Delhi District Court
Kanhiya Lal vs Raj Kumar on 13 February, 2025
IN THE COURT OF DISTRICT JUDGE-03
EAST DISTRICT, KARKARDOOMA COURTS: DELHI.
Presided by : Ms. Pooja Jain
Misc/DJ/No. 23/24
Sh. Kanhiya Lal & Anr. ............... Applicant
Versus
Shri Raj Kumar ............... Respondent
Date of institution : 05.02.2024
Date of Arguments : 25.01.2025
Date of Order : 13.02.2025
ORDER
1. The applicant herein, in his miscellaneous application filed u/o 9 Rule 13 r/w section 151 of CPC, seeks the prayer to set aside the ex- parte judgment and decree dated 31.07.2023 passed by the ld. Predecessor.
It is submitted that applicant has filed the present application for setting aside the ex-parte judgment and decree dated 31.07.2023. It is further submitted that defendant/JD never received any notice, summons or intimation from this court so the defendant could not appear before the court during the pendency of the suit and due to non appearance of the JD/defendant, this Hon'ble court passed ex-parte judgment and decree dated 31.07.2023. It is further submitted that plaintiff shown the defendant as tenant and defendant never resided in the suit property as a tenant. It is further submitted that on 16.01.2024 the plaintiffs alongwith Page No.1/8 bailiff and some police officials of PS Mandawali came to the suit property and they showed the ex-parte judgment and decree to the defendant and took the physical possession of the suit property from the defendant and only then defendant came to know about the pendency of the suit and about the ex-parte judgment and decree. It is further submitted that wife of defendant Renu is the rightful owner of the suit property and she purchased the suit property from the plaintiff no.1 and the plaintiff no.1 stated himself to the owner of the suit property and the plaintiff no.1 after receiving the full and final consideration amount, executed the title deed/ sale purchase documents i.e. GPA Agreement to Sell, Affidavit, receipt, possession letter will and undertaking etc all dated 24.10.2020 and the plaintiff no.1 also handed over the physical peaceful and vacant possession of the suit property to the wife of the defendant and thereafter wife of defendant got transferred the electricity connection, house tax etc in her name. It is further submitted that plaintiff has wrongly impleaded party to the defendant in place of his wife who is the owner of the suit property. It is further submitted that plaintiffs have also given wrong address of the defendant in the plaint and showing the false service in collusion with process server to the wife of the defendant and succeeded in getting ex-parte judgment and decree on 31.07.2023. It is further submitted that non appearance of the defendant is neither intentional nor malafide and defendant shall suffer irreparable loss and injury which cannot be compensated in terms of money. It is therefore requested that the present application be allowed.
REPLY TO THE APPLICATION Page No.2/8
2. Reply to the said application is filed by non applicant. It is submitted that defendant in connivance with his wife has fabricated documents/ evidence knowing them to be false, for the purpose of misleading the court. It is further submitted that defendant is relying upon the documents which are forged and fabricated. It is further submitted that date of purchase of stamp papers for these documents is 24.10.2020 and date of their notarization is 24.10.2024. It is further submitted that there is a delay in filing the present application. Defendant has been threatening the plaintiffs with dire consequences. All the other allegations as alleged in the application are denied by the non-applicant. It is therefore prayed that present application be dismissed. ISSUES
3. With the available pleadings on record, the following issues were framed vide order dated 09.07.2024:-
1. Whether the applicant is entitled to the relief of setting aside ex-parte judgment/decree dated 31.07.2023? OPA
2. Whether the application is not within the period of limitation? OPP
3. Relief.
EVIDENCE
4. Applicant examined four witnesses in support of his averments including himself. Sh. Raj Kumar has tendered his evidence by way of affidavit Ex. P-1 and relied upon following documents:
1. Ex. PW1/1- the copies of documents i.e. GPA, Agreement to sell, Payment receipt, Will, possession letter, affidavit, undertaking (OSR) (colly).Page No.3/8
2. Ex. PW1/2- the copy of electricity bill (OSR).
3. Ex. PW1/3- the computer generated copy of House Tax Receipt (OSR).
4. Mark PW1/4- copy of field service request of execution Job slip of BSES (OSR).
5. Ex. PW1/15 is wrongly mentioned as copy of Bank Pass Book which is not on record due to this reason is not marked or exhibited.
5. Applicant examined his wife Renu and she has tendere her evidence by way of affidavit Ex. P-2 and relied upon following documents:-
1. Ex. PW1/1- the copies of documents i.e. GPA, Agreement to sell, Payment receipt, Will, possession letter, affidavit, undertaking (OSR) (colly).
2. Ex. PW1/2- the copy of electricity bill (OSR).
3. Ex. PW1/3- the computer generated copy of House Tax Receipt (OSR).
4. Mark PW1/4- copy of field service request of execution Job slip of BSES (OSR).
5. Ex. PW1/15 is wrongly mentioned as copy of Bank Pass Book which is not on record due to this reason is not marked or exhibited.
6. DW-3 Sh. Mrinal Kumar, Branch Head, Central Bank of India has deposed that he has brought the certified copy of account opening form, KYC and signature specimen card of witness Renu which is Ex. PW3/1 (colly).
7. PW-4- Sh. Jaswant Kumar, Junior Clerk, BSES Division has deposed that he is a summoned witness and he has brought the Page No.4/8 summoned record. The online application form Ex. PW4/A. Copy of Aadhar Card is Ex. PW4/B. Specimen signature Ex. PW4/C. The GPA, Agreement to sell, affidavit, receipt, possession letter, Will deed and undertaking Ex. PW4/D (colly). He has also brought a copy of electricity bill bearing CA no.154073243 is Ex. PW4/E.
8. Non applicant/ plaintiff has not examined any witness in the present petition.
ARGUMENTS
9. Arguments heard. Record is perused and considered.
ISSUES-WISE FINDINGS
10. I have given thoughtful consideration to the submissions made on behalf of both the parties, considered the relevant provisions of the law, pleadings of both the parties, testimonies of witnesses and material on record. Present application is within the limitation or not, thus, to decide the same, issue no.2 is taken up first for finding which is as under:
Issue No.2.
Whether the application is not within the period of limitation? OPP The onus to prove this issue is upon the non applicant. Perusal of the record reveals that there is a delay of more than 6 months in filing the application u/o 9 Rule 13 CPC for setting aside the ex-parte decree dated 31.07.2023. It is pertinent to mention here that alongwith the present application no application for condonation of delay is filed. Article 123 to the Page No.5/8 schedule of Limitation Act prescribes the period of limitation of 30 days for seeking to set aside the ex-parte decree. The time from which the period begins is the date of decree or where the summons or notices are not duly served, when the plaintiff had knowledge of the decree. While understanding the said Article under Limitation, there are two components. The first component is that the time starts from the date of decree. The second component is from the date of knowledge of the decree, where the summons or notices are not duly served. The time from which the limitation begins to reckon as the date of knowledge arises only when there was no proper service of summons or notices.
11. In the present application u/o 9 rule 13 CPC the only reason attributed for the delay caused is that applicant has not received any notice or summons and the applicant was proceeded ex-parte on 20.04.2023 by the ld. predecessor and thereafter, exparte judgment/decree was passed against the applicant on 31.07.2023. No other reason for the delay occasioned has been given apart from the aforementioned cause.
12. Perusal of record reveals that as per report of process server dated 19.11.2022, the summons were served to the defendant through his wife. As per report of process server dated 30.01.2023, it is mentioned in the report that he has reached at first floor also of the suit property and at the door he address orally to the resident who resided at first floor but the said resident closed the door. Hence, it is clear that the defendant deliberately avoided the service. Moreover, the summons posted to the defendant at his address returned back unclaimed. The defendant/applicant averred that he did not receive summons and the service of summons was manipulated by the plaintiff. Despite given opportunity the defendant has not examined the process server or post man who might have thrown the light to the truth. Non examination of material witness invites the adverse inference against the defendant/applicant.
Page No.6/8Therefore, it is presumed that the defendant was served with the summons on 19.11.2022 and he deliberately did not appear before the court. The plea is made by the defendant to show that the summons were not served upon the defendant. As far as it is concerned with the said plea, the process server or postman was the best person who could have brought the truth in front of court.
13. In these circumstances, it is clear that the applicant had remained indolent and callous towards the proceedings in the original suit. Whenever there is no proper explanation to the delay and whenever the necessary ingredients to entertain the application is not made out, such an application cannot be entertained. It has been observed by the Hon'ble High Court of Delhi in the case of Sudershan Sarin vs National Small Industries Corporation 2006 (2014) DLT 514 that where despite being aware of the proceedings, the party neither took any pains to ensure that he was represented before the court, nor did he take any efforts to even apprise himself as to the outcome of the proceedings, then the party is deemed to be willfully negligent and thus, the recourse under Order 9 Rule 13 CPC is not available to such a party. It is also a settled legal principle that a litigant must show due diligence in pursuing or defending the case.
14. Further, it is very easy for a litigant to make allegations that he has not received any notice or summons. This practice is not acceptable. Moreover, nothing has been placed on record by the applicant to suggest that as to why he has not filed the present application within time. However, summons were duly served upon the wife of defendant. Moreover, it is surprising to note here that the defendant did not care to pursue his matter for more than 6 months. Therefore, no ground is made out for allowing the application u/o 9 Rule 13 CPC. Also, the provision u/o 9 Rule 13 CPC cannot be used to set aside order vide which applicant was proceeded exparte, it can only be resorted to for Page No.7/8 setting aside ex-parte decree. Therefore, it is clear that the contention of the applicant of not being aware of the proceedings of the present suit lacks merit. In view of the above discussion, the application u/o 9 Rule 13 CPC stands dismissed being barred by limitation as well as on merits. Hence, this issue is decided in favour of non applicant/plaintiff and against the applicant/defendant.
15. Issue No.1.
Whether the applicant is entitled to the relief of setting aside ex- parte judgment/decree dated 31.07.2023? OPA The onus to prove this issue is upon the applicant. It is pertinent to mention here that since the present application is barred by limitation as discussed above in issue no.2. Further, with regard to the merit of the present application also discussed in the above said issue no.2, hence, the issue no.1 need not be discussed. Hence, this issue is decided in favour of non-applicant/ plaintiff and against the applicant/defendant.
16. In view of above discussion and considering that the applicant has remained failed to establish his case, these issues are answered against the applicant/defendant. Hence, applicant/defendant has not been able to prove his case on the touchstone of preponderance of probability. Hence, the following order:
ORDER The application u/o 9 rule 13 r/w section 151 CPC of the Digitally applicant/defendant is dismissed. signed by POOJA POOJA JAIN Date:
File be consigned to record room. JAIN 2025.02.13 15:24:05 +0530 Typed to the dictation directly, (Pooja Jain) corrected and pronounced in District Judge-03/NB, open court on 13.02.2025 East/KKD Courts, Delhi.Page No.8/8