Delhi High Court
Mrs. Gurdip Kaur Thr. L.Rs vs Kamlesh Sachdeva & Anr. on 31 January, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 39/2014
% 31st January, 2014
MRS. GURDIP KAUR THR. L.RS ......Appellants.
Through: Mr. Rana Ranjit Singh, Mr. Vishal
Ranjan, Mr. Vivek Singh and Mr.
Jaswant Singh, Advocates
VERSUS
KAMLESH SACHDEVA & ANR. ...... Respondents.
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
CM No.2007/2013 (Exemption)
1. Exemption allowed subject to just exceptions.
Application stands disposed of.
FAO 59/2014 & CM Nos.2005/2014(Stay) & 2006/2014 (U/o22 R 3 CPC)
2. This appeal impugns the order of the court below dated 28.10.2013
which has dismissed the application filed by the appellant under Order 9
Rule 13 CPC. Appellant Ms. Nirmala Kaur was the applicant in the
FAO 39/2014 Page 1 of 4
application and she was the daughter of defendant no.2 against whom the
exparte decree for specific performance was passed on 5.12.1997.
3. The facts of the case are that the original defendant no.1-Sh. Govind
Jindani was the owner of the suit property, however, he transferred rights in
the suit property by means of documentation dated 15.3.1980 to the
defendant no.2, and who was the father of the applicant. Therefore, after the
transfer of rights in the suit property, the defendant no.1 had no interest left
in the suit property. In terms of the aforesaid documentation since defendant
no.2 had acquired rights in the suit property which is plot bearing no.1,
Block-C, Community Centre, Nimri Colony, Delhi situated on a plot of
50.16 sq. mts, the same was agreed to be sold by him (defendant no.2) to the
plaintiff in the suit vide Agreement to Sell dated 19.6.1982 and a total
amount of Rs.35,000/- out of the total sale consideration of Rs.1,07,500/-
was received. On failure of the defendant no.2 to specifically perform the
contract the subject suit for specific performance came to be filed in the year
1983.
4. As per the records, defendant no.2 in the suit, and the father of the
applicant, was served and he appeared through counsel whose vakalatnamas
are stated to be on record. Defendant no.2 was thereafter proceeded ex parte
as he did not appear. Ultimately an ex parte decree was passed on
FAO 39/2014 Page 2 of 4
5.12.1997. This decree was also executed by the year 2005. It is thereafter
much later in the year 2010, the applicant who is the daughter of the now
deceased defendant no.2, filed the subject application under Order 9 Rule 13
CPC which has been dismissed by the impugned order.
5. Counsel for the appellant tried to lay stress on the aspect that on the
death of defendant no.1, wife of defendant no.2 was sought to be substituted
at the wrong address, but in my opinion, that is an argument of desperation
because really defendant no.2 was the main defendant and who was served
but he chose not to appear. Therefore, really appearance or non-appearance
of the wife of defendant no.2, and that too for representing the defendant
no.1 who had surviving interest in the suit property after transferring rights
in the same to defendant no.2, is really neither here nor there.
6. An application under Order 9 Rule 13 CPC only lies if a person makes
out a case that the said person was not served in the suit or had sufficient
cause for non-appearance. In the present case, defendant no.2 having been
served, he being the main defendant, he appeared through counsel whose
vakalatnamas are on record, and thereafter he chose not to appear resulting
in a decree for specific performance passed way back in 1997, and which
was executed in the year 2005. Thereafter, now, the applicant who is the
FAO 39/2014 Page 3 of 4
daughter of the deceased defendant no.2 surely cannot file an application
under Order 9 Rule 13 CPC for setting aside the ex parte decree.
7. There is no merit in the appeal and the same is accordingly dismissed,
leaving the parties to bear their own costs.
JANUARY 31, 2014 VALMIKI J. MEHTA, J.
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