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2025 Supreme(Online)(Del) 5577
IN THE HIGH COURT OF DELHI AT NEW DELHI
Manoj Jain, J
ROHIT CHATURVEDI – Appellant
Versus
RACHNA CHATURVEDI & ORS – Respondent
FAO 390/2019
For the Appellants/Petitioners: Mr. Vivek Bhardwaj
For the Respondents: Mr. Deeptakirti Verma
Failure to demonstrate lack of service of summons is fatal to setting aside an ex-parte decree.
Headnote:(A) Civil Procedure Code, 1908 - Order IX Rule 13 - Setting aside ex-parte decree - Appellant claimed lack of knowledge about proceedings - Court found claims unsupported and observed that failure to challenge counsel’s representation undermined his case. (Paras 30, 31, 36)
(B) Procedural justice - The court emphasized the importance of established procedures and the necessity for concerned parties to actively engage in judicial processes to avoid default judgments. (Paras 16, 21)
Facts of the case:
Appellant was unaware of a civil suit and counter-claim filed against him, claiming no legal representation was authorized.
Findings of Court:
The court held that appellant failed to provide sufficient evidence of non-service of summons and hence, the ex-parte decree stood.
Issues: The main issues were regarding the appellant's knowledge of the suit and validity of counsel's representation.
Ratio Decidendi: The court determined due service was established, and the failure to act against the alleged unauthorized representation weakened the appellant’s position.
Result: Appeal dismissed.
| Table of Content |
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| 1. introduction of civil suit details. (Para 1 , 2) |
HON'BLE MR. JUSTICE MANOJ JAIN J U D G M E N T (oral)
1. A civil suit i.e. CS OS No. 2671/2008 had been filed by Mr. S.K. Chaturvedi before this Court on its original side. It was directed against the following three defendants:-
Mr. Rohit Chaturvedi
Defendant No.1
Ms. Rachna Chaturvedi
Defendant No.2
Dr. A.K. Chaturvedi
Defendant No.3
2. In the abovesaid suit said Ms. Rachna (defendant No2) filed a counter claim which was registered as Counter Claim No. 57/2009 and it was directed against the following three respondents:-
Signature Not Verified FAO 390/2019 1 Digitally Signed
Mr. S K Chaturvedi
Respondent No.1
Mr. Rohit Chaturvedi
Respondent No.2
Dr. A.K. Chaturvedi
Respondent No.3
3. It will be also important to mention here that Mr. S.K. Chaturvedi is father of Rohit Chaturvedi and Ms. Rachna Chaturvedi is estranged wife of Rohit Chaturvedi.
4. With the change in pecuniary jurisdiction, the abovesaid civil suit, as well as counter claim, got transferred to District Court.
5. As far as the civil suit is concerned, it was dismissed-in-default and for non-prosecution on 27.07.2017 but the counter claim was, eventually, decreed on 06.06.2018 in favour of counter-claimant.
6. Such decree was ex-parte in nature.
7. The appellant herein is Mr. Rohit Chaturvedi who is respondent No. 2 in the abovesaid counter claim.
8. According to him, he was never aware about filing of any suit or, for that matter, any such counter-claim and never authorised any counsel to represent him in said suit and counter claim.
9. The appellant, accordingly, moved an application under Order IX Rule 13 CPC which has been dismissed by learned Trial Court on 09.08.2019 and it is against the abovesaid order that the present appeal has been filed.
10. Before appreciating the contentions raised before this Court, it will be appropriate to see the averments made in the application moved under Order IX Rule 13 CPC as well as the relevant provision.
11. In the application, the appellant merely claimed that he had not received any summons of “said case” and had never appeared before the Court or, for that matter, never authorized any Advocate to file any reply on his behalf.
Signature Not Verified FAO 390/2019 2 Digitally Signed
12. According to him, the written statement and the affidavit appearing on record were forged as he never signed any such document and he never authorized Sh. M. Qayam-ud-din, advocate to represent him, either in the abovesaid Civil Suit or in the counter-claim.
13. According to him, he was never aware about any pending proceedings and it was in the abovesaid backdrop that ex-parte decree has been challenged by contending that it was not on merit and was passed without providing any reasonable opportunity of personal hearing to him.
14. According to him, he learnt about the judgment dated 06.06.2018 on 28.03.2019, when the counter-claimant, along with number of persons, visited their flat and tried to dispossess him forcefully.
15. The abovesaid application was resisted by the respondent/counter-
claimant.
16. Learned Trial Court, vide impugned order dated 09.08.2019, dismissed the abovesaid application while observing that counsel of the applicant had already appeared in the main suit and the same counsel, thereafter, started representing him in the counter-claim as well. Since the appellant was defendant in the main suit as well as in the counter-claim, and he was re-represented by the same counsel, the supply of copy of counter- claim to him was due and sufficient service of the counter-claim upon the applicant. It also observed that both the written statements (written statement filed qua the suit and the written statement in response to the counter-claim) were supported with affidavits and such written statements and affidavits contained signatures of the applicant.
17. It was also observed that the applicant had, simply, contended that his signatures appeared to be fake,
