Delhi District Court
Ramji Lal vs Shri Om Prakash Contractor on 29 October, 2014
IN THE COURT OF SH LAL SINGH,
ADJ-03(SOUTH WEST), DWARKA COURTS, NEW DELHI
RCA No:11/14
IN THE MATTER OF:-
Ramji Lal
S/o Late Ram Sahay,
R/o Q-61, Pocket-3, Sector-16A,
J.J.colony Camp,
New Delhi-110078.
.............Appellant
Versus
Shri Om Prakash Contractor
Proprietor Om Prakash
At A-21, Sitapuri, Phase-1,
Backside of Dabri Police Station,
New Delhi.
............Respondent
Date of Institution of appeal : 02.07.2014 Date on which Reserved for Order: 15.10.2014 Date of order: 29.10.2014 Order:-
29.10.2014
1. By this order, I shall dispose of the application under section 5 of the Limitation Act 1963, filed by the appellant for condonation of delay in filing the appeal.
2. The appellant has filed the instant appeal against the impugned ex-parte judgment dated 14.07.2010 passed by Ld. JSCC/ASCJ/ ARC Dwarka Courts, New Delhi, in the Civil Suit bearing no.
33/2010 titled as Sh. Om Prakash Contractor/Proprietor Vs. Sh. Ramji RCA No: 11/14 Ramji lal Vs. Om Prakash 1 Lal, whereby the Ld. Trial Court decreed the suit in favour of the respondent/plaintiff. In the instant appeal the appellant has also challenged the impugned order dated 09.05.2014 passed by Ld. JSCC- cum-ASCJ/ Guardian Judge, Dwarak Courts, Delhi, in M.No.16/13, titled as Om Prakash Vs. Ramji Lal, whereby the application under order 9 rule 13 CPC filed by the appellant/defendant for setting aside the judgment and decree dated 14.07.2014 was also dismissed. Along with the instant appeal the appellant has also filed an application under section 5 of Limitation Act 1963 for condonation of delay in filing the appeal.
3. It is the contention of the appellant/defendant that Ld. Court of ASCJ, Dwarka, New Delhi, pleased to issue summons to the appellant/defendant in suit bearing no. 33/2010 titled as Sh. Om Prakash Contractor/Proprietor Vs. Sh. RamjI Lal, on 03.04.2010 for 29.04.2010. It is also stated that as per the record of the Judicial File, the notice was issued on 22.04.2010 and notice was duly served to Dev Raj on 27.04.2010. It is also contended by the appellant that the bailiff of the executing court as well as the respondent/plaintiff went at the house of the appellant on 06.04.2013 and at that time wife of the appellant was available at the house and bailiff intimated the wife of appellant that the attachment order was issued by the Ld. Executing Court in the execution petition. It is also averred by the appellant that thereafter he consulted his lawyer on 23.04.2013 and the counsel for the applicant/appellant inspected the Judicial file on 23.04.2013. It is contended that after inspection of the file it came to the knowledge of the applicant/ appellant that the appellant/defendant was proceeded ex-parte on 29.04.2010 and suit of the respondent/plaintiff was decreed on 14.07.2010. The appellant/defendant further states that thereafter, on 26.04.2013 an application under order 9 rule 13 as well as under order RCA No: 11/14 Ramji lal Vs. Om Prakash 2 21 rule 29 CPC was filed before the Ld. JSCC-cum-ASCJ and same was registered vide M.No.16/13 and the said application was dismissed vide order dated 09.05.2014.
4. Appellant/defendant alleged that the respondent/plaintiff has managed the process server and wrote the name of the Dev Raj son of appellant/defendant, on the summons on 27.04.2010. It is also contended by the appellant/defendant that his son Dev Raj, who was also present at the time of inspection of the Judicial file denied his signatures on the summons. Appellant/defendant also contended that his son Dev Raj did not receive the summons of the Ld. Trial Court. It is also the contention of the appellant/defendant that the address of the appellant/defendant has been mentioned wrongly in the suit as well as in the summons of the Ld. trial court. It is the case of the appellant/defendant that he has never been serve by the Ld. Trial court in the suit bearing no. 33/2010 titled as Om Prakash Contractor/proprietor Vs. Sh. Ram Ji Lal.
5. The respondent/plaintiff has also filed reply and in his reply denied the contentions of the appellant/defendant. Respondent/plaintiff contended that the present appeal is highly time barred and as such the application under section 5 of Limitation Act as well as the appeal is liable to be dismissed. It is the contention of the respondent/plaintiff that there is no infirmity in the order passed by the Ld. Trial court and as such the application under section 5 of Limitation Act as well as the appeal is liable to be dismissed.
6. I have heard the argument. I have also gone through the file and perused the record.
7. In the instant application under section 5 of the Limitation Act, the appellant/defendant has not mentioned as to how RCA No: 11/14 Ramji lal Vs. Om Prakash 3 many days delay in the filing of the instant appeal. However, the perusal of the record it is apparent that the present appeal has been preferred against the judgment and decreed dated 14.07.2010 in CS no. 33/2010 passed by the Ld. JSCC/ ASCJ/ARC and also against the order dated 09.05.2014 passed by the Ld. JSCC/ASCJ in M.No. 16/13. As such, it is amply clear that there is an inordinate delay in filing the present appeal. The appellant/defendant has filed the instant appeal after more than three years and nine months. Even otherwise, as per the appellant/defendant he has filed the application under order 9 rule 13 CPC for setting aside the order dated 14.07.2010, on 26.04.2013. The only contention as raised by the appellant/defendant is that his son Dev Raj has not received the summons of the Ld. trial court and his son denies the signatures of the summons and the summons were also issued on the wrong address. The respondent/plaintiff denied the allegation of the appellant/defendant that the wrong address of the appellant/defendant was mentioned in the suit as well as on the summons. Counsel for the respondent/plaintiff vehemently argued that the correct address was mentioned in the suit as well as the summons issued by the Ld. Trial court. The Ld. Court of JSCC-cum-ASCJ in its order dated 09.05.2014, in M.No-16/13, specifically dealt the contention of the appellant/defendant and categorically observed that there is a statement dated 06.04.2013 in the bailiff report on the warrant of attachment issued in the execution petition and in the said statement, there is signature of Dev Raj and the said signature matches remarkably with the signatures in token of the receipt of summons in the suit. It has been categorically observed by the Ld. Court of JSCC-cum-ASCJ in M.No. 16/13 that the signature of Dev Raj on the summons and the signature of Dev Raj in the statement on behalf of JD in the bailiff report RCA No: 11/14 Ramji lal Vs. Om Prakash 4 dated 06.04.2013 being similar, the contention of defendant having not being served is without any basis and is rejected. As such, Ld. Court of JSCC/ASCJ has already dealt the issue regarding the contention of the appellant/defendant that his son has not received and singed the summons of the trial court.
8. Otherwise, also the appellant/defendant has not brought forth any material which would show that his son Dev Raj has not received and also not singed the summons of the Ld. Trial court. Moreover, the appellant/defendant has not filed any affidavit etc., of his son stating that his son Dev Raj has not received and not signed the summons of Ld. trial court, on behalf of the appellant/defendant. The contention of the appellant/defendant that his son has not signed and not received the summons of the Ld. Trial court, appears to be untrustworthy and it also appears that this defense is taken by the appellant/defendant just to justify the inordinate delay in filing the appeal. It was incumbent upon the appellant/defendant to show that his son has not received and not signed the summons of Ld. Trial court in the suit bearing no. 33/10 titled as Om Prakash Contractor Vs. Ram Ji Lal. However, the appellant/defendant failed to produce any material on record to establish that his son Dev Raj has not signed and not received the summons of the Ld. Trial court. As such, this contention of the appellant/defendant cannot be believed and there is no force in the contention of the appellant/defendant. Hence, I am of the view that the appellant/defendant was property served through his son Dev Raj in the suit bearing no. 33/10.
9. Other ground taken by the appellant/defendant is that the address of the appellant/defendant was wrongly mentioned in the suit bearing no. 33/10 as well as in the summons issued by the Ld. trial RCA No: 11/14 Ramji lal Vs. Om Prakash 5 court in the said suit. From perusal of the record, it is apparent that the legal notice dated 05.09.2009 sent by the respondent/plaintiff through his counsel to the appellant/defendant, as well as reply dated 15.09.2009 of the appellant/defendant to the said notice, the addresses of the appellant/defendant has been mentioned as, "Ram ji Lal, Petty Contractor of Labor, R/o House No.61, Pocket-A,Block Q, Sector-16, Dwarka, Delhi". The address of appellant/defendant in the summon issued by the Ld. Trial court also mentions the same address as mentioned in the legal notice sent to the appellant/defendant and address as mentioned in the suit. Therefore, there is no force in the contention of the appellant/defendant that the summon were sent to the appellant/defendant on a wrong address. The contention of the appellant/defendant that the summons were sent by the Ld. Trail court on the wrong address of the appellant/defendant and the summons were not received by his son Dev Raj, is not tenable and the contention of the appellant/defendant cannot be accepted.
10. The appellant/defendant has filed the present appeal after inordinate delay of more than three years and nine months and the appellant/defendant failed to show any cogent reason to condone the delay in filing the present appeal. In the absence of any sufficient and satisfactory reason to condone the inordinate delay in filing the appeal, the instant application under section 5 of the Limitation Act, for condonation of delay, cannot be allowed. Accordingly, the application under section 5 of Limitation Act, for the condonation of delay in filing the appeal is dismissed. As the appeal filed by the appellant/defendant is highly time barred and the application under section 5 of Limitation Act for condonation of delay in filing the appeal is dismissed, as such the appeal also deserves to be dismissed. Therefore, the application RCA No: 11/14 Ramji lal Vs. Om Prakash 6 under section 5 of the Limitation Act as well as the appeal is dismissed.
11. The trial court record be sent back to the Ld. Trial court along with copy of this order.
12. Appeal file be consigned to record room.
Announced in the
open court on
dated: 29.10.2014 (Lal Singh)
ADJ-03(SW)/Dwarka Courts/N.D.
29.10.2014
RCA No: 11/14
Ramji lal Vs. Om Prakash
7
RCA No.11/2014
Ramji Lal Vs. Om Prakash Contractor
29/10/2014
Present: Appellant in person.
Defendant in person.
Vide my separate order, the application under section 5 of Limitation Act is dismissed. As the application under section 5 of Limitation Act for condonation of delay in filing the appeal is dismissed, as such the appeal is also dismissed.
The trial court record be sent back to the Ld. Trail court, along with copy of this order.
Appeal file be consigned to record room.
(Lal Singh) ADJ-03(SW)/ Dwarka Courts/N.D. 29/10/2014 RCA No: 11/14 Ramji lal Vs. Om Prakash 8