Anup Sharma & Ors vs Nagendra Prasad Yadav
2016 Latest Caselaw 7522 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Reserved on: 15.12.2016

%                                                   Decided on: 21.12.2016

+      CS(OS) 773/2013

       ANUP SHARMA & ORS                                   ..... Plaintiffs

                         Through:     Mr. Sudhir Kumar Sharma, Advocate.

                         versus

       NAGENDRA PRASAD YADAV                             ..... Defendant

                         Through:     Ms. M.C. Dhingra, Advocate along
                                      with Mr. Shahid Anwar, Advocate.
                                      Mr. Nagendra Prasad Yadav in
                                      person.

       CORAM:
       HON'BLE MS. JUSTICE DEEPA SHARMA

                               JUDGMENT

I.A. 2588/2016 (Order 9 Rule 13 read with Section 151 CPC for setting aside the Ex-parte decree and order dated 21.05.2014) and I.A. 2590/2016 (for condonatation of delay in restoration of appeal)

1. In this case, an ex parte judgment and order was passed by this Court

on 21.05.2014, whereby the suit for specific performance of the plaintiffs

was decreed.

2. The said order has been challenged by the defendant by filing the

present application. It is submitted that he had never executed any

CS(OS) No.773/2013 Page 1 vakalatnama in favour of Shri R.K. Singh and never authorized him to

appear on his behalf. It is submitted that the plaintiffs had fraudulently made

Shri R.K. Singh to appear on behalf of the defendant and sought an ex parte

decree against him. It is submitted that in the month of October, 2015, he

received one notice from the Court in the execution petition. Since he was

illiterate in English, he could not understand the contents of the said notice.

He was also facing difficulties and problems on account of serious illness of

his daughter-in-law who was suffering from kidney problem for more than a

year and so he could not contact any counsel pursuant to the said notice. On

29.01.2016 when he was in his native village, a bailiff took possession of the

house from his daughter and daughter-in-law and the possession was handed

over to the plaintiffs and the bailiff at that time orally informed about the

details of the suit. When he was informed, he reached Delhi on 30.01.2016

and engaged a counsel who filed his vakalatnama on 01.02.2016 in

execution petition and appeared in the Court on 02.02.2016 when the matter

was adjourned to 14.07.2016. Certified copies of the suit were also obtained

which were supplied to him on 08.02.2016 and thereafter, he immediately

filed the application. It is further submitted that the defendant-applicant had

agreed to sell his house to the plaintiffs for a sum of Rs.1 crore 10 lakhs, but

CS(OS) No.773/2013 Page 2 the plaintiffs fraudulently changed the consideration amount to Rs.45 lakhs

by changing the first page of agreement to sell and also forging his signature

on that page. He also made a police complaint to this effect on 11.02.2016.

It is further submitted that the plaintiffs has started demolishing the house. It

is also submitted that since the decree has been obtained by

misrepresentation and, therefore, the same should be declared null and void

(Reliance is placed on Indian Bank v. M/s Satyam Fibres (India) Pvt. Ltd.

AIR 1996 SC 2592 and Ramji Gupta & Anr vs. Gopi Krishan Agrawal (D)

& Ors, decided on 11.04.2013 in Civil Appeal No.629/2004. It is further

submitted that due to ill health of his daughter-in-law, he could not file the

application for setting aside ex-parte decree and that the delay of about 122

days in filing it, was unintentional and due to the personal difficulty he was

having. On these facts, it is submitted that delay in filing the application for

setting aside the ex parte decree of 122 days be condoned and the ex parte

order be set aside and meanwhile the plaintiffs be restrained from creating

third party interest in the suit premises.

3. Three applications have been contested by the plaintiffs. It is

submitted that the application is hopelessly barred by limitation and the

defendant-applicant has failed to explain the delay of 122 days from the date

CS(OS) No.773/2013 Page 3 he alleged knowledge i.e. October 2015 when he received summon of

execution petition. It is further submitted that in fact the summons of the suit

were also duly served upon the defendant on 10.08.2013 at 10.45 a.m. by the

bailiff of the Court along with complete set of plaint and documents. The

report of the bailiff is already on record and the defendant did not appear on

10.08.2013 despite receiving the summons. Also, the notice of the

application of the plaintiffs under Order 39 Rule 1 and 2 CPC was issued

and personally served upon the defendant. This Court had also vide its order

dated 29.04.2013 retrained the defendant from creating any third party

interest in respect of the suit property and directed the plaintiffs to comply

with Order 39 Rule 3 CPC. The plaintiffs had duly complied with that and

also submitted his affidavit of compliance under Order 39 Rule 3 CPC. It is

further submitted that Shri R.K. Singh had appeared on behalf of the

defendant on 25.10.2013 and this fact was recorded by the Court and that

plaintiffs had no role to play in the appearance of Mr R.K. Singh, Advocate.

It is submitted that defendant needs to explain the reasons of his non-

appearance from the date 10.08.2013 when summon of suit was served on

him. His denial that he did not receive the summon is contrary to record

because his signature on the summon of execution petition (which he admits

CS(OS) No.773/2013 Page 4 he received) and summon of suit dated 10.08.2013 (which he denied having

received) are identical. It is submitted that the defendant had agreed to sell

the suit property vide sale agreement dated 30.08.2012 to him for a sum of

Rs.45 lakhs, but he avoided to execute the sale deed and even the date of

execution of the sale deed was extended from 02.01.2013 to 06.02.2013 on

his request and he had executed an undertaking to this effect under his

signature and thumb impression in the presence of witnesses. It is further

submitted that agreement to sell dated 30.08.2012, besides bearing the

signature of the defendant also bears his thumb impression. A legal notice

dated 15.03.2013 was also sent by speed post and Registered A.D. to the

defendant asking him to execute the sale deed which was duly served upon

him on 19.03.2013. It is submitted that all these facts have been suppressed

by the defendant. These facts also show that defendant was aware that

plaintiffs were resorting to legal recourse. It is further submitted that despite

the fact that notice of execution petition was served and received by him in

the month of October, 2015, he waited for 122 days before moving this

application and no reasonable reasons have been shown for such delay. It is

submitted that his contention that he is illiterate in English and, therefore,

unable to understand the notice is of no consequence as he resides with his

CS(OS) No.773/2013 Page 5 children who are well-versed in English and all of them are employed and

settled. It is submitted that plaintiffs is now in possession of the suit

property. It is further submitted that no fraud has been played by the

plaintiffs. The applications have no merit and are liable to be dismissed.

4. I have heard the arguments and perused the file.

5. The applicant-defendant has contended that he became aware of the

decree when he received the notice of execution petition in October, 2015.

He, however, moved the present application after about 122 days of this

knowledge. His explanation to such delay was that he could not understand

the notice received by him in October, 2015 because he was not well-versed

in English language. He could only understand the gravity of the matter

when on 29.01.2016, bailiff of the Court took possession of the suit property

in execution of the ex parte decree and handed it over to the plaintiffs. He

states that at that time he was away to his native village. He also states that

he was facing some difficulties as his daughter-in-law was unwell and it is

argued that he was to attend to her and it was he who used to take her to the

hospitals as her husband, i.e., his son was employed and did not have time. It

is submitted that for these reasons, delay in filing the present application had

occurred and the same be condoned. Learned counsel for the plaintiffs

CS(OS) No.773/2013 Page 6 during the course of arguments, has presented certain documents which he

obtained through RTI showing that the defendant was working in

Venkteshwara College since 13.09.1973 as a Gas Mechanic and he retired

on 31.12.2014. It is further submitted that as per this information, his

daughter was also working as contractual employee with Venkteshwara

College. It is submitted that his son Sanadeep Kumar was also in the

employment of Venkteshwara College as Lab Assistant and he was under

suspension as per the order of the college dated 18.05.2015. It is argued that

according to defendant, the notice of execution petition was received by him

in October 2015 and at that time, his son was under suspension and available

to take care of the medical condition of his wife and, therefore, the

contention of the defendant-applicant that he was busy in taking care of his

daughter-in-law has no force in it. It is further argued that the defendant-

applicant is required to explain the delay of each day and there is nothing in

the medical record submitted of his daughter-in-law to show that the

defendant remained busy with the illness of his daughter-in-law for all 122

days.

6. Admittedly, the applicant-defendant was served of the execution

petition in October, 2015. He, therefore, had the knowledge of the ex parte

CS(OS) No.773/2013 Page 7 decree against him in October, 2015. The only explanation of not

approaching the Court immediately is that he could not understand the

notice being in english language and he being non-conversant with English

language, is not a sufficient explanation. Admittedly, he himself had worked

in Venkteshwara College and his son was also employed in the

Venkteshwara College and his daughter was also employed therein. It is also

a fact that he had been staying with his children. It is a settled proposition of

law that the condition precedent for exercising the discretion by court for

condoning the delay, the applicant has to establish the sufficient cause for

exercising such discretion. In case, he fails to explain the delay and the

reason which stopped him from coming to the court at a belated stage, he

cannot be allowed to take benefit of his own wrong. In Esha Bhattacharjee

v. Raghunathpur Nafar Academy and Ors., (2013) 12 SCC 649 has

propounded various principles dealing with the issue of condonation of

delay and held that "lack of bona fides imputable to a party seeking

condonation of delay is a significant and relevant fact" and that "the

concept of liberal approach has to encapsule the conception of

reasonableness and it cannot be allowed a totally unfettered free play" and

also observed that "the conduct, behaviour and attitude of a party relating to

CS(OS) No.773/2013 Page 8 its inaction or negligence are relevant factors to be taken into consideration.

It is so as the fundamental principle is that the courts are required to weigh

the scale of balance of justice in respect of both parties and the said

principle cannot be given a total go by in the name of liberal approach".

The Apex Court has further observed that "the increasing tendency to

perceive delay as a non-serious matter and, hence, lackadaisical, propensity

can be exhibited in a nonchalant manner requires to be curbed, of course,

within legal parameters". Therefore, when the delay is not properly,

satisfactorily and convincingly explained, the Court cannot condone the

delay on sympathetic grounds alone. It is a well-settled proposition of law

that when a person seeks a relief approaching the Court, he is required to do

so immediately and where it is done at a belated stage for the reasons, the

courts are to employ the principle of a diligent person. If a diligent person,

under the facts and circumstances, would have acted the way, the applicant

has behaved which had caused the delay in approaching the court, then the

applicant has the case for condonation o the delay but if the facts and

circumstances put forward by the applicant does not satisfy the rule of some

diligent person, then such delay and laches cannot be a ground for

condonation of a delay. The law casts a duty on a person who comes before

CS(OS) No.773/2013 Page 9 the Court asserting a right to be more vigilant and a litigant who is not

vigilant about his rights and sleeps over it is not entitled to come forward at

a later stage and seek condonation of his conduct which is not in consonance

with a reasonable and a diligent person. The plea that the applicant, not able

to read and understand english, did not come to know of the contents of the

notice received by him in October 2015 despite the fact that not only him

but his family members were working in a college, is not the behavior of the

reasonable and a diligent person and does not appeal to the court. A diligent

reasonable man on receiving a notice from Court would have immediately

tried to find out about it and then take appropriate steps. Instead, defendant

had slept over it and woken up only after 29.01.2016 when the Court

executed the decree and handed over the possession of the suit property to

the plaintiffs. The medical records placed on record by the defendant do not

appropriately show that it kept him busy every day. Moreover, this

document pertains to his daughter-in-law who is married to his son Sandeep

Kumar. The arguments of learned counsel for the applicant that it was

defendant who was available for taking care of his daughter-in-law because

his son was employed and could not take leave, falls to the ground because

CS(OS) No.773/2013 Page 10 the document issued by Venkteshwara College dated 18.05.2015 clearly

show that his son was under suspension.

7. In these circumstances, I do not find the explanation given by the

defendant-applicant for condonation of delay of 122 days reasonable and

sufficient. The application for condonation of delay in filing the application

under Order 9 Rule 13 therefore is dismissed.

7. Since the application for condonation of delay is dismissed, the

application under Order 9 Rule 13, filed beyond the period of limitation is

also dismissed. No order on this application is passed on merit.

8. No order as to cost.

I.A. No. 2589/2016 (application for decree of permanent injunction against plaintiffs to restrain plaintiffs to create third party interest)

In view of the above order, this application has become infructuous

and is therefore dismissed.

                                                     DEEPA SHARMA
                                                         (JUDGE)

DECEMBER 21, 2016/BG




CS(OS) No.773/2013                                                      Page 11