Smt. Triveni Verma vs Sh. Vikas Girdhar
2013 Latest Caselaw 2533 Del

*                  HIGH COURT OF DELHI AT NEW DELHI

+                 FAO No.246 OF 2013 CM No.8925/2013(stay)

                                       Decided on : 29th May, 2013

SMT. TRIVENI VERMA                                        ...... Appellant
              Through:           Mr. R.K.Tarun, Adv.

                        Versus

SH. VIKAS GIRDHAR                            ...... Respondent
              Through :

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (Oral)

1. This is an appeal filed by the appellant against the order dated

26.3.2013 passed by the learned ADJ by virtue of which the

application of the appellant under order IX Rule 13 read with

Section 151 CPC was dismissed on the ground that there is no

'sufficient cause' shown for setting aside the decree against the ex

parte order.

2. Briefly stated the facts leading to the filing of the present appeal

are that the respondent/Vikas Girdhar filed a suit bearing

No.242/2009 for specific performance of agreement to sell dated

29.8.2008 purported to have been executed by the present

appellant. The respondent had also prayed for possession and

perpetual injunction in respect of property bearing no.5596, Gali

No. 0 & 1, New Chandrawal, Subzi Mandi, Delhi.

3. The aforesaid suit came up for hearing before the trial court on

18.8.2009 and the appellant/defendant was directed to be served by

ordinary process as well as registered post for 18.9.2009. The

acknowledgement card, though unsigned, was received back. Since

the letter was not received back, it was assumed that the appellant

/defendant has been served. The ordinary process was served on

the appellant/defendant personally on 26.8.2009.

4. Despite service, the appellant/defendant failed to appear before the

Court on 18.9.2009 and the matter was posted for her appearance

on 21.10.2009. On 21.10.2009, the Court was on leave and the

matter was adjourned to 26.11.2009. On 26.11.2009 again the

appellant/defendant failed to appear and she was accordingly

proceeded ex parte. The Court recorded the ex parte evidence and

allowed the suit vide judgment and decree on 22.1.2010.

5. The appellant/defendant filed an application for setting aside the ex

parte judgment and decree on 09.12.2011. The said application

was dismissed by the trial court on the ground that according to

Article 123, Schedule I of the Limitation Act, the application for

setting aside of ex parte decree has to be filed within 30 days from

the date of decree or where the summons was not duly served

within 30 days from the date when the applicant had got the

knowledge of the decree. In the instant case, since the summons

were duly served on the appellant/defendant, the Court assumed

that the application under order IX Rule 13 CPC had to be filed

within 30 days from the date of passing of the decree which was

expired on 21.2.2010. While as the application was preferred on

9.12.2011 i.e. after expiry of more than 21 months delay. Further,

this application was not accompanied by any application seeking

condonation of delay explaining any reason which may constitute

'sufficient cause' for filing this belated application for setting aside

ex parte decree.

6. I have heard the learned counsel for the appellant.

7. The contention of the learned counsel for the appellant is that the

appellant had taken a loan of Rs.1,50,000/- from the

plaintiff/respondent in July, 2009. At the time of taking the loan,

the respondent /plaintiff had taken the sale deed in respect of the

property in question and obtained five blank cheques. In respect of

these blanks cheques, the respondent had already filed a complaint

under section 138 of Negotiable Instruments Act. It has been

stated that the respondent /plaintiff was intimated about the service

of summons by the appellant/defendant whereupon he had stated

that she need not to worry and he will take care of the case. It is

stated that the plaintiff/respondent was the friend of a brother of the

appellant/defendant for the last 60 days and therefore, she believed

his statement. On the basis of this, the application for setting aside

the ex parte decree was filed.

8. In the first instance, this is not a case where the appellant/defendant

has not been served. The appellant /defendant was served and then

she has to explain the reasons which constitutes 'sufficient cause'

which prevented her from appearance before the Court resulting in

passing of a decree against him. The appellant states that she was

prevented by the fact that she had approached the

respondent/plaintiff who assured that she should not bother about

the case. It sounds very absurd that the appellant/defendant would

approach the person who has filed the suit against her for taking

care of her suit and she believed his statement. In any case, Article

123 of the Limitation Act has very clearly laid down the period of

limitation within which an application has to be filed is 30 days

when the defendant has been served. In the instant case, the

defendant has been served and therefore, the application for setting

aside the ex parte decree is to be passed within 30 days from the

date of passing of the decree while as the application is filed after

expiry of more than 21 months. No explanation whatsoever has

been furnished regarding this. As a matter of fact, the appellant has

not only slept over the matter after receiving the summons but has

not even cared to file any application seeking condonation of delay

which clearly shows the gross negligence on his part in pursuing

the matter. The law of limitation is based on the fundamental

principle that the law helps those who are vigilance about their

rights.

9. Keeping in view the totality of circumstances, I am of the view that

there is no illegality or impropriety in the order passed by the

learned trial court in rejecting the application of the appellant and

accordingly the appeal is dismissed.

V.K. SHALI, J.

MAY 29, 2013 RN