Dr M Padma Narayan Singh @ Meena vs Renu Sharma & Anr
2014 Latest Caselaw 5535 Del

$~15
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+     FAO 320/2014
                                              Decided on 7th November, 2014

       DR M PADMA NARAYAN SINGH @ MEENA
      CHAUDHARY                                             ..... Appellant

                          Through:      Appellant in person.

                          versus

      RENU SHARMA & ANR                                     ..... Respondents

                          Through:      Mr. Rakesh Tikku, Sr. Adv. with Mr.
                                        Gursharan Singh, Mr. Aditya
                                        Bhardwaj and Mr. Paranjay Chopra,
                                        Advs.

CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K.PATHAK, J.(ORAL)

1. After arguing for five minutes appellant submits that matter be

transferred to some other Bench. I do not find any reason to recuse myself

from the case. When appellant was requested to submit arguments she

declined to assist the court, inasmuch as left the court in a huff.

Accordingly, I have heard learned senior counsel for the respondents,

perused the material placed on record and proceed to dispose of the appeal

by this order, after condoning the delay in filing the appeal.

2. Factual matrix, as emerges from the records, is that respondents filed

a suit for possession of a room adjoining to the kitchen in the property,

bearing SFS Flat No. 1260 (1st Floor) Category III, Pocket-I, Sector D,

Vasant Kunj, New Delhi shown in the red colour in the site plan; as well as

for recovery of mesne profits amounting to `3.60 lacs together with interest

and future mesne profits @ Rs.15,000/- per month. It was further prayed

that appellant be restrained from creating third party interest in the suit

property and from creating any interference in the possession as well as

ingress and egress of respondents in the remaining portion of flat more

particularly shown in green colour in the site plan. Respondents alleged that

their father, namely, Shri Sharma Nand Sharma acquired lease hold rights in

DDA SFS Flats No. 1260, (1st Floor) Category III, Pocket-I, Sector D,

Vasant Kunj, New Delhi from the Delhi Development Authority (DDA),

vide allotment letter dated 11th November, 1987. Subsequently, DDA

executed a registered conveyance deed dated 18th August, 1998 in favour of

Shri Sharma Nand Sharma. Later on, Shri Sharma Nand Sharma gifted the

said flat to respondent no.1 vide registered gift deed dated 5 th February,

2010. Respondent no.1 gifted half portion of the said flat to her sister, that

is, respondent no.2 vide registered gift deed dated 2 nd June, 2011. Thus,

respondents were joint owners of the said flat. Sometimes in the year 2003-

04 Shri Sharma Nand Sharma had permitted the appellant to stay in the suit

property as appellant was known to him and was raising construction of her

house in Gurgaon (Haryana). However, appellant did not vacate the suit

property even after completion of construction of her house. In the year

2007 Shri Sharma Nand Sharma withdrew permission granted to appellant

to occupy the suit property but appellant continued to occupy the same. On

30th June, 2010 a team of BSES officials inspected the suit premises and

found that appellant was indulging in direct theft of electricity. Appellant

also got a frivolous FIR registered against the son of Shri Sharma Nand

Sharma as well as caretaker of the suit property. Appellant threatened that

in case anybody comes near the flat he will be implicated in criminal cases.

Appellant had no right to occupy the suit property and to interfere in the

peaceful possession as well as in the ingress and egress of the respondents to

portion of the flat shown in green colour. Vide legal notice dated 31 st

October, 2011 respondents called upon the appellant to vacate the suit

property but to no effect, hence, the suit.

3. Trail court issued summons to appellant. When process server

tendered the summons to appellant she refused to accept the same on the

pretext that she had engaged an advocate and further that she was unwell.

Process server reported that appellant refused to accept summons. Appellant

did not even appear in Court even through her lawyer and was proceeded

against ex-parte vide order dated 23rd November, 2011. Respondent no.1

examined herself as PW1. She filed her affidavit in her examination-in-

chief. Affidavit was filed by her in her individual capacity and also as

attorney of respondent no.2. Challan and covering letter was proved as

PW1/1. Allotment letter was proved as Ex. PW1/2. Certified copy of

conveyance deed dated 19th September, 1998 was proved as PW1/3.

Certified copy of gift deed dated 5th February, 2010 was proved as PW1/4.

Certified copy of gift deed dated 6th February, 2011 was proved as PW1/5.

Copy of legal notice dated 31st October, 2011 was proved as PW1/7. Postal

receipts were proved as PW1/8 to PW1/11. Certified copy of registered

lease deed dated 30th July, 2011 in respect of another premises of the same

area was proved as PW1/12.

4. After hearing the arguments and perusing the record trial court passed

ex-parte decree on 15th February, 2012. It was held that respondents had

succeeded in proving their case. Trial court was satisfied that appellant was

permitted to occupy the suit premises by the father of respondents.

Respondents had also placed and proved on record copy of writ petition no.

666/2010 filed by the appellant as Ex. PW 1/6. In the para 1 of the petition

appellant had stated that she was occupying one room in the guest house

(suit property). In para 2 it was further stated that the accommodation was

provided to her by Shri Ashok Sharma, Director of Aglomed Pharmaceutical

Company. In para 8 appellant stated that she was only a guest in one room

of the said guest house. Trial court has concluded that the averments made

in the writ petition also indicated that appellant was merely a guest in one

room of the suit property and was not paying anything towards the user

charges. Trial court has further concluded that appellant was permitted to

live in the suit property and which permission was withdrawn by serving a

legal notice on her. Consequently, decree of possession was passed. Decree

of mesne profits was also passed. Appellant was also restrained from

creating third party interest and/handing over possession of the suit property

to any third party. She was further restrained from interfering in the

possession as well as in the ingress and egress of the respondents in DDA,

SFS Flat No. 1260 (1st Floor) Category-III, Vasant Kunj, New Delhi as

shown in green colour in the site plan-Ex. PW1/2.

5. Decree was passed on 15th February, 2012. After about two years of

passing of the decree, that is, in the month of March, 2014 appellant filed an

application under Order 9 Rule 13 CPC before the trial court for setting

aside the ex-parte decree dated 15th February, 2012, which has been

dismissed by the trial court by the order impugned in this appeal.

6. It may be noted that prior to filing of the application under Order 9

Rule 13 CPC by the appellant, respondents had already filed an execution

petition in the month of March, 2014 wherein warrants of possession were

issued on 12th February, 2014.

7. Appellant alleged in the application that she was elderly ailing woman

and had engaged a counsel to send reply to the legal notice dated 5 th

November, 2011 of the respondents, thus, court ought to have served the

summons on the said counsel. Due to her ailment appellant could not get

involved in the said proceedings resulting in passing of ex-parte decree.

8. Learned trial court has held that for deciding the application under

Order 9 Rule 13 Court is required to consider as to whether summons was

duly served on the defendant or not and that appellant was prevented by any

sufficient cause from appearing when the suit was called on for hearing.

Factum of issuance of summons was not in dispute, inasmuch as,

endorsement made by the appellant in her own handwriting on the back of

summons was also not in dispute. Appellant had made following

endorsements on the rear page of the summons:-

"The matter has been delegated to my Advocate. The copy of reply to the legal notice is being furnished herein for perusal of the Hon'ble Court".

Meena P.N. Singh

22.11.2011

PS : The Hon'ble Court may kindly take note that I am very ill and physically incapacitated.

9. Trial court has further observed that appellant had perused the

summons and was aware of the date fixed in the matter. It was for her to

have accepted the summons and inform her counsel to appear in the matter.

She could not have refused to accept the summons on the ground that she

had engaged a counsel and summons be served on him. Trial court has

further noted that appellant had failed to show any document to indicate that

she was physically incapacitated to appear in the court on the date fixed or

to instruct her counsel to appear on her behalf to contest the suit. It has been

further held that appellant was no stranger to the court proceedings as she

had been pursuing other litigations in the past as well. Reliance has also

been placed on Parimal vs. Veena @ Bharti (2011) 3 SCC 545 wherein it

has been held that "in order to determine the application u/O 9 Rule 13 CPC,

the test that has to be applied is whether the defendant honestly and

sincerely intended to remain present when the suit was called on for hearing

and did his best to do so. Sufficient cause is thus the cause for which the

defendant could not be blamed for his absence. Therefore, the applicant

must approach the court with a reasonable defence. Sufficient cause is a

question of fact and the court has to exercise its discretion in the varied and

special circumstances in the case at hand. There cannot be a straitjacket

formula of universal application."

10. Trial court has further relied on the second proviso to Order 9 Rule 13

CPC which provides 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. For the reasons to follow, I am of the view that impugned order does

not suffer from any illegality or perversity. In fact view taken by the trial

court is a possible view and cannot be interfered with. From the facts

narrated above, it is, clear that process server had gone to serve the

summons on the appellant, inasmuch as, she met him at the address given in

the summons but declined to accept the same on the grounds mentioned on

the reverse page. She made an endorsement to the effect that she had

delegated the matter to her advocate and notice be furnished to him. She

further claimed that she was very ill and physically incapacitated. She had

made this noting after perusing the summons. Once the summons was

tendered to her by the Process Server she could not have refused to accept

the same on the pretext that in her place service be affected on her counsel.

She ought to have accepted the summons and contacted her counsel on

phone or otherwise and instructed him to appear in Court on the date fixed.

The endorsement made by her amounts to refusal to acceptance of service of

summons. Refusal is due and proper service and has been rightly accepted

by the trial court.

12. Appellant has failed to place any document on record before the trial

court to show that she was ailing and if so, from which disease. No

documentary evidence was led by her before the trial court to show that she

was confined to bed and was not in a position to even instruct her counsel on

phone. In the present appeal appellant has placed on record certain medical

prescriptions but the same do not relate to the period involved in this case.

These medical prescriptions do not pertain to the years 2010, 2011 and

2012. In any case she could not have refused to accept the summons on the

ground that she was unwell. After receiving summons it was for her to

instruct the counsel to take appropriate steps. Despite having knowledge of

the pendency of suit and the date fixed in the matter, appellant slept over the

matter for almost two years for which no explanation has been offered. It is

not the case that trial court acted in hasty manner and pronounced the

judgment on the same very day for which summons was made returnable.

Summons was made returnable for 23rd November, 2011; whereas ex-parte

decree has been passed on 15th February, 2012, that is, after about three

months and that too after affording opportunity to the respondents to lead

evidence. Appellant had knowledge of the date and court as well and could

have participated in the proceedings.

13. Order V Rule 10 provides that service of summons shall be made by

delivery or tendering a copy thereof. Order V Rule 12 further envisages that

whenever it is practicable service shall be made on the defendant in person,

unless he has an agent empowered to accept service, in which case service

on such agent shall be sufficient. A conjoint reading of the above provisions

makes it clear that as far as practicable service shall be made on the

defendant and if defendant also has an agent service of summons on such

agent shall be sufficient service on the defendant. This does not mean that

service cannot be effected on the defendant even if he/she has an agent.

Meaning thereby tendering the summons to the appellant was within the four

corners of law. Thus, appellant could not have refused to accept summons

on the pretext that she had engaged a lawyer and such refusal amounts to

due service.

14. Order IX Rule 13 reads as under:-

"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:

XXXXXXXXXXXXXXX

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."

15. In Parimal vs. Veena alias Bharti (2011) 3 SCC 545, Supreme

Court in the context of second proviso to Order IX Rule 13 has held thus:-

"It is evident from the above that an ex parte decree against a defendant has to be set aside if the party satisfies the court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court. The legislature in its wisdom, made the second proviso mandatory in nature. Thus, it is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein."

(emphasis added)

16. In this case appellant had notice of the dates as she had perused the

summons. She also had sufficient time to appear in court before passing of

the ex-parte decree. She did not participate in the proceeding even through

the lawyer who she had allegedly engaged. She slept over the matter all

most for about two years which shows her callousness and gross negligence,

inasmuch as grounds taken by her lacks bonafides.

17. In view of above discussions, appeal is dismissed.

18. Order dictated and announced in open Court.

A.K. PATHAK, J.

NOVEMBER 07, 2014

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