Back
IN THE HIGH COURT OF DELHI
V. Kameswar Rao, J.
Suresh Yadav - Appellant
Versus
Jugal Uppal - Respondent
RFA 289 of 2020, CM Nos. 31213 of 2020, 31214 of 2020, 12897 of 2021, 12898 of 2021 and 15840 of 2021
Decided On : 06-01-2022
Judgment - Transfer of Suit - Notice to Appellant - Setting Aside of Decree - Delay in Filing Appeal - Prejudice to Appellant - Remand to Trial Court
Fact of the Case:
The appellant, defendant No. 4, filed an appeal against the original ex-parte judgment/decree dated December 22, 2017 and the order dated February 10, 2020, seeking to set aside the same. The appellant sought condonation of 933 days' delay in filing the appeal against the original judgment/decree. The Trial Court had decided the suit in favor of the plaintiffs/respondent Nos. 1 and 2 and against the appellant, without ensuring notice to the appellant and/or his counsel had been effected and rejecting the application of the appellant under Order IX Rule 13 read with Section 151 of the CPC. The appellant was not served with notice of the transfer of the suit to the District Court and was not afforded the opportunity to justify contradictions in his written statement and explain his stand. The Trial Court's rejection of the application under Order IX Rule 13 read with Section 151 of the CPC was contrary to the position of law laid down by the Supreme Court. The execution proceedings were initiated by the respondent Nos. 1 and 2, and the possession of the suit property was taken by the said respondents, and the sale deed was cancelled by the Sub-Registrar-V, Mehrauli, and mutation with regard to the said property was concluded.
Finding of the Court:
The Trial Court was not justified in proceeding with the suit on its transfer from the High Court without ensuring notice to the appellant and/or his counsel had been effected and deciding the same in favor of the plaintiffs/respondent Nos. 1 and 2, and also rejecting the application of the appellant under Order IX Rule 13 read with Section 151 of the CPC. The impugned judgment/decree dated December 22, 2017 and the order dated February 10, 2020, are set aside. The matter is remanded back to the Trial Court to start the proceedings afresh from the stage when the case was transferred from the High Court to the District Court and decide the same afresh only with regard to the appellant. Till such time the suit is decided with regard to the appellant, status quo with regard to the suit property, as existing today, shall continue.
Issues: Non-service of notice to the appellant and his counsel upon transfer of the suit to the District Court, Prejudice caused to the appellant by the Trial Court's decision in favor of the plaintiffs/respondent Nos. 1 and 2 without notice to the appellant, Rejection of the application of the appellant under Order IX Rule 13 read with Section 151 of the CPC contrary to the position of law laid down by the Supreme Court
Ratio Decidendi: The Trial Court's decision in favor of the plaintiffs/respondent Nos. 1 and 2 and against the appellant without ensuring notice to the appellant and/or his counsel had been effected was in violation of the principles of natural justice. The rejection of the application of the appellant under Order IX Rule 13 read with Section 151 of the CPC was contrary to the position of law laid down by the Supreme Court.
Final Decision: The appeal is allowed, and the impugned judgment/decree dated December 22, 2017 and the order dated February 10, 2020, are set aside. The matter is remanded back to the Trial Court to start the proceedings afresh from the stage when the case was transferred from the High Court to the District Court and decide the same afresh only with regard to the appellant. Till such time the suit is decided with regard to the appellant, status quo with regard to the suit property, as existing today, shall continue.
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: -
"Therefore, this Hon'ble Court may graciously be pleased to: -
(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 Cour
The Trial Court's decision in favor of the plaintiffs/respondent Nos. 1 and 2 and against the appellant without ensuring notice to the appellant and/or his counsel had been effected was in violation ....
If summons issued on the correct address have not been returned, the presumption is that the summons has been received by the addressee.
Point of Law : sufficient reason' for extending the delay in filing the petition should be construed liberally on the non-action on the part of the advocate. Besides, there is no general proposition ....
Service of summons via email and WhatsApp is deemed valid under the Code of Civil Procedure when proof exists, and delay due to negligence in responding to litigation cannot be condoned in commercial....
The Court emphasized the importance of due consideration in ordering substituted service and the need for clear knowledge of the particular decree sought to be set aside.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
