Delhi District Court
Smt. Deepti Sharma @ Anu Sharma & Anr. vs . Smt. Asha Kashyap & Anr. on 2 March, 2015
IN THE COURT OF MS. RACHNA TIWARI LAKHANPAL,
SCJ/RC(WEST), TIS HAZARI COURTS, DELHI
M. No.-23/2014
Smt. Deepti Sharma @ Anu Sharma & Anr. Vs. Smt. Asha Kashyap & Anr.
Date of institution of the application : 02.07.2014
Date of reserving order : 24.02.2015
Date of pronouncement : 02.03.2015
ORDER
1. Vide this common order I shall decide the application u/o IX Rule 13 CPC for restoration of the suit as well as the application u/s 5 of The Limitation Act seeking condonation of delay in filing of the application u/o IX Rule 13 CPC.
2. Brief necessary facts for the disposal of the applications are herein as under:-
An ex-parte decree was passed by the court on 27.11.2013 wherein it was held that the plaintiffs were entitled to a decree of recovery of Rs. 1,61,960/- along with interest @ 12% per annum towards expenses incurred by the plaintiff no.2 for demolition and reconstruction the bathroom which became useless due to acts of the defendants.
3. In the present application, it was submitted by the defendants that till 16.05.2014, they were not having any knowledge about the pendency of the suit. On 16.05.2014, official from the court came to the residence of the defendants and met the defendant no.1 and informed about the present proceedings. The defendant no.1 is an illiterate lady of 65 years of age and M. No.23/2014 Page..... 1/5 the defendant no.2 was not at his residence and had gone to his office. The official from the court left without delivering or showing any document to the defendant no.1. The defendant no.1 later on informed about the visit of court official to the defendant no.2 who met the counsel and later on when the counsel made enquiry from the court, it came into the knowledge that execution petition of the decree dated 27.11.2013 is pending.
4. It was further submitted in the application that no summons for 30.07.2013 were received by the defendants either by the post or through process server. No process server had visited the residence of the defendants for service of the summons. No summons by way of registered post were received by the defendants. As no postman/official visited the residence of the defendants for service of the summons of the suit, false report has been filed by the plaintiffs that on 15.07.2013 indicating that when the process server visited the residence, one lady who informed her name as Asha Kashyap met and after knowing about the court notice stated to be her relative and she refused to receive the summons and did not allow the summons to be pasted & the process server could not find any witness for his visit. It is submitted that the said report does not bear the signature of the defendants or any witness and has been manipulated by the plaintiffs who live in the same complex. Even postal report of registered AD cover reveals that it has been received back with the report "Refused". The said report does not specify that who has refused to accept the postal parcel.
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5. Reply was filed by the plaintiffs wherein it was submitted that summons sent through registered AD were received back with the remarks "Refused". The plaintiffs have never been in collusion with the process server or postal office authorities. The defendants have made these false plea just to conceal their own conduct. Further, the application is hopelessly time barred.
6. I have heard ld. counsels for the parties and perused the record.
7. Perusal of the trial court record reveals that on 06.06.2013, the present suit was listed. Summons for settlement of issues were issued upon the defendants upon filing of PF/RC/Courier for 30.07.2013. PF/RC was filed by the plaintiffs. Perusal of the RC report reveals the report as "Refused". Perusal of the process server's report reveals that on 15.07.2013, he visited the suit premises and found a lady there, who told her name to be Asha Kashyap but hearing about the pendency of the case, she disclosed herself as relative of Asha Kashyap and refused to take the summons and started misbehaving with the process server and did not allow him for affixation. Similar report was with regard to the defendant no.2 who was son of the defendant no.1 as she was present there. There is nothing on record to disbelieve the report of process server as well RC. Mere bald allegations upon the process server as well as RC cover do not mean that the plaintiffs colluded with the postman as well as the process server.
8. Not only this when the execution was filed, which is connected with the present file, the notices were issued upon the JD on 25.04.2014 and M. No.23/2014 Page..... 3/5 01.08.2014, the process server visited the premises of the JD on 16.05.2014 and there found one lady who informed her name as Asha Kashyap and upon knowing about the court summons refused to take the summons. Similar is the report of notice of the execution petition sent by the RC cover. RC covers were returned back with the remarks "Refused" which were issued to both the defendants separately. It shows the conduct of the defendants and further proves that baseless plea has been taken by them to cause delay. There is no irregularity in the service of summons.
9. In their application u/s 5 of The Limitation Act for condonation of delay, nowhere it is mentioned that on 12.05.2014, the postman had visited the defendants. Report of postman is of 12.05.2014. Perusal of the record reveals that the defendants were having knowledge about the pendency and date of hearings of the suit when the process server first visited the premises and after that also the defendants were having knowledge about the execution petition which they again tried to avoid by refusing of notices to the postman as well as the process server. Further, there is no denial to the postal report of 'Refused' dated 12.01.2015 which proves that the defendant refused to receive the summons & taking into consideration this report & earlier report of 'Refused' by the postman, it is evident that the defendants are in habit of refusing & then taking frivolous pleas which shows scant regard towards the process of law and no one can be allowed to take procedure of law for granted. Contention of the defendants cannot be accepted and the defendants have M. No.23/2014 Page..... 4/5 failed to show plausible & sufficient reason which prevented them to contest the suit.
10. Ld. Counsel for the defendants has relied upon the order passed on 23.04.2002 by Hon'ble Supreme Court of India in an appeal (civil) bearing no. 5111/2000 titled as Sushil Kumar Sabharwal Vs. Gurpreet Singh, however in the present facts and circumstances, the case relied upon by the defendants is not applicable because in the present case, due to misbehavior of the defendants, the process server was restrained from affixation of the summons. Hence, both the applications are without any merits and the same are hereby dismissed.
11. File be consigned to Record Room after necessary compliance.
Announced in the open court (RACHNA TIWARI LAKHANPAL)
on 02.03.2015 SCJ/RC(WEST) / DELHI
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