Delhi High Court
Shri R.K. Sharma And Others In Rfa(Os) ... vs Ashok Nagar Welfare Association & Co. on 11 January, 2001
Equivalent citations: 2001IIAD(DELHI)797, AIR2001DELHI272, 90(2001)DLT583, 2001(57)DRJ722, AIR 2001 DELHI 272, (2001) 2 CIVILCOURTC 570, (2002) 1 CIVLJ 271, (2001) 57 DRJ 722, (2001) 4 RECCIVR 337, (2001) 90 DLT 583
Author: Mukul Mudgal
Bench: Mukul Mudgal
ORDER Devinder Gupta, J.
1. Points arising for determination in these two appeals are identical, therefore, the same are being disposed of by common order, Learned counsel for the parties were heard at length both on question of condensation of delay in filing appeals and on merits of the appeals and we propose to dispose of the same by a common order.
2. Facts in both the appeals are almost identical. Wherever necessary reference will be made to individual case, otherwise facts are being narrated from the record of RFA (08) No.35 of 2000 and the civil suit out of which this appeal has arisen.
3. Ashok Nagar Welfare Association claiming to be a society registered under the Societies Registration Act, 1860 filed two separate suits in the Original Side of this Court in the month of January, 1991. Suits were registered as Suit No.544 of 1991 and Suit No.597 of 1991. In the first suit (S.No.544/91) decree for possession was claimed against 48 defendants alleged to be unauthorised occupants of plots/houses Nos.99 to 174 being a plot of land measuring about 12 bighas being part of khasra No.393/264, out of 151 bighas and 15 biswas situate in Ashok Nagar, Delhi as per site plan. It was alleged that the Society was the owner and in actual possession of 151 bighas 15 biswas of land comprised in khasra No.391/263, 392/264, 393/264 and 402/268 situate in Ashok Nagar, Village Chilla, Delhi since the year 1980. Earlier to the Society coming into being, its members were in physical possession of the land having set up their tenements and semi-built up structures thereupon. It became difficult for each and every member of the Society to safeguard their respective interest, therefore, they jointly and severally agreed to relinquish their respective rights in favor of the Society, after the Society was constituted and took various steps to safeguard and secure the interest in the land or being illegally encroached upon and grabbed either by Governmental agencies or private individual. Writ petition No.1507/94 is alleged to have been filed against Union of India, Delhi Administration, Delhi Development Authority etc. In addition it is alleged that suit No.273/86 was filed against previous owners of the land. In the said suit order of status quo as regards possession was passed and the defendants therein were restrained from transferring or alienating the said land, in any manner whatsoever, which order of restraint was confirmed on 5.8.1986. Vide judgment dated 12.11.1987 said suit was decreed against the said previous owner. Plaintiffs further claimed that 48 defendants (in suit No.544/91) were trespassers, intruders and unauthorised occupants on the land in dispute, who had been inducted by the previous owners against whom suit No.273/86 had been filed. Therefore, they have no right, title or interest in the land in dispute and being unauthorised occupants are liable to be removed there from. It was alleged that on 10.1.1991 the plaintiffs were dispossessed by the defendants, which led to filing of an FIR against the said defendants. As status of the defendants was that of unauthorised occupants on the land, therefore, the plaintiff claimed that in terms of Section 6 of the Specific Relief Act, they were liable to be evicted there from by a decree in accordance with law.
4. On similar facts the other Suit No.597/91 was also instituted in the month of January, 1991 against 52 defendants stating that they were unauthorised occupants on plot/Houses No.65 to 98 from out of khasra No.393/264 of the aforementioned property, who on 22.1.1990 and 25.11.1990 had deliberately dispossessed the plaintiff Association, which had led them to file an FIR. Consequently, decree for possession was claimed.
5. Both the suits were taken up separately. Defendants were proceeded against ex parte. Ex parte decree was passed in Suit No.544 of 1991 on 27.1.1997 and in Suit No.597 of 1991 on 6.8.1997.
6. On 12.4.2000 R.F.A.Nos.14 and 15 of 2000 were filed by Purbanchal Cultural and Welfare Association claiming to be a Society registered under the Societies Registration Act espousing the cause of all the members numbering 1016 stating that they were sought to be dispossessed on the strength of ex parte decrees passed in the two suits aforementioned. It was alleged that only on 8.4.2000 when police authorities came to inspect the area where the members of the Society had their residential tenements, in order to enforce warrants issued by this Court, that for the first time it came to the knowledge of the members that some decree had been passed with respect to the property at the behest of Ashok Nagar Welfare Association. The appellant therein alleged that due to paucity of time and lack of knowledge and notice of the impugned judgment and lack of availability of the case papers it had not been possible for the Society to file comprehensive appeal, therefore, short appeal was being filed claiming leave of the Court to file detailed appeal. Numerous photographs were attached with both the appeals showing heavy construction raised on the land. It was alleged that members of Purbanchal Cultural and Welfare Association had been in occupation of the property for the last more than 20 years over which they had their respective residential tenements and were not aware of any legal proceedings having been initiated against them by anybody including Ashok Nagar Welfare Society.
7. Appeals were posted in Court on 14.3.2000. While issuing notice, operation and execution of the impugned judgment was stayed. Suit record was also directed to be made available to the Court on the nest date. On 24.5.2000 learned counsel for the appellant informed that three separate applications had been filed in the Registry. Consequently, appeals were adjourned to 25.5.2000. Interim order was continued. Appeals were found to be defective in as much as proper court fee had not been paid. Time was allowed to the appellant to file requisite court fee. Appeals were adjourned to 11.7.2000 and then to 20.7.2000, on which date learned counsel for the appellant stated that since some of the affected parties by the impugned judgment and decree had separately filed appeal he had instructions to withdraw the applications seeking permission to file appeal. Prayer was made to place the additional documents filed in the said appeals on the record of the freshly filed appeal. Prayer was allowed. Application seeking leave to file appeal was dismissed and consequently appeals were also dismissed. The freshly filed appeals are the ones, which are before us, namely RFA(OS) Nos. 32 and 35 of 2000.
8. Learned counsel for the appellant vehemently contended that none of the appellants were served with the summons in the suit. He drew our attention to various court orders from the suit record and by making reference to names and particulars of some of the defendants, it was contended that the plaintiffs deliberately imp leaded fictitious persons, who are and were not in occupation of the suit property at any point of time. The persons who were in occupation of the property were not brought on the record. None of the appellants were ever served with summons in the suit. On the Court record presence of persons were got marked by playing fraud by the plaintiff Association probably by producing bogus persons. There appears to be some connivance of the plaintiff Association with the process server by forging endorsement on the summons to show effective service on some persons. Process server appears to have connived with the Association in forging signature as the defendants thereby presenting a picture that there had been due service. Due to the false reports, a fraud was played on the Court, which led the Court in proceeding with the stay ex parte and ultimately led in passing of ex parte decrees. The decrees thus obtained by plaintiffs are result of fraud. Prayer is that after setting aside the ex parte decrees suit be remanded for fresh trial in accordance with law.
9. Mr. Chandhiok, Senior Advocate, appearing for the plaintiffs/respondents raised a preliminary objection about the maintainability of the appeals. He contended that suit had been filed under Section 6 of the Specific Relief Act. Judgment and decree passed in such a suit is not appealable because of prohibition contained in sub-Section (3) of Section 6 of the Specific Relief Act. It was contended by Mr. Chandhiok that clause 10 of Letters Patent of Lahore High Court, which is applicable is couched in different words and its scope is not the same as the of clause 15 of Letters Patent of Bombay which was under consideration in Shah Babulal Khimji v. Jayben D.Kania and another . It was urged that all parties to the suit are not before this Court in these two appeals. Some of the defendants have neither been arrayed as appellants nor as proforma respondents. Some of the appellants were not parties to the suit yet they have preferred appeal. Nowhere in the appeal it is submitted that the persons receiving summons were not the members of the family against whom summons had been issued or are not his agent, in the absence of which it must be presumed that the process server duly served the summons in accordance with the provisions of Order 5 Rules 12, 14 and 16 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"). It was further contended that decree would not be liable to be set aside merely on the ground that there is some irregularity in serving summons. Reliance was placed upon the second proviso to Rule 13 of Order 9 of the Code. Application for condensation of delay was also vehemently opposed on the ground that at least, even on the basis of the averments made by the appellants, they did acquire knowledge of passing of decree on 14.4.2000, therefore, the appeals ought to have been filed at least within 30 days from that date. Dismissal of RFA (OS, Nos.14 and 15 of 2000 without reserving any liberty to the appellants to file fresh appeal debars them from continuing with the present appeals. He also referred to the application seeking condensation of delay and urged that the same were sketchy and did not disclose even a good ground what to say of sufficient ground. Facts as stated in support of the application seeking condensation were also questioned.
10. Suit No.597 of 1991 came up before the Registrar on 4.2.1991. Plaint was ordered to be registered as suit. Summons were directed to be issued to the defendants. Process fee, registered covers and copies of plaint were directed to be filed within 10 days. Record reveals that registered A.D. covers were not filed, Therefore, summons were not sent through registered post. The same were sent only through ordinary process. On 10.4.1991 presence of some of the defendants was recorded. It was observed that summons issued to the defendants by ordinary process were awaited. The persons whose presence was recorded were allowed six weeks time to file written statement. On the request of learned counsel for the plaintiffs, instead of issuing summons to the unserved defendants, the suit was directed to be posted for 23.9.1991 to await the service report on the summons issued for 23.9.1991. Again on 23.9.1991 it was noticed that the summon sent to the defendants were still awaited. Suit was adjourned to 19.12.1991 to await service of the summons on unserved defendants. Obviously on that date it is recorded that none of the served defendants whose presence was recorded in the order dated 10.4.1991, was present. Written statement had also not been filed. The plaintiff insisted that the suit be posted before the Court for proceeding ex parte against the served defendants. Accordingly, the suit was directed to be posted in Court on 11.11.1991 on which date learned counsel for the plaintiff stated that let service on the unserved defendants be completed before the matter is placed before the Court. On 19.11.1991 office report was perused that summons, which had been issued were still awaited. Learned counsel for the plaintiff stated that it was not possible to serve the unserved defendants. He prayed that the application for substituted service be taken on record. Accordingly, application under Order 5 Rule 20 of the Code (IA.33 of 1991) was taken up for consideration. In addition to this application dated 12.12.1991, another application had been moved by the plaintiff on 19.11.1991 also under Order 5 Rule 20 of the Code of Civil Procedure praying for effecting service on unserved defendants through publication in daily newspaper.
11. The proccedings, which had taken place till that date thus would reveal that the summons, which had been issued to the defendants pursuant to the order dated 4.2.1991 for 10.4.1991 had not been received back in the registry of Court. The Court was not aware that whether any or genuine effort had or had not been made to effect service on the so-called unserved defendants. There was no reason available to the Court till that date that why the unserved defendants could not be served personally with the summons. Though the suit had come up on three different dates, namely, on 10.4.1991, 23.9.1991 and 11.11.1991, yet no orders were obtained by the plaintiff for fresh summons to the unserved defendants. Straight away two separate applications aforementioned under Order 5 Rule 20 of the Code was filed.
12. The first application (IA.12267/91) averred that some of the defendants had not been served till date despite repeated summons issued to them. As such, it is not possible to serve the unserved defendants through ordinary process. On face of it the averments made in the application were false in as much as the application stated "despite repeated summons issued to them" Neither the summons, which had been issued, had been received back nor any effort was made by the plaintiff to obtain fresh summons. Likewise the averments made in the second application were also false, which also alleged that repeated summons had been issued to the unserved defendants. On these sketchy applications, the Deputy Registrar, who is invested with powers of the Court, proceeded to pass an order recording his satisfaction that it was not possible to serve the unserved defendants in ordinary course. Accordingly, he directed that the said defendants be served by means of proclamation in newspaper, namely, "The Statesman".
13. From what material on record or otherwise the Deputy Registrar was satisfied with anybody's guess. Nothing is reflected in the order. Neither the contents of the applications nor the previous office reports support such satisfaction. Contents of the applications, as noticed by us, on the face of it were false. Office reports also nowhere had stated anything from which it could be inferred that it was not possible to serve the unserved defendants in the ordinary course. It was incumbent for the Deputy Registrar to have at least looked into the provisions of law before directing substituted service, which in terms of Rule 20 of Order 5 could be ordered only on satisfaction that there was reason to believe that the defendant was keeping out of the way for the purpose of avoiding service or that for any other reason the summons cannot be served in the ordinary way. Neither any explanation of the process server was sought that why they had not returned the summons, which had been sent for service, nor any report on any of the summons was available to the Court. Since as per the office reports, as reflected in the orders dated 10.4.1991, 23.9.1991 and 19.12.1991 summons, which had been ordered to be issued pursuant to the order dated 4.2.1991 were still awaited. Thus even the order for effecting substituted service by publication on the unserved defendants is bad in law.
14. On 23.4.1992 when the civil suit was taken up by the Deputy Registrar, it was noticed that citation had been duly published in Statesman dated 6.2.1992 but since no one was present on behalf of the defendants, therefore, the suit was directed to be posted in Court. On 14.5.1992 case was taken up in Court. It was noticed that none was present on behalf of the defendants and as per the order of the Registrar dated 23.4.1992 all the defendants stood duly served, therefore, placing reliance on the version of the Deputy Registrar, the defendants were proceeded against ex parte. The plaintiff was directed to read ex parte evidence on affidavits within 8 weeks. It took the plaintiff a year's time to file affidavits and ultimately the writ was decreed ex parte.
15. Though as per the various orders referred to by us above till 19.12.1991 the summons, which had been issued to the defendants were not available on record but in para-II of the file summons are available. The same are purported to have been issued on 14.2.1991 for 10.4.1991. The same were sent under the signatures of the Superintendent (O) on 27.2.1991 to the Administrative Sub Judge, Delhi informing him that the next date of hearing was 10.4.1991, therefore, the same may be returned to the Court by 8.4.1991. From the endorsement, it appears that the summons were made over for effecting service to one Tara Chand, process server on 6.3.1991 requiring him to serve the same by 29.3.1991. Out of 52 summons on 10 summons he made his report on 24.3.1991 and on the remaining 42 summons he made his report on 30.3.1991. The manner in which summons are stated to have been served as per the report of Tara Chand, Process Service, would reflect a sorry state of affairs in the Process Serving Agency, Rules and procedure have been violated with impunity. To cite a few example ; on the summons addressed to defendant No.42 Vijay Pal son of Lachan, report of the process server, when translated, would read:-
"Sir, Today on 30.3.1991 reached the spot. Enquiry was made about Shri Vijay Pal but Punjab Lal met, who received summons and copy. Report is submitted.
Sd/-Tara Chand 30.3.1991"
16. There is signature on the summons purporting to be that of Punjab Lal. Rather the endorsement would suggest that summons have been received for Punjab Lal. Similar is the position with respect to summons addressed to defendant No.49 S.C.Bhomic son of M.L. Bhomic. In this case also there is similar report and instead of S.C.Bhomic summons were delivered to Punjab Lal. Summons issued to Shatrughan, defendant No.11, likewise was served on Laxmi Kant instead of Shatrughan. Summons for defendant No.13 son of Lalu Ram Sharma was tendered to Laxmi Kant summons for D.G.Sharma son of Shri G.S.Sharma was served on Raj Kumar; summons for Smt.Rekha wife of Shri S.K.Sharma, defendant No.50 was served on D.C.Kumar. In none of these cases it was not reported that the person receiving summons was a family member or an agent or that person to whom summons was addressed.
17. Simultaneously, we will refer to the proceedings in Suit No.544/91. Said suit came up before the Registrar on 8.3.1991. Summons were directed to be issued for 15.4.1991 Process fee, registered covers and copies of plaint were directed to be filed within 10 days. Plaintiff did not take the requisite steps of filing registered A.D. covers, therefore, summons were not sent through post, but were sent through ordinary process. There were 48 defendants. Suit was posted before the Joint Registrar on 15.4.1991, who recorded in the proceedings that 48 defendants in the suit had been duly served with summons. He observed that the defendants are present and requested for time to file written statement. Thus he allowed six weeks time to file written statement. Strangely enough names of the defendants are not mentioned in the order sheet. It is not stated as to who identified those who had put in appearance in Court. Suit was thereafter taken up on 9.8.1991 on which date nobody appeared either on behalf of the plaintiff or for the defendants. Suit was directed to be posted before the Court on 25.9.1991 on which date the defendants were proceeded against ex parte. Plaintiff led ex parte evidence and ex parte decree was passed.
18. We have perused part II of the file and also issued in Suit No.544/91. The summons were prepared on 15.2.1991 and were sent on 4.3.1991 to the Administrative Sub Judge for effecting service. Same were handed over to Mr.Tara Chand, Process Server, who appears to have prepared report on 47 summons on 30.3.1991 and on one summon on 28.3.1991. Same is the position in this case also, as has been noticed by us for Suit No.547/91. Summons were addressed to each and every defendant on the following address:-
"Unauthorised occupant of plot/House No.99 to 174 out of Khasra No.393/267 in Adarsh Nagar of Village Chilla Saroda Bangar, Delhi-110091."
19. Summons issued to Om Prakash son of Neki Ram, defendant No.12 were delivered by the process server to one "V.K.". Summons addressed to Chakkra Pal son of Shri Bhagwan Dass, defendant No.13 were also delivered to "V.K.". Said "V.K." has singed as V.Kumar. Process server's report do not show that whether V.K. was an agent or a member of family of the person on whose behalf summons was received. Particulars and address of the said V.K. is also not mentioned. Who identified the said V.K. is also not mentioned.
20. Summons addressed to Deep Chand son of Balwant Singh, defendant No.18 was not served on Deep Chand but was handed over to D.Singh without mentioning his connection with Deep Chand. Particulars of D.Singh, his address or that whether he was a family member or an agent of Dalip Chand is not mentioned. The summons addressed to Bishnu Goyal son of Roshan Lal was also delivered to the said D.Singh without disclosing his relation or connection with Bishnu Goyal. His name and address is also not recorded so that in case of necessity the said person be questioned in court. Summons meant for Munni Ram son of Asha Ram, defendant No.28 was served on one Ram Chand, whose particulars and connection with Munni Ram are not at all stated. Summons addressed to Tarun Kumar son of Shri Gole Maket, defendant No.40 was delivered to one Punjab Lal, whose particulars and connection with Tarun Kumar is not mentioned. Summons for defendant No.42 Narayan Chakravarty son of Khatin was delivered to one A.K.Chaterjee, without disclosing his address and particulars or connection with Narayan Chakravarty. Summons for Ghanshiam Singh son of not known, defendnt No.45 was served on one Ram Chand without stating his particulars and connection with Bhanshiam Singh.
21. Looking at the record of Suit No.544 of 1991 and 571 of 1991 it thus appears that 89 summons are purported to have been served by the said Tara Chand, Process Server on 30.3.1991 and the reports on the summons also appears to have been prepared by him on the same day. Instead of serving the summons on the person named therein, he served some unknown persons without taking the trouble of even mentioning their identity and without getting these person duly identified. He could have even stated on the summons that the persons to whom summons were delivered were personally known to him. It was not so mentioned. Had he been asked to appear in Court definitely he would have stated that personally he was not acquainted with the said defendants.
22. These are some of the reports on the summons, which have been highlighted by us only to show the manner in which summons are purported to have been duly served by the process servelr. The same were tendered to persons other than the one to whom the same were addressed. Another important feature, which we have noticed in both the suits is the manner in which summons were addressed to the defendants. Address of defendants as shown on summons in suit No.544/91 has been noticed by us above. For all defendants in suit No.597 of 1991, the summons were addressed as follows:-
"unauthorised occupant of plots/house Nos.65 to 98, out of khasra No 393/264 in Adarsh Nagar of village Chill Saroda Bangar, Delhi-1100091."
23. Rule 11 of Order 5 of the Code enjoins that save as otherwise prescribed, where there are more defendants than one, service of the summons shall be made on each defendant. Rule 12 of Order 5 of the Code require that wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient. Thus the requirement of law is that effort must be made to serve summons personally on the defendant. In case he has an agent, who is duly empowered to accept service, in that case service of summons on agent is sufficient. As such there was no prohibition for the process server in having effected service validly on person other than the one to whom the summons was addressed provided he would have disclosed in his report that the addressee was not available and the person receiving the same claimed himself to be the agent duly empowered to accept service. Process server nowhere in the reports recorded that the person receiving summons was an agent of the defendant.
24. Rule 15 of Order 5 of the Code empowers the process server to serve the summons on any adult member of the family provided at the time of service the defendant is absent from his residence, when service of summons is sought to be effected and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service. This is not the position in the instant cases, since process server did not even bother to make repeated effort to effect personal service on the defendants. He even did not bother to record on the summons that there was no agent available. He also did not bother to state that persons receiving summons were adult male members of the family of the defendants.
25. Apart from the above glaring omissions on the part of process server, there is one major glaring defect in the report on the summons, namely, non compliance of the provisions of Rule 18 of Order 5 of the Code. Before taking up that point, we may state that Rule 16 of Order 5 of the Code require that where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgement of service endorsed on the original summons. Rule 18 of Order 5 of the Code is salutary provision of which compliance is necessary. Service of summons upon a person is a very important step and the law requires that the person who is empowered to effect service of such summons must discharge his obligation meticulously by endorsing full particulars of the manner of service as required by Rule 18 of Order 5 of the Code, which reads:-
"Endorsement of time and manner of service - The serving officer shall, in all-cases in which the summons has been served under rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons."
26. The requirement thus is that the serving officer shall endorse or annex to the original summons a report in all cases in which summons has been served under Rule 16 stating: (a) the time when the summons was served (b) the manner in which summons was served; (c) the name and address of the person, if any identifying the person served and (d) name and address of witness, if any, witnessing the delivery or tender of the summons.
27. None of the above requirements, which in our view, are mandatory in nature have been complied with. There is a salutary purpose behind in requiring meticulous compliance of these requirements, namely, to avoid fake persons being served as genuine ones in the absence of proper identification. Only with a view that report be properly got testified later on has this requirement has been made. In case report is made by the servicing officer by complying with the provisions of law, there will be presumption attached to the correctness of the report and not otherwise. The process server nowhere recorded the time and the manner of effecting serve of summons. He did state the date of effecting service of summons. No where in the summons he stated that he made any effort to identify the person receiving summons. He also no where stated that he made any effort to get the identity of the person receiving summons established. It was also not stated that persons were known to him. Along with the process server, signature of another appear on all summons, but it is not possible to ascertain that who has put those signatures. May be he is another Court official or any other person who has simply put his signatures without any other endorsement. Name, particulars and address is not mentioned. Therefore, it is not possible to find out his name and address. The summons with reports were not available to the court in suit No.597/91 till the date the defendants were proceeded ex parte. This fact alone would be sufficient to enable us to believe the version of the appellants that they had no knowledge of the pendency of the suit since each one of them has stated that they never received any summons and their signatures are not available on the summons. On 10.4.1991 when the case was taken up before the Deputy Registrar, summons had not been received with the report. Presence of some of the defendants is shown. It is not disclosed in the order that who identified those defendants and who on that day, had put in appearance in person. It is highly improbable and against the normal course of human conduct that a person who has been duly served with summons in a suit and has thereafter put in appearance in Court would not make any effort to defend the suit specially when he known that the suit, if decreed, would deprive him of his property.
28. As such we have no hesitation in concluding that the reports on the summons are either fake or purposely made to give a colour of due service. Summons were not served at all. These were not handed over to the defendants named therein, which prevented the defendants from appearing in Court. Not only there is violation of the provisions or law, but the provisions have been defied with impunity.
29. Objection of learned counsel for the respondent regarding maintainability of the appeal cannot be substantiated for more then one reason. When clause 10 of the Letters Patent of Lahore High Court is read with Section 10 of Delhi High Court Act and in the light of the ratio of decision in Vanita M.Khanolkar v. Pragna M.Pai and others AIR 1998 S.C.124, we have no doubt that the prohibition contained in sub-section (3) of Section 6 of Specific Relief Act will not come in the way of the appellant in challenging the judgment and decree of a Single Judge of this Court before a Division Bench of this Court. In any case, we will proceed on the principle that where a legal right is in dispute and the ordinary courts of the country are seized of such dispute, the Courts are governed by the Ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute, which does not in terms confer a right of appeal. Thus rule, as laid down in Hem Singh and others v. Basant Das and another was followed in R.M.A.R.A.Adaikappa Chettiar and another v. R.Chandrasekhara Thever AIR (35) 1948 P.C. 12.
30. Section 10 of Delhi High Court Act authorises filing of appeal against judgment delivered by learned Single Judge on the Original Side of this Court before a Division Bench of this Court. Suit was filed on the Original Side of this Court and the impugned judgment of learned Single Judge of this Court delivered on the Original Side would thus be appealable under Section 10 of the Delhi High Court Act.
31. As regards condensation of delay in filing appeal, which point we ought to have taken up first is being taken up at this stage only in view of the manner in which suit proceeded before learned Single Judge. Having held that the defendants were not at all served in the suit and had no knowledge, it must, therefore, be accepted that they acquired knowledge only on 9.4.2000, the day when the plaintiff armed with police visited the site with a view to execute the warrants of possession. No doubt in the application seeking condensation of delay, the appellants have not in so many words stated that they were prevented from filing appeal earlier and had been bonafide prosecuting another remedy but facts are apparent on record in support of what was urged at the bar that good and sufficient cause has been made out to condone the delay. We have noticed that on 12.4.2000 two separate appeals were filed by Purbanchal Cultural and Welfare Association, of which the appellants are members. Obviously on having acquired knowledge of some proceedings on 9.4.2000 it cannot be assumed that the defendants would have immediately got each and every bit of information about the nature of litigation initiated by the plaintiff and the manner in which the illegalities were committed in the conduct of the suit. There was no option with the appellants to protect their rights till they would have got full knowledge after getting the record inspected. Their Welfare Association came forward and took up their cause with as much information, as was available to enable them to get some breathing time to obtain requisite information and file separate appeals. In these circumstances, under legal advise they filed RFA (OS) No.14 and 15 of 2000. During the pendency of those appeals, it is stated that they became aware of the nature of the suits filed by the plaintiffs/respondents and of the manner of effecting service. They were then advised to file separate appeals. Narration of those facts and circumstances about the manner of effecting service would strengthen the plea of the appellants about the nature of fraud played in obtaining ex parte decree. Despite the fact that it was noticed in the second order passed in Suit No.597/91 that some of the defendants had not been served, no effort was made by the plaintiff to obtain fresh summons. No effort was also made in both the suits by the plaintiff to file registered A.D. covers, as was directed on the very first day of registration of the plaint. This appears to have been done by the plaintiffs purposely only to keep the defendants in dark about pendency of litigation and then to procure bogus reports on summons. Thus a fraud having been played will not prevent the appellants in seeking condensation of delay because of the said conduct of the plaintiffs, in having filed appeal earlier through its Association and during the pendency of the said appeal having filed proper appeals before the Court and thereafter withdrawing the earlier appeals filed by the Association. We are of the view that sufficient ground has been made to condone the delay. Consequently, delay in filing the appeal is condoned.
32. The objection of the plaintiffs/respondents that some of the parties to the suit are not before the Court, cannot prevent this Court from proceeding ahead to dispose of the appellants appeal, in view of the glaring discrepancies pointed out and brought to our notice. We in exercise of whatsoever powers, which are vested in us, will proceed to set aside the judgment and decree passed by learned Single Judge and direct fresh trial of the suit in accordance with law since, in our view, there has been no proper trial of the suit. Appeals are allowed. Impugned judgments and decrees in both the suits are set aside. Suits are remanded for being tried on merits in accordance with law.
33. The appellants, who have put in appearance and who are defendants in the suit will now will be deemed to have been duly served. They will be supplied by the plaintiffs with copies of the plaint and other documents, as are required to be served on them on or before the day when the parties will appears before learned Single Judge. Within a period of six weeks thereafter the said defendants will file their written statements. Steps will also be taken by the plaintiffs thereafter to effect due service on the remaining defendants.
34. Parties are directed to appear before learned Single Judge on 31st January, 2001.