Delhi District Court
Chander Shekher vs . Dalvir Singh on 16 May, 2012
IN THE COURT OF SH. PRANJAL ANEJA
CIVIL JUDGE01, EAST, KKD COURTS, DELHI
Suit. No13/11
In the matter of:
Chander Shekher Vs. Dalvir Singh
Order
1.This order shall dispose of the application u/o 9 rule 7 filed on behalf of the defendant dated 14/05/12 for setting aside the ex parte order dated 08/06/11 whereby the applicant / defendant was directed to proceed ex parte in the matter.
2. It is stated in the present application that the defendant came to know about the present matter only when the counsel for defendant was applying a certified copy of a previous suit titled as Than Singh Vs. Dalvir Singh, suit no. 648/08 and from the enquiry counter it was revealed that the matter is fixed for orders on 26/05/12. When the counsel said that the matter is already decided, he was told that the same matter is pending. Then the counsel was surprised and immediately called the defendant and Suit No.13/11 Page No. 1/6 apprised in of the fact that fresh suit was filed against him. Then the counsel inspected the file of the present suit on 09/05/12 and came to know that the defendant was proceeded ex parte on 08/06/11. Further, as alleged, the order dated 14/05/11 and summon report is that the summon has come back with the report that defendant was not found but it is absolutely wrong because the defendant is doing business in his office and regularly visits and is sitting in the office, but he has never received any summon/ notice from this Hon'ble Court and also no body came in his office for service of summons. It is malafide intention of plaintiff and process server and they have filed false report. Also the newspaper Vir Arjun is a local newspaper and not a national newspaper. Hence, the ex parte order dated 08/06/11 be set aside.
3. In reply it is stated on behalf of the plaintiff that since the case is fixed for final judgment and all previous proceedings have been over. Therefore the defendant is not entitled to apply for setting aside the ex parte proceedings. No good cause has been shown by the defendant for setting aside the ex parte proceedings. Suit No.13/11 Page No. 2/6 That the defendant is well aware of the proceedings of the present suit and has been watching the same from outside from time to time. The summons was duly served upon the defendant. Hence, the present application must be dismissed.
4. I have heard the arguments and perused the file.
5. At the outset, it is pertinent to point out that the order dated 08/06/11 which is sought to be set aside by the defendant vide the present application does not exist. Perusal of the record shows that the defendant was proceeded ex parte only on 03/08/11.
6. The defendant / applicant states that his counsel came to know about the present suit from the inquiry counter while he was applying for a certified copy of the previous same suit titled as Than Singh Vs. Dalbir Singh in suit no. 648/08 and the facility of enquiry counter said that the matter is fixed for orders on 26/05/12 and then the counsel said that the matter is already decided when he said that same matter is pending. This reason Suit No.13/11 Page No. 3/6 stated on behalf of the defendant appears to be absurd as the title of the present suit is Chander Shekher and others Vs. Dalbir Singh whereas the title of the above mentioned other suit is Than Singh Vs. Dalbir Singh and thus the title of the suit do not exactly match. It is further noted from the certified copy of the said suit filed by the plaintiff, that it was decided on 07/10/10. The defendant has not mentioned any date on which his counsel was applying a certified copy of the said suit and further no reasons have been mentioned for applying the certified copy of the said order after a long gap from the date of order particularly in view of the fact that the said suit was dismissed and the defendant had no occasion to appeal against the same. Moreover, it is further astonishing to note that the enquiry counter was able to tell to the counsel for the defendant the purpose and the next date fixed in the present suit. The said information regarding the purpose fixed can only be ascertained from the file. Thus the reason stated by the defendant regarding gaining knowledge about the pendency of the present suit is not sustainable and has no legs to stand.
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7. Perusal of the record further shows that the defendant was also sent summons which were affixed by the orders of my Predecessor. The report on the said summons bearing date of issue as 22/03/11 states that the defendant had gone out of station and therefore the summons have been affixed on the orders of this Court. The address mentioned on the said summons is the same address has mentioned by the defendant in para 7 of his plaint on which he states himself to be doing business and regularly sitting in his said office. The summons have been affixed in the usual course of business by the process server and therefore cannot be set to have been not affixed. Thus, it cannot be said that the defendant has not seen the summons affixed at the said address. Further, the defendant has been served by way of publication in the newspaper Vir Arjun and service by way of publication in the newspaper ordinarily circulated in the area where the defendant resides or carries on his business is an authorized mode of service as prescribed under Order 5 rule 20 as substituted service. Thus, it appears that the defendant had full knowledge of the present suit. It is also to be noticed that there had been a litigation Suit No.13/11 Page No. 5/6 regarding the possession of the suit property earlier also filed by the father of the plaintiffs in the present suit.
8. Thus, the defendant has failed to assign good cause for his non appearance and therefore the order by which the defendant was proceeded ex parte cannot be set aside. The present application being devoid of merits, is therefore dismissed. Announced in the open court on (PRANJAL ANEJA) 05 day of June, 2012.
th CJ01, East KKD Courts/ Delhi.
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