The main legal point established in the judgment is the interpretation of 'sufficient cause' for non-appearance of the defendants under Order XXXVII CPC and the importance of giving the correct address of the defendants in a summary suit.

JUDGMENT

Manoj Kumar Ohri, J. -

I.A. 7268/2020 (Under Order IX Rule 7 read with Order XXXVII Rule 2(3) read with Rule 3(7) and Section 151 CPC by the Defendants)

1. The present application has been filed under Order IX Rule 7 read with Order XXXVII Rule 2(3) read with Rule 3(7) and Section 151 CPC seeking recall of the order dated 31.07.2020 (hereinafter referred to as the 'impugned order') whereby the defendants were proceeded ex-parte.

2. The defendants have sought recall of the impugned order primarily on the ground that the defendants were never served with the summons in the suit for the reason that at the relevant time, the defendants were not staying at the address mentioned in the memo of parties.

3. Learned counsel for the defendants submits that the present application has been filed within limitation.

4. It is claimed that although the defendants are the owners of the property bearing No. E-108, Malcha Marg, New Delhi (hereinafter referred to as the 'suit property'), since April, 2018, the defendants were residing at 13, South Drive, DLF Chhatarpur, New Delhi-110074 (hereinafter referred to as the 'Chhatarpur Property').

5. In support of the claim, the defendants have placed on record two lease deeds executed between defendant No.1 (lessee) and 'Mohinder Singh & Company' (lessor) with respect to the Chhatarpur Property; Special Power of Attorney dated 17.08.2020 executed by defendant No.1 in favour of his father (defendant No.2); and the medical records of defendant No.3. It is stated that the defendants continue to reside at the Chhatarpur property even though after March, 2020, no fresh lease deed was executed on account of COVID-19 pandemic.

6. Additionally, it has been submitted that on a complaint being filed by the plaintiff against the defendants before the Economic Offence Wing, Delhi Police, New Delhi (EOW), the defendants joined the enquiry and submitted their reply dated 11.06.2019 wherein the address of the Chhatarpur property was mentioned.

7. Learned counsel for the defendants submitted that while passing the impugned order, the Court relied on the affidavit of service filed by the plaintiff wherein service was shown to be effected through e-mail, courier, speed post and dasti. It is submitted that vide order dated 26.06.2020, despite service being shown to be effected through e-mail, the Court directed issuance of fresh summons through all modes including dasti and speed post. While the speed post tracking report showed that the doors were locked, the courier tracking report mentioned that the courier was returned back to the party i.e., the plaintiff.

8. Insofar as dasti service is concerned, it was submitted that in the affidavit of service filed by the plaintiff, it was stated that he had visited the suit property where the security guard did not allow him and his manager to enter the house. Also, the defendants did not come out to receive the dasti summons. When the security guard refused to receive the summons, the plaintiff left the summons along with the pleadings and the documents at the gate of the suit property.

9. Learned counsel for the defendants submitted that the dasti service shown to be effected ought not to be relied upon as the service was sought to effected at an address where the defendants were not residing and also because the summons along with a copy of the plaint and the documents ought not to have been left at the gate of the suit property but rather affixed.

10. Learned counsel for the defendants submitted that the defendants' not residing at the suit property, where the service was sought to be effected, was a 'sufficient cause' under Order XXXVII Rule 3(7) CPC and thus prayed that the application be allowed.

11. In support of his submission, learned counsel for the defendants has relied on the decisions in Media Coverage Pvt. Ltd. v. Harish Nagewala & Ors., 2010 167 DLT 161, Kulvinder Singh & Another v. State Bank of India, 2009 107 DRJ 301, Amitav Chaudhuri v. National Research Dev