Delhi High Court
Ram Yash vs Pushpa Malik on 25 August, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No.344/2010 & CM Nos.7263/11 & 16173/10
% 25th August, 2011
RAM YASH ...... Appellant
Through: None.
VERSUS
PUSHPA MALIK ...... Respondent
Through: Mr. S.S.Mishra with
Mr. A.K.Gupta, Advs.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. No one appeared for the appellant on the first call. No one
has appeared for the appellant even on the second call. I have therefore
heard the counsel for the respondent and am proceeding to dispose of the
appeal.
2. Challenge by means of this Appeal is to the impugned order of
the Trial Court dated 17.7.2010 which dismissed the application under
Order 9 Rule 13 CPC of the appellant/defendant no.1. I may note that the
defendant no.2, Sh. Kamal did not apply for setting aside of the decree for
possession and in fact the appellant has for unexplained reasons not
made the said defendant no.2, Sh. Kamal as party to this appeal.
FAO No.344/2010 Page 1 of 4
3. The disputes between the parties pertain to property no. C-17,
New Acharya Kriplani Marg, Adarsh Nagar Extension, Delhi. The case of
the appellant/defendant no.1 was that the said property was donated by
Sh.Jeevan Dass, Smt. Kalawanti, Sh.Heman Dass and Sh. Mohan Dass to
one Sh. Sadanandji Maharaj. The defendant no. 2, Sh. Kamal Das had also
claimed accordingly and in fact had filed an injunction suit and which
injunction suit was however disposed of observing that the defendant
no.2, Sh. Kamal Dass will not be dispossessed without due process of law.
The respondent is the transferee of the property from the original owners
Sh. Jeevan Dass and others. The respondent/plaintiff had purchased the
property by means of registered sale deed. Since the appellant/defendant
no.1 and also Sh.Kamal Dass failed to vacate the property, the subject suit
for possession was filed.
4. Summons in the suit were issued to the appellant/defendant
no.1 and Sh. Kamal Dass for two dates of hearings i.e. 28.8.2008 and
30.9.2008. Notices were issued both in the ordinary method through
process server and also through AD post. AD cards have been received
back, however, for some strange reason initials/signatures did not appear
in the AD cards. However, AD cards admittedly show that summons were
sent to the correct address. The process server has also noted that
summons were not taken because though initially one lady came out from
the house, however after going inside when again came said that
summons will not be taken.
FAO No.344/2010 Page 2 of 4
5. Considering the aforesaid facts, the Trial Court has given the
following observations, and with which I agree, for dismissing the
application under Order 9 Rule 13 CPC. Of course, I may note that the
Trial Court has wrongly noted that the AD cards are initialed, however,
even if the AD cards are not initialed, it would not make any difference
because the AD cards in fact show that the summons were in fact sent to
the correct address. Paras 5 to 8 of the impugned order read as under:
"5. The perusal of the record shows that process was
issued to the defendant/applicant through Process Server
as well through Registered Post. Admittedly, the address
mentioned in the registered post is correct. It is not the
case of the defendant/applicant that he was out of station
or was in any manner incapacitated from receiving the
processes. Reports on AD Card available on record shows
that one AD card pertaining to the applicant Sh. Ram Yash
was received back duly initialed. Similarly, the other Ad
card was personally received by defendant no.2.
Defendant no. 2 was also served personally through
process server. However, applicant's family members did
not receive the summons despite repeated attempts by
the process server on two different dates.
6. Section 27 of General Clauses Act, 1892 runs
as under:
27. Meaning of service by post-
Where any Central Act or Regulation made
after the commencement of this Act
authorizes or requires any document to be
served by sot, whether the expression "serve"
or either of this expressions "give" or "send"
or any other expression is used, then, unless a
different intention appears, the service shall
be deemed to be effected by properly
addressing, pre-paying and posting by
registered post, a letter containing the
document, and unless the contrary is proved,
to have been effected at the time at which the
letter would be delivered in the ordinary
course of post.
FAO No.344/2010 Page 3 of 4
7. It goes without saying that as per Section 27 of
General Clauses Act, once a process is sent by pre-paying
at the correct address, it is deemed to be served in law. In
case titled Alavi Haji Vs. Palapetty 2007 (6) SCC 555
(SC) it has been observed by Hon'ble Supreme Court
that :
"Notice demanding payment sent by payee
through registered post on correct address of
drawer of cheque - There is presumption of
service - Principle Incorporated in Section 27
of General Clauses Act would be attracted."
8. In the case in hand, the factum of pre-payment and
correctness/genuineness of address is not at all in
question. AD card duly initialed is received back on
record. The mere disowning of initial on the AD card in
my considered view is insufficient to discard the due
service."
6. I may note that the respondent and her predecessor-in-
interest strenuously disputed that there was any donation of the property
to Sh. Sadanandji Maharaj as was alleged. It is therefore cleared that the
respondent/plaintiff was entitled to possession of the property and if the
appellant/defendant no.1 chooses not to contest the proceedings in spite
of summons having been sent he has to take the necessary
consequences. The respondent has already taken physical possession of
the property in execution of the decree.
7. In view of the above, there is no merit in the appeal, which is
accordingly dismissed, leaving the parties to bear their own costs. Interim
orders are vacated and the CM Nos.7263/11 & 16173/10 are therefore
disposed of. Trial Court record be sent back.
AUGUST 25, 2011 VALMIKI J. MEHTA, J.
ak
