Chander Pal vs Brm Lease & Credit Ltd. & Anr.
2012 Latest Caselaw 4963 Del

*      THE HIGH COURT OF DELHI AT NEW DELHI

+                         C.R.P. 80/2011

                                            Date of Decision: 23.08.2012

CHANDER PAL                                            ...... Petitioner
                          Through:     Mr. H.K. Shekhar with Mr.
                                       Ranjeet Singh, Advocates.

                                  Versus

BRM LEASE & CREDIT LTD. & ANR.       ...... Respondents
                     Through: Mr. Ruchin Batra, Adv.



CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (ORAL)

1. The present civil revision has been filed under Section 115 read with Section 151 of the Code of Civil Procedure (CPC) against order dated 09.03.2011 passed by the ld. Additional District Judge whereby the appeal filed by the petitioner, against dismissal of his applications, under Order 9 Rule 13 CPC and Section 5 of the Limitation Act in suit no. 376/ 05, was dismissed.

2. The said suit was filed by respondent no. 1 against the petitioner and respondent no. 2 for recovery of Rs. 1, 59,052/- claiming that the petitioner got financed from respondent no. 1 a motor vehicle and respondent no. 2 stood as surety. It was alleged that petitioner and respondent no. 2 defaulted in the repayment of the loan.

Summons of suit were issued for service upon petitioner and respondent no. 2 and vide order dated 27.05.2006, they were proceeded against ex-parte. The suit came to be decreed against both, the petitioner and respondent no. 2 for recovery as well as for permanent injunction in respect of vehicle. The petitioner filed an application under Order 9 rule 13 CPC before the ld. trial Court along with an application under Section 5 of the Limitation Act. Vide order dated 30.07.2010, both the applications were dismissed. The petitioner then filed an appeal against the said order of dismissal on the ground that he was not duly served. The ld. Additional District Judge vide order dated 09.03.2011 dismissed the appeal and observed that it was evident from the Court's record that the process was sent by registered post as well as courier twice and the petitioner had refused to accept it and he consequently dismissed the appeal which is under challenge in this petition.

3. The learned counsel for the petitioner has reiterated the submissions made before the ld. trial Court.

4. The only contention of learned counsel for the petitioner which is raised in the instant petition is the same that was raised before the Court of Civil Judge as also before the ADJ, that the petitioner never refused of the summons and was thus not served, and therefore, the ex-parte decree was liable to be set aside. It was also his submission that, in any case, the delay in filing of

application under Order 9 Rule 13 CPC was liable to be condoned in the interest of justice.

5. It is noted that the averments which were taken by the petitioner in the application under Order 9 Rule 13 CPC, as also under section 5 of Limitation Act filed before the ARC, are absolutely identical. It was his plea that he came to know about the ex-parte judgment dated 22.05.2007 only on receipt of notice in execution on 31.08.2009, and thereafter got inspected the file and came to know about having been proceeded ex-parte on 27.05.2006 and thus, had no knowledge of the ex-parte judgment dated 22.05.2007, he was prevented from contesting the suit. It is seen that these submissions have been elaborately dealt with by the ARC as also by the ADJ. It is seen from both the applications filed by the petitioner that he nowhere stated as to when he got the file inspected and from whom. This was nothing but a bald statement made by the petitioner that he did not receive the summons or he never refused to accept the summons or that he did not know about the ex-parte order dated 22.05.2007. Not only that, he did not show any cause, much less sufficient, for condonation of delay as also for setting aside the ex-parte order dated 22.05.2007.

6. The law with regard to setting aside the ex-parte judgment and decree against the defendant is trite that the defendant seeking setting aside such a judgment and decree has to satisfy to the Court that the summons had not been duly served or he was

prevented by sufficient cause from appearing when the suit was called for hearing. As per proviso to Order 9 Rule 13 CPC, the Court shall not set aside the said decree on mere irregularity, if any, in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the Court. The legislature in his wisdom, made the proviso mandatory in nature. Thus, it is not permissible for the Court to allow the application in utter disregard of the terms and conditions incorporated in the said proviso.

7. It is also settled law that mere on the bald statement of the defendant that he had not received or refused the summons, the Court shall not set aside the ex-parte decree and judgment. In the case of summons admittedly addressed at the proper address, sent by ordinary as also by registered post, there was presumption of its service under section 27 of General Clauses Act 1897 as also under section 114 illustration (f) of Indian Evidence Act. Though, the presumption was rebuttable, but, a bald statement to that effect was not enough to rebut the presumption. The petitioner having failed to discharge the onus that was laid upon him as per section 101 and 103 of Indian Evidence Act, the finding of fact recorded by the ARC, was irresistible. There being no irregularity or infirmity in the impugned order, I do not find the same to be calling for any interference by this Court under its revisional power. The petition has no merit and is hereby dismissed.

M.L. MEHTA, J.

AUGUST 23 , 2012/awanish