Delhi High Court
Shri Vern Kumar Datt & Anr. vs Shri Aditya Datt & Anr. on 29 January, 2010
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 21st January, 2010
Date of Order: January 29, 2010
CM (M) No. 1020/2009
% 29.01.2010
Shri Vern Kumar Datt & Anr. ... Petitioners
Through: Mr. Sunil Malhotra, Advocate &
Ms. Sonali, Advocate
Versus
Shri Aditya Datt & Anr. ... Respondents
Through: Mr. Vijay Kumar Gupta, Advocate
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
By this petition under Article 227 of the Constitution of India the
petitioners have assailed an order passed by the learned ADJ on 26th August, 2009
whereby he allowed an application under Order 9 Rule 13 CPC made by the
respondent and set aside the ex parte decree. It is submitted by the petitioners that
respondent no.1 was duly served through substituted service but respondent no.1 did
not appear despite service and respondent no.2, who was also served, appeared
before the trial Court but did not file WS and ultimately his defence was struck off.
The petitioners adduced evidence in respect of the case and the petitioners'
witnesses were cross examined by Counsel for respondent no.2 and ultimately Court
of Shri N.K.Kaushik ADJ on 7.4.2008 decreed the suit of the petitioners. Despite the
decree passed by the trial court, issuing an injunction against respondent no.1,
respondent no.1 illegally went ahead with sale of the property. He appointed
Praveen Chopra as his attorney and Praveen Chopra sold the suit property to Rajiv
Bahl. Rajiv Bahl had further sold property to Judge Chawla, who is respondent no.2
herein. Respondent no.2 had earlier been restrained from buying the common
portion of the property but despite restraint order, respondent no.2 illegally went
ahead with the sale and ultimately got the property transferred to himself. It is stated
that respondents no.1 & 2 were hand in glove with each other and an application
under Order 9 Rule 13 CPC was filed by the respondent no.1 & 2 in conspiracy with
each other, for setting the ex parte decree against respondent no.1 passed on 7th
August, 2004. The plea taken by respondent no.1 that he learnt about passing of the
decree from the Writ Petition filed by the petitioner against respondents and MCD
regarding unauthorized construction was a false plea. The other plea taken by the
respondent for not being able to inspect the record due to advocates' strike was also
a false plea. The application itself was hopelessly barred by time and was a mala
fide exercise since both the respondents were very well aware of the proceedings
pending before the Court of Shri N.K.Kaushik, ADJ. There was no document to show
as to why the Counsel for the respondent could not inspect the file. It is also
submitted that no advocate was prevented from inspecting the Court record during
strike. It is submitted that the trial Court went wrong in allowing the application under
Order 9 Rule 13 CPC and failed to appreciate the collusion between respondents
no.1 & 2 and the fact that the respondent no.1 had been dealing and transacting in
the property on one hand and evading appearance before the trial Court on the other.
2. In response to this petition it is submitted by the respondent that the
respondent was never served in the suit. The allegations are that the petitioner
deliberately did not make attempt to serve respondent no.1. Respondent no.1 was
real brother of petitioner and the record would show that despite order of registered
cover, no registered cover was filed. Ordinary summons had also not gone to the
respondent no.1. Under these circumstances, respondent no.1 could not have
appeared before the Court to contest the claim of the petitioner. A prayer is made
that the petition be dismissed.
3. Order 9 Rule 13 CPC reads as under:
13. Setting aside decree ex parte against defendants. - In any
case in which a decree is passed ex parte against a defendant, he
may apply to the Court by which the decree was passed for an
order to set it aside; and if he satisfies the Court that the summons
was not duly served, or that he was prevented by any sufficient
cause from appearing when the suit was called on for hearing, the
Court shall make an order setting aside the decree as against him
upon such terms as to costs, payment into Court or otherwise as it
thinks fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it
cannot be set aside as against such defendant only it may be set
aside as against all or any of the other defendants also:
[Provided further that no Court shall set aside a decree
passed ex parte merely on the ground that there has been an
irregularity in the service of summons, if it is satisfied that the
defendant had notice of the date of hearing and had sufficient time
to appear and answer the plaintiff's claim.]
[Explanation - Where there has been an appeal against a
decree passed ex parte under this rule, and the appeal has been
disposed of on any ground other than the ground that the
appellant has withdrawn the appeal, no application shall lie under
this rule for setting aside the ex parte decree.]
4. It is apparent that Order 9 Rule 13 CPC envisages that the party
making application under Order 9 Rule 13 CPC had no knowledge of the suit in
which decree was passed, no service was effected or there was some reasonable
ground due to which the respondent could not appear in the Court which resulted into
his being proceeded ex parte and an ex parte decree being passed. The Court can
set aside the ex parte decree if the Court is satisfied with the reasons given by the
defendant about his non appearance on the date fixed.
5. In the present case, the trial Court considered the record and found
that the process server and process fee filed by the plaintiffs clearly showed that
plaintiffs had not taken sufficient steps to serve the applicant/respondent no.1. No
registered AD cover was filed neither UPC was sent by the plaintiff of the suit to
defendant no.1. The process server had not even gone to the house of defendant to
serve the summons. The plaintiff had not taken steps despite order dated
20.12.2002 of the Court whereby the Court had directed the plaintiffs to file process
fee and registered A.D.Covers. The plaintiffs had not filed registered covers as
ordered and by-passed the ordinary process of service of the applicant through post.
The summons were sent through ordinary process at an address where defendant
no.1 was not living. Process server had given his report that the premises was
locked and no one was living there and defendant no.1 had shifted from this place.
The trial Court also came to the conclusion that the address of defendant no.1 as
given by the plaintiff was wrong though the correct address was available with the
plaintiff and the plaintiff filed this correct address in the Writ Petition where defendant
no.1 was served. He observed that this itself was sufficient ground for setting aside
the ex parte decree. The issue of delay was decided by the trial Court in favour of
the applicant in view of the strike of advocates.
6. Perusal of record shows that registered AD covers were not sent to
the defendant no.1. After the report was given by the process server that premises
was locked and no one was living there, the plaintiff did not file correct address of
defendant no.1 which apparently was known to the plaintiff. Defendant no.1 was got
served through substituted service by publication of notice in "Veer Arjun" and "The
Statesman".
7. In view of the fact that the trial Court had analyzed the factual situation
in the light of the documents available on record and came to a conclusion that there
was sufficient cause for setting aside the decree and allowed application under Order
9 Rule 13 CPC, it would not be appropriate for this Court, in exercise of its jurisdiction
under Article 227, to substitute its own opinion about the service of defendant no.1
and to come to a contradictory conclusion. Under Article 227, this Court does not act
as a Court of appeal. This court has only to ensure that the procedure followed by
the trial Court was as per law and the trial Court did not out step its jurisdiction. I,
therefore consider that there is no ground to interfere with the orders of the trial court.
The petition is hereby dismissed.
January 29, 2010 SHIV NARAYAN DHINGRA, J.
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