Madan Mohan vs Prem Lata Malhotra & Ors.
2010 Latest Caselaw 2496 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                           Date of Reserve: March 15, 2010
                                                               Date of Order: May 10, 2010
+ CM(M) 1329/2007
%                                                                                 10.05.2010

MADAN MOHAN                                   ...Petitioner
          Through: Mr. Gautam Anand, Advocate

                                            Versus

PREM LATA MALHOTRA & ORS.                      ...Respondents
            Through: Mr. Sudhir Nandrajog, Sr. Adv. with Mr. Vijay
            Tandon, Advocates

        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

1. By way of present petition under Article 227 of the Constitution of

India, the petitioner has assailed orders dated 18 th September 2007 and 29th

October 2004 passed by learned Additional District Judge.

2. Vide order dated 29th October 2004, an application of the petitioner

under Order 9 rule 13 for setting aside an ex parte decree was dismissed by

learned Civil Judge and vide order dated 18th September, 2007 the appeal

filed by the petitioner against the order of learned Civil Judge was

CM(M) 1329/2007 Madan Mohan v. Prem Lala Malhotra & Ors. Page 1 Of 5 dismissed by learned ADJ.

3. Brief facts relevant for the purpose of deciding this petition are that a

suit was filed by Jugal Kishore against his son and grandson who were in

permissive possession of the suit premises and despite requests of Shri Jugal

Kishore, had not been vacating that premises. Defendants no.1 and 2 i.e. the

petitioner herein had already been disinherited from the properties by

parents.

4. The mother had executed a Will disinheriting them from rights in her

property as well. A public notice debarring the defendants from the

properties was also published in the newspapers. These facts would only

show that the relationship between plaintiff and defendants became bitter

and the parties were litigating.

5. The plaintiff after filing of the suit, within few days died and his Lrs

were brought on record. The summons in the suit were sent to the defendants

through ordinary process as well as through registered cover right from

September 1997 to March, 1998. The summons sent through registered post

for 18th September 1998 to defendants no.1 and 2 came back with the report

that the defendants no.1 and 2 were out of station and, therefore, the registry

could not be delivered. The process server had taken service through

ordinary process and it was reported to him by the family members of

defendants no.1 and 2 that defendant no.1 had gone to hospital and defendant

no.2 was out of station. It only seems that the efforts of defendants was to

CM(M) 1329/2007 Madan Mohan v. Prem Lala Malhotra & Ors. Page 2 Of 5 prolong their stay in the premises, otherwise there was no reason that the

family members of the petitioners should have refused to receive summons

on behalf of the petitioner. The learned Civil Judge again directed service of

summons for 13th November 1997 through registered post and through

ordinary process. The report on registered cover was again that the

defendants were out of station and the report of the process server on

ordinary process was that defendants were not available at the time of his

visit. Again none of the family members received summons from the process

server. The Civil Court though, not bound to send summons again and again,

despite the fact that the petitioner was bent upon not to receive summons,

sent summons for 3rd time for 5th March, 1998 and the summons came back

with the same report. Ultimately, the learned Civil Judge allowed an

application under Order V Rule 20 CPC made by the plaintiff and directed

service of summons through publication, on being satisfied that the

petitioner was avoiding service of summons. The notice was published in the

newspaper and the newspaper office also sent a copy of newspaper

containing notice to the petitioner's house through UPC. However, the

petitioner chose not to appear and was proceeded ex parte. The petitioner

then moved an application for setting aside the ex parte decree only when the

decree holder sought execution of the decree and made a prayer to the

Administrative Civil Judge for appointment of Bailiff.

6. The plea taken by the petitioner in the application for setting aside the

CM(M) 1329/2007 Madan Mohan v. Prem Lala Malhotra & Ors. Page 3 Of 5 ex parte order was that the petitioner learnt about passing of decree when the

plaintiff boasted that he would soon be thrown out of the house. Plaintiff

then contacted the advocate and the advocate inspected the case file and

came to know about passing of decree against the petitioner. The learned

Civil Judge found that there was no way by which the petitioner could have

come to know the name of Court who passed decree unless the petitioner had

been keeping watch and had knowledge of the decree and the plea taken by

the petitioner that he learnt about the passing of decree on inspection of

record was found a false plea. During appeal, counsel for the petitioner told

the appellate court that since it was known to the counsel that a decree can

be executed only through bailiff so he checked the list of bailiffs assigned to

different cases and found out the details of decree. This plea was discarded

by the appellate court and rightly so because list of bailiffs is not made

public. Bailiffs are assigned by Administrative Civil Judge on day to day

basis and unless somebody knows particulars of his case, he cannot come to

know even by inquiry as to which Bailiff has been assigned for execution of

which decree.

7. In the application for setting aside the ex parte decree, it was not the

case of the petitioner that the petitioner was out of station. The petitioner did

not plead as to why all his family members did not take summons. The only

plea taken by the petitioner was that it was not a proper service. This plea

CM(M) 1329/2007 Madan Mohan v. Prem Lala Malhotra & Ors. Page 4 Of 5 was disbelieved by the two courts below and I consider that it was rightly

disbelieved.

8. It is settled law that under Article 227 of Constitution of India, this

Court cannot Court act as a Court of appeal to re-appreciate the material on

the basis of which the two courts below had given concurrent findings. This

Court under Article 227 of the Constitution of India had no jurisdiction to set

aside the concurrent findings of two courts below who come to a conclusion

that the petitioner had deliberately avoiding service and was duly served by

publication. I find no reason to set aside this finding of two courts below. I

find no force in this petition. The petition is hereby dismissed with no orders

as to costs.

May 10, 2010                                         SHIV NARAYAN DHINGRA J.
rd




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