Delhi District Court
Sh. Sanjay Kumar vs Sh. Gulzari Lal @ Gulab on 14 October, 2019
IN THE COURT OF SH. RAJINDER SINGH
SCJ/RC(WEST), TIS HAZARI COURTS, DELHI
M. No. 142/19
In the matter of:
Sh. Sanjay Kumar
S/o Late Sh. Kishan Lal
R/o 713/2, Gali No. 5,
Punjabi Basti, Military Road,
Anand Parbat, New Delhi - 110005. ........applicant
Versus
1.Sh. Gulzari Lal @ Gulab S/o Sh. Panchu Ram
2. Mohd. Taj Both residents of: R/o 7022/1, Mata Rameshwari, Nehru Nagar, Tank Road, New Delhi - 110005. .........Nonapplicants.
Date of filing of the application : 23.07.2019
Date of reserving order : 06.09.2019
Date of pronouncement : 14.10.2019
ORDER ON THE APPLICATION OF DEFENDANT NO. 1 UNDER ORDER 9 RULE 13 CPC
1. The applicant is defendant no. 1 in the main suit. 1.1 The main suit was decreed exparte on 06.08.2018. Vide order dated 08.09.2017, the applicant was proceeded exparte. 1.2 It is stated in the application that as per the record, defendant no. 1 was served through his father Sh. Panchu Ram on 31.05.2017. Order M. No. 142/19 Sanjay Kumar Vs. Gulzari Lal @ Gulab & Anr. Page..... 1/10 Father of the applicant died on 21.04.2019.
1.3 The defendant, his father and his other brothers, all are residing on different floors at house no. 7022/1, Mata Rameshwari, Nehru Nagar, Tank Road, Delhi - 110005. It is stated that parents of the applicant were residing at the ground floor of the said property. Defendant no. 1 is residing on the third floor of this property. The applicant and his father are residing separately for the last 25 years. They are not having good relations.
1.4 The summons of this case was never received by the applicant. 1.5 On 19.03.2019 during execution proceedings, the bailiff came to the house of the applicant / defendant no. 1. On this date the applicant came to know about the exparte decree. On 06.04.2019, the applicant appeared before the executing court (District Central, Tis Hazari Courts). Due to health problems the applicant could not move the present application within the statutory period.
1.6 Further the applicant has made averments regarding the merits of the main suit.
2. An applicant under Section 5 of Limitation Act is also filed Order M. No. 142/19 Sanjay Kumar Vs. Gulzari Lal @ Gulab & Anr. Page..... 2/10 along with present application. It is stated that the applicant is suffering from diabetes and heart problems. He is also facing financial problems. Due to this reason, he could not take timely legal advice for filing of the present application under Order 9 Rule 13 CPC.
2.1 In the last week of June' 2019, the applicant approached his present counsel Sh. R.P Singh advocate. He inspected the case file and thereafter, the present application was moved.
3. Replies to both the aforementioned applications filed. 3.1 In reply to the application under Order 9 Rule 13 CPC, it is stated that admittedly the applicant came to know about the exparte decree on 19.03.2019. Still he remained silent and filed the present application in the later part of July' 2019.
3.2 The applicant has not filed any proof regarding the death of his father. The applicant is falsely claiming that he did not have good relations with his father. As per Order 5 Rule 15 CPC, summons can be served upon any adult male member of the parties concerned. 3.3 In the medical documents filed by the applicant the name of one Sh. Gulab Singh is mentioned. The name of the applicant is Order M. No. 142/19 Sanjay Kumar Vs. Gulzari Lal @ Gulab & Anr. Page..... 3/10 mentioned in bracket. This was done deliberately to show that these documents pertain to the applicant. The applicant has to show that Sh. Gulab Singh and Sh. Gulzari Lal i.e the present applicant / defendant no. 1 are one and the same person.
3.4 Further the plaintiff has plainly and simply denied the case of the applicant / defendant no. 1, as stated in the application.
4. In reply to the application under Section 5 of Limitation Act it is stated that the applicant deliberately chose not to appear in the main suit. Further, the nonapplicant has repeated the averments already made in the reply to the application under Order 9 Rule 13 CPC.
5. Arguments heard.
5.1 It was submitted on behalf of the applicant / defendant no. 1 that the applicant was not having good terms with his father and due to this reason summons received by the father of the applicant was not served upon the applicant. Specific court query was put to the applicant to show the material in support of his contention regarding bad relations between him and his father. The applicant did not give any specific answer. He stated that there was dispute between him, his father Order M. No. 142/19 Sanjay Kumar Vs. Gulzari Lal @ Gulab & Anr. Page..... 4/10 and his brothers. The applicant wanted to construct one room over the roof of the third floor. Father of the applicant refused to give permission by saying that everyone else has equal space and there was no need for defendant no. 1 to have extra space. Electricity meter for the floor occupied by the applicant is separate. Upon court query, the applicant submitted that he has not installed any name plate or separate letter box for indicating that he is residing on the third floor of the said property. With regard to the application under Section 5 of Limitation Act, it was stated that due to bad health, he could not approach the counsel and the present application could not be filed within the statutory period. 5.2 It was submitted on behalf of the DH / nonapplicant that in para no. 4 of the application, the applicant submits that his father was bedridden for last three years and he is died on 21.04.2019. This is a false claim since the process server served the summons on the father of the applicant on 31.05.2017. No documents have been filed about the medical health / illness of father of the applicant. The applicant came to know about the exparte decree on 19.03.2019 but the application was filed on 20.07.2019. Nothing has been produced to show bad relations Order M. No. 142/19 Sanjay Kumar Vs. Gulzari Lal @ Gulab & Anr. Page..... 5/10 between the applicant and his father. On the medical documents filed by the applicant, the name of the patient is shown as Sh. Gulab, but the name of Sh. Gulab is in different handwriting on different documents, whereas the name Gulzari Lal is in same handwriting on all the medical papers. The applicant claims that both these names were written by the doctor concerned, in such circumstances the handwriting could not have been different. On these medical documents there is nothing to show that the name Sh. Gulzari Lal is used as alias. The name "Gulzari Lal" has put in bracket only. Upon court query, the applicant submitted that he was suffering from heard disease, diabetes and hypertension.
6. Reasons for Order 6.1 The applicant / JD / defendant no. 1 has admitted that his father Sh. Panchu Ram was alive on 31.05.2017 when the service of summons is stated to have been affected on the applicant through his father Sh. Panchu Ram. I have seen the summons report dated 31.05.2017. This report also mentions the telephone number of the receiver of the service i.e Sh. Panchu Ram father of the applicant. It is highly unlikely that the process server concerned or the plaintiff / DH Order M. No. 142/19 Sanjay Kumar Vs. Gulzari Lal @ Gulab & Anr. Page..... 6/10 could have known the telephone number of father of the applicant. The applicant has nowhere disputed that this telephone number mentioned on the service report did not belong to his father. In fact, the applicant has also not specifically denied that the summons was served upon his father on 31.05.2017. In the application, the applicant has stated that his father died on 21.04.2019 and he was bedridden for three years. It is not specified that for three years immediately preceding his death, father of the applicant was bedridden. However, upon plain and simple reading of the application, it can be made out that the applicant wants to say that three years before his death on 21.04.2019, his father was bedridden. In such circumstances, it would not have been possible for applicant's father to receive summons of this case. This receiving of summons on 31.05.2017 by the father of the applicant shows that the averments regarding father of the applicant being bedridden for three years are apparently false.
6.2 In the summons report, it is stated that father of the applicant talked to the applicant over phone and thereafter received the summons. The applicant is silent regarding this aspect.
Order M. No. 142/19 Sanjay Kumar Vs. Gulzari Lal @ Gulab & Anr. Page..... 7/10 6.3 The applicant has taken the ground that he and his father were not having good relations and they were not on talking terms. However, on the report of the summons, there is nothing to suggest that the father of the applicant refused to receive the summons by stating that he does not have talking terms with his son / i.e the applicant. Upon court query, applicant submitted that he has not fixed any name plate or any separate letter box to indicate that he is residing at the third floor of the said property. If the applicant is not on talking terms with his father and other brothers i.e other occupants of the said building, in such a case he was required to make provision for proper receiving of letters by fixing name plate and separate letter box showing his name. This would have indicated to the word at large that different floors of the said property were occupied by different parties.
6.4 Admittedly, the applicant came to know about the execution and the exparte decree on 19.03.2019, thereafter, he did not promptly move the present application within the statutory period. In this regard, it is the case of the applicant that he is suffering from heart problems, diabetes and hypertension. Due to this reason, he could not engage a Order M. No. 142/19 Sanjay Kumar Vs. Gulzari Lal @ Gulab & Anr. Page..... 8/10 counsel timely. I have perused the medical documents filed by the applicant. In the prescription dated 11.11.2016 ECG result is normal. The applicant has not pointed out anything specific in these document to show that he is suffering from heart problem to such an extent which makes it difficult for him to move and / or carry on normal routine life. Further, these medical documents are showing the name "Gulab", in the brackets on almost all these documents the name "Gulzari Lal" has been interested. On two prescriptions dated 04.02.2019 and 10.04.2019 the name "Gulab Singh" is mentioned. In the brackets the name "Gulzari Lal" is mentioned. Both these names i.e Gulab Singh and Gulzari Lal are apparently in different handwriting. The name "Gulzari Lal" written in the brackets on the medical prescriptions dated 11.11.2016, 04.01.2017, 09.02.2017 & 10.04.2017 is in the same handwriting. It appears that the name "Gulzari Lal" has been written on all these medical prescriptions by one and the same person at the same time. The applicant has also filed certain diagnostic test result documents. On all these documents, the name "Gulab Singh" is mentioned. On these documents the name "Gulzari Lal" is nowhere mentioned.
Order M. No. 142/19 Sanjay Kumar Vs. Gulzari Lal @ Gulab & Anr. Page..... 9/10 6.5 The applicant has failed to show that he and his father were having bad relations to the extent that they were not on talking terms. As already observed above in the report dated 31.05.2017 regarding service of summons, it is clearly mentioned that father of the applicant made a telephone call to the applicant and thereafter received the summons of the case. This is also already observed that it is highly unlikely for the plaintiff or the process server to find out the telephone number of the father of the applicant and get the same mentioned on the summons report.
7. In view of the above, there is no ground to allow the present applicant. Accordingly, the application under Order 9 Rule 13 CPC is dismissed. Consequently, the application under Section 5 of Limitation Act becomes infructuous. The same is dismissed as infructuous.
8. File be consigned to record room after due compliance.
9. Main suit file bearing CS. No. 690/17 titled as "Sanjay Kumar Vs. Gulzari Lal & Anr." be sent back to record room.
Digitally signed by
RAJINDER RAJINDER SINGH
SINGH Date: 2019.10.19
11:32:48 +0530
PRONOUNCED IN THE OPEN (RAJINDER SINGH)
COURT ON 14.10.2019 SCJ/RC(WEST)/ DELHI
Order M. No. 142/19
Sanjay Kumar Vs. Gulzari Lal @ Gulab & Anr. Page..... 10/10