Delhi High Court
Harminder Singh vs Saroj Devi on 28 February, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 266/2013 & CM 9709/2013(stay)
% 28th February, 2014
HARMINDER SINGH ......Appellant
Through: Mr. S.P.Chauhan, Adv.
VERSUS
SAROJ DEVI ...... Respondent
Through: Mr. J.K.Jain, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This first appeal is filed under Order 43 Rule 1(d) CPC impugning the
order of the court below dated 2.4.2013 which has dismissed the application
filed by the appellant-defendant for setting aside the ex-parte judgment and
decree of specific performance of agreement to sell dated 15.3.2007.
2. The facts of the case are that respondent-plaintiff filed the suit for
specific performance with respect to the property admeasuring 50 sq. yds
situated in K.No. 330, Village Siraspur, Swaroop Nagar, Delhi. Total
consideration under the agreement to sell was Rs. 3,50,000/- and by means
of different paragraphs in the plaint, it is said that a total sum of Rs. 3 lacs
FAO 266/2013 Page 1 of 6
was paid to the appellant-defendant. The payments to the appellant-
defendant were confirmed by the receipts executed by the appellant-
defendant. Appellant-defendant appeared in the suit through his wife who
was a special power of attorney holder, filed written statement, but thereafter
since there was no appearance on behalf of the appellant and his wife,
appellant was proceeded ex parte by the order dated 6.10.2009. Evidence
was led on behalf of the respondent-plaintiff on 11.1.2010 and evidence was
closed on that day. Final arguments were thereafter heard and the suit was
decreed in terms of the judgment and decree dated 25.2.2010.
3. The court below has dismissed the application under Order 9 Rule 13
CPC on account of the admission made by the appellant-defendant in his
application under Order 9 Rule 13 CPC which showed that appellant-
defendant had appointed his wife as a special power of attorney holder in
view of the fact that he used to remain out from his residence for long
periods of time as he was a driver and his wife had appeared in the suit on
the basis of the Special Power of Attorney(SPA). It is pleaded by the
appellant/defendant that the SPA has not been filed. The relief in the
application under Order 9 Rule 13 CPC has been denied on account of
appellant/defendant admitting the factum of the appellant-defendant having
FAO 266/2013 Page 2 of 6
executed a power of attorney in favour of his wife who had appeared and
filed written statement in the suit. This is stated in para-3 of the application
under Order 9 Rule 13 CPC and which reads as under:-
"3. That the applicant/JD is the illiterate and Truck Driver
used to remain away from his family and house up-to
long period. Due to his non-availability, his the then
counsel chose to file the written statement through his
wife on 3.9.2009 as she had been authorized by him
through SPA which had been prepared by him in favour
of his wife for all purpose but the same had not been filed
by his previous counsel, who is in J.C. since about four
months back. But the plaintiff arose the dispute as the
application was not authorized representative."
4. The court below has in view of the aforesaid facts dismissed the
application under Order 9 Rule 13 CPC filed on behalf of the appellant-
defendant. Paras 13 to 16 of the order dated 2.4.2013 make the relevant
observations and the same read as under:-
"13. In the instant case, applicant had engaged a lawyer during the
pendency of suit and appeared through his wife being SPA,
who had filed WS before the court during the trial and
subsequently failed to appear before the court and was
proceeded ex-parte vide order dt. 06.10.2009 and the decree
was accordingly passed on 25.02.2010 by the court. It is
worthwhile to mention herein that applicant/defendant was
served with summons at the commencement of the hearing of
suit on 06.08.2009 and WS was filed by the defendant's wife
namely Ranjeet Kaur on 03.09.2009 and subsequently
applicant/defendant chose to stay away from hearing despite
specific knowledge of pendency of suit and was proceeded ex-
FAO 266/2013 Page 3 of 6
parte and decree was passed accordingly. It can be easily said
that applicant/defendant/JD was aware about the proceedings
and has neglected to appear in the said case and no proper
justification has been given on the part of the
applicant/defendant/JD for his non-appearance.
14. Therefore, it can be concluded that applicant had no done all
what was required of him to ensure that his counsel and
attorney would represent him on all the necessary hearings and
has also failed to show that he was diligent in his pursuit or
acted bona fidely.
15. It is well settled proposition of law that the re-agitation may or
may not be barred but if the same issue is sought to be re-
agitated, it amounts to an abuse of the process of the court. In
these circumstances, I am of the view that no case has been
made out under the provision of Order 9 rule 13 CPC as
applicant has taken court proceedings in a very casual manner
and no cogent reason or explanation is given by the applicant
for his non-appearance.
16. I am also of the view that the present application has been
moved without any plausible explanation for his non-
appearance as he was aware about the proceedings and non-
appearance on behalf of the applicant/defendant/JD is a case of
negligence and in activeness and the present application is an
after thought, misconceived, baseless and is the gross abuse of
process of law." (underlining added)
5. Learned counsel for the appellant argued before me two main aspects.
Firstly, it was argued that the Special Power of Attorney has not been filed
on record of the trial court, and secondly it is argued that the written
statement of the appellant-defendant through his wife was removed from the
record vide order dated 11.2.2010 and therefore, the appellant's- defendant's
FAO 266/2013 Page 4 of 6
case has not been considered by the court which passed the decree and thus
the appellant-defendant is entitled to have the ex parte judgment and decree
set aside.
6. I cannot agree with any of the arguments urged on behalf of the
appellant-defendant inasmuch as para-4 of the application clearly shows that
appellant-defendant appeared in the suit through his wife, and therefore,
appellant-defendant was duly served because the wife was admittedly a
special power of attorney holder of the appellant-husband. The only
argument urged on behalf of the appellant is that no power of attorney is
filed and not that the wife was not a special power of attorney holder.
Therefore, the first argument is rejected. Even the second argument that the
case of the appellant-defendant was not wrongly considered in view of the
fact that the order dated 11.2.2010 of the trial court removed the written
statement from the record is once again an argument which only shows that
the trial court may have wrongly passed the order dated 11.2.2010, because
really the appellant-defendant was proceeded ex parte much earlier on
6.10.2009, and the respondent-plaintiff has already completed his evidence
on 11.1.2010. Therefore, the wrongly taking off the written statement from
the record on 11.2.2010 on the ground that wife is not a power of attorney
FAO 266/2013 Page 5 of 6
holder of the appellant does not help the appellant because in an ex parte
case, once the respondent-plaintiff proved his case by leading evidence, the
court was justified in passing the judgment and decree dated 25.2.2010.
7. In view of the above, there is no merit in the appeal, and the same is
therefore dismissed, leaving the parties to bear their own costs.
FEBRUARY 28, 2014 VALMIKI J. MEHTA, J.
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