Delhi High Court
Smt. Neety Gupta vs Smt. Usha Gupta And Ors. on 28 January, 2016
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No.2209/2008
% 28th January, 2016
SMT. NEETY GUPTA ..... Plaintiff
Through: Mr. Vinod Malhotra, Advocate.
versus
SMT. USHA GUPTA AND ORS. ..... Defendants
Through: Mr. M.S. Vinaik, Advocate for
defendant No.4 with defendant no.4 in
person.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
I.A. No.19352/2011 (under Order IX Rule 13 CPC by defendant no.4)
1. This is an application filed by the defendant no.4/applicant for setting aside of the ex parte Judgment and Decree dated 27.9.2011 by which a learned Single Judge of this Court passed a preliminary decree holding that the five parties to the suit, plaintiff and defendant nos.1 to 4 being real sisters, each have a 1/5th share in the suit properties bearing nos.B-7, 80/2, Safdarjung Enclave, New Delhi-110029 and B-9, Rohit Kunj, Pitampura (Rohtas Cooperative House Building Society), Delhi. The Judgment dated I.A. No.19352/2011 in CS(OS)No. 2209/2008 Page 1 of 20 27.9.2011 was passed after defendant nos.1, 3 and 4 in the suit were proceeded ex parte and the plaintiff led her evidence. Defendant no.2 supported the plaintiff. Defendant no.4/applicant was proceeded ex parte by the Order passed by this Court dated 7.7.2009 noting the endorsement of refusal given by the postman on the postal cover containing the summons of the suit.
2. In this application, issue was framed by a learned Single Judge of this Court on 26.11.2012 as to whether the applicant/defendant no.4 did not refuse to accept the process when tendered by the postman on 29.5.2009. Onus of this issue was put upon the applicant/defendant no.4. Parties have thereafter led evidence and this application is therefore coming up before this Court to decide the issue framed on 26.11.2012 and which is that whether the defendant no.4 was or was not served by refusal, and whether the Judgment and Decree dated 27.9.2011 should be set aside on account of the same having been passed without service having been effected upon the applicant/defendant no.4.
3. Learned counsel for the applicant/defendant no.4 has argued that one endorsement of refusal of the postman should not be taken as a correct basis for proceeding ex parte against the applicant/defendant no.4 in I.A. No.19352/2011 in CS(OS)No. 2209/2008 Page 2 of 20 terms of the Order dated 7.7.2009 inasmuch as the applicant/defendant no.4 had no reason not to contest the suit because the applicant/defendant no.4 had a registered Will in her favour from the mother Smt. Tara Gupta with respect to the property at Safdarjung Enclave. It is argued that it does not stand to reason if a person has a registered Will in her favour from the owner/mother Smt. Tara Gupta, such a person would not have appeared to contest the subject suit for partition. Reliance in support of his arguments is placed by the counsel for the applicant/defendant no.4 on the judgment of a learned Single Judge of this Court in the case of Smt. Madhuri alias Sheela Vs. Kali Charan 65 (1997) DLT 793 and a judgment of the Supreme Court in the case of Bhagmal & Ors. Vs. Kunwar Lal & Ors. AIR 2010 SC 2991.
4. In response, counsel for the plaintiff has argued for dismissing of the application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC) by urging the following grounds:-
(i) The postal cover does indeed show the endorsement of refusal given by the postman who is an independent and a neutral person and such presumption of refusal on account of endorsement of refusal could only have been set aside if the applicant/defendant no.4 had summoned someone from I.A. No.19352/2011 in CS(OS)No. 2209/2008 Page 3 of 20 the postal department and importantly the postman who made the endorsement of refusal on 28.5.2009.
(ii) Secondly, it is argued that efforts were made to serve the applicant/defendant no.4 in the ordinary manner through the process server and the process server of this Court has given two reports on the summons issued for 7.7.2009, which are dated 2.6.2009 and 25.6.2009, and which reports show that on the first date of 2.6.2009 one Ms. Usha (defendant no.1 possibly) came out and stated that the applicant/defendant no.4 was out of station for about 20-25 days and the second report of the process server on 25.6.2009 shows that no one opened the door in spite of process server asking for the door to be opened, and it is therefore argued that the present is not a case where there is only a solitary instance of an endeavour of service upon the applicant/defendant no.4 by means of registered post only.
(iii) Thirdly, it is argued on behalf of the plaintiff/non-applicant that application is liable to be dismissed in view of the first proviso to Order IX Rule 13 CPC which states that even if there is irregularity in service but if the applicant under Order IX Rule 13 CPC is otherwise aware of/having knowledge of the suit having been filed, but still does not appear, the application under Order IX Rule 13 CPC should be dismissed. Reliance in I.A. No.19352/2011 in CS(OS)No. 2209/2008 Page 4 of 20 this regard is placed upon the direct observations of the Supreme Court in the judgment in the case of Parimal Vs. Veena alias Bharti (2011) 3 SCC 545 wherein the Supreme Court has observed that if there is a report of refusal by a postman, the onus in this regard to prove there was no refusal is upon the person who alleges that there was no refusal and that such onus can only be discharged on a person being summoned from the postal department i.e the postman to show that there was no refusal by the applicant in the application under Order IX Rule 13 CPC. The relevant paras of this judgment of the Supreme Court in the case of Parimal (supra) which are relied upon are paras 11, 12, 13, 17, 18, 19, 22, 23, 26 and 27. These paras will also cover the fourth argument urged on behalf of the plaintiff/non- applicant. These paras read as under:-
"11. The aforesaid provision reads as under:-
"13. Setting aside decree ex-parte against defendant.- In any case in which a decree is passed ex-parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit;
* * * Provided further that no Court shall set aside a decree passed ex- parte merely on the ground that there has been an irregularity in the I.A. No.19352/2011 in CS(OS)No. 2209/2008 Page 5 of 20 service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim." (Emphasis added)
12. It is evident from the above that an ex-parte decree against a defendant has to be set aside if the party satisfies the Court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court. The legislature in its wisdom, made the second proviso, mandatory in nature. Thus, it is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein.
13. "Sufficient Cause" is an expression which has been used in large number of Statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. (Vide: Ramlal v. Rewa Coalfields Ltd., Lonand Grampanchayat v. Ramgiri Gosavi, Surinder Singh Sibia v. Vijay Kumar Sood and Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corpn.) xxxxx xxxxx
17. This Court after considering large number of its earlier judgments in Greater Mohali Area Development Authority v. Manju Jain held that in view of the provisions of Section 114 Illustration (f) of the Evidence Act, 1872 and Section 27 of the General Clauses Act, 1897 there is a presumption that the addressee has received the letter sent by registered post. However, the presumption is rebuttable on a consideration of evidence of impeccable character. A similar view has been reiterated by this Court in Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra.I.A. No.19352/2011 in CS(OS)No. 2209/2008 Page 6 of 20
18. In Gujarat Electricity Board v. Atmaram Sungomal Poshani, this Court held as under: (SCC pp. 611-12, para 8) "8. There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service.
(emphasis added)
19. The provisions of Section 101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of Section 103 amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue.
xxxxx xxxxx
22. The High Court held that presumption stood rebutted by a bald statement made by the Respondent/wife that she was living at different address with her brother and this was duly supported by her brother who appeared as a witness in the court. The High Court erred in not appreciating the facts in the correct perspective as substituted service is meant to be resorted to serve the notice at the address known to the parties where the party had been residing last. (Vide Rabindra Singh v. Financial Commr. Coop.)
23. More so, it is nobody's case that Respondent/wife made any attempt to establish that there had been a fraud or collusion between the Appellant and the postman. Not a single document had been summoned from the post office. No attempt has been made by the Respondent/wife to examine the postman. It is nobody's case that the National Herald daily newspaper published from Delhi did not have a wide circulation in Delhi or I.A. No.19352/2011 in CS(OS)No. 2209/2008 Page 7 of 20 in the area where the Respondent/wife was residing with her brother. In such a fact-situation, the impugned order of the High Court becomes liable to be set aside.
xxxxx xxxxx
26. The first appellate Court should not disturb and interfere with the valuable rights of the parties which stood crystallised by the trial Court's judgment without opening the whole case for re-hearing both on question of facts and law. More so, the appellate Court should not modify the decree of the trial Court by a cryptic order without taking note of all relevant aspects, otherwise the order of the appellate Court would fall short of considerations expected from the first appellate Court in view of the provisions of Order 41, Rule 31 Code of Civil Procedure and such judgment and order would be liable to be set aside. (Vide B.V. Nagesh v. H.V. Sreenivasa Murthy.)
27. In view of the aforesaid statutory requirements, the High Court was duty bound to set aside at least the material findings on the issues, in spite of the fact that approach of the court while dealing with such an application under Order IX, Rule 13 Code of Civil Procedure would be liberal and elastic rather than narrow and pedantic. However, in case the matter does not fall within the four corners of Order IX, Rule 13 CPC, the court has no jurisdiction to set aside ex-parte 1 decree. The manner in which the language of the second proviso to Order IX, Rule 13 Code of Civil Procedure has been couched by the legislature makes it obligatory on the appellate Court not to interfere with an ex-parte decree unless it meets the statutory requirement." (emphasis is mine)
(iv) Fourthly and finally, it is argued that the applicant/defendant no.4 had very much the knowledge of the present suit and hence the application under Order IX Rule 13 CPC is liable to fail because of the second proviso to the said provision i.e pertaining to the knowledge of the pending suit. For this purpose learned counsel for the plaintiff has invited the attention of this Court to the postal article under which compliance of Order XXXIX Rule 3 CPC was sent to the applicant/defendant no.4 at the same I.A. No.19352/2011 in CS(OS)No. 2209/2008 Page 8 of 20 address and once again there is an endorsement of refusal on the postal article and which postal article has been proved as Ex.AW1/P3 at pages 156 and 228 of the documents file. It is also additionally argued that the fact of the present suit pending was very much known to the applicant/defendant no.4 because the Delhi Development Authority (DDA), and before whom mutation was got done by the applicant/defendant no.4 of the suit property in her name, had written its Letter dated 20.4.2009 Ex.PW1/VII to the sisters including the applicant/defendant no.4 that the subject suit was pending and hence mutation in favour of applicant/defendant no.4 cannot be finalized.
Reference to this letter of DDA is made in para 7 of the affidavit by way of evidence filed on behalf of the plaintiff/non-applicant and it is argued that there is no cross-examination whatsoever as to the contents of this para 7 of the affidavit filed by way of evidence by the plaintiff/non-applicant that the applicant/defendant no.4 had not received this Letter dated 20.4.2009 Ex.PW1/VII from DDA.
(v) Finally it is argued that the plaintiff/non-applicant lives at an address in different area which is far away from the residence of the defendant no.4/applicant and thus the plaintiff/non-applicant would not be in any manner in a position to influence the report on the postal article. I.A. No.19352/2011 in CS(OS)No. 2209/2008 Page 9 of 20 5(i). Before proceeding further, it bears note that the claim of title of the applicant/defendant no.4 to the suit property is on account of the Will of the mother Smt. Tara Gupta dated 17.9.2001, but admittedly Smt. Tara Gupta was not the original owner of the property at Safdarjung Enclave inasmuch as property at Safdarjung Enclave was owned by father Sh. B.K. Gupta. Defendant no.4/applicant claims ownership on account of the Will dated 15.10.1992 said to have been executed by the father Sh. B.K. Gupta in favour of his wife Smt. Tara Gupta. The Will dated 17.9.2001 of mother Smt. Tara Gupta has ever been probated or otherwise proved by the applicant/defendant no.4 in any judicial proceeding. Plaintiff in the plaint has clearly challenged the Will dated 17.9.2001 of Smt. Tara Gupta. Also, it is relevant to state that besides the applicant/defendant no.4 having not filed any earlier judicial proceeding for enforcement of the Will dated 17.9.2001 of mother Smt. Tara Gupta, even in the present judicial proceedings, the Will of the mother Smt. Tara Gupta has not been sought to be proved or affirmed by any attesting witness to the same.
(ii) Therefore, the fact of the matter is that no doubt the applicant/defendant no.4 claims exclusive ownership of the Safdarjung Enclave property on the basis of the Will of the mother but this Will has I.A. No.19352/2011 in CS(OS)No. 2209/2008 Page 10 of 20 never been proved in any judicial proceeding in a Court of law or otherwise in any other public record.
6. No doubt, the arguments urged on behalf of the counsel for the applicant/defendant no.4 sound impressive at the first blush as to why a person such as the applicant/defendant no.4 would not appear and contest the suit because there was a Will of the suit property in favour of the applicant/defendant no.4, however, merely because a person may have a very strong case on merits and which this Court is assuming for the sake of arguments, does not mean that a person has a right not to appear in the judicial proceedings where the subject Will of Smt. Tara Gupta dated 17.9.2001 was very much in issue in terms of the averments made in the plaint. If a person is served in a judicial proceeding/court of law/court case but such a person does not appear, such a person therefore remains ex parte at his own risk and cost, and such a person cannot argue for a judgment passed on merits to be set aside on the ground that there was no reason for the applicant/defendant no.4 not to appear on account of such applicant/defendant no.4 having a very strong case.
7. The crux of the matter is that whether the applicant/defendant no.4 has or has not refused service as found in terms of the endorsement of I.A. No.19352/2011 in CS(OS)No. 2209/2008 Page 11 of 20 the postman dated 28.5.2009 on the postal article containing the summons which were issued by this Court for 7.7.2009. In my opinion, in view of the direct ratio of the judgment of the Supreme Court in the case of Parimal (supra) and which states that once there is an endorsement of refusal, it is necessary for the person who wants to rebut the presumption of service, to summon the postman, but since the applicant/defendant no.4 has only filed her self-serving affidavit of not refusing and without calling the concerned postman, the onus of proof which was upon the applicant/defendant no.4 in terms of the issue framed on 26.11.2012 cannot be said to have been discharged by the applicant/defendant no.4 especially in view of the categorical observations of the Supreme Court in this regard contained in para 23 of the case of Parimal (supra). I have already noted above that the applicant/defendant no.4 was endeavoured to be served not only in one method by registered post but also through the court process server although service could not be effected through the court process server who had given his reports dated 2.6.2009 and 25.6.2009.
8(i). Another reason which has persuaded this Court not to accept the prayer made in the application under Order IX Rule 13 CPC for setting aside of the Judgment and Decree dated 27.9.2011 is the fact that the I.A. No.19352/2011 in CS(OS)No. 2209/2008 Page 12 of 20 defendant no.4/applicant can be said to be having knowledge of the pendency of the suit inasmuch as the plaintiff/non-applicant has filed and proved on record the Letter of the DDA dated 20.4.2009 Ex.PW1/VII and which clearly shows that the defendant no.4/applicant was informed about the pendency of the suit being CS(OS) No.2209/2008 and hence the mutation proceedings remaining in abeyance. It is noted that there is no cross-examination whatsoever by the applicant/defendant no.4 that the applicant/defendant no.4 did not receive this letter from the DDA and which has been proved in terms of the affidavit by way of evidence filed by the plaintiff as Ex.PW1/VII.
(ii) Therefore, in view of the Letter of the DDA dated 20.4.2009 and the endorsement of refusal dated 23.10.2008 of the postman with respect to the registered post sent under Order XXXIX Rule 3 CPC, in my opinion, it can be safely held that the applicant/defendant no.4 was very much aware of the pendency of the present suit and hence the subject application under Order IX Rule 13 CPC is barred by the second proviso to Order IX Rule 13 CPC which states that mere irregularity in service is not a ground for setting aside the ex parte judgment once it is shown that the applicant under Order IX Rule 13 CPC had knowledge of the pendency of the suit.
I.A. No.19352/2011 in CS(OS)No. 2209/2008 Page 13 of 20
(iii) Also, it is noted that even the postal article for compliance of Order XXXIX Rule 3 CPC of sending the entire paper book contains the endorsement by the postman dated 23.10.2008 that the applicant/defendant no.2 had refused to receive such postal article.
9. Reliance placed by the learned counsel for the applicant/defendant no.4 upon the judgment in the case of Smt. Madhuri alias Sheela (supra) is misconceived for the reason that in the case of Smt. Madhuri alias Sheela (supra), a learned Single Judge of this Court has held the endorsement of refusal of postman not to be believable on account of the two conflicting endorsements one of refusal and other of returning of article because addressee was not the resident of the address of the postal article, and the case of Bhagmal & Ors. (supra) does not apply because in the said judgment the Supreme Court has basically observed that a person who was led to believe that on account of settlement he need not appear in the suit, such a person can successfully move an application under Order IX Rule 13 CPC and which facts and situation are totally different than the facts of the case in hand.
10. Finally I agree with the argument of the plaintiff that there can be done and in fact there is no collusion between her and the postman who I.A. No.19352/2011 in CS(OS)No. 2209/2008 Page 14 of 20 made the endorsements of refusal as the plaintiff/non-applicant resides for away in a different area than the address of defendant no.4/applicant.
11. In view of the above, I do not find any merit in the application and the same is therefore dismissed, leaving the parties to bear their own costs.
JANUARY 28, 2016 VALMIKI J. MEHTA, J. Ne I.A. No.19352/2011 in CS(OS)No. 2209/2008 Page 15 of 20 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(OS) No.2209/2008 % 28th January, 2016 SMT. NEETY GUPTA ..... Plaintiff Through: Mr. Vinod Malhotra, Advocate. versus SMT. USHA GUPTA AND ORS. ..... Defendants Through: Mr. M.S. Vinaik, Advocate for defendant No.4 with defendant no.4 in person. CORAM: HON'BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not? VALMIKI J. MEHTA, J (ORAL)
I.A. No.22524/2014 (under Order XX Rule 12 CPC by plaintiff) in CS(OS) No.2209/2008 By this application the plaintiff seek mesne profits. However, no evidence was led to prove the mesne profits before passing of the preliminary decree. I may also note that plaintiff had not sought framing of any issue with respect to mesne profits when issues were framed on 14.5.2010. Once therefore plaintiff has not pressed the relief with respect to damages/mesne profits before the judgment and decree is passed, the present I.A. No.19352/2011 in CS(OS)No. 2209/2008 Page 16 of 20 application cannot lie under Order XX Rule 12 CPC and which is therefore dismissed.
I.A. stands disposed of.
JANUARY 28, 2016 VALMIKI J. MEHTA, J. Ne I.A. No.19352/2011 in CS(OS)No. 2209/2008 Page 17 of 20 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(OS) No.2209/2008 % 28th January, 2016 SMT. NEETY GUPTA ..... Plaintiff Through: Mr. Vinod Malhotra, Advocate. versus SMT. USHA GUPTA AND ORS. ..... Defendants Through: Mr. M.S. Vinaik, Advocate for defendant No.4 with defendant no.4 in person. CORAM: HON'BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not? VALMIKI J. MEHTA, J (ORAL) CS(OS) No.2209/2008
1. After the judgment was dictated in open Court, the applicant/defendant no.4 has leveled an accusation that this Court has taken money and passed a judgment in favour of the plaintiff/non-applicant. The applicant/defendant no.4 created a hue and cry even before that and which was overlooked by the Court by simply asking the applicant/defendant no.4 to go out from the Court. Applicant/defendant no.4 therefore is resorting to I.A. No.19352/2011 in CS(OS)No. 2209/2008 Page 18 of 20 the blatant act of contempt of the Court in the face of the Court and therefore I propose to pass an order of punishment against the applicant/defendant no.4. The defendant no.4 has in the meanwhile run away from the Court. At this stage, the husband of the applicant/defendant no.4 who is present in Court in person states that the applicant/defendant no.4 may be pardoned because the applicant/defendant no.4 is a patient of cancer, however, even if the applicant/defendant no.4 is a patient of cancer, it does not mean that totally wild and reckless allegations can be made against Judges of this Court that they have taken money and hence are passing judgments.
2. Since, it is informed that the applicant/defendant no.4 has run away from the Court, accordingly, in order to secure the presence of the contemnor in the contempt proceedings, let bailable warrants in the sum of Rs.10,000/- with one surety in the like amount be issued by the Registry of this Court, without process fee, returnable on 29th February, 2016 and for which date show cause notice why defendant no.4 be not punished for contempt in the face of the Court be also issued.
Learned counsel for the applicant/defendant no.4 states that he does not want to represent the defendant no.4 any longer on account of her blatant I.A. No.19352/2011 in CS(OS)No. 2209/2008 Page 19 of 20 contemptuous conduct and that counsel for the applicant/defendant no.4 strongly condemns the actions of the defendant no.4.
JANUARY 28, 2016 VALMIKI J. MEHTA, J.
Ne
I.A. No.19352/2011 in CS(OS)No. 2209/2008 Page 20 of 20