Delhi District Court
Shri Jasbir Singh vs Sh. Pritam Singh on 4 March, 2013
Shri Jasbir Singh Vs Sh. Pritam Singh
IN THE COURT OF SHRI VIRENDER KUMAR BANSAL :
ADDL. DISTRICT JUDGE (CENTRAL) 08, TIS HAZARI,
DELHI
RCA no. 22/12
ID No. 02401C0544002012
Shri Jasbir Singh
S/o Sh. Sube Singh,
R/o UGF-1, Building No.7,
Block A-2, Chhattarpur Extension,
Near Tivoli Garden, New Delhi ... Appellant.
Versus
Sh. Pritam Singh
S/o Dasa Singh,
R/o A 96/4 Raju Park,
Khnapur, New Delhi ...Respondent.
ORDER
1. Present appeal has been preferred against the order dated 25.10.2012 vide which ld. Trial Court dismissed the application u/O 9 Rule 13 CPC, moved by appellant herein.
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2. The brief facts giving rise to the present appeal are that Sh. Pritam Singh (plaintiff/respondent) filed the suit for eviction and recovery of rent and mesne profits against Sh. Jasbir Singh (defendant/appellant) with respect to property no. First Floor, C-140, Jawahar Park, New Delhi (suit property). It is alleged that rent agreement dated 17.12.2007 was executed with respect to the suit property between the plaintiff/respondent and defendant/respondent. The tenancy commenced on 17.07.2007 and expired on 16.06.2008. The monthly rent was Rs. 5,000/-. It is alleged that defendant/appellant failed to make the rent since January, 2008. After the expiry of tenancy period of 11 months, plaintiff/respondent asked the appellant/defendant to vacate the premises but no result. Thereafter, legal notice dated 13.06.2008 was sent to the defendant/appellant despite that he failed to deliver the possession, hence, the suit for possession and mesne profit etc.
3. Summons sent to the defendant but as he did not appear, he was proceeded ex-parte vide order dated 21.10.2008. After taking the evidence, the case was fixed for arguments but on 11.05.2009 the Trial Court found that the defendant/appellant has not been property served, and, thereafter, it was ordered that court notice be sent to the RCA No. 22/12 2 of 12 Shri Jasbir Singh Vs Sh. Pritam Singh defendant/appellant for 24.10.2009 but no court notice was issued. On 24.10.2009 court observed that on 08.10.2008 summons have been served upon one Manju at flat No. C-104, First Floor and court observed that it was not proper service and it was ordered that in case of refusal/non-service defendant/appellant be served by way of affixation and the photographs of the same be also taken. For the next date, steps were not taken. The summons were issued which are on record and were affixed at both the address i.e. at C-144, Ground Floor as well as C-140, First Floor, Jawahar Park, New Delhi i.e. the suit property. On both the summons there is report of the process server in the form of affidavit having signature of the plaintiff/respondent coupled with photograph. On that next date i.e. 17.05.2010 one proxy counsel Ms. Yogita Kaushik appeared, filed memo of appearance on behalf of defendant/appellant and the opportunity was given to file the written statement. On the next date, none appeared and the Trial Court passed ex-parte order against defendant/appellant. Finally, decree was passed in favour of the plaintiff/respondent and against the defendant/appellant.
4. An application u/O 9 Rule 13 CPC moved which was dismissed by the ld.Trial Court which is under challenge in the present appeal.
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5. Notice of appeal was sent to the respondent. Trial Court record was requisitioned.
6. I have heard ld. counsel for the appellant, ld. counsel for the respondent and perused the record.
7. Ld. counsel for the appellant submitted that respondent/plaintiff has not come to the court with clean hands. In fact in the year 2003, appellant/defendant and respondent/plaintiff entered into the agreement dated 29.10.2003. As per the agreement, appellant/defendant was to invest amount on the construction upon plot no. C-140, measuring 75 sq. yards. It was agreed that after the completion of the construction of upper ground floor or first floor will fell into the share of the respondent. Respondent/plaintiff sold all his rights in the first floor, vide GPA dated 08.06.2004, Agreement to sell of the same date, to the appellant for a sum of Rs 4,00,000/- and possession was also delivered. It is further alleged that appellant resided at plot no. 144, prior to April 2008 but never resided in plot no. 140 i.e. suit property. Appellant/defendant shifted his resident to UGF-1, Plot no.7, Block A-2, Chattarpur Extension, New Delhi near Tivoli Garden in Octor, 2008. He handed over the RCA No. 22/12 4 of 12 Shri Jasbir Singh Vs Sh. Pritam Singh possession of suit property to Mr. Gyanendra Singh Nagar for a consideration of Rs. 11,00,000/- but no document was executed as he was having utmost faith in Mr. Gyanendra Singh Nagar. Plaintiff/respondent filed suit alleging execution of rent agreement dated 17.12.2007 which is a forged and fabricated document. Suit was filed on 24.09.2008 and it seems that plaintiff/respondent was under doubt about the correct address of the appellant/defendant that is why he has given two address. It is alleged that Plot no. 140 and plot no. 144 are situated nearby and there are only 5-6 plots in between the two. It was clearly mentioned in the reports given by the process server that defendant/appellant was not residing there and he has left. Even the procedure required under law was not followed. According to order V Rule 12 CPC, wherever it is practicable, service has to 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 service. Ld. counsel submitted that it is only when the person to whom summons are tendered refuses to sign the acknowledgment or where the serving officer, after using all due and reasonable diligent, cannot find the defendant, the serving officer shall affix the copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or RCA No. 22/12 5 of 12 Shri Jasbir Singh Vs Sh. Pritam Singh personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person by whom the house was identified and in whose presence the copy was affixed. Proper procedure as provided u/O V Rule 17 CPC has not been followed, straightway order of affixation cannot be passed, nor summons can be affixed on the very first attempt even if it is refused. It is alleged that attempt should be made more than once to try and serve the notice and if then also it is not possible to effect service, then service can be effected by affixation. Even the report is incomplete as it is not mentioned whether any copy of the plaint or any other document was also affixed, meaning thereby that the service was not complete but this has not been looked into by the ld. Trial Court. Ld. counsel submitted that infact the appellant/defendant was not residing there who has already left that place, even, the plaintiff/respondent was knowing this fact who was residing only five houses away from the residence of applicant but deliberately got this report. Ld. counsel submitted that ld. Trial Court has mis-directed itself by presuming that two different stands have been taken by the applicant in the objections and application resulting into the mis-marriage of justice and RCA No. 22/12 6 of 12 Shri Jasbir Singh Vs Sh. Pritam Singh valuable right of the appellant had been taken away. It is prayed that order be set aside and opportunity be given to the appellant to defend the suit.
8. Ld. counsel for the respondent submitted that the appellant was in collusion with Sh. Gyanendra Singh Nagar which is evident from the fact that immediately when execution was filed one Sh. Gyanendra Singh Nagar filed the application and also the objections which were dismissed and then finding no other way the present appellant moved the application u/O 9 Rule 13 CPC which was moved on 25.01.2012. Ld. counsel submitted that there is nothing on record to show that he has any ground to get the ex-parte decree set aside. Ld. Trial Court has already considered all the facts. The record shows that he was duly served. Ld. counsel submitted that even the earlier service was correct as that was effected on Manju who is wife of the present appellant only and none-else, which is evident from the copies of electricity bill placed on record by the appellant himself. Ld. counsel submitted that despite that as abundant pre-caution, court again issued notice and it was duly affixed at both the addresses. The factum that it was affixed is evident from the photographs which are placed on record wherein the house number is also clearly visible and it is also clearly visible that not only the summons but the RCA No. 22/12 7 of 12 Shri Jasbir Singh Vs Sh. Pritam Singh annexures were also pasted. Process server had gone at both the address i.e C-140 and C-144. At C-140 one boy was present but he refused to receive the summons and therefore as per the provisions process server should have affixed it which he has done. Ld. counsel submitted that according to the appellant himself at C-140 Sh. Gyanendra Singh Nagar was residing who is most trusted person of the appellant which is evident from the pleadings of the appellant himself who has mentioned in para no.3 that though he has not received any amount from Sh. Gyanendra Singh Nagar but as Sh. Gyanendra Singh Nagar was friend of appellant and appellant was having utmost faith in Mr. Gyanendra Singh Nagar, he delivered the possession to him. Therefore, it is clear that it was his agent who was there who refused to receive the summons and therefore process server rightly affixed it at the door of suit property. Ld. counsel submitted that it clearly shows that there was due service which is further strengthen by the fact that one counsel Ms. Yogita Kaushi appeared on behalf of defendant on 17.05.2010 before the court. Thereafter, none appeared on behalf of defendant and was proceeded ex-parte. Ld. counsel submitted that from it it is clear that defendant was duly served. He chose not to appear and therefore now his application u/O IX Rule 13 CPC is not maintainable and prayed that the appeal be dismissed.
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9. After hearing the arguments and going through the record, I found that summons of the suit were sent to the defendant and on the summons issued for 21.10-.2008 report shows that summons were received by one Manju and as pointed out by ld. counsel for the appellant and as is reflected from the photocopies of the electricity bill of BSES, Rajdhani Power Ltd., Manju is wife of the appellant herein i.e. Sh. Jasbir Singh, but the court after considering it, found that it is not due service and ordered that defendant be served again. It was also ordered that if the defendant refuses, he be served by way of affixation. The process server visited the site on 14.05.2010 and he affixed the summons at C-144, ground floor according to report the premises were found locked. The photograph was taken in which the house number is clearly visible and even the copies affixed are visible. The other summon sent at C-140 i.e. the suit property is also on record. The photograph is also available wherein it is clear that summons along with copy/annexures have been affixed. It is important to note that appellant does not say that these photographs are not of the suit property. According to the report of process server available on the back of the summon, one boy was available at the suit property who refused to receive the summons and thereafter he affixed the summons RCA No. 22/12 9 of 12 Shri Jasbir Singh Vs Sh. Pritam Singh there. As per the procedure then he could affix the summons there and this was also the directions issued by the court and I do not find anything wrong in this. Now, according to the appellant, he has delivered possession of the suit property to one Mr. Gyanendra Singh Nagar for a sale consideration of Rs. 11,00,000/- and Gyanendra Singh Nagar is none else but good friend of the appellant and he was having utmost faith in him, meaning thereby that Sh. Gyanendra Singh was representative of appellant and it is so because no documents were executed despite that possession was delivered and no payment was made despite that possession was delivered. It is a different story that Gyanendra Singh Nagar when filed the objections, he alleged differently that he purchased the property for a consideration of Rs. 8,50,000/- from the respondent out of which Rs. 4,50,000/- has already been paid by him. But the appellant herein is coming up with a new story that it was he who has given possession to Sh. Gyanendra Singh Nagar but this appellant itself when moved the application u/O 9 Rule 13 CPC before the ld. Trial Court in para no.10 which is reproduced as under:
"10. That one Sh. Gyanendra Singh Nagar had been in possession of the suit premises since October, 2008 as the plaintiff himself sold the said property to Sh. Gyanendra Singh Nagaras Sh. Gyanendra Singh Nagar was RCA No. 22/12 10 of 12 Shri Jasbir Singh Vs Sh. Pritam Singh known to the plaintiff and Sh. Gyanendra Singh Nagar/occupant was under impression that the suit premises are free from all encumbrances and litigation and the plaintiff is the legal and registered owner of the suit premises".
10. If we read para no.3 of the appeal and para no.10 of the original application u/O 9 Rule 13 CPC, then it is clear that the appellant is taking two diametrically opposite stands in this regard and then Sh. Gyanendra Singh Nagar has also taken a different stand in his objection before the ld. Trial Court which led to the Trial Court to observe that they are in collusion with each other and I found myself unable to differ with that opinion.
11. As discussed above, defendant/appellant was duly served firstly through his wife namely Manju, however, ld. Trial Court considered that defendant need to be served again and then he was again served by way of affixing the summons and copy of the plaint at both the addresses. One counsel also appeared on behalf of defendant but the defendant chose not to appear, thereafter, resulting into the ex-parte proceedings against the defendant. Now, defendant cannot be permitted to say that he was not duly served. There is no merit in the appeal, the same is dismissed.
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12. Copy of order along with Trial Court record be sent back.
Appeal file be consigned to record room.
Announced in the open court on 04.03.2013.
VIRENDER KUMAR BANSAL
ADDL.DISTRICT JUDGE-08
CENTRAL,DELHI
RCA No. 22/12 12 of 12
Shri Jasbir Singh Vs Sh. Pritam Singh
04.03.2013.
Present: Counsel for the parties.
Vide separate order, the present appeal is dismissed.
Copy of order along with Trial Court record be sent back.
Appeal file be consigned to record room.
VIRENDER KUMAR BANSAL
ADDL.DISTRICT JUDGE-08
CENTRAL,DELHI
RCA No. 22/12 13 of 12