Pawan Kr. Gupta vs M/S Chandra Associates Pvt. Ltd.
2013 Latest Caselaw 5812 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Order delivered on: December 17, 2013

+                    CM(M) 317/2013 & C.M. No.4711/2013

      PAWAN KR. GUPTA                                      ..... Petitioner
                   Through             Mr.Kuldeep Singh, Adv.

                           versus

      M/S CHANDRA ASSOCIATES PVT. LTD.         ..... Respondent
                   Through Mr.S.S.Nizami, Adv. for R-1.
                           Ms.Shobhana Takiar, Adv. for R-2.

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By way of the present petition under Article 227 of the Constitution of India read with Section 115 CPC, the petitioner has assailed order dated 18 th September, 2012 whereby an application filed by the petitioner seeking to set aside ex-parte proceedings under Order 9 Rule 7 CPC was dismissed by the learned Trial Court.

2. Brief facts for the purpose of adjudication of the present petition are that the respondent No.1 had filed an eviction petition against Smt.Krishna Gupta (predessor interest of the petitioner) and respondent No.2 under Section 14(1) (b) of the Delhi Rent Control Act. Smt. Krishna Gupta (respondent no.1 therein) was proceeded ex-parte vide order dated 27th November, 1996 and later on she died on 15th March 2006.

3. Praying for setting aside the ex-parte proceedings and for impleading the LRs of Smt. Krishna Gupta, the petitioner vide an application under

Order 9 Rule 7 read with Order 22 Rule 4 CPC contended that the respondent no.1 had given the wrong address of Smt. Krishna Gupta and that she never refused to accept any summons nor were the same ever tendered on her for service. It was stated therein by the petitioner that there was no property bearing No. 446 Sainik Farms, New Delhi whereon Smt. Krishna Gupta was allegedly served.

4. The said application was opposed by respondent No.1 on the ground that the same was barred by limitation and that Smt. Krishna Gupta was proceed ex-parte on 27th November, 1996 but she did not file any application till her death on 15th March, 2006. It was contended that the LRs of Smt. Krishna Gupta had full knowledge of the pendency of the said petition as they were duly served in an appeal arising out of the case at hand and that they appeared in that appeal, which was decided on 20 th March, 2007. It was also contended that another appeal preferred from an order dated 27 th November, 2009 in the same petition, the petitioner was served and also appeared therein and despite of that, the petitioner did not file the application within time.

5. Dismissing the said application of the petitioner vide the impugned order, the learned Trial Court observed as follows:

"Perused the file carefully. The present application was filed on 14.03.2012. Record reflects that respondent no.1 Smt. Krishna Gupta was sought to be served at the address 446 Sainik Farm, New Delhi and report dated 30.06.1995 reflects "door locked". Again report of unserved registered envelop dated 15.06.1995 reflects "no such person". Again report dated August 1995 reflects "door locked". Again report dated 08.10.1995 reflects "servant met and stated that everybody had left and nobody is at home". Again registered envelop dated 13.12.1995 reflects "no such person". Again report dated 25.03.1996 reflects "security guard

informed that nobody present at that time" and finally report dated 21.11.1996 reflects the service and on that report, the respondent no.1 Smt. Krishna Gupta had written "she has no concern with the present case" which was duly signed by her. Further, the report dated 21.11.1996 reflects that service was effected on the respondent no.1 at address 186 Cariappa Marg, Sainik Farm, Delhi which is admitted address of the respondent no.1. during arguments, petitioner has shown (and later on filed) copies of certain documents i.e. letter written to MCD and an affidavit of Sh. Tarsem Prakash Gupta who is the husband of the respondent no.1 which clearly shows that Khasra No/ 446 and MCD No.186 Cariappa Marg, Sainik Farm, New Delhi is one and the same property. perused the judicial file wherein certified copies of written statement in SR No. 36/85 was filed by the respondent no.1 Smt.Krishna Gupta bearing her signatures which with naked eyes bear semblance with those signatures put on the report of the process server dated 21.11.1996. all this shows that the respondent no.1 was duly served on 21.11.1996 in the presence of the representative of the petitioner. Further the presence of the applicants in two appeals before Ld. ARCTs (appeals arising out of the present petition) clearly indicate the knowledge of the applicants about the pendency of the present eviction petition. Further, no explanation has been given by the applicants for the delay in moving the application. In my considered opinion, the application is hit by delay, latches and is prima facie intended to delay the trial. Therefore, the request of the respondent no.1 for setting aside ex-parte order in denied. However, the legal representatives of the deceased Smt. Krishna Gupta are taken on record. LRs of respondent no.1 are directed to file amended memo of parties"

6. With these observations the learned Trial Court did not permit the petitioner to file written statement and contest the case on merits. Aggrieved thereof the petitioner filed the present petition.

7. The learned Trial Court while dismissing the application under Order 9 Rule 7 CPC read with Order 22 Rule 4 filed by Pawan Kumar Gupta who

is one of the proposed LRs of respondent No.1 i.e. Smt. Krishna Gupta has mainly given its finding which reads as under :

"Perused the file carefully. The present application was filed on 14.03.2012. Record reflects that respondent no.1 Smt. Krishna Gupta was sought to be served at the address 446, Sainik Farm, New Delhi and report dated 30.06.1995 reflects "no such person". Again report dated August 1995 reflects "door locked". Again report dated 08.10.1995 reflects "servant met and stated that everybody has left and nobody is at home". Again registered envelope dated 13.12.1995 reflects "no such person". Again report dated 25.03.1996 reflects "security guard informed that nobody present at that time" and finally report dated 21.11.1996 reflects the service an on that report, the respondent no.1 Smt. Krishna Gupta had written "she has no concern with the present case" which was duly signed by her. Further, the report dated 21.11.1996 reflects that the service was effected on the respondent no.1 at address 186 Cariappa Marg, Sainik Farm, Delhi which is the admitted address of respondent no.1. During arguments, petitioner has shown (and later on filed) copies of certain documents i.e. letter written to MCD and an affidavit of Sh. Tarsem Prakash Gupta who is the husband of the respondent no.1 which clearly shows that Khasra No.446 and MCD No. 186 Cariappa Marg, Sainik Farm, New Delhi is one and the same property. Perused the judicial file wherein certified copies of written statement in SR No. 36/85 was filed by the respondent no.1 Smt. Krishna Gupta bearing her signatures which with naked eyes bear semblance with those signatures put on the report of the process server dated 21.11.1996. All this shows that the respondent no.1 was duly served on 21.11.1996 in the presence of the representative of the petitioner. Further the presence of the applicants in two appeals before Ld. ARCTs (appeals arising out of the present petition) clearly indicate the knowledge of the applicants about the pendency of the present eviction petition. Further, no explanation has been given by the applicants for the delay in moving the application. In my considered opinion, the application is hit by delay, latches and is prima facie intended

to delay the trial. Therefore, the request of the respondent no.1 for setting aside ex-parte order is declined".

8. As per impugned order, the learned Trial Court has allowed the prayer of the application under Order 22 Rule 4 CPC to the extent that the LR of the deceased Smt. Krishna Gupta are taken on record, however, LRs are permitted to file written submission as they are stop into the shoes of the deceased respondent No.1 Smt. Krishna Devi.

9. The application of the respondent herein under Order 12 Rule 6 CPC is also pending for disposal.

10. The contention of the petitioner is that her mother Smt. Krishna Gupta was never served with the summons of the eviction petition which has been shown to be served on the address i.e. 446, Sainik Farms, New Delhi, however, it was/is alleged by the petitioner that the said mother is residing in H.No.186, Cariappa Marg, Sainik Farm, M.B. Road, New Delhi and it was further alleged that she never resided in 446, Sainik Farm, New Delhi and even there is no property No.446 in the entire Sainik Farms Area.

11. From the perusal of the process server's report, it is clear that the said process server reached the said property a few times, but the lady/Smt. Krishna Gupta was not available at home, which clearly shows that the property No.446 is very much in existence. Documentary evidence prima facie show that Smt. Krishna Gupta and her husband Sh. Tarsem Parkash Gupta were residing and having concern with property No.446 and further they also put light to a very important fact that the Khasra No.446, Sainik Farms, New Delhi and property No.186, Carriappa Marg, Sainik Farms, M.B. Road, New Delhi are one and the same property and firstly it was

khasra No.446, it was given MCD number as 186, Carriappa Marg as reflected in the documents clearly.

12. It is the case of the respondent No.1 herein that the respondent No.1 Krishna Gupta has subletted the tenanted premises to the respondent No.2 Sh. Arun Chopra and is/was not residing therein and having least concern of the tenanted premises that is why she deliberately any intentionally was not contesting the eviction petition. On the other hand, it is hotly contested by the said subletee i.e. Sh.Arun Chopra and said Arun Chopra in collusion with the legal heirs of Late Smt. Krishna Gupta has got filed the application under Order 9 Rule 7 of CPC for setting aside ex parte order as well as the present petition, as he does not wants the matter to be decided and as such, the present application under Order 9 Rule 7 of CPC has been moved after 16/17 years of the said order.

13. It is evident from the record that the legal heirs of Krishna Gupta were well aware about the pendency of the present eviction petition and has moved the application under Order 9 Rule 7 CPC only in the month of March, 2012. The legal heirs including the present petitioner duly appeared in the court of Sh. M.C. Garg, the then ARCT, Tis Hazari Courts, Delhi in appeal bearing MCA No.6/2006 arising out of the present eviction petition, which was finally decided on 20th March, 2007 and thereafter also the said legal heirs were also in the knowledge the eviction petition. In another appeal, the said legal heirs were duly served in Appeal bearing MCA No.5/2010 and the said appeal was also decided on 13 th May, 2011.

14. In view of abovesaid reasons, I am of the opinion that the impugned order does not suffer from any infirmity. The present petition is therefore, dismissed. Pending application is also stand dismissed.

(MANMOHAN SINGH) JUDGE DECEMBER 17, 2013