Satinder Punn vs Hardeep Singh
2014 Latest Caselaw 6999 Del

$~57.
*        IN THE HIGH COURT OF DELHI AT NEW DELHI
+        CS(OS) 1186/2012
%                                    Date of decision :19th December, 2014
         SATINDER PUNN                                              ..... Plaintiff
                      Through

                            versus

         HARDEEP SINGH                                           ..... Defendant
                      Through :           Ms.Varsha Baxi and Ms.Pukhraj, Advs.

         CORAM:
            HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J. (ORAL)

I.A. 25680/2014 & I.A. 25679/2014.

1. I.A. 25680/2014 has been filed by the defendant under Section 5 of Limitation Act seeking condonation of delay in filing I.A. 25679/2014 (Order IX Rule 13 of the Code of Civil Procedure).

2. Both these applications have been heard together and are being disposed of by a common order.

3. The applicant seeks condonation of delay on the ground that the defendant learnt about the passing of the decree in the month of October, 2014, when a builder made enquiries to purchase the suit property. It has also been stated that the counsel inspected the Court record and it took considerable period to obtain certified copies.

4. In my view this application is vague, lacks material particulars, is highly casual in nature as the applicant has failed to state as and when file was inspected. It may also be noticed that as per the application, the certified copy was obtained on 1.12.2014 whereas certified copy placed on record

reflects the date of 11.11.2014. Although, in my view, there is no sufficient grounds to condone the delay yet the application (I.A.25679/2014) filed under Order IX Rule 13 of the Code of Civil Procedure is being considered on merits.

5. This is an application filed by defendant/applicant under Order IX Rule 13 CPC for setting aside the ex parte decree passed by this Court on 27.3.2014.

6. Learned counsel for the defendant submits that grounds for non-

appearance on behalf of the defendant before the Court are that (i) the defendant was not served with summons in the suit; (ii) a copy of the impugned order was received by the defendant only on 11.11.2014 and it is thereafter the defendant learnt about the pendency of this suit; (iii) the Court has wrongly relied upon the statement of the Local Commissioner;

(iv) the plaintiff did not take steps with mala fide intention to serve the defendant; and (v) the Local Commissioner did not record the statement of the neighbours to ensure the identity of the defendant. Counsel further submits that the defendant should not be condemned without granting a hearing.

7. Heard counsel for the defendant/applicant. Having regard to the facts of this case and the conduct of the defendant, I do not consider it necessary to issue notice in this application to the plaintiff.

8. Order IX Rule 13 reads as under:

"ORDER IX- APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE

13. Setting aside decree ex parte against defendant-- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from

appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit;

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:

[Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim].

[Explanation.--Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.]"

9. Reading of the above provision would show that an application would be maintainable either in case the summons were not duly served on the defendant or where the defendant is prevented by any sufficient cause from appearing in the Court when the matter is listed.

10. It may be noticed that in the present suit summons were issued to the defendant on 30.4.2012. Order dated 31.7.2012 passed by learned Joint Registrar, shows that as per the report of the Registry, the defendant had refused to accept summons. On 6.11.2012 when the matter was listed before the Court, the Court observed that the process sent to the defendant was reported to have been refused by the wife of the defendant, however, the Court in its wisdom issued fresh process to the defendant through a courier, returnable on 2.5.2013. On 2.5.2013 fresh summons were issued as the service report was not received. Court directed the plaintiff to take fresh steps to serve summons upon the defendants for 12.11.2013. On

12.11.2013 the Court observed that the summons issued to the defendant was returned unserved with the remarks that relative of the defendant had refused to accept the summons. By way of abandoned caution the plaintiff was permitted to serve the defendant by publication in „The Statesman‟, English Edition and in one Hindi newspaper, which has a circulation in the area where the defendant resided. The publication was duly carried out and a copy of the citation was placed on record. Since none appeared on behalf of the defendant, the defendant was proceeded ex parte on 22.1.2014, when a preliminary decree was also passed defining the share of the parties as 50% each. On 22.1.2014 a Local Commissioner was also appointed to suggest the modes of partition. It was directed by the Court that the Local Commissioner should give notice to both the parties and thereafter visit the suit property. The Local Commissioner has filed his report. In his report, the Local Commissioner has categorically stated that prior to his visiting the suit property he had sent a letter to the defendant by Speed Post on 30.1.2014, however, the same was refused by the defendant. Original postal receipts and returned envelope were placed on record by the Local Commissioner. The Local Commissioner has further stated in his report that he visited the suit property on 5.2.2014 at 10.30 a.m.; he rang the door bell of the house and a Sikh gentleman along with a lady came out. The gentleman introduced himself as Hardeep Singh. When the Local Commissioner explained the purpose of his visit and tried to serve a copy of the order dated 22.1.2014, the order was accepted by the defendant but no acknowledgement of the same was given by him. The Local Commissioner was not allowed to inspect the suit premises by the defendant. In view of the above background, the Court passed a final decree on 27.3.2014 defining the share of both the parties as 50%, each, in the suit property.

11. The Supreme Court in the case of G.P. Srivastava Vs. R. K. Raizada & Ors. [(2000) 3 SCC 54] has observed that for setting aside a decree passed ex-parte, the defendant has to satisfactorily show that he was prevented by "sufficient cause" from appearing in the matter when the same was called for hearing. Relevant para of the judgment reads as under:

"7. Under Order 9 Rule 13 C.P.C. an ex-parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any 'sufficient cause' from appearing when the suit was called on for hearing. Unless 'sufficient cause' is shown for non-appearance of the defendant in the case on the date of hearing, the Court has no power to set aside an ex-parte decree."

12. In the present case, summons were issued on 30.4.2012, 2.5.2013 and 6.11.2012, as detailed in para 9 aforegoing. By way of abundant caution, the defendant was also served by publication. Even after passing the Preliminary Decree the Local Commissioner issued a letter at the correct address of the defendant. The Local Commissioner also visited the suit premises but the defendant refused to join and contest the suit.

13. In view of the law laid down by the Apex Court in the case of G.P.

Srivastava (supra) and having regard to the conduct of the defendant, which shows that the defendant refused to accept the summons on two occasions, the defendant failed to enter appearance even after being served through publication in the newspaper, the defendant refused to accept the notice prior to the visit of the suit property sent by the Local Commissioner and on the date of visit of the Local Commissioner the defendant accepted the order but refused to give any acknowledgement and the fact that the defendant did not allow the Local Commissioner to visit the premises in question, it cannot be said that the defendant was prevented by any reasonable or sufficient cause from appearing in this

matter or that he was not served with the summons. I also see no reason to disbelieve the report of the Local Commissioner. I am also of the view that it was necessary for the Local Commissioner to record the statement of the neighbour and ask the neighbour as a Local Commissioner of this Court cannot be equated with a process server. Resultantly, both applications are mala fide and gross abuse of the process of the Court and the same are dismissed with costs of Rs.5,000/- to be paid to Delhi High Court Legal Aid Society.

G.S.SISTANI, J DECEMBER 19, 2014 msr