Delhi High Court
Ram Chander Sharma vs Chandra Mohini on 12 August, 2016
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: August 12, 2016
+ FAO 300/2016 & C.M.24410/2016
RAM CHANDER SHARMA ..... Appellant
Through: Mr. Devinder Singh Khatana,
Advocate
versus
CHANDRA MOHINI ..... Respondent
Through: Mother of respondent in person
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
Appellant's application under Order 9 Rule 13 of CPC stands
dismissed vide impugned order of 16th May, 2016, which is challenged by
learned counsel for appellant on the ground that appellant/defendant was
erroneously proceeded ex parte vide order of 22nd April, 2009 as order-
sheet of earlier date shows that no fresh summons were issued for 22nd
April, 2009 and, so dismissal of appellant's application is wholly
unjustified.
During the course of hearing, appellant's counsel has drawn the
attention of this Court to trial court's order-sheet of 22nd April, 2009 to
submit that no summons were issued for 26th April, 2009 and, so
proceeding ex parte against appellant-defendant was wholly unjustified,
particularly when respondent had filed an application for getting the
appellant served through the counsel in some other case.
On the other hand, it is submitted by learned counsel for
respondent that the order-sheet previous to 22nd April, 2009 discloses that
some counsel had appeared on behalf of the appellant before the trial
court and, so no fresh summons were required to be issued. It is pointed
out that appellant was served for 28th January, 2009 by speed post as
speed post receipt of 22nd January, 2009 on record discloses that the
appellant's address mentioned therein was correct and, so there is service
of presumption and that is why on the next date i.e. 26th February, 2009,
some counsel had appeared on behalf of appellant before the trial court.
Upon hearing and on perusal of the impugned order, the order-
sheets of the trial court and the material on record, I find that summons
were sent to appellant for 28th January, 2009 at the correct address. Under
the General Clauses Act, a presumption of service arises when the
summons are sent through speed post AD. Since some counsel had
appeared on behalf of appellant before the trial court on 26th February,
2009, therefore, the inference of service upon appellant drawn by the trial
court is fully justified. No reason is forthcoming from the side of
appellant as to why there was no appearance on 22nd April, 2009, the date
fixed before the trial court, and so, on that day, appellant-defendant was
rightly proceeded ex parte.
In the considered opinion of this Court, this appeal lacks substance.
However, it was put to appellant, who was present in the Court, that if on
terms, he still wants to contest the suit for recovery of marriage expenses
and maintenance filed under Section 20 of the Hindu Adoption and
Maintenance Act, 1956, then an opportunity can be granted provided
appellant deposits 1/4th of the maintenance awarded.
Learned counsel for appellant submits that although the amount of
`20 lacs granted towards the marriage expenses to respondent, who
happens to be the daughter of the appellant, is exorbitant, but the
appellant although a lawyer by profession, is not able to deposit this
amount as appellant has now left the profession and is not doing anything
and is residing in a Dharamshala.
Be that as it may. Since there are no legal valid grounds to set aside
the impugned order, therefore, this appeal and the application are
dismissed while leaving the parties to bear their own costs.
(SUNIL GAUR)
JUDGE
AUGUST 12, 2016
s
