16.01.2025 129 Kulwant Rana ana & Another v. M/s East View iew Apartment Pvt. Ltd. & Anothe ther
Case Details
IN THE HI E HIGH COURT OF PUNJAB AND HA D HARYANA AT CHANDIGARH Page 1 of 13 13 (cid:1) CR-187-2025 (O&M) Date of decision: 16.01.2025 129 Kulwant Rana ana & Another Vs. M/s East View iew Apartment Pvt. Ltd. & Anothe ther ...Petitioner(s) ...Respondent(s) CORAM: HON’BLE MS. JUSTICE NID NIDHI GUPTA Present:- Mr. Amit Kumar Goyal, Adv for the petitioners. Advocate NIDHI GUPTA, PTA, J. *** Present petition under Art of Article 227 of the Constitution of India is filed filed by the defendants seeking ary king exercise of extra ordinary supervisory j ry jurisdiction of this Court for ed for quashing the order dated 29.08.2024 (A (Annexure P/7) passed by the le he e learned ADJ, Sonepat; and the order dated 0 ed 04.11.2023 (Annexure P/5) pas ; passed by Ld. CJ (SD), Sonepat; whereby the the application filed by the petitio for titioners u/O 9 Rule 13 CPC for setting aside ide ex-parte judgment and decree en cree dated 16.08.2016 has been dismissed. It is . It is further prayed that the applica he plication may be allowed; and the ex-parte judgm udgment dated 16.08.16 (Annexure .13 ure P/4) and order dated 26.03.13 (Annexure P/2 P/2) may be set aside. 2. Learned counsel for the p its e petitioners/defendants submits that the prese resent Civil Suit could have been fil tiff n filed by the respondent/plaintiff only against t st the company M/s Saroj Buildw . uildwell & Construction Pvt. Ltd. Village Shahba ahbad Daulatpur, Delhi; and not di ts. directly against the defendants. However, this this aspect of the matter has not be ed t been considered by the learned SUNENA 2025.01.24 17:16 I attest to the accuracy and integrity of this document (cid:1) Courts below low while decreeing the suit of the p
Legal Reasoning
Page 2 of 13 13 (cid:1) ed the plaintiff. It is further submitted that the learn arned Courts below also failed to a he to appreciate that the suit of the plaintiff is tim time barred by limitation on 07.10 me 7.10.2011 as the prescribed time limit to file rec e recovery of any amount is 3 years nd ears from the day of payment and there is no pr o provision to condone the delay er lay in filing any suit. It is further pointed out th ut that the judgment and decree w tiff ee were obtained by the plaintiff vide ex part parte orders. However, the learn to learned Courts below failed to appreciate tha that the petitioners were not serv As served in accordance with law. As such, they w y were unable to join the Court he ourt proceedings. Therefore, the application of n of the petitioner under Order 9 Ru ex 9 Rule 13 CPC for setting aside ex parte judgmen ment and decree, has been wrongly ed ngly dismissed vide the impugned order.For this this reason as well, the ex parte nd arte order dated 26.03.2013 and judgment and and decree dated 16.08.2016 are he are liable to be set aside and the petitioners/de s/defendants are liable to join the ing the Court proceedings after filing written statem atement and leading their evidence he nce and after that the case of the plaintiff is liab liable to be decided. It is submitt ver mitted that the petitioners never came to know know about the ex parte order d he r dated 26.03.2013 or even the judgment and and decree dated 16.08.2016 prior t is rior to the execution petitions. It is accordingly p ly prayed that the impugned ord rt, order be set aside. In support, learned couns ounsel relies upon judgment of t in of the Allahabad High Court in “Dhanush Vir Vir Singh Vs. Dr. Ila Sharma & 3 # 3 Others” Law Finder Doc ID # 2616133. SUNENA 2025.01.24 17:16 I attest to the accuracy and integrity of this document (cid:1) 3. No other argument is raised on behalf of the is Page 3 of 13 13 (cid:1) petitioners. 4. I have heard learned cou counsel for the petitioners and perused the ca e case file in great detail. 5. Brief facts of the case are t are that the plaintiff/respondent No.1 had filed filed a suit for recovery against the the defendants/petitioners and pro-forma res respondent No.2 herein. As per th r the plaint, the defendants had approached t d the plaintiff claiming to be ow owners of the suit land and expressing des desire to sell the suit land for a to a total sale consideration of Rs.2 crore 25 lakh. kh. The said offer was accepted by by the plaintiff; and of the total sale considera deration of Rs.2 crore 25 lakhs, the , the plaintiff paid Rs.50 lakh by way of earnes rnest money of which Rs.10 lakh wa was paid in cash and remaining amount of Rs f Rs.40 lakh was to be paid to the the defendants through cheque No.422373 da dated 01.07.2008 drawn on Ind Indian Bank, New Delhi, Main Branch, New ew Delhi. It was further agreed be d between the parties that the balance sale c le consideration will be paid by th y the plaintiff to the defendants at the time of e of execution and registration of of the Sale Deed. On the same day i.e. 01.07. .07.2008 an agreement to sell was was executed by the defendants after receiving iving the earnest money of Rs.50 la 0 lakh from the plaintiff. As per the terms and and conditions of the agreement, ent, the remaining balance sale consideration tion was to be paid at the time of th of the execution and registration of the sale dee deed, which was fixed for on or bef r before 20.08.2008. SUNENA 2025.01.24 17:16 I attest to the accuracy and integrity of this document (cid:1) 6. Due to non-registration ion of the Sale Deed on the Page 4 of 13 13 (cid:1) stipulated dat date of 20.08.2008, the plaintiff intiff served legal notice dated 28.07.2011 fo 1 for executing the Sale Deed on d on 12.08.2011 and again on 12.08.2011 fo 1 for 17.09.2011. However, the the Sale Deed could not be registered. Th . Thus, the plaintiff filed the pres present suit (Annexure P1) for recovery of of ₹50 lakhs along with interest rest and damages, against the defendants on s on 07.10.2011. 7. Upon notice, the defe defendants failed to put in appearance. . It is the contention of the peti petitioners that they could not appear in the the suit as no notice was served ved upon them in the said Suit. However, the the said contention of the defen efendants is borne out to be patently incor correct as, it has come on record th rd that the defendants were duly served by the the court through summons on 16.1 16.1.2012 and 7.3.2012 through one Yashpal Sharma, PA to the defendants. T . The said Yashpal was working on behalf of of company at the site and he e had closed his identity as an employee of d of defendant No.2. Said Yashpal had further refused to accept the summons. ons. It is only after considering the the report of the process server, that the court ourt vide order dated 13.3.2012 dir directed for substituted service by way of p of publication, which was duly a ly affected. Despite that, the defendant fai t failed to put an appearance bef before the learned trial court. Accordingly, t ly, they were proceeded against inst ex parte vide order dated 26.03.2013 (A 3 (Annexure P2). Subsequently vide vide judgment and decree dated SUNENA 2025.01.24 17:16 I attest to the accuracy and integrity of this document (cid:1) Page 5 of 13 13 (cid:1) 16.08.2016 (A (Annexure P3) on the basis of e of evidence led by the plaintiff- Company, the the suit of the plaintiff was decreed reed ex-parte. 8. It is the case of the defen efendants that it is only during execution pro proceedings that the defendants d ts discovered about the decree dated 16.08.2 08.2016. Accordingly, on 23.01.202 .2023, the defendants had filed the present a nt application under Order 9 Rule ule 7 & 13 CPC (Annexure P4) seeking recall calling of the order dated 26.03.2 .03.2013 (Annexure P2) and for setting aside ide the ex parte judgment and de decree dated 16.08.2016. The plaintiff resist esisted the above said application tion of the defendants by filing reply and rais raising numerous objections includ cluding that the said application had been file filed by the defendants only in in order to avoid paying the decretal amou mount. In disposing of the said aid application, following issues were framed: ed:- “1. Whether the exparte order d er dated 26.3.2013 and exparte judgment and decree dated 16.8. ju 6.8.2016 is liable to be set aside ? OPA on the grounds as prayed for? OPA 2. Whether the applicants were were not duly served with the summons? OPA 3. Whether the application for set r setting aside the exparte order dated 26.3.2013 and exparte ju te judgment and decree dated 16.8.2016 is hopelessly barred by d by limitation? OPR 4. Whether the application ion of the applicant is not maintainable in the present form? orm? OPR 5 Relief.” 9. Vide order dated 04.11 4.11.2023 (Annexure P5), the learned Civil Ju ivil Judge, Senior Division, Sonipat d at dismissed the said application SUNENA 2025.01.24 17:16 I attest to the accuracy and integrity of this document (cid:1) of the defenda endants. The findings of the learned rned Civil Judge, Senior Division, Page 6 of 13 13 (cid:1) Sonipat as con contained in Paras 16 and 17 of th f the order dated 4.11.2023, are important whi which read as under:- “16. Furthermore, in the present sent case the exparte order was passed in the year 2013 and exp d exparte judgment and decree was passed in the year 2016 whe whereas present application for setting aside exparte judgment a ent and decree has been filed in the year 2023 i.e. after delay of ap of approximately 10 years and 7 years from the date of passing of g of the order and the impugned decree. Even a notice was also i lso issued to defendants of the execution petition preferred by t by the plaintiff/respondent and the summons issued in the execu execution petition are placed on record as Ex.R2 to Ex.R4, perusa rusal of which reveals that said summons were duly received by o by one Suresh Rana on behalf of defendants Anita Rana and Kulw Kulwant Rana while stating him as nephew of the defendants. H ts. However, despite service of summons through nephew, non , none appeared on behalf of defendants and later on when th en the notice of sale was issued for 5.1.2023 it was received by sis fo y sister-in-law of the defendants namely Sujata whereupon def defendants appeared in the execution petition and preferred rred the present application to set aside exparte order and nd judgment and decree. The contention of applicant that he w he was never served personally and therefore, the order is liable t ble to be set aside, is not legally sustainable as even till today no y no personal service has been effected upon the defendant ant still the defendants have appeared before the court and m nd moved application for setting aside the impugned order and and decree. Every time the summons are being received on b on behalf of defendants by one SUNENA 2025.01.24 17:16 I attest to the accuracy and integrity of this document (cid:1) Page 7 of 13 13 (cid:1) or other member of the family o ily or employee and the plea of the applicant is not acceptable tha le that they had no knowledge of the suit till filing of the applicati lication. It is also worthwhile to mention here that nothing h g has been pleaded in the application regarding receipt of t of sumons issued in execution petition by nephew of applican plicants Suresh Rana. There is inordinate long delay at the insta instance of applicants in moving application under Order 9 Ru Rule 13 CPC and in such circumstances the applicants s must give a reasonable explanation showing the justifia stifiable cause failing which the expate decree cannot be set as et aside legally. The applicants have failed to show that summon mons were not duly served upon them nor it is their case that there there was sufficient cause which prevented them from appearing aring in court. Therefore, these issues are decided against ap t applicant and in favour of plaintiff/respondent. Issue No.3:- 17. The onus to prove these issues ssues was on the defendants and in view of my findings returned o ed on issues No.1 & 2, the court is of the considered opinion th n that the applicant had the knowledge of the exparte order rder and judgment and decree before the date of knowledge as e as claimed and the application has not been moved within peri period of limitation. Therefore, the application is barred by limit limitation and this issue is also decided in favour of respond pondent/plaintiff and against applicant.” 10. Accordingly, the applicati ication of the defendants was dismissed. SUNENA 2025.01.24 17:16 I attest to the accuracy and integrity of this document (cid:1) 11. Thereafter, the defendan ndants filed an appeal under Page 8 of 13 13 (cid:1) Sections 96 an 6 and 151 CPC against the order d er dated 04.11.2023 before the District Judge dge, Sonepat which also stands d ds dismissed vide order dated 29.08.2024.In In this regard, the relevant ob t observations of the learned Additional Di l District Judge, Sonipat are con contained in Para 12 of the impugned judg judgment and decree dated 29.08.2 .08.2024, which read as follows:- “12. Order IX rule 13 of CPC f CPC provides : 13. Setting aside decree ex e ex parte against defendants-in any case in which a decree cree is passed ex parte against a defendant, he may apply pply to the Court by which the decree was passed for an o an order to set it aside; and if he satisfies the Court that th at the summons was not duly served, or that he was pre prevented by a sufficient cause from appearing when th n the suit was called on for hearing, the Court shall m all make an order setting aside the decree as against him u him upon such terms as to costs, payment into Court or oth r otherwise as it thinks fit, and shall appoint a day for proc proceeding with the suit Provided that where the de e decree is of such a nature that it cannot be aside as aga against such defendant only it may be set aside as again against all or any of the other defendants also. Provided further that no Co no Court shall set aside a decree passed ex parte merely on ly on the ground that there has been an irregularity in the the service of summons, it is satisfied that the defendan ndant had notice of the date of SUNENA 2025.01.24 17:16 I attest to the accuracy and integrity of this document (cid:1) hearing and had sufficient ient time to appear and answer the plaintiff's claim. Page 9 of 13 13 (cid:1) Meaning thereby by invoking or g order IX Rule 13 of CPC ex- parte judgment and decree passe assed against defendants can be set aside upon the satisfaction ction of court that either the summons were not duly served up ed upon the defendant or he was prevented by "sufficient cause" fr e" from appearing when the suit was called for hearing. The provis roviso appended to the aforesaid order IX rule 13 mandates that that no court shall set aside a decree passed ex- parte merely on ely on the grounds of irregularity in the service of summons if it is it is satisfied that the defendant had notice qua the date of hearin earing and had sufficient time to appear and answer the plai plaintiff's claim. Herein, the applicants have developed their c eir case that they did not receive any summon in the suit and fal d false report was procured by respondent/plaintiff company in y in collusion with the process server. Undisputedly, the civil civil suit was instituted on 07.10.2011 and, notices were issu e issued for 23.11.2011, and, on said date, court was on leave, r ve, resultantly, case was again adjourned to 17.01.2012. On On 17.01.2012 notices were received with the report of refusa efusal and as such again notices were ordered to be issued issue for 13.03.2012. On 13.03.2012 notices were received eived with the report of refusal from Yashpal PA: of applicants/de fro ts/defendants, resultantly, court ordered for effecting service by w by way of publication in Punjab
Legal Reasoning
Kesri Newspaper, as such, pu , publication was effected on 26.03.2013 and, due to non appe appearance of defendants, they were proceeded against ex-parte arte. Krishan Kant- AW deposed on oath that on 19.01.2012 he w he was posted as Process Server in Tis Hazari Court, Delhi and, sum , summons Ex.A2 to Ex.A4 were SUNENA 2025.01.24 17:16 I attest to the accuracy and integrity of this document (cid:1) Page 10 of 13 13 (cid:1) assigned to him for effecting servi service, and, for effecting service of the same he went to the the given address where, one Yashspal Sharma who claimed h ed himself to be PA of Kulwant Rana met him, however, after re er reading the summons he told that the addressees have gone ou ne out and only they will receive the summons and he refused to d to sign the same. He admitted his signatures on the report on t on summons. Summons were again issued for 13.03.2012. Lalit Lalit Kumar, Process Server-AW3 deposed on oath that on 07.0 07.03.2012 he was posted as Process Server in District Court ourt Rohini. On that day, Nazir gave him three summons Ex A5 to A5 to Ex. A7 for effecting service and, in compliance thereof, he he went to the given address for effecting service but, the addres dressees were not found there, Yashpal PA to Kulwant Rana refu refused to accept the summons on the pretext that the addressee ssees have gone out, resultantly, he made his report-Ex.A11 to Ex o Ex.A13 on the summons. It is not pleaded and established case case of the applicants that they were not residing at the given ven address. Applicant Kulwant Rana has claimed himself to be o be three times MLA of Delhi Assembly, therefore, there is ever every possibility that some PA of applicant would have been in a in attendance at his residence. AW2 and AW3 i.e. process servers rvers have made attempts to get the service effected on different d ent dates on the correct address and have reported the similar c lar circumstances. Despite their detailed cross-examination neithe either any oblique motive could be attached to them for making king factually wrong report nor their credibility could be assailed ailed. Since, the Process Servers have no motive to make the fa he false report, therefore, their statement on oath cannot be reje rejected outrightly, that too, on the basis of balled assertion of the f the applicants.” SUNENA 2025.01.24 17:16 I attest to the accuracy and integrity of this document (cid:1) 12. It has been contended b ed by learned counsel for the Page 11 of 13 13 (cid:1) petitioners th s that the Civil Suit (Annexure P1 e P1) filed by the plaintiff for recovery of R of Rs.50 lakh could have been filed filed only against the Company and not again gainst the petitioners in their per personal capacity. However, a perusal of the the application filed by the defend fendants under Order 9 Rule 7 & 13 read with ith Section 151 CPC (Annexure P4) P4) on 23.01.2023 reveals that no such objec bjection has been taken by the pe e petitioners/defendants in the said applicatio cation. It is very candidly admitted itted by the learned counsel for the petitioner ners that the said objection has b as been raised on behalf of the defendants fo ts for the first time before this Cour Court. As such, no challenge can be laid to the the impugned orders on the basis sis of pleadings which were not made by the the petitioners before the learned ned Courts below; and the said objection of th of the petitioners cannot be enterta ertained at this belated stage. 13. The objection of the peti petitioners that the publication was made aga against them in Haryana and not not in Delhi is also liable to be rejected as, as, as per AW6-Gurpreet Singh, gh, Clerk, Advertisement Daily Punjab Kesari sari who had deposed that publi ublication was effected in the newspaper on r on 05.03.2013; and in cross-exam xamination he has admitted that publication w n was effected in Panipat edition ion of Punjab Kesari newspaper which is also also circulated in Delhi. As such ch it cannot be held that the defendants we ts were not served and were there refore, not having knowledge of pendency of s of suit. Following Observations of of the learned lower Appellate Court are also also relevant: - SUNENA 2025.01.24 17:16 I attest to the accuracy and integrity of this document (cid:1) Page 12 of 13 13 (cid:1) “15. Looking the case of the app applicants from another angle; notices were also issued to them hem as JDs in execution petition preferred by respondent and the the same are placed on record as exhibited R2 to R4. Perusal of t l of the reports thereupon shows that the same were received by a by a person namely Suresh Rana on behalf of applicant Anita Rana Rana and Kulwant Rana. Despite that, none appeared on their be ir behalf and notices of sale Ex. R7, Ex.R8 and Ex.R6 were issued sued on 05.01.2023 against JDs No.1 to 3/ applicants and JDs n JDs no. 1 to 3/applicants were served through one Sujata wife of ife of Joginder Rana who claimed herself to be sister-in-law of Kulw Kulwant Rana and, it was then that the present application to se to set aside the 'impugned order' and 'impugned judgment and de d decree' is preferred. Thus, in execution petition also, service rvice has not been effected personally. This court fails to und understand that as to how the applicants derived the knowledg ledge of the execution petition without being served personally in ally in execution petition when as per the case set up by them the they could not come to know about the pendency of the suit wh it wherein 'impugned order' and 'impugned judgment and decre ecree' were passed, thus, the entirety of facts shows that the t the applicants despite having knowledge about the pendency o ncy of suit opted not to appear before the court….” 14. Learned counsel for the the petitioners is unable to dispute or c r controvert the above said ev evidence/findings orgive any satisfactory ex ry explanation for the same. SUNENA 2025.01.24 17:16 I attest to the accuracy and integrity of this document (cid:1) 15. Furthermore, the petition itioners can derive no benefit Page 13 of 13 13 (cid:1) from the relie relied upon judgment in case of D Dhanush Vir Singh (supra) as the same is dis is distinguishable on facts and law. 16. 17.
Decision
In view of the above, prese resent petition is dismissed. Pending application(s) if an if any also stand(s) disposed of. 16.01.2025 Sunena (Nidhi Gupta) Judge Whether spea Whether repo peaking/reasoned: eportable: Yes/No Yes/No SUNENA 2025.01.24 17:16 I attest to the accuracy and integrity of this document (cid:1)