Pushpesh Sinha vs Rajiv Batra & Anr.
2014 Latest Caselaw 2445 Del

$~ 8
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CS(OS) 1635/2009

%                                        Judgment dated 15.05.2014

       PUSHPESH SINHA                                       ..... Plaintiff
                Through:            Mr.Nagesh, Advocate

                           versus

       RAJIV BATRA AND ANOTHER                  ..... Defendant
                Through: Mr.Manish Jain, Advocate

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

G.S.SISTANI, J (ORAL)

I.A. 13567/2012 & I.A. 13566/2012

    1.

I.A. 13567/2012 has been filed by the defendant no.1 seeking condonation of 6 days‟ delay in filing I.A. 13566/2012 (for setting aside the ex parte judgment dated 1635/2009).

2. Counsel for the non-applicant submits that he has no objection if the present application is allowed.

3. Heard. For the reasons stated in the application and in view of the stand taken by counsel for the non-applicant, present application is allowed. Delay in filing I.A.13566/2012 is condoned. I.A.13566/2012 is taken on record.

4. Application stands disposed of.

I.A.13566/2012

5. Plaintiff has filed the present suit for declaration and permanent injunction with the following reliefs:

"A. It is, therefore, most respectfully prayed that this Hon‟ble Court May be pleased to pass a Decree for DECLARATION in favour of the plaintiff and against the defendants thereby declaring the plaintiff to be the exclusive and absolute owner of the suit property bearing No.EA-6, Inder Puri, New Delhi-110012 on the basis of the registered Sale Deed dated 13.04.2009 executed in his favour;

B. It is further most respectfully prayed that this Hon‟ble Court may also be pleased to pass a Decree of PERMANENT INJUNCTION in favour of the plaintiff and against the defendants, their agents, servants, heirs, assignees, attorneys, executors, authorized representatives or anybody acting on their behalf; from forcibly dispossessing the plaintiff from the suit property bearing No.EA-6, Inder Puri, New Delhi-110012 and to further restrain them from causing any interference, obstruction or nuisance in the peaceful enjoyment of the suit property by the plaintiff, in view of the detailed facts and circumstances explained hereinabove.

C. The costs of the suit may also be awarded in favour of the plaintiff and against the defendants."

6. The present suit was decreed in favour of the plaintiff by a judgment dated 24.1.2012. The present application has been filed by defendant no.1 under Order IX Rule 13 CPC for setting aside the judgment dated 24.1.2012.

7. Notice in this application was issued. Reply has been filed. The only ground urged by counsel for the applicant for non-appearance on behalf of defendant no.1 on 24.1.2012 and the dates prior thereto, is the threat to his life, extended by the plaintiff, after the applicant suffered physical brutality at the hands of the goons of the plaintiff.

8. The present application has been opposed by counsel for the non-

applicant on the ground that the averments made in the application are baseless and unfounded. It is further submitted that the applicant has

failed to disclose sufficient grounds for his non-appearance on 24.1.2012 and prior thereto.

9. I have heard learned counsel for the parties and also considered their rival submissions.

10. Order IX Rule 13 CPC reads as under:

"Order IX Rule 13.

Setting aside decree ex parte against defendants-

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 sent aside as against all or any of the other defendant 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 plaintiffs claim."

11. Reading of Order IX Rule 13 CPC would show that in case an ex pate decree is passed against a defendant, the defendant must satisfy the court that either the summons were not served upon him or he was prevented by any sufficient cause from appearing, when the matter was called. Admittedly, in the present case the defendant was duly served with the summons in the suit. It is, however, pleaded that the defendants were prevented by sufficient cause from appearing in the matter, as stated in

para 15 of the application, which reads as under:

"15. That the non-appearance of the Applicant / Defendant no.1 on 24.1.2012 and the dates prior to 24.01.2012 was on account of the threat of life as extended by the plaintiff herein and on account of inherent apprehension by the plaintiff herein and on account of inherent apprehension after having suffered physical brutality at the hands of the goons of the plaintiff in the presence of the plaintiff. The Applicant / defendant no. 1 would not have approached this Hon‟ble Court if the plaintiff had not made false and untrue statement and placing reliance upon forged and fabricated document and accordingly created a false recovery against the defendant no.1. The forgery is evident from the fact that the plaintiff has claimed to have paid to the applicant / defendant no.1 a considerable amount without obtaining any receipt thereof from the Applicant / Defendant no.1. The intentions were mala fide and illegal as the said document was prepared by fabrication of writing upon one of the blank paper whereupon the signatures of the Applicant / Defendant no.1 were obtained under threat to life."

12. It is not in dispute that the defendant was duly served in the month of October, 2009. In my view, the present application is general in nature and it lacks material particulars. The applicant has made a bald assertion that he could not appear on 24.1.2012 and the dates prior thereto on account of threat to his life extended by the plaintiff. The applicant has also stated that he had suffered physical brutality at the hands of the goons of the plaintiff and, thus, being apprehensive of similar treatment he could not appear.

13. In the application, the applicant has failed to give a single date as to when the applicant suffered physically at the hands of the plaintiff or the goons employed by him. The applicant has also failed to state as to when and who had threatened him. It is unbelievable that the applicant was

physically and brutality beaten but no complaint or FIR was registered by him reporting the said incidents to the police, nor the applicant has given any details as to whether he ever approached the Police for providing protection to him, or not. Although, the words „sufficient cause‟ for the purpose of Order IX Rule 13 CPC has to be construed in a wider prospective, however, the discretion vested in the Court is to be exercised judicially and for „sufficient cause‟ the application is to be allowed only in case the applicant is able to satisfy the Court that he was prevented from appearance on account of sufficient cause and not that the application is to be allowed as to matter of course. The applicant has failed to satisfy this Court that his absence was neither malafide nor intentional.

14. Accordingly, for the reasons stated above, the present application is without any merit and the same is dismissed.

G.S.SISTANI, J

MAY 15, 2014 ssn