I.D. Sharma vs Kapil Kohli
2012 Latest Caselaw 5071 Del

*      THE HIGH COURT OF DELHI AT NEW DELHI

+                CM(M) 578/2011 with CM 9356/2011

                                           Date of Decision: 28.08.2012

I.D. SHARMA                                        .... PETITIONER
                         Through:     Mr. Viraj R. Datar with Mr.
                                      Chetan Lokur, Advocates.

                         Versus

KAPIL KOHLI                                    ......RESPONDENT
                         Through:     Mr. Sanjeev Singh, Advocate

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

M.L. MEHTA, J.

1. This petition under Article 227 of the Constitution seeks quashing of order dated 07.04.2011 of the ADJ-03, South District, Saket District Courts, Delhi passed in the application of the petitioner under Order 9 Rule 13 CPC.

2. The respondent had filed a suit of recovery against the petitioner under Order 37 CPC. In the said suit, summons were issued in the prescribed form. On receipt of report of refusal, the suit was decreed against the petitioner on 22.03.2010. The respondent filed an application under Order 9 Rule13 CPC for setting aside ex-parte decree. The said application was, however, treated as one under Order 37 Rule 4 CPC by the ADJ observing that Order 37 was a Code in itself and provisions of

Order 9 Rule 13 CPC, were not applicable to suits instituted under this Order 37 CPC.

3. From the record, the learned ADJ recorded finding of fact that the summons were issued in the prescribed form by both modes i.e. by way of ordinary as well as registered post. The summons issued by way of registered post bore correct address of the addressee (petitioner) and was returned with the report of „refusal‟ on 06.02.2011, whereas the summons issued by ordinary process was refused by the petitioner‟s wife on 11.02.2010, who had noted the date of hearing as also other particulars, but, refused to receive the same. The learned ADJ observed that the defendant was lastly served on 11.02.2010, when summons were tendered to his wife and was refused by her and the application for setting aside the ex-parte decree, having been filed on 22.04.2010, was apparently time barred. It was observed that not only that, no application for condonation of delay was filed, but even otherwise no cause much less any special circumstance for setting aside the ex-parte decree was made out by the petitioner. Consequently, the learned ADJ dismissed the said application of the petitioner and thereby maintained the ex-parte decree dated 22.03.2010.

4. The impugned order is assailed disputing the tender of summons by ordinary and registered post as also the refusal by the petitioner or his wife. It was also assailed that the learned ADJ has erred in not recording any finding as regard to his pleas taken in the application under Order 9 Rule 13 CPC and has dismissed the application only on the ground of barred by limitation.

5. I have heard the learned counsel for the petitioner and on going through the record including the application under Order 9 Rule 13 CPC as also the impugned order, I do not see any merit in the instant petition calling for any interference in the impugned order by this Court.

6. At the outset, it may be noted that the power of this Court under Article 227 of the Constitution is limited and restrictive in nature and in the normal circumstance it is exercised where there is want of jurisdiction, error of law or perverse findings by the trial Court. The power is to be exercised to keep the subordinate court within limits of their jurisdiction and authority and it is not to act as an Appellate Court for correcting the decisions of the subordinate courts.

7. In the application under Order 9 Rule 13 CPC, which as noted above, was treated as under Order 37 Rule 4 CPC by the learned ADJ and rightly so, it was averred by the petitioner that on 25.03.2010, one person living on the first floor told him that someone had come from the Court of Ms. Ina Malhotra, ADJ for giving summons in his name, but, he could not tell him as the petitioner was out of station. It was averred that, thereafter he approached the Court and found that the case had already been proceeded ex-parte and then he engaged the lawyer and got inspected the file and learnt about the ex-parte decree. From the plain reading of the averments, as noted above, it would be seen that these are all bald assertions made by the petitioner. He has nowhere stated as to the name of the person who was contacted by the court official and when as also when he was told by that person on his return from out station. Likewise, his plea that he approached the Court and found the case

having already proceeded ex-parte and then engaged the lawyer and got the file inspected etc., are all vague and bald pleas. The learned ADJ has rightly noted that under Order 37 Rule 4 CPC, the ex-parte decree could only be set aside on proof of special circumstance, whereas the application of the petitioner does not decipher any such ground.

8. The reliance by the learned counsel for the petitioner on the decision of this Court on (i) Hans Raj Vs. Lakhi Ram, 114 (2004) DLT 264; (ii) Babu Lal Yadav vs. R.S.Yadav & Co. & Anr. 167 (2010) DLT 664; (iii) V.S. Saini and another Vs. D.C.M. Ltd., AIR 2004 DELHI 219 as also (iv) Vijaya Home Loans Ltd. Vs. M/s. Crown Traders Ltd. & Another, 2001 VII AD (DELHI) 475, is misplaced. All these cited cases are on different facts and circumstances and do not support the submissions of learned counsel for the petitioner.

9. In the case of Vijaya Home Loans (supra) this Court observed thus:

"Order XXXVII provides that after decree is passed under sub-rule(3) of Rule 2 thereof the court may, under „special circumstance‟ set aside the decree and may give leave to defend to appear to the summons and to defend the suit if it deems reasonable to do. The „special circumstance‟ will depend on facts of each case and it is not possible to give exhaustive definition of „special circumstance‟. The words are wide, comprehensive and flexible. When the application for setting aside a decree passed under Sub-rule (3) of Rule 2 of Order XXXVII is preferred and the court entertains a reasonable doubt about the proper service of summons on the defendants, the court may set

aside such a decree. It does not need any elaboration that if the case set up by the defendants is that there was no due service of summons in the suit and the defendants are able to establish this plea, then it may be as a „special circumstance‟ as contemplated under Rule 4 of Order XXXVII Code of Civil Procedure."

10. In the instant case, as noted above, the pleas are utterly vague. Mere bald denial of refusal of summons was not sufficient enough to bring his case within the ambit of „special circumstance‟. It is settled law that the ex-parte decree against the defendant can only be set aside if he satisfies the Court that summons had not been duly served or he was prevented by sufficient cause from appearing and further in addition, there existed special circumstance warranting setting aside of the ex-parte decree. The legislature in its wisdom has made this proviso mandatory in nature and thus it is not permissible for the Court to allow the application in utter disregard of the terms and conditions incorporated therein.

11. It is also settled law that if summons issued by registered post bearing correct address of the defendant and is returned by the postal authorities with the report of "refusal", there is presumption that the addressee received the summons sent by the registered post. Such presumption was available under Section 27 General Clauses Act as also under Section 114 Illustration (f) of the Indian Evidence Act, 1872. However, the said presumption is rebuttable on consideration of evidence of impeccable character and not by mere bald averments or assertions.

12. In view of above, I do not see any reason to discard the reports of the process server who had noted the refusal of summons by the wife of the petitioner and likewise also do not see any reason to discard the report of the postal authorities who had noted refusal by the petitioner.

13. In view of all this, I see no infirmity in the finding of fact recorded by the ADJ that summons by both modes were refused by the petitioner on 06.02.2010 and on 11.02.2010 respectively. The application for setting aside having been filed on 22.04.2010, was apparently time barred and even otherwise considering the case under Order 37 Rule 4 CPC, there was no special circumstance made out by the petitioner in allowing the application. Nothing has been made out warranting inference in the impugned order by this Court in exercise of power under Article 227 of the Constitution. The petition has no merit and is dismissed.

M.L. MEHTA, J.

AUGUST 28, 2012 awanish