. The matter being an old one is directed to be disposed of expeditiously by the trial court.