Delhi District Court
Sh. Bhaktawar Singh vs Sh. Subhash @ Pappu & Ors on 6 July, 2010
IN THE COURT OF SH. RAJ KUMAR : ADMINISTRATIVE
CIVIL JUDGEcum ADDITIONAL RENT CONTROLLER :
(NORTH) DELHI.
In Re : M No. 3/10
Sh. Bhaktawar Singh Plaintiff / DH.
Versus.
Sh. Subhash @ Pappu & Ors. Defendants / JDs.
Date of Institution of Application : 09.12.2005
Date on which Order was reserved : 02.07.2010
Date of Pronouncement of Order : 06.07.2010
ORDER
Vide this order, I shall dispose of an application u/O 9 Rules 7 & 13 and u/O 47 Rule 1 CPC r/w section 47, 114 & 151 CPC has been filed by the defendant no. 1 / JD.
2. The facts in brief, necessary for the disposal of the aforesaid application, as disclosed by the defendant no.1 are that in suit no. 359/2000 titled as Sh. Bakhtawar vs. Sh. Subhash @ Pappu & Ors filed by the plaintiff, Sh. M.P. Sinha, advocate for defendant no. 1 M No. 03/10 Page no. Page numbers / Statistics and 2 appeared and filed power of attorney on behalf of defendant no. 1 and memo of appearance on behalf of defendant no. 2. It has been further submitted that on 05.10.2001 Written Statement was filed on behalf of both the defendants and on 09.07.2003 replication was filed and issues were also framed on that date. It has been further submitted that defendant no. 1 was addicted to liqour and he had been admitted to Deaddiction cum Aftercare Center on 08.04.2003 and was kept there till 26.04.2003. It has been further submitted that till date he is under OPD treatment of the said Deaddiction cum Aftercare Center, Red Cross Bhavan, Sector 14, Faridabad and his OPD registration no. is 12/133. It has been further submitted that while getting the Written Statement prepared the defendant no. 1 / JD had told his counsel Sh. M.P. Sinha, advocate that his father Sh. Ram Chander died on 12.02.1988 and his death certificate showing the date of registration as 18.02.1988 had also been given to the said counsel. It has been further submitted that plaintiff being a professional litigant despite being fully aware about the death of Sh. Ram Chander on 12.02.1988 mentioned about a notice of termination of tenancy dated 22.11.1988 alleging that the tenancy of deceased Sh. Ram Chander has been terminated w.e.f. the midnight of 31.12.1988, which was sent by registered AD post as well as by UPC. It has been M No. 03/10 Page no. Page numbers / Statistics further submitted that the plaintiff has mentioned the date of death intentionally in para no. 6 of the plaint as 18/19.12.1988. It has been further submitted that due to serious condition of the defendant no. 1 w.e.f. March 2003, counsel for the defendants lost interest in the case and did not contest the same properly and might be won over by the plaintiff and as such the defendants were proceeded exparte by the court on 17.12.2003 and thereafter the suit of the plaintiff was decreed exparte on 04.08.2004 regarding which defendants came to know only on 30.11.2005 when the DH alongwith the bailiff came to take possession of the premises of the defendant no. 1 /JD. It has been further submitted that the entire basis of the decree for the possession claimed by the plaintiff / DH is that late Sh. Ram Chander died on 18/19.02.1989 as a statutory tenant leaving behind him his widow, three sons namely Ved Prakash, Rajinder and Subhash @ Pappu and two daughters and that the tenancy of late Sh. Ram Chander was terminated vide notice dated 22.11.1988 w.e.f the midnight of 31.12.1988. It has been further submitted that if the tenancy of late Sh. Ram Chander was not terminated as alleged in that event his LRs have inherited the tenancy rights including the defendant by operation of law. It has been further submitted that late Sh. Ram Chander died on 12.02.1988 and as such there was no M No. 03/10 Page no. Page numbers / Statistics occasion for notice dated 22.11.1988 to terminate his tenancy being already dead and admittedly no notice of termination of tenancy can be given to a dead person. It has been further submitted that the suit of plaintiff was barred by the provisions of DRC Act.
In the present application it has been prayed that the judgment and decree dated 04.08.2004 be set aside / annulled being a nullity.
3. In the accompanying application u/S 5 of the Limitation Act filed by the defendant no. 1 / JD, it has been requested that on the aforesaid grounds as narrated herein above, the delay in filing the present application be condoned.
Ld. counsel for the defendant / JD has filed on record the medical prescription of defendant Subhash Gupta, original death certificate of Sh. Ram Chander, original cremation certificate of Sh. Ram Chander, duplicate OPD card of defendant no. 1 and photocopy of death registration certificate of Sh. Ram Chander.
4. Reply to this application has been filed by the plaintiff / DH stating therein that the alleged averments mentioned in the said application are contradictory to the averments and defence earlier taken by the defendants in their Written Statement. It has been further submitted that the defendant no. 1 cannot be allowed to retract from M No. 03/10 Page no. Page numbers / Statistics his earlier admission made or case put forward by them. It has been further submitted that the present application has been filed solely in order to cause delay in the execution of the decree. It has been further submitted that the application under reply has not disclosed any sufficient cause and is highly barred by limitation. It has been further submitted that the application moved by the defendant u/S 5 of Limitation Act is not maintainable. It has been further submitted that the alleged allegations regarding the negligence of the previous counsel cannot give any cause of action to the defendants to move the present application particularly when the defendants were aware about the proceedings. It has been stated that the defendant no. 1 has not disputed the date of death as mentioned in para no. 6 of the plaint in his Written Statement nor filed any copy of the alleged death certificate. Plaintiff has specifically denied that Ram Chander died on 12.02.1988. It has been further submitted that no complaint has been filed by the defendants against the said counsel before the Bar Council of Delhi or any other statutory authority. Rest of the contents of the present application have been denied by the plaintiff / DH and it has been prayed that the application of the defendant / JD be dismissed.
5. Rejoinder to the reply filed by the plaintiff / DH has also M No. 03/10 Page no. Page numbers / Statistics been filed by the defendant / JD denying the contents of the reply filed by the plaintiff / DH and reiterating and reaffirming the contents as submitted in the present application.
6. I have carefully gone through the entire material on record and have also heard the rival submissions as advanced by both the Ld. counsels for the parties.
The present application u/O 9 Rules 7 & 13 CPC has been filed by the defendant for setting aside the exparte judgment and decree dated 04.08.2004. The defendants in the present suit were proceeded exparte on 17.12.2003 as is apparent from the ordersheets of the main suit. The present application has been filed on 09.12.2005 and the ground taken by defendant no. 1 in the present application is that he was admitted to Deaddiction cum Aftercare center on 08.04.2003 and was kept there till 26.04.2003. It has been further submitted that till date he is under OPD treatment of the said Deaddiction cum aftercare center and his OPD registration no. is 12/133. It has been further submitted that while getting the Written Statement prepared the defendant no. 1 / JD had told his counsel Sh. M.P. Sinha, advocate that his father Sh. Ram Chander died on 12.02.1988 and his death certificate showing the date of registration as 18.02.1988 had also been given to the said counsel but the counsel M No. 03/10 Page no. Page numbers / Statistics failed to place on record the death certificate of Sh. Ram Chander. It has been further submitted that DH in the present suit had disclosed that late Sh. Ram Chander died on 18/19.12.1989 as a statutory tenant leaving behind him his widow, three sons namely Ved Prakash, Rajinder and Subhash @ Pappu and two daughters and since the date of death of late Sh. Ram Chander was mentioned wrongly by the DH, the DH has played a fraud upon the court and it may be possible that Sh. M.P. Sinha earlier counsel for defendant was won over by the plaintiff / DH. It has been further submitted that the present suit is clearly barred by the provisions of DRC Act as no notice could have been served on a dead person by the plaintiff / DH. It has been further submitted that the defendant no.1 came to about about the decree of the suit only on 30.11.2005 when the DH alongwith bailiff came to take possession of the premises of defendant no. 1.
The aforesaid allegations have been denied in toto by the plaintiff / DH as narrated in the reply filed by the plaintiff / DH herein above.
Ld. counsel for the JD has relied upon the following authorities :
1. (1998) 7 Supreme Court Cases 123 titled as N. Balakrishnan vs. M. Krishnamurthy, wherein it has been held as under :
M No. 03/10 Page no. Page numbers / Statistics "Limitation Act, 1963 - S. 5 - Condonation of delay - Discretion of court - How to exercise - Guidelines stated - Words "sufficient cause" should be construed liberally - Acceptability of explanation for the delay is the sole criterion, length of delay not relevent - In absence of anything showing mala fide or deleberate del;ay as a dilatory tactic, court should normally condone the delay - However, while doing so could should also keep in mind the consequent litigation expenses to be incurred by the opposite party and should compensate him accordingly - Where a court condones delay in positive exercise of discretion, superior court and more particularly the revisional court should not normally disturb the same - But where request for condonation of delay is refused, it would be open to the superior court to come to its own finding on the basis of explanation for the delay given by the party - Delay on the part of defendantappellant of 883 days in approaching the court against dismissal of his application to set aside ex parte decree passed against M No. 03/10 Page no. Page numbers / Statistics him - Nonaction on the part of his advocate explained as cause for the delay - Appellant also complaining about conduct of the advocate before Consumer Forum and getting Rs. 50,000/ as compensation - Appellant's explanation for the delay accepted and delay condoned by trial court - But in revision High Court setting aside the order of trial court on ground that appellant was negligent and was not careful enough to meed the advocate to verify the stage of proceedings for a long time - Held, High Court in revision erred in interfering with the exercise of jurisdiction by trial court in condoning the delay when appellant's conduct did not as a whole warrant castigating him as an irresponsible litigant having regard to present busy and preoccupied life.
Limitation Act, 1963 - Object of fixing time limit - Not meant to destroy rights - It is founded on public policy fixing a life span for the legal remedy for the general welfare."
2. (2000) 3 Supreme Court Cases 54 titled as G.P. Srivastava vs. M No. 03/10 Page no. Page numbers / Statistics R.K. Raizada and others, wherein it has been held as under :
" Civil Procedure Code, 1908 - Or. 9 R. 13 - Setting aside decree ex parte against defendant "Sufficient cuase" for non appearance, held, refers to the date on which the absence was made a ground for proceeding ex parte - Held, cannot be stretched to cover circumstances occurring prior to that date - Thus where sufficient cause is made out by the defendant for non appearance on such date, he cannot be penalised for any previous negligence which had been overlooked and so condoned earlier...
... Civil Procedure Code, 1908 Or. 9 R. 13 - Setting aside decree ex parte against defendant - Negligence - Held, even where defendant is found to be negligent, the other side may be compensated by costs and the decree set aside on appropriate terms and conditions - In present case, ex parte decree set aside on costs of Rs. 5000."
3. AIR 1994 Supreme Court 853 titled as S.P. Chengalvaraya Naidu (dead) by L.R.s vs. Jagannath (dead) by L.R.s and others, M No. 03/10 Page no. Page numbers / Statistics wherein it has been held as under :
" Civil P.C. ( 5 of 1908), S. 2(2) - Evidence Act ( 1 of 1872), S. 44 - Proeeding in court - Fraud by litigant -
Withholding of vital document relevant to litigation - It is fraud on Court - Guilty party is liable to be thrown out any any state - Litigant obtaining preliminary decree for partition of property - Not mentioning at trial as to his having executed before filing of suit release deed in respect of property in favour of his employer - Decree is vitiated by fraud."
On the other hand Ld. counsel for the DH has relied upon the following authorities :
1. AIR 1981 Supreme Court 1921 titled as State of Gujrat vs. Sayad Mohd. Raquir El Edross, wherein it has been held as under :
" Civil P.C. ( 5 of 1908), O 22 R. 4 - Time barred application for brining legal representatives of deceased respondent onrecord - No cause shown for condonation of delay for setting aside abatement - appeal dismissed in view of abatement - Strong case on merits, held, not a ground for condonation of delay. (Limitation Act 1963). M No. 03/10 Page no. Page numbers / Statistics "
2. (2007) 2 Supreme Court Cases 322 titled as D. Gopinathan Pillai vs. State of Kerala and Another, wherein it has been held as under :
" Limitation - Condonation of delay - Delay cannot be condoned merely on sympathetic ground, when mandatory provision not complied with and delay not properly, satisfactorily and convincingly explained - Delay cannot be condoned without assigning any reasonable, satisfactory, sufficient and proper reason..."
3. 167 Delhi Law Times 274, titled as Gautham Bhomick vs. Prem Chand, wherein it has been held as under :
"... Throwing of burden of negligence on Counsel for not taking action in time and taking no responsibility in contesting the matter does not show defendant as diligent - This petition cannot be entertained by Court on this ground alone..."
4. 1994 (1) RCR 605 titled as Lohia Properties (P) Ltd. vs. Atmaram Kumar, wherein it has been held as under :
" Transfer of Property Act, Section 106 - Civil M No. 03/10 Page no. Page numbers / Statistics Procedure Code, Order VII Rules 5 and 3 - Notice - Admission - Notice to quit to tenant - Suit for ejectment
- No specific denial by tenant in Written Statement regarding receipt of notice - It would constitute admission of receipt of notice under Order VIII Rules 3 and 5 - Rule 5 provided that every allegation of fact in the plaint, if not denied, in Written Statement shall be taken to be admitted by the defendant - Any allegation of fact must either be denied specifically or by necessary implication or there should be at least a statement that the fact is not admitted."
5. 2003(2) RCR 422 titled as Dhandapani (died) and others vs. Karpakam and others, wherein it has been held as under :
" Transfer of Property Act (IV of 1882), Section 111(g)
- Civil Procedure Copde (V of 1908), Section 9 Denial of title by tenant - Civil Suit to evict tenant without resorting provisions of Rent Act is maintainable."
6 1973 RCR 548 titled as Shiv Parshad vs. Smt. Shila Rani, wherein it has been held as under :
"Transfer of Property Act, Section 106 and 111 (g) - M No. 03/10 Page no. Page numbers / Statistics Tenant denying title of landlady in Written Statement - Tenancy stands determined - NO notice under S. 106 necessary."
7. AIR 1996 Kerala 37 titled as K.P. Antony, "Santosh", Edakkad Amsom, Puthiyangadi, Calicut vs. Thandiyode Plantations (Private) Ltd., Thandiyode, South Wynad and other, in which it has been held as under :
"Civil P.C. ( 5 of 1908), S. 47 - Execution - Challenge as to judgment on ground of lack of jurisdiction - Not tenable."
There cannot be any deviation from the preposition of the law as laid down by the Hon'ble Superior Courts in the aforesaid authorities relied upon by both the Ld. counsels for the parties.
Now coming to the facts of the present suit, it has to be seen that on merits the defendant no. 1 / JD has stated that the date of death of late Sh. Ram Chander was wrongly mentioned by Sh. M.P. Sinha, previous counsel for the defendant and he failed to place on record the death certificate. Whereas the Ld. counsel for the plaintiff / DH has clearly stated that the defendant no. 1 / JD is the son of late Sh. Ram Chander and defendant no. 2 was the widow of late Sh. Ram M No. 03/10 Page no. Page numbers / Statistics Chander and the date of death of late Sh. Ram Chander has been clearly mentioned in para no. 6 of the main suit and that a perusal of the Written Statement filed on record by the defendants reveals that the date of death of late Sh. Ram Chander in counter para no. 6 on merits of the Written Statement has not been denied at all by the defendants.
I am of the opinion that the Ld. counsel for the plaintiff / DH has rightly pointed out that now by way of present application, defendant no. 1 / JD is retracting from their admission as contained in the original Written Statement filed on record by the defendants.
As stated earlier, defendants were proceeded exparte on 17.12.2003 and the present application has been filed only on 09.12.2005. The grounds taken for by the defendant no. 1 are that on account of his illness and his admission in Deaddiction cum Aftercare Center, he failed to pursue his case.
First of all, it has to be seen that originally there were two defendants : defendant no. 1 who is the applicant herein and defendant no. 2 who is the mother of defendant no. 1 and widow of late Sh. Ram Chander. In the entire application it has not been explained at all as to how the defendant no. 2 failed to pursue the case, even if it is presumed that defendant no. 1 failed to pursue the M No. 03/10 Page no. Page numbers / Statistics matter on account of his illness. Further more, it is not the case of the defendant no. 1 that he was admitted in Deaddiction cum Aftercare Center during the entire period in between 17.12.2003 (the date when the defendants were proceeded exparte) and 30.11.2005 (the alleged date of knowledge of judgment and decree dated 04.08.2004 as alleged by defendant no.1 in the present application.).
In the light of the aforesaid discussion, I am of the opinion that the the defendant no. 1 / JD has failed to disclose any sufficient reasons for setting aside the exparte judgment and decree dated 04.08.2004 and consequently the application filed by the defendant no. 1 / JD u/O 9 Rules 7 & 13 CPC as well as application for condonation of delay u/S 5 of Limitation Act are hereby dismissed.
File be consigned to Record Room.
Announced in the open court on this 06th Day of July, 2010.
(RAJ KUMAR) ADMINISTRATIVE CIVIL JUDGE cum ADDL RENT CONTROLLER (NORTH) DELHI M No. 03/10 Page no. Page numbers / Statistics