Delhi High Court
B B Metals vs Bobinder Singh & Ors. on 13 January, 2023
Neutral Citation Number 2023/DHC/000368
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 13.01.2023
+ CM(M) 86/2021
M/s. B B METALS ..... Petitioner
versus
BOBINDER SINGH & ORS. ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr. Aabhas Dahiya, Mr. Nitish Dahiya
and Mr. Vikas Chaudhary, Advocates
For the Respondents : None
CORAM:
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
Date-13.01.2023
TUSHAR RAO GEDELA, J. (ORAL)
[ The proceeding has been conducted through Hybrid mode ]
1. None appears for the Respondents today and none had been
appearing for the Respondents for the past many dates of hearing.
2. Accordingly, Respondents are proceeded ex parte.
3. Learned counsel appearing for the Petitioner submits that the
impugned order was passed contrary to the records of the case, in that,
vide order dated 25.05.2015 passed by the Joint Registrar of this Court,
it was noted that Respondent was duly served with the summons of the
suit.
Signature Not Verified
Digitally Signed
By:VINOD KUMAR
15:45:40
Neutral Citation Number 2023/DHC/000368
4. Learned counsel on above basis submits that setting aside of the
exparte decree on the ground that Respondent was never served, is
contrary to the record of the Trial Court. Learned counsel thus submits
that the impugned order dated 11.02.2020 be quashed and set aside.
5. Perusal of Order IX Rule 13 CPC brings to fore that the burden of
satisfying the Court that summons of the suit was not duly served upon
the Defendant is squarely upon the Defendant and only on the subjective
satisfaction thereof would the Court set aside the decree.
6. It is trite that setting aside of the exparte decree is not for the
asking and it is incumbent upon the Court to first peruse the records
available with it to ascertain whether any such summons were served
upon the Defendant or not. It is only thereafter and subject to the
satisfaction of the Court that any order in respect of the application
under Order IX Rule 13 CPC ought to be passed.
7. It is apparent that vide order dated 25.05.2015, the Joint Registrar
of this Court had noted that Defendants had been served by way of
publication in the Times of India dated 10.01.2015 and copy of the
publication was also placed on record.
8. The order also notes that no one had appeared on behalf of the
Defendants, despite service of summons nor any written statement was
filed on behalf of the Defendants despite opportunities being given. For
the reason that 90 days period for filing written statement from the date
of service of summons had already expired, the right to file written
statement was also closed by order dated 25.05.2015.
9. In view of the aforesaid order, which categorically notes that
summons by way of substituted service was effected upon the
Signature Not Verified
Digitally Signed
By:VINOD KUMAR
15:45:40
Neutral Citation Number 2023/DHC/000368
Respondent and other defendants before the learned Trial Court and
possibly the learned Trial Court could not have overlooked the order
dated 25.05.2015 establishing the fact of service of summons upon
present Respondent No.2.
10. In that view of the matter, learned Trial Court has committed
grave illegality and material irregularity in overlooking and bypassing
order dated 25.05.2015 and resultantly passing the impugned order.
11. In view of the above, impugned order dated 11.02.2020 passed by
the learned Trial Court in Misc. DJ 99/19 is quashed and set aside with
no orders as to costs.
12. Petition is disposed of in above terms.
TUSHAR RAO GEDELA, J .
JANUARY 13, 2023/yg
Signature Not Verified
Digitally Signed
By:VINOD KUMAR
15:45:40
