Delhi High Court
Sanjay Sushil Bhosale vs Yogesh Gupta on 6 March, 2025
Author: Dharmesh Sharma
Bench: Dharmesh Sharma
$~51
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 6th March, 2025
+ FAO 52/2025 & CM APPL. 13619/2025
SANJAY SUSHIL BHOSALE .....Appellant
Through: Mr. Ajay Kumar Pipaniya, Ms.
Pallavi Pipaniya, Mr. Gopesh
Jindal, Mr. Paras Punyani, Ms.
Nikita Garg, Mr. H.P.S. Anand,
Mr. Lavish Chhikara, Mr.
Deepak Mathur, Ms. Diksha
Dharia and Mr. Aayush Rathor,
Advs.
versus
YOGESH GUPTA ....Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE DHARMESH SHARMA
DHARMESH SHARMA, J. (ORAL)
CM APPL. 13620/2025 - EXMP.
1. Allowed, subject to all just exceptions.
2. The application stands disposed of.
FAO 52/2025 & CM APPL. 13619/2025
3. The appellant/defendant has preferred the present appeal under
Order XLIII Rule 1 (d) read with Section 151 of the Code of Civil
Procedure, 1908 ["CPC"] assailing impugned order dated 25.01.2025
passed by the learned District Judge-03, Rohini Court, North District,
Delhi ["trial Court"] whereby his application under Order IX Rule 13
of the CPC for setting aside the ex-parte judgment and decree dated
KUMAR VATS
Signing Date:10.03.2025
20:27:00
11.11.2019 has been dismissed.
4. No one appeared for the respondent/plaintiff despite sending
advance notice.
5. In a nutshell, the present suit was instituted by the respondent/
plaintiff in which due notice of the summons for settlement of issues
was served upon the appellant/defendant so much so that he filed
written statement. However, he failed to appear during the
proceedings and was proceeded ex-parte and eventually ex-parte
judgment-cum-decree dated 11.11.2019 came to be passed.
6. The appellant/defendant moved an application under Order IX
Rule 13 of the CPC, whereby it was acknowledged that summons in
the suit were served upon him on 14.05.2016 and written statement
was filed on his behalf besides the fact that issues were framed on
20.04.2017. It was also acknowledged that the appellant/defendant
was proceeded ex-parte we.f. 07.08.2019 for non-appearance in the
matter.
7. Learned trial Court on consideration of factual narrative and
submissions made the following observations:
"4. On perusal of record, it is found that the suit was filed by the
plaintiff on 25.04.2016, when summons were issued for
26.09.2016. On 28.09.2016, the applicant / defendant was
proceeded ex-parte due to non-filing of Vakalatnama. Later on, the
said ex-parte order was set
aside while deciding an application under Order 9 Rule 7 CPC vide
order dated 20.03.2017 and the WS of the applicant / defendant
was taken on record. Thereafter, the applicant / defendant
continuously appeared on 20.04.2017, 16.01.2018, 14.05.2018,
07.08.2018 and was
fully participative. Subsequently, the applicant / defendant
remained absent before the court on 14.12.2018 and 18.02.2019,
when the matter was listed for PE. The court had proceeded the
KUMAR VATS
Signing Date:10.03.2025
20:27:00
applicant / defendant exparte on 07.08.2019 and PW1 was
examined and discharged. The application of the applicant /
defendant is totally silent upon the reasons for his absence on
14.12.2018 and 18.02.2019. Order 9 Rule 13 CPC clearly stipulates
that an ex-parte judgment shall be set aside in two eventualities i.e.
non-service of summons or any other sufficient cause. In the
present case, service of summons is not disputed, therefore, the
defendant / applicant is not entitled to a relief under Order 9 Rule
13 CPC. Also, the defendant / applicant has not shown any
sufficient cause for his absence on 14.12.2018 and 18.02.2019
before this court. Just because, defendant / applicant is a resident of
Maharashtra, the same would not entitle him to a relief under Order
9 Rule 13 CPC, especially, when he himself chose to sleep over his
rights and was not diligent. Accordingly, the application of the
applicant / defendant under Order 9 Rule 13 CPC is dismissed."
8. At this juncture, it may also be mentioned that the learned
counsel for the appellant/defendant also urged that the appellant/
defendant was prevented from appearing in the present matter as he
was suffering from mental disability and in this regard relied upon
certain medical records placed on the record, which are Annexure-
'A-3'.
9. First things first, the aforesaid fact that the appellant/defendant
was suffering from any kind of mental disability or incapacity and
thereby, not enabling him to appear before the Court was neither part
of pleadings nor the same was addressed before the Court. It is an
entirely new plea and nothing is explained as to what makes the
appellant/defendant now capable of understanding the nature and
purport of the proceedings against him and moving this application.
10. In summary, learned trial Court has rightly observed that there
was service of summons upon the appellant/defendant and he has
failed to show any sufficient cause for setting aside the ex-parte
decree.
KUMAR VATS
Signing Date:10.03.2025
20:27:00
11. Hence, the present appeal is dismissed.
12. The pending application also stands disposed of.
DHARMESH SHARMA, J.
MARCH 06, 2025/Sadiq
KUMAR VATS
Signing Date:10.03.2025
20:27:00
