Sh. Paras Gulati vs Sh. Ram Chander
2014 Latest Caselaw 5345 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 C.M.(M) No.725/2013 and C.M. Nos.11010/2013 &
                  13661/2013

%                                                           29th October, 2014

SH. PARAS GULATI                                         ..... Petitioner
                          Through:       Mr. Atul Ahuja, Advocate.

                          Versus

SH. RAM CHANDER                                             ..... Respondent

                          Through:       Mr. M. Babar, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This petition under Article 227 of the Constitution of India is

filed by the plaintiff impugning the order of the trial court dated 15.5.2013

by which the trial court has allowed the application filed by the

respondent/defendant under Order IX Rule 13 of Code of Civil Procedure,

1908 (CPC) and has set aside the ex parte decree of possession dated

5.7.2008.

2. The subject suit was a suit for possession filed by the

petitioner/plaintiff against the defendant/respondent claiming possession

with respect to suit shop no.7, 3159, Bedonpura, Karol Bagh, New Delhi-

110005. In this suit, the defendant is stated to have been served through the

employee/servant of the respondent/defendant and since the

respondent/defendant failed to appear thereafter, the suit was decreed ex

parte in term of the judgment dated 5.7.2008.

3. Learned counsel for the petitioner argues before this Court that

once there are disputed questions of facts as to whether or not the defendant

in the suit was served, then in facts of cases such as the present, before

allowing an application under Order IX Rule 13 CPC, issues must be framed

and parties must be allowed to lead evidence in order to arrive at a

conclusion with respect to whether or not service was effected on the

respondent/defendant through his employee/servant i.e whether there was

due service upon the respondent /defendant and that he was thereafter rightly

proceeded ex parte.

4. As per Order XX CPC, interim applications are decided by

means of affidavits, however, an application in the nature of Order IX Rule

13 CPC, is not an interim application which can be decided only on

affidavits in all cases. It depends on facts of each case whether the

application under Order IX Rule 13 CPC should be decided on the basis of

affidavits or in such an application parties should be allowed to lead

evidence to prove their respective stands.

5. In the present case, the issue is whether the

respondent/defendant was served in the suit through his employee namely

Sh. Guddu. Even as per the provisions relied upon by the trial court i.e

Order V Rule 14 and Order V Rule 19 CPC, service of a defendant in the

suit can be through an agent. I may note that the provisions of Order V

Rules 14 and 19 do not use the expression 'power of attorney holder' but the

expression which is used is only an 'agent' i.e to be an agent, a person need

not be a power of attorney holder to a party to the suit.

6. Since in the present case, there are serious disputed questions of

facts as to whether the respondent/defendant was or was not served in the

suit through his employee/servant namely Sh. Guddu, this is an aspect which

is a disputed question of fact and petitioner/plaintiff will be entitled by

leading evidence to show that Sh. Guddu was the employee/servant of the

respondent/defendant and therefore the respondent/defendant was duly

served in the suit through his agent. Of course, respondent/defendant can

also lead counter evidence to show that the respondent/defendant was not

served through his agent namely his employee/servant Sh. Guddu.

7. In view of the above, the impugned order dated 15.5.2013 is set

aside and the application under Order IX Rule 13 CPC is remanded for a

fresh decision after issues are framed in this application and evidence is

allowed to be led by both the parties.

8. Let the parties appear before the District & Sessions Judge,

Central, Tis Hazari, Delhi on 27th November, 2014, and the District &

Sessions Judge will now mark the application under Order IX Rule 13 CPC

filed by the respondent/defendant to a competent court for disposal in

accordance with law and the observations made in the present order. Parties

are left to bear their own costs.

VALMIKI J. MEHTA, J OCTOBER 29, 2014 Ne