Delhi High Court
Surinder Grover vs Anil Kumar on 25 July, 2012
Author: Veena Birbal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 311/2012
% Judgment delivered on: 25.07.2012
SURINDER GROVER ..... Appellant
Through : Mr. Harvinder Singh Thethi, Adv.
versus
ANIL KUMAR ..... Respondent
Through : None
CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL
VEENA BIRBAL, J.(oral)
*
CM No. 12566/2012 (exemption)
Exemption as prayed is allowed, subject to just exceptions.
Application stands disposed of.
FAO No. 311/2012
1. By way of this appeal, a challenge has been made to order dated
02.05.2012 passed by learned ADJ, Delhi whereby while allowing
application of the appellant under Order 9 Rule 13, a condition has been
imposed directing the appellants to deposit the principal amount i.e.
Rs.6,50,000/- in the form of FDR within one month from the date of
impugned order in the name of court.
2. Learned counsel for appellant submits that the appellant had moved an
application under Order 9 Rule 13 of CPC for setting aside the ex parte
judgment and decree dated 18.09.2008 passed against him whereby the
learned ADJ had decreed the suit of respondent/plaintiff for an amount of
Rs.6,50,000/- and interest of 9% p.a. from the date of filing of the suit.
3. Appellant had taken a stand before the learned trial court that he was
never served with the summons of the suit. Even the service by way of
publication was not proper and he had come to know of the ex parte
judgment and decree only on 16.08.2011 when he was arrested in execution
of warrant of arrest and thereafter he immediately moved an application on
30.08.2011 for setting aside of ex parte judgment and decree passed against
him.
4. The aforesaid application was contested by the respondent/plaintiff
has by filing reply wherein he denied that appellant was never served with
the summons of the suit. He had also taken a stand that the
appellant/defendant was aware of even the pendency of the execution
petition and was deliberately not appearing in the matter. After hearing
learned counsel for the parties, the learned ADJ has observed that the suit
was filed against the appellant/defendant on the basis of cheque bearing no.
756956 dated issued by him in the name of the respondent/plaintiff. It has
been further observed that the summons of the suit were sent to him number
of times at his first address but every time on reaching his address it was
reported that he had shifted to 13, 2nd floor, Old Anarkali, Delhi-51 where
the brother of the appellant/defendant had refused to take the summons and
stated that he did not reside there nor he gave any other address of the
appellant/defendant. The perusal of the impugned order shows that even the
mother of the appellant/defendant had refused to take summons.
Accordingly, the learned ADJ had observed that he was duly served with the
summons. The relevant Paras of the impugned order are reproduced as
under:-
"17. The summons of the suit were issued to the
defendant number of times and the perusal of the
report on the summon sent to the defendant on his
1st address for 8.11.2007 shows that the process
server had taken the summons on the first address,
but on reaching there, he came to understand that
the defendant had shifted at 13, IInd floor, Old
Anarkali, Delhi, where the brother of the defendant
met who refused to take the summon of the
defendant and stated that the defendant did not
reside there and he did not tell about the address of
the defendant, whereas, perusal of the report on the
summons sent to the defendant on his address on
A-7, Lal Quarter Delhi for dated 9.1.2008 shows
that the process server had reported that he was
told that the defendant had come there few time
before and the defendant is residing at 13, 2nd
Floor, Old Anarkali Delhi and he went to the said
place, where the mother of the defendant met to
the process server and firstly she has stated that the
defendant was inside the house and she went inside
the said house and when she again came out, she
had resiled from her earlier statement and stated
that the defendant did not reside there and refused
to take the summon.
18. Perusal of the record shows that the personal
service of the defendant could not be effected, so
on filing of the application u/o 5 rule 20 by the
plaintiff, the service of the defendant was ordered
to be effected by way of publication of summons
in the newspaper, on both the addresses of the
defendant. As the brother and mother of the
defendant had refused to take the summons and
also refused to tell about the defendant.
Accordingly, the service of the defendant was
effected by way of publication of summon in the
newspaper Statesman in its edition dated 8.2.2008
for 29.2.2008. But despite of his service by way of
publication of summon in the newspaper, the
defendant failed to appear in the court and was
proceeded ex parte by the court and the matter was
adjourned for the ex parte evidence of the plaintiff
and on completion of the evidence of the plaintiff
and after hearing the counsel for the plaintiff, the
predecessor of mine vide his judgment dated
18.9.2008 was pleased to decree the suit of the
plaintiff."
5. There is a categorical finding by the learned ADJ that the summons
were duly served. The brother and mother of the appellant had refused to
accept the summons and as such in law refusal of accepting summons by the
adult member of the family can be treated as service of summons. It has also
been noticed that he was also served by way of publication in newspaper.
Keeping in view the material on record, it has been observed that the
appellant/defendant was watching the proceedings and the same were very
much in his knowledge and accordingly his application which is moved after
2 years and 11 months of passing of the ex parte judgment and decree has to
be time barred. Despite the above observation, in order to give an
opportunity to contest the matter on merits, the ex parte judgment/decree has
been set aside by the ld. ADJ subject to deposit of the cheque amount i.e. Rs.
6,50,000/-.
6. Learned counsel for appellant has contended that though the
application under Order 9 Rule 13 has been allowed but the condition
imposed in allowing the said application is very harsh and appellant is not in
a position to pay the aforesaid amount.
7. Perusal of impugned order shows that after considering the entire
background of the case and observing that the appellant/defendant was duly
served and has been deliberately not appearing in the matter, the appellant
has been given opportunity to contest the matter subject to deposit of the
principal amount. The application has been allowed keeping in view the
request of the learned counsel for the appellant/defendant. In these
circumstances, appellant cannot make any grievance of the impugned order.
Taking a lenient view of the matter, I have even asked the appellant who is
present in court to deposit 50% of the principal amount i.e. Rs. 3,25,000/-
but he is not even willing to deposit even the said amount.
In view of the circumstances, no illegality is seen in the impugned
order which calls for interference of this Court.
The appeal stands dismissed.
CM No. 12565/2012 (stay)
In view of the order on the main appeal, no orders are required on this
application.
The same stands disposed of accordingly.
VEENA BIRBAL, J
JULY 25, 2012
kks
