Delhi High Court
Major Suresh Yatav vs Sh. Jugal Uppal & Ors. on 6 January, 2022
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: January 06, 2022
+ RFA 289/2020, CM Nos. 31213/2020, 31214/2020, 12897/2021,
12898/2021 & 15840/2021
MAJOR SURESH YADAV
..... Appellant
Through: Mr. Mukul Gupta, Sr. Adv. with
Mr. Mukesh Gupta & Mr. Tarkeshwar
Nath, Advs.
versus
SH. JUGAL UPPAL & ORS.
..... Respondents
Through: Mr. K.K. Sharma, Sr. Adv. with
Mr. S.S. Wadhwa & Mr. Rajesh
Kumar, Advs. for R-1 & 2
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
JUDGMENT
V. KAMESWAR RAO, J
CM No. 12898/2021
For the reasons stated in the application, the same is
allowed, subject to just exceptions.
The application stands disposed of.
RFA 289/2020, CM No. 31214/2020 (for delay)
1. The appeal is filed against the original ex-parte judgment
/ decree dated December 22, 2017 of the learned Additional
District Judge ('ADJ', for short), Saket Courts, New Delhi, as
well as order dated February 10, 2020 in M.No.98/2018, whereby
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the application of the appellant under Order IX Rule 13 read with
Section 151 of CPC was dismissed by the Trial Court. The appeal
is accompanied by an application seeking condonation of 933
days' delay with regard to filing of the appeal against the original
judgment / decree. Since the facts and the submissions made by
the counsels for seeking condonation of delay, on the impugned
Judgment / Decree and on the order rejecting the application
under Order IX Rule 13 of CPC being identical/similar, I intend
to decide both of them together.
2. This appeal has been filed with the following prayers: -
"Therefore, this Hon'ble Court may graciously be
pleased to: -
(i) Quash and set aside the order dated 10.02.2020
passed by the Ld.ADJ-02, Saket, New Delhi.in CS No.
208887/2016.
(ii) Quash and set aside Judgement ad decree dated
22.12.2017 with all consequential action.
(iii) Call for the Trial Court Record pertaining to the
present case.
(iv) Pass any other order that is deemed fit and proper
under the facts and circumstances of the case."
3. The facts in brief as noted are that, the respondent no. l
and 2 herein / plaintiffs filed a suit in 2007 seeking cancellation
of a Sale Deed dated August 24, 2006 executed by defendant no.
5 / respondent No. 6 through defendant no. 3 / respondent No.
respondent No. 5, in favour of appellant / defendant no. 4 in
respect of suit property i.e., Mustatil No. 87 Killa No, 17(4-16)
and Killa No. 14 (4-12) situated in Dera Mandi, Mehrauli, New
Delhi, by declaring the same as null and void along with a decree
thereby declaring them as owners of the suit property. In
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addition, respondents Nos. 1 and 2/ plaintiffs sought possession
and permanent injunction. The appellant herein was arrayed as
defendant no. 4 in the suit, which was instituted in this Court in
view of the then limit of pecuniary jurisdiction. Summons were
issued on November 05, 2007 and the defendants therein, i.e., the
appellant and respondent Nos. 3 to 6, were directed not to create
any interest or part with the possession of the suit property in
favour of any third party.
4. For the sake of convenience, the appellant/defendant
No. 4 and the respondent Nos. 1 and 2/plaintiffs shall hereinafter
be referred to as 'appellant' and 'plaintiffs' respectively.
5. The appellant in his Written Statement filed before the
Trial Court took preliminary objections that the documents relied
upon by the plaintiffs do not create any right whatsoever in their
favour, and that the suit is liable to be rejected under Order VII
Rule 11 of the CPC since no cause of action has arisen in favour
of the respondent Nos.1 and 2 / plaintiffs and against the
appellant. He also maintained that he had purchased the suit
property vide registered sale deed dated August 24, 2006 which
has been executed legally after making payment to the vendor
and thus he has become absolute owner of the said property, with
actual physical possession.
6. On completion of pleadings, the matter was notified for
recording evidence of the plaintiffs' witnesses. Examination-in-
chief and cross-examination of PW-1 and PW-2 therein were
concluded by February 11, 2015. Admittedly, the appellant
carried out the cross-examination of PW-1 on his own, without
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the assistance of his counsel.
7. In view of the changes brought about in pecuniary
jurisdiction of Courts, and the notification dated November 24,
2015, issued by the Registrar General of this Court, the Joint
Registrar (Judicial), vide order dated January 19, 2016,
transferred the matter from this Court to the Court of the learned
District Judge, Saket Courts with a direction to the parties to
appear before the District Judge on May 18, 2016. According to
the appellant, none of the defendants therein, except defendant
no. 3 / respondent No. 5, had appeared before the Joint Registrar
(Judicial), on January 19, 2016, i.e., the date on which the order
transferring the matter was passed.
8. Accordingly, the suit was transferred to the District
Court, Saket, and was later assigned to the Court the ADJ-06, i.e.
the Trial Court, for disposal. The parties were directed to appear
before the Trial Court on June 02, 2016.
9. On June 02, 2016, when the matter was listed before the
Trial Court, only the counsel for the respondent Nos. 1 and 2 /
plaintiffs appeared. Accordingly, Court notice was issued to the
defendants therein (including the appellant herein) as well their
counsels for appearance on August 29, 2016. On August 29, 2016
only the counsels for the plaintiffs and defendant No. 3 /
respondent No. 5 appeared. Fresh notice was further issued to the
appellant and defendant No. 5 / respondent No. 6 for the next
date. On November 17, 2016, i.e. the next date of hearing, the
appellant still remained absent, and hence the Trial Court issued
notice to the counsel who was representing the appellant in the
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proceedings before this Court. On the next date, i.e. February 06,
2017, upon non-appearance of the appellant or his counsel,
another fresh notice was issued to the counsel, to appear on the
next date. No appearance was made either by the appellant or the
counsel on the next date, i.e., May 08, 2017. No fresh notice was
issued.
10. On September 21, 2017, dates were fixed for defendants'
evidence after closure of the plaintiffs' evidence (i.e., respondent
Nos. 1 and 2). Defendants No. 1, 2 and 5 were directed to lead
evidence. No such direction was issued to the appellant.
However, none of the defendants led any evidence, and
consequently, on October 28, 2017, the right to lead evidence on
behalf of the defendants (which includes defendant No.4, the
appellant herein) was closed and the matter was put up for
arguments. The arguments were concluded on December 04,
2017 and judgment was passed on December 22, 2017.
11. It is the case of the appellant that it is evident from the
Order sheets that he remained un-served and had not appeared
before the Trial Court after transfer of the matter. He was also not
proceeded ex-parte.
12. It is the stand of the appellant that he had chosen to
defend the suit by himself, without assistance of a counsel. The
last appearance of his counsel was on May 02, 2011 before this
Court, prior to transfer of the same to the District Court, Saket.
13. Mr. Mukul Gupta, learned Senior Counsel appearing for
the appellant stated that the appellant is the only son to an ailing
mother aged 85 years, and a father aged 94 years who reside in a
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village in Haryana and that on account of the commitment to look
after his parents, he used to travel often from Delhi, where he
resided in the suit property.
14. It is stated in the appeal that, due to the commitment
towards his parents; the fact that he discontinued the services of
his counsel in 2011, and the fact that the case was transferred to
the District Court, Saket, he lost track of the proceedings in the
matter. It is also stated that his mother had to undergo bilateral
knee changes and the appellant himself had suffered a heart
attack in February 2018.
15. According to Mr. Gupta, while the appellant was in the
process of recovering after the heart attack, he came to know
about the disposal of the suit when one of his friends, Deepak
Hastir, apprised of the same to him on November 10, 2018.
Immediately thereafter, he rushed to his lawyer and applied for
the certified copy of entire record of the suit in view of non-
availability of the paper book with him. During the process, he
came to know that the suit was disposed of against him by
passing a decree ex-parte dated December 22, 2017 directing him
to hand over the actual physical possession of the suit land to the
plaintiffs and restraining the defendants (including the appellant)
from interfering in the plaintiffs' use and enjoyment of the same.
16. As per Mr. Gupta, the decree holders / plaintiffs /
respondent Nos. 1 and 2 have already approached the executing
Court by way of Execution Petition bearing No. 364 of 2018
seeking execution of the decree dated December 22, 2017.
According to the plaintiffs, the decree could not be executed
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since the guard deputed at the decretal property resisted the
execution of warrant of possession, and therefore they have
sought police aid. The executing Court has directed a request in
this regard be sent to the DCP for the sanction of police aid to the
decree holders/ plaintiffs/ respondent Nos. 1 and 2, vide order
dated October 28, 2018. The decree holders/ plaintiffs/
respondent Nos. 1 and 2 have also been directed to move an
application before the office of the Sub Registrar-V, Mehrauli,
for cancelation of the sale deed dated August 24, 2006 in respect
of the decretal property. It is submitted that the appellant has no
guard at the decretal property and therefore, the allegations of
resistance by the guard in order to take police assistance by the
decree holders / plaintiffs/ respondent Nos. 1 and 2, is incorrect
and concocted.
17. It is stated by Mr. Gupta that certified copy of the paper
book was received by the appellant / defendant No.4 only on
November 24, 2018 as November 21 to November 23, 2018 were
holidays. After getting the paper book, the appellant / defendant
No.4 without delay, on December 01, 2018 moved an application
under Order IX Rule 13 read with Section 151 CPC for setting
aside the ex-parte decree before the Trial Court. A separate
application seeking stay of the execution proceedings was also
filed.
18. The plaintiffs filed their joint reply to the application on
March 11, 2019. Thereafter the application was heard by the Trial
Court and was dismissed, inter alia on the basis that the appellant
had sufficient time to find out the pendency of the case, even if
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the ground canvassed in the application was to be believed.
According to Mr. Gupta, the case of the appellant that summons
were not served on him during the pendency of the proceedings
having been accepted by the Trial Court, the dismissal of the
application is primarily on presumption, which is not permissible
in law.
19. Mr. Gupta had also stated that the delay in filing the
appeal against the judgment/decree dated December 22, 2017 is
because the appellant was pursuing the application under Order
IX Rule 13 of CPC before the Trial Court, which was finally
decided on February 22, 2020. He seeks reliefs as prayed for in
the appeal.
20. On the other hand, Mr. K.K. Sharma, learned Senior
Counsel appearing for the respondent Nos.1 and 2 has
vehemently opposed the application and the appeal, stating that
the appellant having appeared in the proceedings himself till 2014
and having cross examined PW-1, was required to keep a tab on
the proceedings. He stated that since the appellant was not being
represented by any counsel, he was required to be vigilant in
pursuing the litigation. The plea of his parents being of advanced
age; the knee surgery of his mother and also his heart attack, are
only ploys to seek condonation of delay in filing the appeal and
arguing the appeal itself. In fact, he highlighted that in the year
2017, the appellant was in judicial custody after having been
arrested in one of the two FIRs registered under the Delhi Public
Gambling Act, 1955 and the Delhi Excise Act, 2009, and was
released on bail only in the month of September 2017. Hence, it
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is not a case of lack of knowledge about the proceedings but
intentionally avoiding the proceedings.
21. It is stated by Mr. Sharma that all the defendants in the
original suit, including the appellant herein were served with the
summons of the Court and accordingly all the defendants
appeared before this Court. The appellant also had appeared and
filed his Written Statement in the suit. On the basis of the Written
Statements filed and the pleadings of the parties, the following
issues were framed by this Court on October 07, 2009; -
1. Whether the plaintiffs can prove that the property
could not have been sold through a Sale Deed dated
August 24, 2006, as alleged by them? (OPP)
2. Whether the defendant Nos. 1 & 2 can prove that the
defendant No. 3 was constituted as Attorney by the
defendant No. 5, plaintiff Nos. 1 and 2 and defendant No.
1 and 3 jointly? (OPD)
3. Whether the plaintiffs can prove that the defendant
No. 3 was not authorised by them to enter into the
transaction recorded by the Sale Deed dated August 24,
2006? (OPP)
4. Whether the first two defendants can prove that they
paid consideration out of the amounts received by the
transaction recorded in the Sale Deed dated August 24,
2006, to the plaintiffs? (OPD)
5. Is the impugned Sale Deed dated August 24, 2006
liable to be cancelled/declared void? (OPP)
6. Whether the plaintiffs are entitled to declaration as
claimed? (OPP)
7. Whether the plaintiffs are entitled to a decree for
possession of the suit land against defendant No. 4?
(OPP)
8. In case finding to issue No. 7 is in the affirmative, are
the plaintiffs entitled to a decree for permanent
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injunction, as claimed?
22. It is stated that after giving sufficient opportunities to all
the parties to the suit, the Trial Court decided the said suit on
merits vide judgment / decree dated December 22, 2017. It is the
case of the plaintiffs / respondent Nos. 1 and 2, that the said
judgment was not made ex-parte and as such, the Trial Court was
right in dismissing the application filed under Order IX Rule 13
of CPC. The Trial Court has categorically held that the appellant
had the sufficient time and yet he had not shown any sufficient
cause for not appearing before the Court on the dates of hearing
for about two years.
23. Mr. Sharma stated that the decree dated December 22,
2017 has been fully acted upon and the possession of the suit
premises has been taken by the plaintiffs through the bailiff duly
appointed by the Executing Court on April 01, 2021 and the sale
deed dated August 24, 2006 was cancelled by the Sub-Registrar-
V, Kalkaji (Mehrauli), New Delhi on August 30, 2018, and the
Executing Court was duly informed of the cancellation. Even
mutation in the names of the plaintiffs has been carried out.
24. It is contended by Mr. Sharma that the appellant remained
dormant for more than two years, because he was running an
illegal casino on the first floor of the suit property and was
arrested on August 23, 2017 along with some others. He was also
found serving liquor in the suit premises and two FIRs, one
bearing No. 399/2017 under Section 3 and 4 of the Delhi Public
Gambling Act, 1955 and another bearing No. 401/2017 under
Section 33, 38 and 47 of the Delhi Excise Act, 2009 were
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registered. He was later granted bail by the learned ASJ, Saket
Courts on September 08, 2017.
25. It is reiterated that the judgment / decree dated December
22, 2017 is not an ex-parte judgment, as the appellant was never
proceeded ex-parte by the Trial Court. However, Court notices
were sent to his address and to his counsel, but they chose not to
appear before the Trial Court. It is also stated that the counsel
who was appearing for the appellant in the application filed
before the Trial Court under Order IX, Rule 13 of CPC, is the
same counsel who was appearing for him in this Court during
trial, before the matter was transferred to the District Court, in
view of the change in pecuniary jurisdiction. It is also the same
counsel who has moved the present appeal before this Court. It is
submitted that the counsel for the appellant and the appellant
himself deliberately did not appear on the dates fixed, and the
Trial Court has rightly decreed the suit. The appellant was never
proceeded ex-parte and the defense of the defendants therein,
including that of the appellant was closed after giving ample
opportunity to lead evidence; the appellant simply chose not to
avail the same.
26. Mr. Sharma submitted that the appellant has stated in the
present appeal that he came to know about the disposal of the suit
on November 10, 2018 when one of his friends, Deepak Hastir
apprised him of the same. However, in the application filed
before the Trial Court under Order IX Rule 13, the appellant has
stated that on November 08, 2018, one of his relatives, Gaurav
Yadav, who practices law in the Punjab and Haryana High Court,
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had sent him the judgment dated December 22, 2017. It is stated
by Mr. Sharma that this discrepancy would show that the present
application is false and frivolous, and is liable to be dismissed.
27. It further submitted that the medical documents placed on
record by the appellant are fake and forged. That apart, the
documents show only hospitalisation of 3-4 days of the mother of
the appellant in January 2017, and of the appellant for two days,
whereas the delay is of more than 933 days. The non-appearance
of the appellant, despite having full knowledge of the pendency
of the suit against him before the Court was intentional and
deliberate.
28. Mr. Sharma submitted that nowhere is it stated in the
appeal that the counsel had not received the Court notice issued
by the Trial Court. The counsel had also not filed any application
before the Trial Court seeking discharge from the said case.
29. It is his submission that if the summons issued on the
correct address have not been returned, the presumption is that
the summons has been received by the addressee. Reliance in this
regard has been placed on the judgment of the Supreme Court in
N. Parameswaran Unni v. G. Kannan and Anr., (2017) 5 SCC
30. He further submitted that where sufficient cause is not
shown by applicants seeking setting aside ex-parte order and
applications are based on vague, evasive and false averments,
then, ex-parte decree is not to be set aside. He stated that it is a
settled law that Courts shall not set aside a decree in a case where
there is a mere irregularity in service of summons or in a case
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where defendant had notice of date and sufficient time to appear
in Court. To buttress this argument, Mr. Sharma has referred to
the judgment of the Supreme Court in Parimal v. Veena, AIR
2011 SC 1150, and the judgments of this Court in Pal News
Media (P) Ltd. and Ors. v. Super Cassettes Industries Ltd.,
(2015) 220 DLT 698, Sudarshan Sareen v. National Small
Industries Corporation Ltd. and Anr., FAO (OS) No. 482/2011,
decided on November 01, 2013, National Small Industries
Corporation Ltd. v. SSI Products Marketing Organisation Ltd.,
Anr., (CS) (OS) No.1982/1999, decided on August 08, 2011 and
Satya Infrastructure Ltd. & Ors. v. Satya Builders Pvt. Ltd.,
2015 (225) DLT 234. He seeks the dismissal of the application
and the appeal.
31. Mr. Gupta in his rejoinder submission stated, there is no
delay in filing the present appeal challenging the order dated
February 10, 2020 in CS No. 208887/2016, whereby Trial Court
dismissed the application under Order IX Rule 13 of CPC
seeking to set aside the judgment / decree dated December 22,
2017 which was passed without hearing the appellant herein.
Reference is made to the Order dated March 23, 2020 in Suo
Motu Writ Petition (Civil) No. 3/2020, RE: Cognizance for
Extension of Limitation, wherein the Supreme Court extended
the period of limitation prescribed under the general law of
limitation or under any special laws with effect from March 15,
2020 till further orders in view of the situation arising from onset
of the COVID-19. He also submitted that the appeal was filed
within the prescribed period of limitation against the order dated
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February 10, 2020.
32. That apart, it is submitted that the appellant had called his
relative Gaurav Yadav to wish him Diwali on November 08,
2018 who, during the conversation, out of curiosity, asked the
appellant about the status of the suit and when the appellant told
him that he had not received any notice about the date of hearing
of suit after transfer of the same. He informed the appellant that it
is possible to check the status of the case from the website of the
Court and after doing the same, he informed the applicant that the
case has been disposed of on December 22, 2017. It is submitted
that the appellant was then apprised of the same again on
November 10, 2018 by his friend Deepak Hastir.
33. Mr. Gupta also submitted that the Supreme Court has
categorically held that it was incumbent on the part of the Court
to serve notice informing all the parties about the transfer of
proceedings and date on which they are to appear before the
District Judge. Reference in this regard is made to Rule 6 of
Chapter 13 of Delhi High Court Rules and the decision of the
Supreme Court in Reena Sadh v. Anjana Enterprises, 2008 (12)
SCC 589. It is stated by Mr. Sharma that the present appeal is
squarely covered by the aforesaid judgment.
34. He also stated the fact that summons were not served on
the appellant or his counsel during the pendency of the
proceedings having been accepted by the Trial Court, while
dismissing the application, shall make the ex-parte judgment /
decree, unsustainable and need to be set aside. In this regard he
has relied upon the judgment of the Allahabad High Court in
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Saroj Singh Chauhan v. Arvind Kumar Chauhan, AIR 2020 All
26, and the judgment of the Punjab and Haryana High Court in
Prabhawati Devi and Anr. v. Gurdish Singh, Civil Revision No.
7550 of 2017(O&M) decided on January 08, 2017.
35. Additionally, he submitted in brief, the events that have
taken place subsequent to the filing of this appeal. On January 28,
2021, the matter was directed to be listed on April 06, 2021. In
the meantime, the execution petition which was filed by the
plaintiffs on April 05, 2018, came up for hearing before the
Executing Court on February 08, 2021. The appellant remained
unrepresented. It is contended that the counsel for the plaintiffs
deliberately did not bring to the notice of the Executing Court
that-
(a) Notice is issued on the stay application filed along
with this appeal.
(b) The appeal was heard in part and a short date was
given.
(c) The decree holder was directed by this Court to file on
record, the order issued by the Sub-Registrar, cancelling
the Sale Deed.
It is submitted by Mr. Gupta that it is because the
aforesaid factual aspects were concealed from the Executing
Court that the Court had issued warrant of possession vide order
dated February 08, 2021. He further contended that any order
obtained by concealment of relevant facts or by playing fraud,
would render the said order non est.
36. He also averred that under the garb of warrant of
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possession, the appellant was thrown out from the suit premises
on April 01, 2021 and consequently, he was forced to move an
application bearing CM No. 12897/2021 in RFA No. 289 of 2020
seeking restraint order against the respondents from creating third
party interest, which was granted by this Court.
37. It is submitted that the possession of the suit property
taken by the respondents under the garb of warrant of possession
is illegal and unsustainable more particularly when the impugned
judgment / decree itself is unsustainable and deserves to be set
aside. He vehemently contended that the alleged cancellation of
the sale deed is also unsustainable and illegal and that the
appellant is entitled to restoration of peaceful possession of the
suit premises.
38. Having heard the learned counsels for the parties and
perused the record and the written submissions filed by them, the
issue which arises for consideration is whether the Trial Court
was justified in proceeding with the suit on its transfer from this
Court without ensuring notice to the appellant and / or his counsel
has been effected and deciding the same in favour of the
plaintiffs/ respondent Nos. 1 and 2, and also rejecting the
application of the appellant under Order IX Rule 13 read with
Section 151 of the CPC.
39. At the outset, I may state that when the suit was pending
in this Court, the appellant was represented by the same counsel
who is representing the appellant in these proceedings. He last
appeared in the suit (when it was pending in this Court), in the
month of May 2011. Thereafter, it was the appellant/defendant
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No. 4 who was prosecuting the suit. He last appeared in the
proceedings before this Court on April 03 and April 04, 2014
when he cross-examined the PW-1.
40. The plea of Mr. Gupta was that, thereafter, the presence
of the appellant / defendant No. 4 was not required in the
proceedings, at least till he was to produce his evidence. Further,
he was taking care of his old parents living in Haryana. In this
regard, Mr. Gupta had also relied upon the medical record for the
period between December 2016 to January 2017, of the
appellant's mother, who had undergone bilateral knee changes.
41. On the other hand, Mr. K.K. Sharma, apart from stating
that the medical record relied upon by the appellant cannot be
believed being forged and fake and the hospitalisation of the
appellant's mother being for 3-4 days and also his own
hospitalisation being only for 2 days, there is no justifiable reason
for the appellant not to appear in the suit before the Trial Court.
42. The above submission of Mr. Sharma and also his
submission that the appellant was in judicial custody during the
period between August 2017 to September 2017 and also the fact
that the appellant, even after the judgment / decree dated
December 12, 2017 had not cared to ascertain the status of the
suit at least till November 2018, is appealing on a first blush, but
on a deeper consideration, the real issue is whether the Trial
Court, in terms of Chapter 13 Rule 6 of the Delhi High Court
Rules, was under obligation to inform the appellant through
notice about the transfer of the suit and calling upon him to
appear before the transferee Court on the date fixed. The order
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dated January 19, 2016 that was passed by the Joint Registrar
(Judicial) of this Court while transferring the suit to the District
Court reads as under:
"IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 2180/2007
SH. JUGAL UPPAL & ANOTHER
..... Plaintiffs
Through: Mr. Rakesh Kumar Garg, Adv.
versus
SH. RAJINDER KUMAR BIDANEY & OTHERS
..... Defendants
Through: Mr. J.P.N. Shahi, Adv for D-3.
CORAM:
ASHUTOSH KUMAR (DHJS), JOINT REGISTRAR
(JUDICIAL)
ORDER
% 19.01.2016
CS(OS) 2180/2007
In view of notification no.27187/DHC/Orgl.
Dated 24,11.2015, the present matter stands
transferred. Parties are directed to appear before
the Court of Ld. District Judge, (South), Saket
Court, Delhi on 18.05.2016 at 10.00 a.m.
The next date of hearing i.e. 03.03.2016, earlier
given, stands recalled.
ASHUTOSH KUMAR (DHJS)
JOINT REGISTRAR (JUDICIAL)
JANUARY 19, 2016"
43. Concedingly, the appellant was not present in the
proceedings on the day when the suit was transferred. So, he did
not have the notice for appearance before the transferee Court.
Suffice to state, under the above Rule, the Court was required to
issue notice to the appellant / defendant No. 4 for his appearance
before the transferee Court, more so, when the appellant was not
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declared ex-parte. This is so stated by the Supreme Court, while
dealing with almost identical facts, in the case of Reena Sadh
(supra) wherein, the appellant therein was arrayed as the third
defendant in a civil suit filed by Anjana Enterprises, the
respondent therein. The suit was initially filed in this Court and
was pending hearing. There were three other defendants along
with the appellant. The suit was for recovery of an amount of
₹14,50,000/- with interest.
44. During the pendency of the suit, the pecuniary
jurisdiction of the District Courts was enhanced and, therefore,
the suit came to be transferred to the Court of ADJ, Delhi by
order dated August 8, 2003. On transfer, the ADJ thereafter sent
notices to the parties and the matter was fixed for October 22,
2003. On October 22, 2003, it was found that the defendants had
not been served and therefore, the Trial Court passed an order
that the defendants and their counsel should be served the Court
notice for December 1, 2003. The addresses for these notices
were allegedly furnished by the respondent / plaintiff on that date.
It is seen that on December 1, 2003, the Trial Court issued notice
only to the counsel of the defendants. The matter was fixed on
January 7, 2004 for the appearance of the parties. The appellant
before the Trial Court was proceeded ex parte on September 22,
2004 and ultimately an ex-parte judgment / decree was passed on
October 27, 2005.
45. This resulted in the appellant getting no opportunity to
take part in the proceedings since she was never served a notice
of the proceedings which were transferred from this Court to the
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Court of ADJ, Delhi and also the impact and effect of Chapter 13
Rule 6 of the Delhi High Court Rules was also not realised by the
Courts below, under which it was imperative that after the
transfer, all the parties were bound to be informed regarding the
transfer and the dates.
46. It is also noted by the Supreme Court that the Trial Court
did not realise that the counsel who represented the original
defendant Nos.1, 2 and 4 was not the counsel of the appellant
and, therefore, the notice served on the said counsel did not
amount to notice being served on her.
47. A plea was taken on behalf of the respondent that there
were circumstances on record to suggest that the appellant was
never serious about these proceedings and despite a number of
opportunities having been granted to her, she remained dormant
in defending the suit. It was also urged that the appellant did not
show the expediency that was expected from her even in the
matter of making an application under Order IX Rule 13 of CPC.
On the appeal preferred against the judgment of the Trial Court,
this Court by relying on Order IX Rule 11 of CPC held that since
the appellant had already received notice of the proceedings
before this Court through her husband on October 6, 2001, it was
clear that she was adopting a policy of hide and seek and was
taking the Court for a ride. This Court also mentioned that the
counsel Mr. L.D. Adlakha and Mr. Ajay Amittabh Suman who
appeared on August 8, 2003 before the Joint Registrar of this
Court should have clarified that they are not representing the
appellant (defendant No.3). This Court ultimately held that Rule
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6 of Chapter 13 of the Delhi High Court Rules was duly complied
with.
48. The question before the Supreme Court was whether
there was compliance of Chapter 13 Rule 6 of the Delhi High
Court Rules and if there was no compliance, whether the decree
was liable to be set aside under Order IX Rule 13 of CPC. The
Supreme Court in paragraphs 14 to 21 has held as under:
"14. In the backdrop of these findings it is to be
seen as to whether there was compliance with Rule
6 of Chapter 13 and if there was no compliance, the
decree was liable to be set aside under Order 9
Rule 13 CPC. Before we approach this question,
few admitted facts would be necessary to be noted.
They are:
(i) The appellant was not being represented by the
counsel who appeared in the High Court on behalf
of Defendants 1, 2 and 4 (Ajay Amitabh Suman
and/or K.K. Sharma). Shri L.D. Adlakha who
allegedly appeared before the Joint Registrar Shri
N.P. Kaushik on 8-8-2003 was not engaged by the
appellant being the plaintiff's counsel. Thus, there
was no counsel representing the appellant either
before the Delhi High Court or before the
Additional District Judge, Delhi.
(ii) Admittedly, there was no notice of transfer of
proceedings or dates, to the appellant and notice to
Defendants 1, 2 and 4 was deemed to be sufficient
notice to Defendant 3.
(iii) Defendant 3 was not proceeded ex parte before
the High Court at any point of time and no order
under Order 9 Rule 11 CPC was ever passed by the
Delhi High Court or even by the Court of
Additional District Judge, Delhi.
15. The wording of Rule 6 of Chapter 13 is as
follows:
"Records be sent immediately to the court to which
case is transferred.--When a case is transferred by
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administrative order from one court to another, the
Presiding Officer to the court from which it has
been transferred shall be responsible for informing
the parties regarding the transfer, and of the date
on which they should appear before the court to
which the case has been transferred. The District
Judge passing the order of transfer shall see that
the records are sent to the court concerned and
parties informed of the date fixed with the least
possible delay. When a case is transferred by
judicial order the court passing the order should fix
a date on which the parties should attend the court
to which the case is transferred."
16. In this case, the matter was transferred by the
order of the Joint Registrar Shri N.P. Kaushik by
his order dated 8-8-2003 which order reads thus:
"Present : Mr L.D. Adlakha for the plaintiff.
Mr Ajay Amitabh Suman for the defendant.
Sl. No. 1441/97
This is a case where the value of the suit for the
purpose of pecuniary jurisdictions is less than Rs
20 lakhs. In view of the orders passed by the
Hon'ble Chief Justice the present matter is
transferred to the Court of Hon'ble District Judge,
Tis Hazari Courts, Delhi, for assignment to a court
of competent jurisdiction. Parties and/or their
counsel to appear before the Hon'ble District
Judge, Delhi on 25-9-2003."
This being an administrative order, passed by the
Joint Registrar, it was incumbent on the part of the
High Court to let all the parties know about the
date on which they should appear before the
District Judge. In this order the Registrar has
recorded the date of 25-9-2003 as the date on
which the parties should appear before the District
Judge, Delhi. However, it is obvious that it was
only Shri Ajay Amitabh Suman who was appearing
for the defendants. There is no reference
whatsoever in the above order that Shri Ajay
Amitabh Suman was appearing for "all" the
defendants.
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17. The language of the Rule provides that the
Presiding Officer of the court from where the
matter was transferred (in this case the Delhi High
Court) was responsible for informing the parties
regarding the transfer as also the date on which the
parties were supposed to be present before the
court to which the case was transferred (District
Judge in this case). Admittedly, this did not happen
in the case of the present appellant who was the
original Defendant 3. It is obvious that the Joint
Registrar Shri N.P. Kaushik proceeded under the
impression that Shri Ajay Amitabh Suman was
appearing for all the defendants. Therefore, there
was no compliance with this Rule. The courts below
have observed that on this date the appellant was
not appearing before the court at all though she
was served way back in 2001. However, it is
nobody's case and indeed the records do not show
that she was proceeded ex parte by the High Court.
Therefore, she was certainly in the array of parties
on 8-8-2003 and the Rule thus applied to her with
full force. It cannot, therefore, be said that the word
"parties" used in the Rule did not include her who
was the original Defendant 3.
18. In our opinion the courts below have obviously
committed an error in treating that the appellant
not being an interested party was not required to be
informed of the transfer of the case as also the date
on which the parties were expected to appear
before the court to which the case was transferred.
It is to be seen that in the language of the Rule the
word used is "parties" and not "interested
parties". If we accept the interpretation put forth by
the courts below, the word "interested" would have
to be read in the Rule which is not permissible.
19. From the very language of the Rule, the Rule
has to be held as mandatory rule and indeed in the
absence of such Rule, the parties concerned would
have no notice of the transfer of the case nor of the
proceedings in such a transferred case. The Rule,
therefore, has to be held requiring strict
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compliance with the same.
20. This is apart from the fact that the counsel
appearing for Defendants 1, 2 and 4 was under no
duty to inform that he was not representing
Defendant 3 (the appellant herein). Once it is
accepted that there was no counsel representing
Defendant 3 (the appellant herein) it was
incumbent on the part of the Registrar to let the
appellant know about the date in this case i.e. 24-9-
2003.
21. Further, when we see the order-sheet of the
Court of Additional District Judge, Delhi, it is
apparent that on 25-9-2003 neither the plaintiff nor
the defendants appeared before the court and later,
on the same date, one Ghanshyam Dass, partner of
Anjana Enterprises i.e. the plaintiff appeared
before the court and noted the date. Even on that
date no other defendant had any knowledge about
the further date on which the suit was fixed before
the Additional District Judge. It is obvious that
thereafter the matter was fixed for 1-12-2003 on
which date the defendant was not served and,
therefore, the matter was adjourned to 7-1-2004
when again the matter was adjourned for fresh
notice to the defendants and was fixed for 9-4-2004
and it was only on 12-4-2004 that one Avinash
Lakhan Pal, a proxy counsel for Shri K.K. Sharma,
Advocate appeared and then the matter was
adjourned for filing the reply. (There appears to be
an obvious mistake in the order passed by the High
Court inasmuch as it is mentioned that Shri Ajay
Amitabh Suman appeared on 12-4-2004 and the
matter was adjourned to 8-4-2004 which is not
possible.)"
49. The said judgment relied upon by Mr. Gupta applies to
the present facts on all fours. Chapter 13 Rule 6 of the Delhi High
Court Rules which is reproduced as under relates to transfer of
cases to the District Court and mandates issuance of notice to all
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the parties:
"6. Records be sent immediately to the court to which
case is transferred: when a case is transferred by
administrative order from one court to another, the
presiding officer to the court from which it has been
transferred shall be responsible for informing the
parties regarding the transfer, and of the date on
which they should appear before the court to which
the case has been transferred. The District Judge
passing the order of transfer shall see that the records
are sent to the court concerned and parties informed
of the date fixed with the least possible delay. When a
case is transferred by judicial order the court passing
the order should fix a date on which the parties
should attend the court to which the case is
transferred."
50. I have perused the record of the Trial Court which does
not depict, despite issuance of notice to the counsel for the
appellant, that he has been served. In the absence of service, and
due to the fact that his counsel was not in the knowledge that the
proceedings have been transferred to the District Court and are
pending there, the impugned judgment / decree dated December
22, 2017, is liable to be set aside to the extent of the appellant.
Having said that, the Trial Court has while considering / deciding
the application of the appellant under Order IX Rule 13 CPC, has
not considered the position of law as set out in the case of Reena
Sadh (supra). As I have held, the suit itself could not have been
decided without notice to the appellant and consequently, the
judgment / decree dated December 22, 2017 is bad, it must
necessarily follow that even the order dated February 10, 2020, is
untenable.
51. I have considered the issue whether the non-service of
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notice to the appellant or his counsel resulting in a decision
against him has caused any prejudice to the appellant. The very
fact that the suit has been decided in favour of the plaintiffs
(respondent Nos.1 and 2) and against the appellant herein, the
same itself is a prejudice. That apart, I find that the Trial Court
has in paragraph 33 of the judgment / decree dated December 22,
2017 stated that- "despite number of opportunities none of the
defendants led any evidence". Similarly, in paragraph 38 the
Trial Court held- "As far as issue No.4 is concerned, no evidence
has been led by the defendants to prove this issue". Similarly, in
paragraph 47, the Trial Court held- "xxx... Further, defendant
No.4 who is the most affected by the prayer made in this suit, i.e.,
for cancellation of the sale deed, did not even bother to lead
evidence". I also find the Trial Court had relied upon the
averments in the written statement of the appellant to hold that
the appellant has taken multiple contradictory stands in the
written statement. But the fact is the appellant was not afforded
the opportunity to justify the said contradictions and explain his
stand. That apart, in the absence of notice of the proceedings, the
appellant could not produce himself in the witness box, or any
other witness he deemed it appropriate. It is apparent that
prejudice has been caused to the appellant in not being notified
about the transfer of the suit to the District Court / Trial Court.
52. Insofar as the aspect of delay in filing the appeal is
concerned, the impugned judgment / decree is dated December
22, 2017 and the appellant had filed an application under Order
IX Rule 13 of CPC before the Trial Court on December 01, 2018.
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I find that a 90 days period of limitation was available to the
appellant for filing a First Appeal before this Court, i.e., he could
have filed the appeal till mid-March 2018. By excluding the said
period, there would be delay between the period from March to
December 2018 and after December 01, 2018, the appellant was
prosecuting the application under Order IX Rule 13 of CPC,
which came to be decided only on February 10, 2020. The
present appeal was filed before this Court on October 05, 2020,
and in view of the order of the Supreme Court in Suo Motu Writ
Petition (Civil) No.3/2020, the appellant shall be entitled to the
benefit thereof, in terms of which limitation stops running after
March 15, 2020, which was within a period of 90 days from the
date of the order dated February 10, 2020. In view of my
conclusion above, the delay in filing the appeal against the order
dated December 22, 2017 need to be condoned.
53. Mr. Sharma in support of his submission has relied upon
the judgment in the case of N. Parameswaran Unni (supra)
wherein, the Supreme Court has held that when a notice is sent by
registered post and is returned with postal endorsement 'refused'
or 'not available in the house' or 'house locked' or 'shop closed'
or 'addressee not in station', due service has to be presumed that
is the notice has been received by the addressee. The said case is
clearly distinguishable on facts, there is nothing filed on record
before me to show that any notice has been received / refused by
the appellant or his counsel.
54. Mr. Sharma has referred to the judgments in the cases of
Parimal (supra), Pal News Media (P) Ltd. and Ors. (supra),
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Sudarshan Sareen (supra), National Small Industries
Corporation Ltd. (supra) and Satya Infrastructure Ltd. & Ors.
(supra) wherein it was held that the Court shall not set aside the
ex-parte decree if there is only a mere irregularity of service,
when the defendant had sufficient time and notice of the date to
appear in the Court and also if the parties fail to demonstrate any
sufficient cause for non-appearance. The said judgments have no
applicability in the facts of this case as it is clear from my
conclusion above, neither the appellant nor his counsel had any
notice from this Court or the Trial Court on the suit having been
transferred to the District Court on January 19, 2016. On the said
date, only the defendant No.3 was represented in Court.
55. It follows, in the absence of notice to the appellant, the
Trial Court could not have proceeded with the suit and decided
the same, that too in favour of respondent Nos.1 and 2 (plaintiffs)
and against the appellant herein which is in violation of the
principles of natural justice.
56. Further, the reasoning given by the Trial Court while
rejecting the application of the appellant under Order IX Rule 13
is that the appellant was in the knowledge of the proceedings and
he did not care to ascertain the position of the proceedings for a
long period and as such he could not be equated with a case
where the defendant had no knowledge of the proceedings. This
conclusion of the Trial Court is not tenable more so in view of the
aforesaid position of law laid down by the Supreme Court.
57. Mr. Gupta had heavily relied upon the order dated August
29, 2016 wherein the Trial Court has observed that the notice
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issued to the appellant has not been received back, and also on a
noting on the order sheet of the said order, which reveal that the
defendant No.4 i.e., the appellant has not been served. Similarly,
the Trial court in its order dated November 17, 2016 has observed
that the appellant remained unserved and the noting on the said
order sheet reveals that the Court Notice has not been received
back. In fact, the above position is accepted by the Trial Court in
its order dated February 10, 2020. So, it follows that even the
rejection of the application under Order IX Rule 13 read with
Section 151, CPC, is contrary to the aforesaid position of law and
as such unsustainable. The cases of Saroj Singh Chauhan
(supra) and Prabhawati Devi and Anr. (supra), on which
reliance has been placed by Mr. Gupta, need not be gone into, in
view of my above discussion / conclusion.
58. During the course of hearing, it was brought to the notice
of this Court that execution proceedings were initiated by the
respondent Nos.1 and 2 and pursuant thereto, the possession of
the suit property has been taken by the said respondents and even
the sale deed has been cancelled by the Sub-Registrar-V,
Mehrauli and mutation with regard to the said property has been
concluded. But that shall not mean that the appellant should be
denied an opportunity to put his case through evidence and
arguments before the Trial Court. Further, on an application filed
by the appellant in these proceedings, this Court on April 06,
2021 had directed the respondents not to create any third-party
rights with regard to the title and possession of the suit property.
59. Accordingly, the appeal is allowed and the impugned
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judgment / decree dated December 22, 2017 and the order dated
February 10, 2020 qua the appellant only, are set aside. The
matter is remanded back to the Trial Court to start the
proceedings qua the appellant herein, from the stage where the
proceedings were, when the case was transferred from this Court
to the District Court and decide the same afresh qua the appellant
only. Till such time the suit is decided qua the appellant herein,
status quo with regard to the suit property, as existing today shall
continue. The appeal and application are disposed of.
CM Nos. 31213/2020, 12897/2021, 12898/2021 & 15840/2021
60. In view of my decision in the appeal above, the
applications have become infructuous and are dismissed as such.
V. KAMESWAR RAO, J
JANUARY 06, 2022/aky
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