Delhi High Court
Mrs. Gurdip Kaur Thr. L.Rs vs Kamlesh Sachdeva & Anr. on 31 January, 2014
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 39/2014
% 31st January, 2014
MRS. GURDIP KAUR THR. L.RS ......Appellants.
Through: Mr. Rana Ranjit Singh, Mr. Vishal
Ranjan, Mr. Vivek Singh and Mr.
Jaswant Singh, Advocates
VERSUS
KAMLESH SACHDEVA & ANR. ...... Respondents.
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
CM No.2007/2013 (Exemption)
1. Exemption allowed subject to just exceptions.
Application stands disposed of.
FAO 59/2014 & CM Nos.2005/2014(Stay) & 2006/2014 (U/o22 R 3 CPC)
2. This appeal impugns the order of the court below dated 28.10.2013 which has dismissed the application filed by the appellant under Order 9 Rule 13 CPC. Appellant Ms. Nirmala Kaur was the applicant in the FAO 39/2014 Page 1 of 4 application and she was the daughter of defendant no.2 against whom the exparte decree for specific performance was passed on 5.12.1997.
3. The facts of the case are that the original defendant no.1-Sh. Govind Jindani was the owner of the suit property, however, he transferred rights in the suit property by means of documentation dated 15.3.1980 to the defendant no.2, and who was the father of the applicant. Therefore, after the transfer of rights in the suit property, the defendant no.1 had no interest left in the suit property. In terms of the aforesaid documentation since defendant no.2 had acquired rights in the suit property which is plot bearing no.1, Block-C, Community Centre, Nimri Colony, Delhi situated on a plot of 50.16 sq. mts, the same was agreed to be sold by him (defendant no.2) to the plaintiff in the suit vide Agreement to Sell dated 19.6.1982 and a total amount of Rs.35,000/- out of the total sale consideration of Rs.1,07,500/- was received. On failure of the defendant no.2 to specifically perform the contract the subject suit for specific performance came to be filed in the year 1983.
4. As per the records, defendant no.2 in the suit, and the father of the applicant, was served and he appeared through counsel whose vakalatnamas are stated to be on record. Defendant no.2 was thereafter proceeded ex parte as he did not appear. Ultimately an ex parte decree was passed on FAO 39/2014 Page 2 of 4 5.12.1997. This decree was also executed by the year 2005. It is thereafter much later in the year 2010, the applicant who is the daughter of the now deceased defendant no.2, filed the subject application under Order 9 Rule 13 CPC which has been dismissed by the impugned order.
5. Counsel for the appellant tried to lay stress on the aspect that on the death of defendant no.1, wife of defendant no.2 was sought to be substituted at the wrong address, but in my opinion, that is an argument of desperation because really defendant no.2 was the main defendant and who was served but he chose not to appear. Therefore, really appearance or non-appearance of the wife of defendant no.2, and that too for representing the defendant no.1 who had surviving interest in the suit property after transferring rights in the same to defendant no.2, is really neither here nor there.
6. An application under Order 9 Rule 13 CPC only lies if a person makes out a case that the said person was not served in the suit or had sufficient cause for non-appearance. In the present case, defendant no.2 having been served, he being the main defendant, he appeared through counsel whose vakalatnamas are on record, and thereafter he chose not to appear resulting in a decree for specific performance passed way back in 1997, and which was executed in the year 2005. Thereafter, now, the applicant who is the FAO 39/2014 Page 3 of 4 daughter of the deceased defendant no.2 surely cannot file an application under Order 9 Rule 13 CPC for setting aside the ex parte decree.
7. There is no merit in the appeal and the same is accordingly dismissed, leaving the parties to bear their own costs.
JANUARY 31, 2014 VALMIKI J. MEHTA, J.
ib
FAO 39/2014 Page 4 of 4