Delhi High Court
Shri Praveen Kohli vs Smt. Komal @ Kamlesh on 20 May, 2015
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on : 20th May 2015
+ R. A. NO. 277/2015 in MAT. APP. (F.C.) 60/2014
SHRI PRAVEEN KOHLI ..... Applicant
Through: Mr. Inderpal Khokhar, Advocate
versus
SMT. KOMAL @ KAMLESH ..... Respondent
Through: None
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE I.S.MEHTA
ORDER
% 20.05.2015
I.S.MEHTA, J (ORAL)
1. The present review application under Section 114 read with Order
XLVII Rule 1 read with Section 151 CPC is arising out of the order dated
13.03.2015 passed by this Court wherein, the applicant has filed an
appeal against the impugned judgment and decree dated 24.08.2013
passed by the learned Trial Court of Shri Sameer Bajpai, Tis Hazari
Court, and order dated 21.04.2014 passed by the learned Court of Ms.
Reena Singh Nag, Judge, Family Court, West, Tis Hazari Courts.
2. Consequently, the present review application is on the following
grounds :
The applicant has not been residing at B-39, Gali No. 0, Hari Nagar
Extn. New Delhi, therefore there was no question of any service of
summons upon the applicant personally. However, his brother
Narender Kohli resides at 115-116, Pocket 5, Sector-21, Rohini,
Delhi. Since, the applicant was not residing on the aforesaid
address there was no question of his presence on the said address
on 19.09.2012. It is submitted that the applicant was residing at
EX-39, Gali no. 0, Hari Nagar, New Delhi, where the process
server admittedly never served the summon to the applicant, copy
of the report filed by the process server is annexed as ANNEXURE
'A'.
The false report of the process server was filed before the learned
Trial Court. As per the report, the process server visited the address
B-39 Extn. Gali No. 0, Hari Nagar, New Delhi on 17.10.2012,
where he met some unidentified and unnamed woman, who told
the process server that no such person by the name of Praveen
Kohli resides there. But there is no photograph of the affixation,
nor is there any witness for the said affixation, copy of the said
report is annexed as ANNEXURE 'B'.
Further, another false report of the process server was filed before
the learned Trial Court showing the applicant's address as 115-116,
Pocket-5, Sector-21, Rohini, Delhi. As per the report annexed as
ANNEXURE 'C' the process server on 01.09.2012 visited the
aforesaid address. Factually, no process server has visited at the
aforesaid address on 01.09.2012 and met one Ram Lal. The said
Ram Lal had factually died long back and his death certificate is
annexed as ANNEXURE 'D'.
In the similar way, the report of the process server that he visited at
E-179-180, D.S. Ramesh Nagar, New Delhi on 26.10.2012 is also
false. There is no such person as Raj Pal who met the process
server and the report does not fulfill the essential criteria of service
through affixation.
Further a copy of process server as ANNEXURE 'F' is annexed for
one another report wherein, the process server has visited the
address bearing H No. 115-116, Pocket-5., Sector-21, Rohini,
Delhi, on 17.10.2012. The aforesaid report shows that one woman
named Meenu and one person named Ram Lal met the process
server and thereafter, he had affixed the summon. The same is also
false for want of photograph and statement of the witness.
3. All the four process server reports are manipulated and prepared at
the instructions of the respondent, in response to which, the applicant
made complaint on 06.05.2015 and the copy of the same is annexed as
ANNEXURE 'G'.
4. The application under Order IX Rule 7 CPC was filed by the
applicant through his counsel and moreover was not even filed by the
applicant himself. Inadvertently the counsel noted down the next date
fixed as 29.10.2013 in place of 19.07.2013. The presiding officer was on
leave and the change of date was sheer negligence and was not
intentional. Therefore, the order dated 13.03.2015 be reviewed. Thus, the
learned counsel for the applicant submits that the applicant was never
served with summons or notice from the learned Trial Court and was
deprived from appearing and contesting the false and frivolous petition
under section 25 of the Guardian & Wards Act, 1890 for the custody of
the minor daughter.
5. We have heard the learned counsel for the applicant and have also
perused the necessary records.
6. The contentions raised by the learned counsel for the applicant not
find favor with us, as the applicant himself admits that one Narender is
his brother. As per the report of the process server, he has visited the
address given in the summon i.e. B-39, Extn., Hari Nagar, New Delhi on
19.09.2012. Then he met one Narender and the said person introduced
himself as the brother of the applicant/addressee and thereafter made a
telephonic conversation with the applicant. He further stated that the
applicant has already received the summon.
7. The process server's report dated 19.09.2012 discloses the
identification of the applicant as well as of one Narender who is the
brother of the applicant. The applicant too acknowledges that Narender is
his brother. There is nothing on record to suggest that the process server
could not have met the said person i.e. Narender, on the aforesaid
address, even if it is presumed that the applicant does not reside at the
aforesaid address and the address of the applicant so mentioned is within
the same locality.
8. The report of the process server specifically states that the brother
of the applicant made a telephonic conversation in his presence and the
response so received was that the applicant had already received the
summon.
9. Moreover, the address of the applicant given in the appeal No.
MAT APP NO. 60/2014 is as EXB-39, Gali No. 10,Hari Nagar, New
Delhi, whereas, in his own affidavit dated 25.05.2013 he himself has
stated his adderss as EXB-30, Gali No. 0, Hari Nagar, New Delhi. Both
the addresses: 1) EXB-39, Gali No. 10, Hari Nagar, New Delhi and 2)
EXB-39, Gali No. 0, Hari Nagar, New Delhi, are coming from the source
of the applicant himself and allegation is being made against the
respondent (wife) so as to take undue advantage and misuse the judicial
process.
10. It is further noticed that the applicant himself has filed a petition
under section 25 of the Guardian & Wards Act, 1890 against the
respondent (wife) and when the same was contested by the respondent
(wife) by filing a written statement as well as an application under section
26 of the Domestic Violence Act, 2005 for the custody of the minor
daughter (Archita) on the ground that the applicant is in an illicit
relationship with one Kanchan Tiwari and therefore, the custody of the
minor daughter with the applicant is not proper and safe and is also not in
the interest qua the minor daughter (Archita).
11. The applicant thereafter filed an application under Order IX Rule 7
read-with Section 151 CPC, for setting aside the ex-parte order dated
05.01.2013, which was dismissed for non-prosecution vide order dated
19.07.2013.
12. The plea of the applicant that the date of adjournment i.e.
19.07.2013 was wrongly noted down by the counsel for the applicant as
29.10.2013, is not convincing as the applicant has himself filed an
application under Order IX Rule 7 read with Section 151 CPC dated
22.05.2013 and subsequently, he himself has not taken any step to pursue
the matter and further, which resulted in dismissal of the said application
for non-prosecution.
13. The aforesaid facts and the circumstances show nothing except that
the applicant was having the knowledge of summons being issued by the
concerned court and was deliberately trying to misuse the judicial
process. Therefore, we are not convinced with the plea raised by the
applicant in the present review application and the same is dismissed.
14. It is ordered accordingly.
I.S.MEHTA
(JUDGE)
KAILASH GAMBIR
(JUDGE)
MAY 20th, 2015
Aj
