Delhi High Court
Bhushan Tyagi vs Attar Kali on 28 January, 1997
Equivalent citations: 1997IIIAD(DELHI)958, 67(1997)DLT496, 1997(41)DRJ679, 1998 A I H C 990, (1997) 41 DRJ 679, (1998) 2 CIVLJ 207, (1997) 67 DLT 496, (1997) 4 RECCIVR 379
Author: K. Ramamoorthy
Bench: K. Ramamoorthy
JUDGMENT K. Ramamoorthy, J.
(1) Ia No. 12079/95 is filed on behalf of the defendant under Order 9 Rule 7 and under Section 151 Civil Procedure Code for recalling the order dated 11.10.1995 by which the defendant had been set exparte.
(2) As a matter of fact, order dated 11.10.1995 is only the repetition of the order dated 17.04.1995 and that is not an independent order setting the defendant ex parte.
(3) The plaintiff has filed the suit for specific performance of the agreement to sell dated 21.04.1989. The plaint was presented on 13.06.1989. The defendant in the written statement stated that she is leading a very comfortable life. The income of the defendant from the agriculture and from deposits on the compensation amount, is more than the savings. According to her, she is enjoying surplus money. In para 4 of the written statement she stated thus: In the circumstances as above in which the defendant is placed there is no agreement made for the sale or transfer of any land by the defendant. She cannot and will never execute an instrument for the conveyance of her lands in any manner whatsoever. All her affairs are in the control and supervision of her son and he has never advised the defendant to effect any sale or transfer of her lands. The son has also not done anything of the kind on her behalf. The agreement in suit is a bogus transaction. It is a sham document. The plaintiff has forged and fabricated this document in collusion and connivance with some of the relations of the defendant, the said relations in the past have made many an attempts to usurp the properties of the defendant. Attempts to secure a Will of the defendant have even been made. Defendant cannot even enter into any such transaction, in view of her limited interest.
(4) It is stated in para 6 that the agreement to sell was brought about by misrepresentation. It is stated in para 7 of the written statement that the plaintiff is not a stranger to the defendant. The plaintiff is jealous and inimical towards the family of the defendant. The defendant has no knowledge of the alleged agreement till she received the summon from this court.
(5) The plaintiff filed the replication repudiating the allegations made in the written statement. The suit was being adjourned from time to time. On 31.01.1995 this court passed the following orders: Defendant is present in person accompanied by her daughter Jagwati. The defendant states that she is very poor and cannot engage a counsel. She is referred to Legal Aid Board, Lawyers Chamber, High Court. Let a copy of this order be sent to the Secretary, Legal Aid & Advise Board requesting him to provide a counsel, who may render legal assistance to her. To come up for hearing on 17th April 1995.
(6) On 17.04.1995, this court passed the following order when the defendant did not appear: Copy of the order dated 31.01.1995 was sent to Legal Aid & Advice Board. Today there is no appearance on behalf of the defendant. Case is directed to proceed ex parte against the defendant. The plaintiff may lead ex parte evidence. However, in the facts of the case let a notice without process fee issue to the defendant of the date of hearing. To be listed on 18.09.1995.
(7) On 18.09.1995, when Mr. Ashok Kumar, stated to be the grand-son appeared in court and this court passed the following order: Mr. Ashok Kumar grand-son of defendant is present today in court. He seeks time to engage an advocate from the legal aid. Last opportunity is granted to the defendant to comply with the order dated 31.01.1995 on or before 11.10.1995. Mr. Ashok Kumar states that he does not know the relationship of Mr. Rajesh Tyagi advocate with the defendant as he is the real grand-son of defendant. Adjourned to 11.10.1995.
(8) On 11.10.1995, this court passed the following order: Defendant does not appear and already set ex parte. Let affidavit by way of ex-parte evidence be filed by the plaintiff within three weeks. List the matter before the Joint Registrar for exhibiting documents on 10.11.1995.
(9) The plaintiff has filed affidavit by way of evidence and the matter was posted before the Joint Registrar.
(10) On 14.11.1995, Mr. Ashok Kumar slating that he is the attorney holder of the defendant, filed Ia No. 12079/95 under Order 9 Rule 7 for setting aside the order dated 17.04.1995 and 11.10.1995. What is stated in the petition is that the defendant is 85 years old and she does not have any knowledge about the law and court procedure, a request was made to this Court on 31.01.1995 for appointing a counsel through Legal Aid and Advice Board and the matter was adjourned to 17.04.1995. On 17.04.1995 no one appeared and notice was directed to be issued to the defendant and the next date was fixed 18.09.1995. On 18.09.1995, Mr. Ashok Kumar (he) appeared and sought time for engaging counsel and that was granted. On 11.10.1995, the defendant was unwell and, therefore, none could appear in the court.
(11) On 17.04.1995, the order was passed by which the defendant was set ex parte and the plaintiff was directed to file affidavit by way of evidence. On 18.11.1995 the defendant was present in court. The affidavit of evidence was not been filed by the plaintiff and the matter was directed to be listed on 28.11.1995 for filing of affidavit and exhibiting of documents. Mr. Ashok Kumar would state as under: The defendant being an old and illiterate woman is not aware that once an order for ex parte has been passed an application for setting aside has to be moved. It is only after 18.11.1995 when the defendant came to know of the "gravity of the situation and, she on the same very day appointed her grandson Shri Ashok Kumar as a Special Attorney to look after the case as obviously because of her old age and illiteracy she is not in a position to look after the case and defendant herself. According to Mr. Ashok Kumar, it was only 18.09.1995 the defendant came to know that she was set ex parte. According to Mr. Ashok Kumar, none appeared on behalf of the defendant on 17.04.1995 and 11.10.1995 and that was not intentional. According to Mr. Ashok Kumar, defendant is a poor lady and she will be put to irreparable loss and hardship if the ex parte order is not set aside. The plaintiff has filed reply setting all details as to why the Ia has been filed by Ashok Kumar. An application for inspection was made on 17.04.1995 by Mr. Ashok Kumar and he himself inspected the file on 21.04.1995, on that date he was not authorised to inspect the file, the inspection form dated 17.04.1995 is filed as Annexure A to the reply. Mr. Rajesh Tyagi, advocate, is related to the defendant. Defendant is the sister of one Mr. Harbans Tyagi and Mr. Rajesh Tyagi is the son of Mr. Harbans Tyagi. In para 5 of the preliminary objections the plaintiff has stated thus: That Shri Ashok Kumar is trying to mislead and misguide this Hon'ble Court and he is making false statement in this Hon'ble Court. On 18.09.1995, Shri Ashok Kumar was present in the court and on inquiry by the Hon'ble Court he stated that he does not know relationship of Shri Rajesh Tyagi -with the defendant and he is the real grandson of the defendant. It may be submitted that defendant is sister of one Shri Harbans Tyagi and Shri Rajesh Tyagi, advocate, is non else but son of Shri Harbans Tyagi. Shri Rajesh Tyagi is relative of Shri Ashok Kumar and this fact is known to Shri Ashok Kumar but still he made a false statement before this Hon'ble Court that he is not aware of the relation of Shri Rajesh Tyagi with the defendant.
(12) The plaintiff has also mentioned about the conduct of the defendant in taking inconsistent stand which is contrary to what is stated in the written statement that she is having comfortable life. Order 9 Rule 6 provides for procedure when only the plaintiff appears in case summon duly served and when not duly served. Order 9 rule 7 Cpc reads as under: When the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance. In this case, it is not the case of the defendant that the summons was not served. Summons was served. This court had noted that the defendant has played hide and seek, therefore, on 17.04.1995 the defendant was set ex parte.
(13) No doubt, as laid down by this Court in Delhi Development Authority Vs. Shanti Devi and another and Sh. M.R. Singh Vs. Smt. Shyam P. Tewari 1989 (3) Delhi Lawyers 434, there is no question of limitation involved in this matter, however, the conduct of the defendant is a relevant factor to be taken into account in considering this application. The defendant knew on 22.04.1995 when file was inspected that the defendant had been set ex parte and in spite of it the defendant was keeping quite and watching the proceedings and was appearing then and there to protract the proceedings. I am not able to resist the impression that the defendant is trying to be a smart and for reasons best known to herself, she has not filed an application and Mr. Ashok kumar professing himself as attorney has filed this petition that only shows how seriously the defendant is acting in a matter of this. nature. The defendant has come forward with a false case and therefore, following the judgment of the Supreme Court in S.P. Chengal Varaya Naidu Vs. Jagaannath and ors 1994 (1) Scc 1. I have no hesitation in dismissing the application.
(14) Therefore, Ia No. 12079/95 Filed by the defendant under Order 9 Rule 7 Civil Procedure Code is dismissed. Post the matter for considering tKe affidavit by way of evidence Filed on behalf of the plaintiff on 27.04.1997.