IMPORTANT POINT
On the conspectus of the tell-tale facts of the case and the considerations germane to the exercise of jurisdiction under Article 136, the Apex Court refrained from exercising the jurisdiction and grant leave to appeal in this case.

Headnote:Specific Relief Act, 1963-Section 6-Suit for possession-Service on defendants were treated to be complete-Ex-parte decree passed on affidavit evidence-Defendants got it set aside in RFA (OS)-SLPs against to Supreme Court-Apex Court finding that there was no proper service-Result-SLPs dismissed-Argument that a DB of High Court could not entertain an appeal u/s. 10 Delhi High Court Act because of bar u/s. 6(3) of Specific Relief Act held not sufficient to grant special leave (Constitution of India-Article 136-Delhi High Court Act-Section 10).
       Held : The above findings/observations of the High Court reveal a pathetic state of affairs and bring to focus the factum of abuse of the process of the Court by manipulating the records to show due service while there was none. Elementary care was not exercised by the concerned officer of the court in checking up whether the summons were duly served and whether there was a case for effecting substituted service and whether mandatory provisions as to the service of summons were complied with. The entire picture was not placed before the Court and the Court readily accepted the report of the Deputy Registrar and proceeded on the basis that service was complete and the defendants failed to respond to the summons. (Para 8)
       We are, therefore, satisfied that the judgment of the Division Bench of the High Court setting aside the ex parte decree is correct, proper and just. (Para 10)
       Held also : Viewed in this light, we do not think that special leave should be granted and arguments shall be allowed to be advanced on the question whether the Division Bench or the High Court could entertain the appeal under Section 10 of the Delhi High Court Act despite the bar under Section 6(3) of the Specific Relief Act. The High Court, by the impugned order, followed the judgment of this Court in Vanita s case (AIR 1998 SC 424) which prima facie supports its view. That apart, it is pertinent to note that in any case, the High Court, in exercise of another jurisdiction viz. original jurisdiction could have set right the illegality and restored the suits to its file. What the High Court has done is to invalidate the ex parte decrees which were obtained by questionable means fitting into the description of abuse of the process of the court. If such decrees were allowed to remain, it would have resulted in miscarriage of justice. We cannot shut our eyes to the ground realities and the factual events highlighted by the High Court in deciding the question whether we should exercise our discretionary power under Article 136. Incidentally, it may be mentioned that according to the learned counsel for the respondent, the reason for not filing the application for restoration under Rule 13 of Order 9 was the bona fide impression -may be a mistaken impression, that the learned Single Judge of the High Court who allowed the execution of the decree to go on will not be able to interfere in the matter. Be that as it may, we are not persuaded in the peculiar facts and circumstances of the case to grant leave as we feel that affording an opportunity to the defendants to contest the suits on merits is well justified and will have the effect of averting serious injustice. We shall, however, be not understood to have expressed any view on the merits of the suits. In the result the Special Leave Petitions stand dismissed. There shall be no order as to costs. (Paras 13 & 14)

JUDGMENT

P. Venkatarama Reddi, J.-After notice the SLPs have been heard at length.

2. The common judgment of the Division Bench of the Delhi High Court in RFA (OS) No. 32/2000 and RFA (OS) No. 35/2000 is being assailed in these appeals by the plaintiff who instituted two suits Nos. 544 of 1991 and 597 of 1991 in the High Court. The first suit was filed against 48 defendants and the other suit against 52 defendants who were alleged to be unauthorised occupants of plots/houses located in Khasra No. 393/264 situated in Ashok Nagar (Chilla Village). Inter alia it was alleged in the plaint that the members of the Association (some of whom are the defendants) jointly and severally agreed to relinquish their respective rights in favour of the first plaintiff and further empowered the second plaintiff to institute requisite legal proceedings in order to safeguard the land in dispute. It is also alleged that the defendants were inducted into possession unauthorisedly by certain persons named in the plaint who were said to be the predecessors in title and therefore the defendants were trespassers of the disputed land. It is then alleged that the defendants "forcibly dispossessed the plaintiff-Association from its constructive possession". The suits were purportedly filed under Section 6 of the Specific Relief Act and decree for possession/restoration of possession was sought for.

3. It is not necessary to deal with the history of the litigation pertaining to the suit land or the other details turning on the merits of the suits. Suffice it to notice that service on the defendants was treated to be complete and the Court directed by an order dated 14.5.1992 that the defendants be proceeded against ex parte. Affidavit evidence was taken on record. Both the suits were decreed on the finding that the defendants had illegally dispossessed the plaintiffs from the suit property and they were in the position of trespassers. Such ex parte judgment and decree was passed on 6.8.1997 in Suit No. 597 of 1991 and on 27.1.1997 in Suit No. 544 of 1991 by a learned Single Judge in exercise of original jurisdiction. When defendants were sought to be dispossessed on the strength of the ex parte decrees, appeals were filed on the allegation that the appellants/defendants were not aware of the suits and they came to know for the first time of the decrees passed in the suits on dt. 8.4.2000 when the police officials came to inspect the area in order to enforce the court warrants. Petitions for condonation of delay in filing the appeal were also filed. The Division Bench of the High Court thoroughly examined the record to ascertain whether the summons were factually served or deemed to have been served in accordance with law and having accepted the case of the defendants, set aside the ex parte judgments and decrees passed by the learned Single Judge and ordered fresh trial of the suits on merits in accordance with law. The learned Judges found sufficient ground to condone the delay. The concluding part of the Judgment reads as under:-

"The appellants, who have put in appearance and who are defendants in the suit will now will be deemed to have been duly served. They will be supplied by the plaintiffs with copies of the plaint and other documents, as are required to be served on them on or before the day when the parties will appear before learned Single Judge. Within a period of six weeks thereafter the said defendants will file their written statements. Steps will also be taken by the plaintiffs thereafter to effect due service on the remaining defendants."

4. Adverting to the record in Suit No. 597 of 1991, the High Court noticed inter alia that the acknowledgment due cards were not filed despite a requisition in this behalf; summons were therefore not sent through registered post, but were sent through ordinary process. Even without verifying whether the summons were served to the unserved defendants, the Deputy Registrar directed the suit to be posted on

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2001 Supreme(SC) 1682

IMPORTANT POINT On the conspectus of the tell-tale facts of the case and the considerations germane to the exercise of jurisdiction under Article 136, the Apex Court refrained from exercising the jurisdiction and grant leave to appeal in this case.

Cases Referred (4)

IMPORTANT POINT
On the conspectus of the tell-tale facts of the case and the considerations germane to the exercise of jurisdiction under Article 136, the Apex Court refrained from exercising the jurisdiction and grant leave to appeal in this case.