Mr.Hemant Jain vs Mr.Sidharth Jaju& Ors.
2014 Latest Caselaw 4491 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+
     C.M.(M) No.851/2014 and C.M.Nos.15274/2014 (Exemption) and
     15275/2014 (Stay)

%                                                    16th September, 2014

MR.HEMANT JAIN                                               ......Petitioner
                          Through:       Mr.Rakesh C.Aggarwal, Advocate.

                  VERSUS
MR.SIDHARTH JAJU& ORS.                                       ...... Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. Challenge by means of this petition under Article 227 of the

Constitution of India is to the impugned order of the trial court dated

26.8.2014 by which the trial court allowed the application under Order IX

Rule 13 of Code of Civil Procedure, 1908 (CPC) filed by the defendant nos.

1 & 2 and set aside the ex parte judgment and decree dated 09.5.2013 passed

against them.

2. The ex parte judgment and decree dated 09.5.2013 is with respect to

the suit for declaration and injunction in which reliefs prayed were as

under:-

" It is therefore, most respectfully prayed that in view of the facts and circumstances of the present case or in the interest of justice, the following orders and directions may kindly please to pass in favour of the plaintiff and against the defendant such as: a. to pass a decree of declaration in favour of the plaintiff and against the defendants there servants agents, dealers, replicators, to declare the plaintiff is the first owner of the motion pictures as mentioned in the Annexure-1 by the plaintiff with the defendant in respect of the 546 motion pictures as mentioned in the agreement dated 18th August 2011 as mentioned in Annexure-1.

b. to pass a decree of permanent injunction in favour of the plaintiff and against the defendant there servants agents, dealers, replicators, that not to create the third party right in any manner in respect motion pictures as scheduled in the agreement dated 18th August 2011 as mentioned in the Annexure-1.

c. to pass a cost of the suit in favour of the plaintiff and against the defendant.

d. to pass such other orders & directions as this Hon'ble Court may deem fit and proper in view of the facts and circumstances of the present case."

3. Clearly important reliefs were sought in the suit/plaint and which

pertained to as many as 546 motion pictures. Therefore, once rights are

created in such important reliefs by an ex parte judgment and decree of the

suit, it was necessary that the petitioner/plaintiff should have served the

defendant nos. 1 and 2.

4. As regards service of defendant nos. 1 & 2, the trial court in the

impugned order dated 26.8.2014 notes that defendant nos. 1 and 2 in the suit

were neither served in the ordinary method nor they were served through

speed post. Service could not be effected on the defendant nos. 1 & 2

because the summons which were issued at the addresses had come back

with the report "addressee moved". Admittedly, the petitioner/plaintiff

therefore did not file the fresh addresses but simply got service effected by

publication.

5. Article 123 of the Limitation Act, 1963 reads as under:-

Description of Period of Time from which application limitation period begins to run

123. To set aside a Thirty The date of the decree decree passed ex parte days or where the summons or to re-hear an appeal or notice was not duly decreed or heard ex served, when the parte. applicant had knowledge of the Explanation: For the decree.

     purpose of this article,
     substituted     service
     under rule 20 of Order
     V of the Code of Civil
     Procedure, 1908 (5 of
     1908) shall not be


       deemed to be due
      service.

6. The aforesaid Article of the Limitation Act clearly provides that

service by publication is not due service for moving an application under

Order IX Rule 13 CPC. The Legislature has intentionally made out such a

provision, and the rationale of such a provision becomes clear in terms of the

facts of the present case wherein the defendant nos. 1 and 2 could not be

served as they had shifted from the addresses.

7. The relevant observations of the trial court while allowing the

impugned order read as under:-

" Since it is established that defendants were not served through speed post as well as there is nothing on record to point out that they were served through local Mumbai Court so simple service through publication in the newspaper in the present circumstances cannot be treated as proper service...."

8. A reading of the aforesaid observations makes it clear that the

applicants/defendant nos. 1 and 2 were not served in the suit, and therefore

application under Order IX Rule 13 CPC was allowed.

9. Powers under Article 227 of the Constitution of India are

discretionary and are meant to be exercised in extraordinary situations when

grave injustice is caused by an impugned order. The impugned order, in

facts, reverses the injustice caused to the defendant nos. 1 and 2 by an ex

parte judgment and decree having been passed against them taking away

their valuable rights. No injustice will be caused if the impugned order is

not interfered with under Article 227 of the Constitution of India.

10. Dismissed.

VALMIKI J. MEHTA, J SEPTEMBER 16, 2014 KA