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2018 DIGILAW 373 (RAJ)

Lata Agarwal v. Om Prakash Bagra Brahmin

2018-01-31

INDERJEET SINGH

body2018
JUDGMENT : Inderjeet Singh, J. The instant appeal has been filed by the appellant against the order dated 20.05.2016 passed by the Additional District Judge, No. 1, Jaipur District, whereby the application filed by the appellant under Order 9, Rule 13 read with section 151 CPC was dismissed. 2. Brief facts of the case are that the appellant-defendant No. 6 (hereinafter referred to as 'Appellant') purchased undivided half share of 6.1 Hectares land at village Dayalpura, Tehsil Sanganer, District Jaipur from respondent No. 3 Jagdish through Registered sale deed dated 08.04.2005. The respondents No. 1 & 2 plaintiffs being son and daughter of respondent No. 3 filed a suit for declaration of sale deed as null and void as well as for permanent injunction. 3. The said suit was decreed ex-parte in favour of the plaintiffs by the learned Trial court vide order dated 29.09.2006. 4. The appellant filed an application under Order 9, Rule 13 Read with section 151 CPC before the learned trial court for setting aside the ex-parte judgment and decree dated 29.09.2006 passed by the learned trial court. The appellant has stated that she has purchased the property through registered sale deed dated 08.04.2005. On 28.06.2007 when her husband went to look after her property then respondents No. 1 to 7 were present there and restrained him from entering into the property and informed him that the sale deed has been cancelled by the trial court. Immediately after knowledge of the ex-parte decree on 28.06.2006, the appellant obtained the certified copy of the decree on 13.07.2007 and thereafter filed an application for setting aside the ex-parte decree on 24.07.2007 before the learned trial court on the ground of non service of summons. It was further stated in the application that notice of the suit was never served upon the appellant and along with the application for setting aside the ex-parte decree, an application under Section 5 of the limitation Act was also filed. 5. The respondent No. 2 filed reply and denied the averments of the application filed by the appellant under Order 9, Rule 13 CPC stating therein that the respondent No. 3 (Jagdish) had no right to sell out the land in dispute since it belongs to Joint Hindu Family. 5. The respondent No. 2 filed reply and denied the averments of the application filed by the appellant under Order 9, Rule 13 CPC stating therein that the respondent No. 3 (Jagdish) had no right to sell out the land in dispute since it belongs to Joint Hindu Family. It was also stated that the appellant had knowledge of the ex-parte judgment and decree dated 29.09.2006 through her advocate when the copy of the decree was filed in the Revenue suit pending before S.D.O. Court at Jaipur between both the parties. 6. The learned trial court vide order dated 20.05.2016 dismissed the application filed by the appellant, hence, the present appeal has been filed. 7. Counsel for the appellant submitted that the appellant has purchased the land in dispute through Registered sale deed on 08.04.2005 and a collusive suit has been filed by the son and daughter of the respondent No. 3 on 16.07.2005. Counsel further submits that notice issued by the trial court was never served upon the appellant. Counsel further submits that in the first instance trial court send the notice by Registered post. Counsel also submits that the appellant is residing at D-17 Hojkhas, New Delhi, whereas, according to postal receipt the notices were sent at D-17 Hojarwas, New Delhi. Thus, the service of notice was proper and therefore, appellants was unable to appear in the suit proceedings before the trial court. Counsel further submits that according to section 28 CPC, the notices are required to sent by ordinary post through the district judge, where the appellant is residing. Counsel further submits that the Revenue suit is pending between the parties and her counsel was having knowledge of passing the ex-parte decree and has never informed her about the ex-parte decree passed by a Civil Court. Counsel further submits that NAW-2 (Om Prakash) admitted in his cross examination about the sending of the notice without A.D. receipt. He further submits that Om Prakash has also admitted in his cross examination that on the AD receipt the address of the appellant was mentioned as D-17 Hojarwas New Delhi. In support of his contentions counsel relied upon the judgment passed by the Hon'ble Supreme Court in the matter of M.K. Prasad v. P. Arumogam, reported in AIR 2001 Supreme Court 2497, in which in para 9 has held as under:- "09. In support of his contentions counsel relied upon the judgment passed by the Hon'ble Supreme Court in the matter of M.K. Prasad v. P. Arumogam, reported in AIR 2001 Supreme Court 2497, in which in para 9 has held as under:- "09. In the instant case, the appellant tried to explain the delay in filing the application for setting aside the ex-parte decree as is evident from his application filed under Section 5 of the Limitation Act accompanied by his own affidavit. Even though the appellant appears to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but on his failure to adopt such extra vigilance should have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside the ex-parte decree, the court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. We are of the opinion that the inconvenience caused to the respondent for the delay on account of the appellant being absent from the court in this case can be compensated by awarding appropriate and exemplary costs. In the interests of justice and under the peculiar circumstances of the case we set aside the order impugned and condone the delay in filing the application for setting aside ex-parte decree. To avoid further delay, we have examined the merits of the main application and feel that sufficient grounds exist for setting aside the ex-parte decree as well." 8. The Hon'ble Supreme Court in the matter of the United Commercial Bank v. Bhim Sain Makhija and Another, reported in AIR 1994 Delhi 181, in which in para 11 has held as under:- "11. Even if, for argument's sake, it is assumed that a notice sent simply by registered post and by registered post acknowledgment due was sufficient compliance of sub-section (3) of section 4 read with Rule 4 of the Rules, the petitioner meets its Waterloo on yet another ground. Even a cursory look at the postal receipt by which the notice is purported to have been sent by registered cover would go to show that it does contain complete address of the occupant. Even a cursory look at the postal receipt by which the notice is purported to have been sent by registered cover would go to show that it does contain complete address of the occupant. Though it does contain the name of the tenant but in the column of address what appears is as follows: "Prop. Prince Cafe". Pray, where is that Prince Cafe? It is nowhere mentioned. In fact, the postal address of the so-called Prince Cafe or of the tenant is conspicuous by its absence. This being the position no presumption of service can be raised. The entire edifice raised by the petitioner with regard to the service of notice thus falls to the ground." 9. The Hon'ble Supreme Court in the matter of C.K. Lokesh v. P.E. Panduranga Naidu, reported in (1996) 11 Supreme Court Cases 353, in which para 5 has held as under:- "5. It is contended by Sri Sampath, learned Counsel for the respondent, that the respondent had taken all the steps available under Order S CPC including of effecting service through substitute service under Rule 20A, Order 5 CPC. Therefore, the Court was right in setting the appellant ex parte and passing the ex-parte decree. The learned District Judge after going through the entire material on record came to the above conclusion that the appellant had been served with a notice and, therefore, he was entitled to file the application under Article 123 of the Schedule of Limitation Act, which is 30 days from the date of knowledge. Accordingly, the application came to be filed, though belated by 2015 days. Under these circumstances, the learned District Judge was right in holding that the appellant had filed the application to set aside the ex-parte appeal within 30 days from the date of knowledge. The High Court was clearly in error in interfering with the order passed by the District Judge." 10. Counsel for the respondent supported the judgment passed by the trail court and submitted that the notices were rightly sent by the trial court through Registered post. Counsel further submits that the Revenue suit is pending between the parties and the same counsel on behalf of appellant is appearing before the Revenue court as well as Civil Court, therefore, the appellant was having knowledge of ex-parte decree. Counsel further submits that the service was effected on the address where the appellant is residing. 11. Counsel further submits that the Revenue suit is pending between the parties and the same counsel on behalf of appellant is appearing before the Revenue court as well as Civil Court, therefore, the appellant was having knowledge of ex-parte decree. Counsel further submits that the service was effected on the address where the appellant is residing. 11. Heard counsel for the parties and perused the record. 12. The argument raised by the counsel for the appellant has merit and deserves to be accepted because a bare reading of the document i.e. D-1, the postal receipt clearly shows that the notices were sent at the address D-17 Hojarwas New Delhi, whereas admittedly the appellant is residing at D-17 Hojkhas New Delhi. Even otherwise as per cross examination of AW-2 Om Prakash i.e. witness of respondent No. 1 & 2 (plaintiffs) admitted before the learned trial court that document (Ex.1) has been filed by him and he has further admitted that on the postal receipt, the address of the appellant has been shown as D-17 Hojarwas New Delhi. 13. The trial court, therefore has committed gross error in treating such postal endorsement as the sufficient service on the defendant. The trial court ought to have verified as to whether the proper procedure was followed as contemplated under Order 5 before proceeding ex-parte in the suit more particular in the suit for cancellation of sale deed in respect of the immovable and valuable property. 14. The argument raised by the counsel for the respondent that the advocate of the appellant was having knowledge of the ex-parte decree against the appellant as the same advocate is appearing before revenue court where the litigation is pending between the parties has no merit because the appellant has filed an application for setting aside the ex-parte decree passed by the learned trail curt from the date of her knowledge. Thus, the trail court has wrongly presumed that the advocate of the appellant who appeared before the Revenue court has informed here about the ex-parte decree. 15. Thus, in my opinion as discussed above the service of notice was not effected on the appellant, therefore, the delay in filing the application for setting aside the ex-parte decree under Order 9, Rule 13 deserves to be condoned in view of the judgment passed by the Hon'ble Supreme Court in the matter of C.K. Lokesh (Supra). 16. 15. Thus, in my opinion as discussed above the service of notice was not effected on the appellant, therefore, the delay in filing the application for setting aside the ex-parte decree under Order 9, Rule 13 deserves to be condoned in view of the judgment passed by the Hon'ble Supreme Court in the matter of C.K. Lokesh (Supra). 16. In that view of the matter the appeal filed by the appellant is allowed and the order dated 20.05.2016 is quashed and set aside. The application filed by the appellant under Order 9, Rule 13 CPC is allowed and the ex-parte judgment and decree dated 29.09.2006 passed in Civil Misc. Suit No. 20/05 Om Prakash v. Jagdish is also quashed and set aside. 17. Both the parties are directed to appear before the trial court on 12.03.2018, and the trial court is directed to decide the suit in accordance with law. 18. Record of the court below be send back immediately.