Indian Kanoon - Search engine for Indian Law

Delhi High Court - Orders

Sh. Deepak vs Smt. Sunita Panjwani on 21 March, 2022

Author: C. Hari Shankar

Bench: C. Hari Shankar

                          $~65 (Appellate Side-2022 List)
                          *     IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +     CM(M) 253/2022, CM APPL. 13630/2022 & CM APPL.
                                13631/2022

                                SH. DEEPAK                                     ..... Petitioner
                                                    Through:      Mr. Sujeet Beniwal & Mr.
                                                                  Ravinder Mallik, Advs.

                                                    versus

                                SMT. SUNITA PANJWANI                           ..... Respondent
                                              Through:            None

                                CORAM:
                                HON'BLE MR. JUSTICE C. HARI SHANKAR
                                        ORDER

% 21.03.2022

1. This petition, under Article 227 of the Constitution of India, assails an order dated 06th December, 2021, passed by the learned Additional District Judge, Central District, Tis Hazari, ("the learned ADJ"), whereby the learned ADJ has rejected an application filed by the petitioner, before him, for recording his earlier order dated 24th October, 2019.

2. The order dated 24th October, 2019, is in two parts.

3. The first part of the order closes the right of the petitioner (the defendant before the learned ADJ), to file written statement, on the ground that the statutory period for doing so, after service of the plaint on the petitioner on 20th August, 2019 and 31st August, 2019, had expired. The submission of learned Counsel for the petitioner, Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CM(M) 253/2022 Page 1 of 4 Signing Date:24.03.2022 15:14:16 advanced before the learned trial Court on the said date, to the effect that the plaint, as received, was not accompanied by any documents, has been noted, but has been rejected on the basis of the reports dated 20th August, 2019 and 31st August, 2019, of the process server.

4. The second part of the order dated 24th October, 2019, allows an application under Order XXXVIII, Rule 5 of the CPC, 1908, preferred by the respondent and directs attachment warrant to be issued in respect of the property at A-1062, Printer Society, Sector 13, Rohini, Delhi- 110086.

5. The petitioner filed an application under Section 151 of the CPC, 1908, for vacation of the above mentioned order. The said application stands rejected by the impugned order dated 06th December, 2021.

6. The impugned order notes the submission of the petitioner that his inability to file written statement in response to the respondents' suit within the statutory period was only because the copy of the plaint, as served on him, was not accompanied by the requisite documents. The impugned order also notes the reliance, by learned Counsel for the petitioner, in support of this submission, on a communication dated 04th September, 2018, from the petitioner, to the respondent, requesting the respondent to furnish the deficient copies.

7. The respondent did not specifically advance any submission by way of response to the above contention of the petitioner, except to traverse it and state that the petitioner had an opportunity to expel the Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CM(M) 253/2022 Page 2 of 4 Signing Date:24.03.2022 15:14:16 judicial file and take certified copies and that had he done so, he could have filed the written statement. This indicates, prima facie, that the respondent has not categorically denied the fact that the copy of the plaint, as served on the petitioner, was not accompanied by the requisite documents.

8. The learned trial Court has again relied on the report of the process server, in which respect it is recorded that, "the report of the process server reveals that the copy of plaint along with other documents has already been supplied to the defendant at the time of service". Mr. Beniwal, learned Counsel for the petitioner submits that the report of the process server could never certify as to the documents which had been served and could only certify regarding the factum of service.

9. The prayer for vacating the attachment of the property at A- 1062, Printer Society, Sector 13, Rohini, Delhi- 110086, has also been rejected on the mere finding that there was no material to indicate that the petitioner was not owner of the said property.

10. Prima facie, the sustainability of the impugned order dated 06th December, 2021, appears debatable.

11. In view thereof, issue notice returnable on 18th May, 2022.

12. Notice be served on the respondent by all modes including dasti as well as, additionally, through learned Counsel who has been representing the respondent before the learned trial Court.

13. Mr. Beniwal undertakes, on behalf of his client, to maintain status quo in respect of the property located at A-1062, Printer Society, Sector 13, Rohini, Delhi- 110086, till the next date of hearing.

14. A prima facie case having been made out and in view of the observations hereinabove, till the next date of hearing, there shall be ad interim stay on the proceedings before the learned trial Court.

15. Accordingly, re-notify on 18th May, 2022.

C. HARI SHANKAR, J MARCH 21, 2022 SS Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CM(M) 253/2022 Page 4 of 4 Signing Date:24.03.2022 15:14:16