[Cites 4, Cited by 0]
Delhi High Court
Chandra Abhishek Raj Srivastava vs Dr. Akshay Mehra And Ors on 16 December, 2025
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 10.12.2025
Judgment pronounced on: 16.12.2025
+ FAO 342/2025, CM APPL. 77775/2025, CM APPL. 77776/2025 &
CM APPL. 77777/2025
CHANDRA ABHISHEK RAJ SRIVASTAVA .....Appellant
Through: Mr. Gautam Narayan, Sr. Adv. With
Mr. Kumar Prashant, Ms. Asmita
Singh and Ms. Simran Chabra,
Advocates.
versus
DR. AKSHAY MEHRA AND ORS .....Respondents
Through: Mr. Manik Ahluwalia and Mr.
Devashish Boohankar, Advocates for
R-1 along with respondent no.1 in
person.
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. This appeal under Order XLIII Rule 1 read with Sections
104 and 151 of the Code of Civil Procedure, 1908 (the CPC) has
been filed by the defendant in MISC DJ No. 1004 of 2025 (IN CS
No. 811 of 2019) on the file of District Judge - 04, Patiala House
Courts, New Delhi, aggrieved by the order dated 15.09.2025,
whereby his application under Order IX Rule 13 CPC and the
application under Section of the Limitation Act, 1963 (the
Limitation Act) for condonation of delay of 579 days in filing the
application under Order IX Rule 13 were dismissed.
2. In this appeal, unless otherwise specified, the parties will
be referred to as described in the plaint.
3. The plaintiffs filed the suit against the defendant for
eviction, possession and mesne profits. According to the plaintiffs,
the suit premises, a farmhouse, was given on lease to the
defendant. The lease expired on 30.09.2019, whereupon the
defendant was called upon to vacate the suit premises. However,
the defendant refused to vacate the tenanted premises. Hence, the
suit.
4. The defendant entered appearance and filed written
statement inter alia seeking dismissal of the suit.
5. During the course of the proceedings, the plaintiffs filed an
application under Order XII Rule 6 CPC seeking a decree for
possession on the basis of the admissions made by the defendant in
the written statement. The application was opposed by the
defendant. The trial court, after hearing both sides, vide order
dated 10.02.2021, allowed the application and the suit was partly
decreed by granting possession of the tenanted premises to the
plaintiffs. Subsequent to passing of the aforesaid order dated
10.02.2021, the defendant stopped appearing in the suit and hence,
by order dated 09.12.2021, the defendant was set ex-parte, and
ultimately an ex-parte judgement and decree was passed on
05.10.2023.
6. According to the defendant, his non-appearance was not
with mala fide intentions. It was alleged that the defendant was in
judicial custody in a case investigated by the Central Bureau of
Investigation in RC no. 4(s) 2020 bearing Criminal Case No.
12687/2023, from 02.01.2020 and that he remained in judicial
custody till January 2024 when he was enlarged on bail. As the
defendant was in judicial custody, he was unaware of the suit
proceedings and the fact that an ex parte decree and judgment had
been passed against him. He became aware of the ex parte decree
dated 05.10.2023 on 08.05.2025 only, after receiving notice in the
execution petition bearing number 72/2025. Hence, the
applications for setting aside the ex parte decree as well as the
application for condonation of delay in filing the said application.
7. The plaintiff opposed the applications and contended that
the allegation that the defendant became aware of the ex parte
decree only on receipt of the notice of the execution petition is
false. The defendant, through his counsel, had contested the suit
till the suit was partly decreed whereby possession was granted to
the plaintiff. There are no sufficient reason(s) for condonation of
delay or for setting aside the decree, and hence they prayed for the
dismissal of the applications.
8. The trial court, after hearing both sides, dismissed both
applications. Aggrieved, the defendant has come up in appeal.
9. Admittedly, the plaintiffs are the landlords of the suit
property, i.e., a farmhouse, leased out to the defendant. The
landlord and tenant relationship, and the rate of rent is not
disputed. It is seen from the materials before this Court, that the
defendant did contest the matter till the suit was partly decreed on
10.02.2021, by which possession was granted in favour of the
plaintiffs. It is true as contented by the plaintiffs that no documents
to evidence judicial custody of the defendants has been produced.
But even assuming the said allegation of the defendant to be true,
he was taken into judicial custody on 02.01.2020 and released
some time in January, 2024. Though he was in custody, the suit
had been contested on behalf of the defendant through his counsel
till the suit was partly decreed. As to why the counsel for the
defendant failed to appear thereafter has not been explained.
10. The allegation that the defendant came to know about the
ex parte decree only when notice of the execution petition was
received is absolutely false. The defendant on receipt of summons
had entered appearance, filed written statement and through his
lawyer contested the matter till the suit was partly decreed. He
does not refer to the date on which he was released on bail, but he
only makes a vague statement that he was released on bail in
January 2024. Even thereafter, he does not seem to have made any
enquiries whatsoever, regarding the suit which was pending at the
time he was sent to judicial custody for which no reasons
whatsoever have been furnished. Even assuming that the defendant
was unable to contest because he was in judicial custody, he was
released on bail in January 2024. However, the applications for
setting aside the ex parte decree and the application for
condonation of delay is seen filed only on 19.05.2025, that is, after
more than a year, for which also no reasons have been given.
Therefore, the trial court was perfectly justified in concluding that
there are no plausible reasons or any reason for that matter to
condone the delay or to set aside the ex parte decree.
11. It was quite persuasively submitted by the learned Senior
Counsel for the defendant that despite the aforesaid conduct of the
defendant, an opportunity may be given to the defendant to contest
the case and obtain an order on the merits. According to him, the
trial court has grossly erred in awarding mense profits for the
period during which he was never in possession of the tenanted
premises. At first blush, the argument seemed quite attractive and
convincing to this Court. But as pointed out by the learned counsel
for the plaintiffs, mense profits has been granted only till
possession was taken over or possession was handed over to the
plaintiffs in the execution proceedings pursuant to the decree
granting them possession. The argument that for the period the
defendant was in judicial custody, he is not liable for mense profits
is quite untenable. The defendant has no case that possession of the
tenanted premises had been handed over to the landlord by him at
any point of time. Had he handed over possession, then his liability
would have come to an end. It is submitted that the defendant
could not hand over possession because he was in judicial custody.
Even assuming that the defendant was in judicial custody, he was
legally in possession of the tenanted premises and therefore, I do
not find any infirmity in the trial court granting mense profits till
the plaintiffs were given possession of the property.
12. I find no infirmity in the impugned order calling for an
interference of this Court.
13. The appeal sans merits is dismissed. Application(s), if
any pending, shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
DECEMBER 16, 2025/ABP
