Proper service of summons and the conditions for setting aside an ex parte judgment and decree under Order IX Rule 13 CPC.

CM(M) 860/2015

1. The petitioner Anuj Malhotra, who is plaintiff is Civil Suit No.34/2009, has filed the instant petition under Article 227 of the Constitution of India impugning the order dated 26th May, 2015 whereby the learned Trial Court has allowed the application under Order IX Rule 13 CPC and set aside the exparte judgment and decree dated 30th July, 2011.

2. The parties to this litigation are closely related. The petitioner Anuj Malhotra is nephew of respondent Sanjay Malhotra. Sh. Deepak Malhotra is father of the petitioner Anuj Malhotra and brother of respondent/defendant Sanjay Malhotra.

3. The above description of the parties has been necessitated in view of the fact that both the parties are claiming their title in respect of the suit property bearing no.26/177, West Patel Nagar, New Delhi on the strength of Will. The claim of Anuj Malhotra is that Smt. Ram Pyari and her husband Sh. Pyare Lal adopted his father Sh. Deepak Malhotra as their son and Smt. Ram Pyari executed a Will in respect of the suit property in his father as her grandson. The claim of Sh. Sanjay Malhotra over the suit property is on the basis that Smt. Ram Pyari was his ‘Tai’ i.e. wife of elder brother of his father and they were issueless. She had executed a Will in respect of the suit property in his name and the said Will was witnessed by Sh. Deepak Malhotra (father of the petitioner Anuj Malhotra).

4. Civil Suit No.34/2009 was instituted by the petitioner Anuj Malhotra impleading his uncle (Chacha) Sh. Sanjay Malhotra as defendant seeking the decree for recovery of possession and future damages. In the above noted suit, though the respondent/defendant Sanjay Malhotra remained unserved, Sh. M.P. Sharma, Advocate appeared on his behalf as his counsel and on 24th October, 2009 also filed the written statement. Thereafter Sh. M.P. Sharma, Advocate stopped appearing. As the defendant also did not appear, the learned Trial Court proceeded exparte against the defendant and passed an exparte judgment and decree on 30th July, 2011.

5. The execution petition was filed and warrants of possession were issued. Pursuant to the execution of warrants of possession, possession of the ground floor was taken but possession of the first floor could not be taken by the petitioner/decree holder.

6. The respondent/defendant, at that stage, filed an application under Order IX Rule 13 CPC specifically pleaded therein that he has never been served nor he ever engaged Sh. M.P. Sharma, Advocate as his counsel. It was claimed that the written statement has not been filed by him or on his behalf in the case. The prayer for setting aside the exparte judgment and decree has been made alleging that the plaintiff with malafide intention managed all the things to obtain an exparte decree against him.

7. Notice of the application under Order IX Rule 13 CPC was served on the respondent/defendant to which he filed a reply denying all the averments.

8. Learned Trial Court settled the following issues on 12th September, 2012:-

‘(i) Whether the summon of the suit was not duly served upon the defendant/applicant?

(ii) Relief.’

9. The parties were given an opportunity to lead evidence. Both the parties appeared as witness. After considering the evidence adduced by the parties on the issue of service on defendant and whether Sh. M.P. Sharma, Advocate was engaged by the defendant and written statement was filed by him on behalf of the defendant, learned Trial Court in a well reasoned order held that the summons for settlement of issues was never effected on the defendant. Learned Trial Court also noted that the written statement was filed by Sh. M.P. Sharma, Advocate who was not engaged by the defendant and that complaint has already been made to the Bar Council by the defendant against Sh. M.P. Sharma, Advocate.

10. The grievance of the petitioner/plaintiff is that the learned Trial Court committed illegality in setting aside the exparte decree by allowing the application under Order IX