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2023 Supreme(Del) 5509
IN THE HIGH COURT OF DELHI AT NEW DELHI
Dharmesh Sharma, J.
Lalita Sarkar - Appellant
Versus
Kiran Sethi & Anr. - Respondents
FAO 130 of 2023 and CM APPL. 29364 of 2023 (Stay), CM APPL. 30865 of 2023 (Stay), CM APPL. 41785 of 2023 (For Directions)
Decided On : 04-12-2023
Mr. Rishabh Kapur, Advocate, for the Appellant.
Mr. Aditya Kapoor and Mr. Mayur Singhal, Advocates, for the Respondents.
IMPORTANT POINT
The main legal point established is the application of Order IX Rule 13 CPC in determining the setting aside of an ex-parte decree based on the satisfaction of summons service and sufficient cause for non-appearance.
Headnote:
CPC - Civil Procedure - Section 104, Order XLIII Rule 1(d) - The court discussed the provisions of Order IX Rule 13 CPC, which permits the setting aside of an ex-parte decree against a defendant if the summons were not duly served or if the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing.
Fact of the Case:
A lease agreement was executed between the respondents and the husband of the appellant for a property. The husband fell in arrears, and a suit for possession was filed, resulting in an ex parte decree. The appellant filed an application under Order IX Rule 13 CPC to set aside the ex parte judgment.
Finding of the Court:
The court found that the appellant failed to satisfy that summons were not duly served upon her and did not disclose any sufficient cause that prevented her from appearing in court. The court dismissed the application under Order IX Rule 13 CPC.
Issues: The issues revolved around the service of summons, the appellant's failure to appear in court, and her entitlement to relief.
Ratio Decidendi: The court applied the provisions of Order IX Rule 13 CPC and emphasized the requirement for the defendant to satisfy that summons were not duly served or that there was a sufficient cause preventing appearance in court.
Final Decision: The court dismissed the appeal and disposed of the pending applications.
JUDGMENT
Dharmesh Sharma, J. (Oral) - This is an appeal filed by the appellant under Section 104 read with Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908 [CPC] assailing order dated 01.05.2023 passed by learned ADJ-01 (South East), Saket Courts, New Delhi [ADJ] in Misc. No. 964/2023, whereby the application by the appellant herein, under Order IX Rule 13 CPC was dismissed.
2. Having heard the learned counsel for the parties, at the outset, I find that the present appeal is bereft of any merits. Briefly stated, a lease agreement dated 04.10.2019 was executed between the respondents in the present matter with Mr. Ayan Sarkar, the husband of the appellant with respect to premises in question property bearing No. E-24, First Floor, Amar Colony, Lajpat Nagar-IV, New Delhi-110024, was leased out at a monthly rent of Rs.29,000/- for three years with stipulation to pay increased rent @Rs.30,000/- w.e.f. 01.10.2020 and lastly to be increased to Rs.31,000/- w.e.f. 01.10.2021. It appears that the husband of the appellant fell in arrears and subsequent to issuance of demand notice, a suit for possession was filed by the respondents, which was not contested and resultantly an ex parte decree was passed in favour of the respondents/landlords vide detailed judgment dated 21.02.2023.
3. It appears that the respondents disconnected the supply of electricity to the tenanted premises upon which the appellant made certain inquiries and she pleads that it was only then that she came to know about the ex parte judgment dated 21.02.2023. Thereafter, she filed an application under Order IX Rule 13 CPC, which came to be heard by the learned ADJ and the following order was passed:
"Vide present application, it is submitted on behalf of applicant (who was defendant no.2 in the main suit bearing CS No.418/2022) that summons of the suit were never received by her and that plaintiffs and husband of applicant namely, Sh. Ayan Sarkar (who was defendant no.1 in the main suit) used to restrain people coming to meet the applicant. It is further submitted by applicant that she is living separately from her husband for the last one and half years and various proceedings under D.V. Act and Section 125 Cr.PC are pending between them. It is further submitted that an FIR No.32/2021 U/s 498A/406 IPC, PS Women Cell is also registered against defendant no.1 by her. It is further submitted that the applicant has no alternate accommodation other than the subject property bearing no.E-25, First Floor, Amar Colony, Lajpat Nagar-IV, New Delhi-110024 and has a prima facie case for setting aside ex-parte judgment and decree dated 21.02.2023 passed against her.
The present application under Order IX Rule 13 CPC is strongly opposed on behalf of respondents who submit that judgment and decree date 21.02.2023 was passed on merits by this Court after perusing the material on record and hearing rival submissions of both the parties. It is submitted that defendant no.1 contested the present suit and the applicant/defendant no.2 willfully not joined the proceedings and she was proceeded against ex-parte vide order dated 01.08.2022. It is further submitted that prayer made in the present application under Order IX Rule 13 CPC is contrary to record as the applicant was clearly served by way of ordinary summons as well as registered post which noted that applicant/defendant no.2 knowingly refused to accept the summons of the suit. It is further submitted that plaintiffs themselves, are senior citizens who are dependent on rental income from the suit property. It is argued that no rent is being paid by applicant or her husband since March 2022 and yet she continues to occupy the suit premises causing loss and annoyance to plaintiffs. It is thus, prayed that the present application under Order IX Rule 13 CPC should be dismissed with heavy costs.
Arguments heard. Record perused.
Suffice it to say, Order IX Rule 13 CPC permits the Court to set aside an ex-parte decree against a defendan
