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IN THE HIGH COURT OF DELHI AT NEW DELHI

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FAO (OS) (COMM) 51/2020

1. M/S. MAINI SCAFFOLD SYSTEMS

Having its office at

B-1/A-21, Ground Floor,

Mohan Cooperative Estate,

New Delhi – 110044.

2. Mr. Ajay Maini,

Managing Partner, M/s. Maini Scaffold Systems

Having its office at

B-1/A-21, Ground Floor,

Mohan Cooperative Estate,

New Delhi – 110044.

..... Appellants

Through :

Mr. Rohit Kumar Yadav, Mr. Gaurav

Sarkar and Mr. Ankit Rao, Advs.

versus

1. Mr. S. K JAIN

Proprietor-Padmawati Metals

902/290, Gali No. 9,

Shalimar Industrial Area

New Delhi-110088.

2. Mr. Pramod Maini,

S/o. Sh. P.L. Maini,

R/o. Plot No. 23,

Sector-29, Faridabad,

Haryana.

..... Respondents

Through :

Mr. S.S.Lingwal, Adv. for R-1.

Mr. Suchakshu Jain, Adv. for R-2.

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001721

CORAM:

HON'BLE MR JUSTICE RAJIV SHAKDHER

HON'BLE MS JUSTICE POONAM A. BAMBA

[Physical Hearing/Hybrid Hearing (as per request)]

POONAM A BAMBA, J.

1.0

The instant appeal has been preferred by the appellants under Section

104 of the Code of Civil Procedure, 1908 (“CPC”) read with Order

XLIII rule 1(d) and Section 151 of the CPC against the order dated

21.01.2019 passed by the Ld. Single Judge in I.A. no.2086-2087 of

2018 in CS(OS) No.2222 of 2013 (“impugned order” in short). Vide

impugned order, the Ld. Single Judge had dismissed the application

filed by the appellants and the respondent no. 2 herein under Order IX

rule 13 CPC for setting aside the ex-parte judgment/decree dated

15.01.2015 passed against them in CS(OS) no.2222 of 2013.

2.0

Let me briefly mention the factual backdrop in which the present

appeal came to be filed:

i.

Mr. S.K Jain, the respondent no. 1 herein had filed a suit

bearing no. CS(OS) No. 2222/2013 for recovery of Rs

25,00,000/- along with pendente lite and future interest etc.

against the appellant no. 1, the partnership firm and its partners

i.e. the appellant no. 2 and the respondent no. 2 herein;

ii.

summons vide order dated 18.11.2013, were issued to the

defendants i.e. the appellants and the respondent no. 2 herein,

through all modes i.e. through ordinary course, registered post,

speed post and through approved courier, returnable on

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001721

13.02.2014;

iii.

On the next date of hearing i.e. 13.02.2014, the Joint Registrar

has inter alia recorded about the summons as under :

unserved with the report that defendants have left the

given address. However, summons sent by Registered

Cover have been served as per the tracking report of the

India post.

Summons have also been served on defendant no. 3 by

courier.

Ld. Counsel for plaintiff has filed the tracking reports. In

view of the tracking report of India post, I deem it to be

an appropriate service on the defendants. Defendants

FEBRUARY 13, 2014”

iv.

as neither anyone appeared on behalf of the defendants i.e.

appellants and the respondent no. 2 herein nor did they file

written statement, the Learned Single Judge vide order dated

15.01.2015 passed a decree in favour of the plaintiff i.e.

respondent no. 1 herein observing inter alia as under:

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001721

report of the postal department. None has appeared for

the defendant nor has a written statement been filed.

Accordingly, in view of order 8 Rule 10 CPC, I

pass a decree in favour of the plaintiff for a sum of Rs.

JANUARY 15, 2015”

v.

against the aforesaid order dated 15.01.2015, the appellants and the

respondent no. 2 herein, filed an application under Order IX rule 13

CPC bearing I.A No. 2086/2018 in CS(OS) No. 2222/2013, for setting

aside of the said order/decree dated 15.01.2015; The said application

was dismissed by Learned Single Judge vide order dated

21.01.2019 i.e. the impugned order for the reasons recorded therein;

vi.

It is against this order of