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HIGH COURT OF DELHI
FAO 64/2022 & CM APPL. 12795/2022 (stay)
H.P. SINGH (HARVINDER PAL SINGH) ..... Appellant
Through: Mr. Sanchit Garga, Mr. Madhav Anand and Mr. Nikunj Jain, Advocates
Through: Mr. Amardeep Maini, Advocate for respondent Nos.1, 2 and 4
JUDGMENT
1. The present appeal has been filed by the appellant under Order 43 Rule (1)(D) CPC assailing order dated 08.11.2021 passed by learned ADJ-02, South District, Saket Courts, New Delhi in CS No. 6579/2016, whereby his application under Order 9 Rule 13 CPC seeking setting aside of order/decree dated 31.10.2017 was dismissed.
2. The facts of the case are that the original plaintiffs (respondent Nos.[1] and 2) had filed a suit seeking inter-alia partition of property bearing No.JF-1/49, First Floor, Gupta Colony, Khirki Extension, Malviya Nagar, New Delhi-17 (hereinafter, the ‘suit property’). Vide order dated 24.08.2011, the appellant was proceeded against in the suit ex-parte and the final decree came to be passed by the Trial Court on 31.10.2017, wherein it was held that since the suit property is indivisible by metes and bounds, the same should be sold by means of auction. The appellant filed an application under Order 9 Rule 13 CPC on the ground that he could not appear in the suit as he was never served the summons. It was claimed that he came to know about the decree only when summons of the execution petition were received by him. The appellant’s application was dismissed vide impugned order dated 08.11.2021. Aggrieved by the dismissal of his application, the appellant has filed the present appeal.
3. Learned counsel for the appellant has submitted that while passing the impugned order, the Trial Court failed to appreciate that the appellant came to know about passing of the decree only on 05.08.2019, when he received summons in the execution petition filed by the respondent(s). It has further been submitted that after becoming aware of the passing of the decree, the appellant immediately took steps and filed an application under Order 9 Rule 13 CPC for setting aside of the same.
4. The appeal is vehemently resisted by learned counsel for respondent(s), who has supported the impugned order.
5. I have heard the learned counsels for the parties and perused the digitized records of the Trial Court.
6. A perusal of the records reveals that respondent Nos.[1] and 2 had preferred a Civil Suit No. 233/2016 (old number) and 206579/2016 (new number) seeking partition of the suit property on the basis of a Will dated 16.11.2000 executed by Late Sh. Gyan Singh. Besides other ancillary reliefs, respondent Nos. 1 and 2 had sought possession to the extent of 2/3rd share, with 1/3rd share going to the present appellant.
7. The short question which arises for consideration before this Court is whether the appellant has been able to make out a case of “sufficient cause” for non-appearance, as required in terms of Order 9 Rule 13 CPC.
8. Insofar as the scope of an application under Order 9 Rule 13 CPC is concerned, it is now well-settled that the Court has to see whether the summons in the suit were duly served or not and/or whether the defendant was prevented by any “sufficient cause” from appearing when the suit was called for hearing.
9. “Sufficient cause” is an elastic expression and no hard and fast guidelines are prescribed to define it. Although the Court has wide discretion in interpreting the words “sufficient cause”, the same has to be exercised according to the particular facts and circumstances of the case.
10. At this stage, reference may profitably be made to Sudarshan Sareen v. National Small Industries Corporation Ltd. and Anr. reported as 2013 SCC OnLine Del 4412, where a Division Bench of this Court held the appellant therein to have been willfully negligent in not appearing and rejected his prayer for setting aside dismissal of his application under Order 9 Rule 13 CPC. The Court relied on a passage from Parimal v. Veena alias Bharti reported as (2011) 3 SCC 545, where the expression “sufficient cause” was interpreted as under:
15. While deciding whether there is sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. (Vide State of Bihar v. Kameshwar Prasad Singh, Madanlal v. Shyamlal, Davinder Pal Sehgal v. Partap Steel Rolling Mills (P) Ltd., Ram Nath Sao v. Gobardhan Sao, Kaushalya Devi v. Prem Chand, Srei International Finance Ltd. v. Fairgrowth Financial Services Ltd. and Reena Sadh v. Anjana Enterprises.)
16. In order to determine the application under Order 9 Rule 13 CPC, the test that has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defense. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straitjacket formula of universal application.”
11. It would be apposite to also advert to A. Murugesan v. Jamuna Rani reported as (2019) 20 SCC 803. In the said case, the Supreme Court affirmed its earlier view taken in G.P. Srivastava v. R.K. Raizada and Others reported as (2000) 3 SCC 54, which is reproduced hereunder:
12. From a reading of the material placed on record in the present case, it appears that on filing of the suit, summons were issued to the appellant by registered covers. On two occasions when the summons were sent to the appellant’s address, his wife refused to accept the service. Apparently, the appellant was sought to be served at various other addresses, including his office place i.e. Indira Gandhi International Airport, Terminal 1, New Delhi, but to no avail.
13. It is borne out that respondent No.2 had also initiated proceedings under Section 156(3) Cr.P.C. against the appellant stating that he had misappropriated articles belonging to her, her brothers and her sister-inlaw, in respect of which a complaint had been made to the concerned SHO and DCP, but no action had been taken. The same had led to registration of Complaint Case No. 179/1/09 P.S. Malviya Nagar. The impugned order notes that during cross-examination on behalf of the respondent(s) in the said case on 18.05.2016 and 26.09.2016, the appellant had shown knowledge of the pendency of the aforementioned civil suit. From the cross-examination of respondent No.1 conducted by learned counsel for the appellant on 15.02.2018, the appellant’s knowledge of pendency of the civil proceedings is again evident. As if this was not enough, learned Magistrate in Complaint Case No. 474493/2016, P.S. Malviya Nagar had passed an order thereby summoning the appellant and his wife under Sections 420/34 IPC. In the said order, the underlying suit number was also mentioned.
14. It is clear from the above that the application filed by the appellant under Order 9 Rule 13 CPC on 27.09.2019, and his averment that he gained knowledge of the ex-parte proceedings as well as the decree only on 05.08.2019, is false and an afterthought.
15. In the considered opinion of this Court, the appellant has failed to show any “sufficient cause” for his absence before the Court. The application filed by the appellant under Order 9 Rule 13 CPC is hopelessly time barred and the defense taken by him merely an afterthought.
16. Accordingly, this Court finds no reason to interfere with the impugned order. The appeal is dismissed. Pending application stands disposed of.
JUDGE MARCH 10, 2023