J U D G M E N T

NEENA BANSAL KRISHNA, J I.A.16634/2018 (under Section 5 of the Limitation Act on behalf of Defendant No.12/applicant Mr. Kartar Singh for Condonation of Delay in filing application under Order 9 rule 13 read with Section 151 CPC)

1. An application has been filed on behalf of defendant No.12/applicant Mr. Kartar Singh seeking condonation of delay in filing the application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC, 1908”).

2. It is submitted in the application that on coming to know about the Ex-parte judgment and Decree dated 16.01.2009 on 22.09.2018, he immediately contacted his counsel on 22.09.2018 and on his request the Counsel appeared on 24.09.2018 and the matter was adjourned for

06.12.2018.

3. Thereafter, defendant No.12 got his office renovated and packed all his office goods including the summons with applications and documents and shifted it to another premises and was unable to work on account of renovation activity from 30.09.2018 to 27.10.2018. He then handed over the summons with applications and documents to his counsel on 30.10.2018 to prepare the Reply of the application. Consequently, the present application has been filed on behalf of defendant No.12 on or about 19.11.2018 with a delay of about 28 days. It is submitted that the delay was inadvertent and delay in filing the application under Section

151 CPC be condoned.

4. The application is contested by the plaintiff who in its detailed Reply denied all the averments made in the application and asserted that the application is highly misconceived and is liable to be dismissed.

5. For the reasons given in the application for condonation of delay, the delay of 28 days from the date of knowledge of the decree, the application is allowed and the delay is condoned. 6. The application is disposed of accordingly.

I.A.16633/2018 (under Order 9 Rule 13 read with Section 151 CPC on behalf of defendant No.12/applicant Mr. Kartar Singh for Setting Aside the Judgment and Decree dated 16.01.2009)

7. An application dated 16.11.2018 under Order 9 Rule 13 CPC has been filed on behalf of defendant No.12/applicant Shri Kartar Singh for setting aside the ex-parte judgement and decree dated 16.01.2009 passed against him.

8. It is submitted in the application that the plaintiff filed a suit for Recovery of Damages and Injunction in respect of the suit property bearing Plot No.B-9 and B-10, measuring 450 Sq. Yards and was part of Khasra No.2363 and 2364, Village Basai Darapur, known as Saraswati Garden, New Delhi.

9. The plaintiff had made a claim for Recovery of Rs. 24,88,990/- from the defendants jointly and severally and also claimed recovery of Rs.66,500/- per month for enjoying the suit plots. The Permanent Injunction and Mandatory Injunction was also sought to restrain the defendants from creating third party interest and from interfering in the rights of the plaintiff to raise the construction in the suit plots.

10. According to defendant No.12, the summons were directed to be issued on 17.09.1993 to all the defendants, but they could not be served. On 07.02.1994 according to the submissions of the counsel for the plaintiff, only defendant No.12 and 13 remained to be served, even though they had been duly served in the I.A. Therefore, fresh summons were directed to be issued against defendant No.12 and 13 for 28.02.1994.

The summons were also taken dasti by the plaintiff.

11. As per the Order sheet dated 28.02.1994, the defendant No.6, 7, 12 and 13 were recorded to have been served, but none appeared on their behalf and the matter was adjourned for 15.03.1994. Thereafter, as per Order dated 23.05.1994, the matter was listed for 27.07.1994 on which date counsel for the plaintiff appeared, but none appeared for the defendants and the defendant No.7 to 13 were proceeded ex-parte. Subsequently, the suit was decreed in favour of the plaintiff on

16.01.2009.

12. The defendant No.12 has submitted that he was never served with the s