Delhi High Court
Emess Advertising Service vs The Hindustan Times Ltd. on 10 March, 1997
Equivalent citations: AIR1998DELHI14, AIR 1998 DELHI 14
Author: K.S. Gupta
Bench: K.S. Gupta
JUDGMENT K.S. Gupta, J.
1. This appeal by M/s. EMESS Advertising Service, appellant-defendant, is against the order dated January 31, 1996 passed by learned single Judge dismissing application (I.A. 2026/91) under Order IX Rule 13 read with Section 151 CPC filed in Suit No. 227/88 seeking to set aside ex parte decree date,d February 5, 1991.
2. The application was filed on March 5, 1991 by Smt. Vimla Sharma, claiming herself to be the proprietor of the appellant, on the allegations that the Hindustan Times Limited, respondent, filed a suit for recovery of Rs. 7,55,648/15P against the appellant. After the appellant was served with the summons by publication, an ex parte decree was passed against it on February 5, 1991. She was not aware of the pendency of the suit before the evening of February 5, 1991 when her husband got in touch with Shri Yograj Sharma, Advocate, on telephone to find out as to in what connection he had telephoned him in the morning. It was revealed by Shri Yograj Sharma, Advocate, that a case was pending against the appellant and listed in the High Court. On February 6, 1991, her husband instructed Shri Yograj Sharma to engage Shri J. P. Gupta, Advocate, to conduct the case. An application for inspection was filed on February 7, 1991. Inspection of the file was carried out on February 12, 1991. Application for setting aside the decree was thus filed on February 25, 1991. It is alleged that non appearance of the appellant in the suit was not intentional. Consequently, it was prayed that the ex parte decree dated February 5, 1991 may be set aside and the appellant may be granted time to file the written statement.
3. Respondent contested the application alleging that the appellant was keeping a vigil on the court proceedings in this suit without causing appearance and was aware about the pendency of the suit. It is denied that the appellant was informed only on February 5, 1991 about the listing of the case as alleged. It is asserted that the non-appearance of the appellant in the suit was intentional and deliberate and the application is liable to be dismissed with costs.
4. We have heard the learned counsel for the parties.
5. It is not in dispute that Suit No. 227/88 for recovery of Rs. 7,55,648/15P towards advertisement dues and interest was filed by the respondent on January 15, 1988. After six attempts made to serve the appellant with the summons failed, the respondent filed I.A. 307/90 under Order V Rule 20 CPC which was allowed on March 6, 1990 and the appellant was ordered to be served by publication in Statement for July 26, 1990. Since no body put in appearance on behalf of the appellant on the specified date despite service by publication (sic) Respondent was permitted to lead evidence on affidavits. Affidavits of J.K. Bhatnagar, Accountant and Naresh Mohan, Executive President of the respondent were filed. An ex parte decree for recovery of Rs. 7,09,491/62 p with interest pendente lite and future @ 12% per annum till payment, was passed on February 5, 1991 against the appellant.
6. Suit file reveals that summons for July 26, 1990 was published in the issue dated April 9, 1990 of the 'Statesman'. A copy of the newspaper was simultaneously sent under certificate of posting on April 9, 1990 itself to the appellant on its address at 2881. Hardhian Singh Road, Karol Bagh, New Delhi, which was the address of the appellant as shown in the plaint. Significantly I. A. 2026/91, which is supported by the affidavits of Smt. Vimla Sharma and Shri Yograj Sharma, Advocate, is completely silent either that 2881. Hardhian Singh Road, Karol Bagh, New Delhi, was not the address of the appellant at the time the suit was instituted or that the issue dated April 9, 1990 of 'Statesman' wherein the summon was published, was not delivered to the appellant on the said address. That being the position, the appellant failed to rebut the presumption under Section 114 of the Evidence Act arising in respondent's favour regarding service of summons through publication for July 26, 1990. Aforementioned application, thus, did not disclose sufficient ground, to set aside the ex parte decree dated February 5, 1991. Learned single Judge thus was fully justified in dismissing the application in terms of the impugned order.
7. Appeal has no force and is. therefore, dismissed but with no order as to costs.