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IN THE HIGH COURT OF DELHI AT NEW DELHI
V. KAMESWAR RAO, J.
MAJOR SURESH YADAV - Appellant
Versus
SH. JUGAL UPPAL & ORS. - Respondent
RFA 289 of 2020, CM Nos. 31213 of 2020, 31214 of 2020, 12897 of 2021, 12898 of 2021 & 15840 of 2021
Decided on : 06-01-2022
Civil Procedure Code, 1908 - Order IX and VII - Rule 11 and 13 read with Section 151 - Ex-parte judgment/decree – Condonation of 933 days for filing of appeal – Notice - Registered sale deed – Possession - Respondents/ plaintiffs filed a suit seeking cancellation of a Sale Deed executed by defendant no. 5/respondent No. 6 through defendant no. 3/respondent No. respondent No. 5, in favour of appellant/defendant no. 4 in respect of suit property by declaring the same as null and void along with a decree thereby declaring them as owners of suit property. In addition, respondents Nos. 1 and 2/ plaintiffs sought possession and permanent injunction - Appellant was arrayed as defendant no. 4 in suit, which was instituted in this Court in view of then limit of pecuniary jurisdiction. Summons were issued on and defendants therein, i.e., appellant and respondent Nos. 3 to 6, were directed not to create any interest or part with the possession of the suit property in favour of any third party.
Finding of the court:
In absence of notice to appellant, Trial Court could not have proceeded with suit and decided the same, that too in favour of respondent Nos. 1 and 2 (plaintiffs) and against appellant herein which is in violation of the principles of natural justice - Trial court in its order has observed that the appellant remained unserved and the noting on the said order sheet reveals that the Court Notice has not been received back. In fact, the above position is accepted by the Trial Court in its. So, it follows that even the rejection of the application under Order IX Rule 13 read with Section 151, CPC, is contrary to the aforesaid position of law and as such unsustainable – Impugned judgment/decree and the order qua the appellant only, are set aside. The matter is remanded back to the Trial Court to start the proceedings qua appellant herein, from the stage where the proceedings were, when the case was transferred from this Court to the District Court and decide the same afresh qua the appellant only. Till such time the suit is decided qua the appellant herein, status quo with regard to the suit property, as existing today shall continue.
Result: Appeal and Application disposed of.
JUDGMENT :
V. KAMESWAR RAO, J.
CM No. 12898/2021
For the reasons stated in the application, the same is allowed, subject to just exceptions. The application stands disposed of.
RFA 289/2020, CM No. 31214/2020 (for delay)
1. The appeal is filed against the original ex-parte judgment/decree dated December 22, 2017 of the learned Additional District Judge (‘ADJ’, for short), Saket Courts, New Delhi, as well as order dated February 10, 2020 in M.No.98/2018, whereby the application of the appellant under Order IX Rule 13 read with Section 151 of CPC was dismissed by the Trial Court. The appeal is accompanied by an application seeking condonation of 933 days’ delay with regard to filing of the appeal against the original judgment /decree. Since the facts and the submissions made by the counsels for seeking condonation of delay, on the impugned Judgment/Decree and on the order rejecting the application under Order IX Rule 13 of CPC being identical/similar, I intend to decide both of them together.
2. This appeal has been filed with the following prayers: -
(i) Quash and set aside the order dated 10.02.2020 passed by the Ld.ADJ-02, Saket, New Delhi.in CS No. 208887/2016.
(ii) Quash and set aside Judgement ad decree dated 22.12.2017 with all consequential action.
(iii) Call for the Trial Court Record pertaining to the present case.
(iv) Pass any other order that is deemed fit and proper under the facts and circumstances of the case.”
3. The facts in brief as noted are that, the respondent no. l and 2 herein/plaintiffs filed a suit in 2007 seeking cancellation of a Sale Deed dated August 24, 2006 executed by defendant no. 5/respondent No. 6 through defendant no. 3/respondent No. respondent No. 5, in favour of appellant/defendant no. 4 in respect of suit property i.e., Mustatil No. 87 Killa No, 17(4-16) and Killa No. 14 (4-12) situated in Dera Mandi, Mehrauli, New Delhi, by declaring the same as null and void along with a decree thereby declaring them as owners of the suit property. In addition, respondents Nos. 1 and 2/plaintiffs sought possession and permanent injunction. The appellant herein was arrayed as defendant no. 4 in the suit, which was instituted in this Court in view of the then limit of pecuniary jurisdiction. Summons were issued on November 05, 2007 and the defendants therein, i.e., the appellant and respondent Nos. 3 to 6, were directed not to create any interest or part with the possession of the suit property in favour of any third party.
4. For the sake of convenience, the appellant/defendant No. 4 and the respondent Nos. 1 and 2/plaintiffs shall hereinafter be referred to as ‘appellant’ and ‘plaintiffs’ respectively.
5. The appellant in his Written Statement filed before the Trial Court took preliminary objections that the documents relied upon by the plaintiffs do not create any right whatsoever in their favour, and that the suit is liable to be rejected under Order VII Rule 11 of the CPC since no cause of action has arisen in favour of the respondent Nos.1 and 2/plaintiffs and against the appellant. He also maintained that he had purchased the suit property vide registered sale deed dated August 24, 2006 which has been executed legally after making payment to the vendor and thus he has become absolute owner of the said property, with actual physical possession.
6. On completion of pleadings, the matter was notified for recording evidence of the plaintiffs’ witnesses. Examination-in-chief and cross-examination of PW-1 and PW-2 therein were concluded by February 11, 2015. Admittedly, the appellant carried out the cross-examination of PW-1 on his own, without the assistance of his counsel.
7. In view of the changes brought about in pecuniary jurisdiction of Courts, and the notification dated November 24, 2015, issued by the Registrar General of this Court, the Joint Registrar (Judicial), vide order dated January 19, 2016, transferred the matter from this Court to the Cour
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