Delhi District Court
Distt. & Sessions Judge (North) vs Smt. Veena Suri on 26 July, 2014
IN THE COURT OF MS. R. KIRAN NATH,
DISTT. & SESSIONS JUDGE (NORTH),
ROHINI COURTS, DELHI.
RCA NO. 05/13
Smt. Pooja Suri
W/o. Sh. Girish Suri
R/o. 37C, Second Floor,
Hari Nagar Apartment PocketA,
PhaseII, Ashok Vihar, Delhi. ...........Appellant
Versus
1. Smt. Veena Suri
W/o. Sh. Rajender Suri
R/o. 80/4, Ground Floor,
Sant Nagar SBI Colony,
Delhi110009.
2. Sh. Rajiv Suri
S/o. Sh. Rajinder Suri
3. Smt. Komal Suri
W/o. Sh. Rajiv Suri
4. Sh. Girish Suri
S/o. Sh. Rajinder Suri
R/o. Gold Gym 35B,
1st Floor, Main Road,
Pusa Road, New Delhi. ...........Respondents
JUDGMENT :
1. This appeal is directed against the order dated 01.02.2013 of ld. JSCC/ASCJ, NorthWest whereby he had dismissed application under Order RCA No. 05/13 Page 1 of 6 IX Rule 13 CPC of the appellant.
2. In brief the facts material for disposal of the present appeal are that present respondent no. 1 had filed a suit for possession against the present appellant and other respondents. In the said suit, the appellant was shown having been served through her husband Girish Suri (respondent no. 4) in the main suit. But none appeared on her behalf, she was proceeded exparte and exparte decree for possession and mesne profit was passed by ld. JSCC/ASCJ vide Judgment and Decree dated 21.01.2012.
3. It is case of the appellant that she came to know about passing of the decree only when bailiff reached for possession of suit property. Appellant then filed an application under Order IX Rule 13 CPC before ld. JSCC/ASCJ stating that the said suit was collusive suit with other defendants filed only to dispossess her; that the suit property was a joint Hindu property and her husband's share was also involved and her husband had also used the amount which she had received for construction of the top floor; that their relations were not good and divorce proceedings were pending and this suit had been filed only to dispossess her from matrimonial home; that a false report had been obtained by the plaintiff in collusion with the Process Server; that she never received any summons and her signatures were forged and fabricated only to take a wrong advantage; she had no knowledge about the suit and came to know about the same only on 06.06.12 when the bailiff reached there to RCA No. 05/13 Page 2 of 6 execute the decree. Appellant submits that the service of notice on her was only a formality and not a reality; that the divorce proceedings were pending in the court of Sh. R.B. Singh, ld. ASJ, Tis Hazari and next date of hearing was 21.07.12.
4. Vide impugned order dated 01.022013, ld. JSCC/ASCJNorth West dismissed the application of the appellant. Aggrieved by the said order, the present appeal has been filed wherein she has stated that she got married to respondent on 24.07.08 and had joined the matrimonial home at the given house in the said property and her husband had also invested in the construction of the said property further; that differences took place between them; that several complaints were lodged from the year 2008 to 11th April, 2011; that this suit was also filed in collusion by the respondents; that ld. JSCC/ASCJ had wrongly accepted the service to be valid whereas they were not having good relations and divorce proceedings were going on; that she had no knowledge whether the service report bore her signatures or who had received the same on her behalf; that it was collusive suit and other defendants had not appeared before this court and were proceeded exparte; that in the divorce petition it has been admitted by the husband that she had left the home on 11.04.11 and never entered again then how she could received the summons; that she did not have good relations with her husband and other family members; the service on her was thus collusive.
RCA No. 05/13 Page 3 of 6
5. The reply was filed by the respondent no. 1 wherein she denied the averments made in the appeal and stated that the present appeal had been filed only to delay the disposal of the execution proceedings and appellant was very well aware of proceedings pending in the court of Sh. Sanjay Jindal, the then ld. JSCC/ASCJ/GJ as she had received the legal notice sent by respondent and appellant was observing the matter; that the suit property was a self acquired property of respondent and her husband which was purchased much prior to the marriage of the appellant with respondent no. 4 i.e. in May, 1991 and second floor was added in February, 2001 and marriage took place on 24.07.08, thus, the question of payment by the appellant to the respondent did not arise at all; that respondent denied that the suit filed by the respondent was collusive suit; that appellant and the respondent no. 4 acting in connivance with each other with intention to grab the suit property filed a divorce petition; that even after the appellant was duly served, she deliberately did not appear; that the relationship of the appellant and the respondent no. 1 were quite normal; the present appeal had been filed in order to delay the execution petition as appellant wanted to extort money from respondent and that appellant was a trespasser.
6. I have heard the counsel for the plaintiff at length and gone through the record carefully.
7. Certain facts need to be noted at this stage. This suit for possession and mesne profit was filed before ld. JSCCASCJ by respondent no. 1 Smt. RCA No. 05/13 Page 4 of 6 Veena Suri, who is mother in law of appellant, other respondents includes appellant's husband and other family members residing together in the said suit property. The suit property in this case is property no. 37B, PocketA, Phase2, Ashok Vihar, Delhi. The Conveyance Deed of the said property was also filed by the said respondent Veena Suri before ld. Trial Court which shows that suit property was allotted to Smt. Veena Suri, respondent no. 1 by the DDA and the Conveyance Deed was made in favour of Smt. Veena Suri as the purchaser thereof. She filed the said suit for recovery of possession against both her sons Rajiv Suri and Girish Suri along with respective spouses. The present appellant is the wife of her son Girish Suri. The service report of alleged summons to be served on the appellant is seen which is stated to be issued on 26.04.2011 and served upon on 27.04.2011. The report shows that the summons had been served upon husband of the appellant and ld. Civil Judge himself noted the fact that she had filed a certified copy of some documents in the execution petition which revealed that divorce petition had been filed by her husband where there were allegations that applicant/appellant had tried to commit suicide on 11.04.11.
8. The suit has been filed in the civil court immediately thereafter on 20.04.11 and summons had been served upon husband of the appellant on 27.04.2011. In my opinion, the appellant, in her application under Order IX Rule 13 CPC had raised certain points which required further enquiry and evidence. It was thus required in the totality of circumstances that appellant RCA No. 05/13 Page 5 of 6 should have been given a chance to prove her averments. The JSCC/ASCJ should have framed an issue i.e. "whether or not on that date i.e. on 27.04.11, husband of the appellant could have effectively accepted the service on behalf of the appellant or were they living separately at that time". Opportunity should have been given to both the parties to lead evidence thereon. Ld. Trial court ought to have given an opportunity to her at least to prove that she could not have been effectively served through her husband on 27.04.11.
9. Appeal is thus, allowed. The said order dated 01.02.2013 passed by ld. JSCC/ASCJ, North West, is set aside. File be remanded back to ld. trial court to frame the issue whether appellant was effectively served through her husband on that day and give opportunity to the parties to lead evidence on the same and thereafter, decide the application under Order IX Rule 13 CPC afresh. Till such time, the execution of decree shall remain suspended. This is subject to the condition that appellant will be given one opportunity to lead evidence and disposal of the application shall not be delayed by her or conduct of her counsel. Parties are directed to appear before ld. trial court on 20.08.2014. Appeal file be consigned to record room.
Announced in the open Court (R. KIRAN NATH)
today i.e. 26.07.2014 District & Sessions Judge (North)
Rohini Courts, Delhik
RCA No. 05/13 Page 6 of 6