Tarun Kumar v. Ajay Kumar

14. It is further asserted that the time of filing of defendant No. 1/Ajay Kumar’s alleged Written Statement, was an opportune time to non-suit the plaintiffs on account of an application of amendment filed by the defendant Nos. 2 to 4 being I.A. Nos. 4203/1983, 3954/1987 and 4889/1990, whereby the defendants sought to withdraw their admission with respect to plaintiff No. 3 being legally wedded wife of the defendant No. 1 Ajay Kumar, thereby taking away her locus to file the present Suit. The said two Applications could have proven to be fatal to the plaintiffs had the same been allowed. Therefore, in order to ensure that she continues to have locus, the alleged Written Statement dated 02nd January, 1988 came to be filed under the purported signatures of the defendant No. 1Ajay Kumar. The illegal scheme was devised by the plaintiffs in connivance with the counsels and conveniently the application was filed for setting aside the ex parte Order dated 19th May, 1981. This application was to set aside the ex parte Order dated 19th May, 1981 and to take the Written Statement dated 02nd January, 1988 on record to confirm the marriage of the defendant No. 1 Ajay Kumar with the plaintiff No. 3 and for disposal of the aforementioned applications.

15. The defendant No.1/applicant-Ajay Kumar has asserted that on careful and conjoint reading of the Orders w.e.f. 14th January, 1988 till 20th September, 1991 coupled with the plaint would demonstrate that in order to substantiate the plaintiff No. 3’s claim of being married to the defendant NO. 1, the plaintiffs connived with the said Advocate without the knowledge and participation of the defendant No. 1Ajay Kumar by filing an alleged Written Statement dated 02nd January, 1988 under purported signatures of the defendant No.1.

16. It is evident from the various order sheets that the said counsel had been engaged for the limited period and purpose which got fulfilled when these three Application bearing Nos. 4203/1983, 3954/1987 and 4889/1990 of the defendant Nos. 2 to 4 were dismissed vide Order dated 20th September, 1991.

17. Thereafter, from 1991 till 1996, many applications were filed, but none appeared on behalf of the defendant No. 1. It is stated that the said counsel again appeared on behalf of the defendant No. 1/applicant-Ajay Kumar in April, 1996. The plaintiffs filed an Application bearing NO. 9279/1996 under Section XXXIX Rules 1 and 2 seeking restraint against the defendant No. 1 Ajay Kumar from alienating the property at Faridabad. Learned counsel on behalf of the defendant No. 1 accepted the Notice of the application and sought time to file a reply. She deliberately stated that the plaintiffs were in possession of the property and that the defendant No. 1 be directed not to disturb the possession.

18. This was again a carefully knitted scheme devised by the plaintiffs in connivance with the said counsel. It is stated that the said counsel sought time to file her reply only to show the bona fide that she was not hand in glove with the plaintiffs, when a submission was made by her qua the factory land which was claimed by the plaintiffs to be HUF property. However, upon inspection, no reply was found to be on record. Order dated 07th April, 2010 confirms that the defendant No. 1 had filed no response to I.A. No. 9279/1996.

19. It is further asserted that during the pendency of this application, another Application bearing No. 3172/1997 was filed by the plaintiffs seeking confirmation of the restraint Order passed on 24th September, 1996 in I.A. No. 9279/1996.

20. It is stated that the Notice was served to Ms. Anuradha Mahajan, learned counsel, on 04th April, 1997 informing her about listing of the application. The Submissions made by Ms. Anuradha Mahajan have been recorded in the Order dated 24th September, 1996 which again fulfilled the ulterior motive of the plaintiffs to give false impression to the prospective buyer in order to facilitate sale of the property in Faridabad at a market price, although the plaintiffs were not in possession.

21. It is further submitted that pursuant to the Order dated 24th September, 1996, the plaintiffs have sold the HUF property to the deterrence of the defendant No. 1Ajay Kumar. While he was restrained from dealing with the properties, but at the same time, it did not entitle the plaintiffs to sell the land in question without leave of the Court on the doctrine of lis pendens. It is evident that there is a conspiracy which has been hatched by the plaintiffs in connivance with the counsels.

22. The defendant No. 1 has further explained that he was proceeded again ex parte on 30th April, 2010. It is asserted that though no counsel appeared on behalf of the defendant No. 1 in 1996 and 1997, yet in the Order dated 30th April, 2010, it has been observed that no counsel has appeared for the defendant No. 1/applicant-Ajay Kumar since 1989 assuming without admitting that Mrs. Swarana Mahajan and Ms. Anuradha Mahajan have appeared only after 1989.

23. The defendant No. 1 has further asserted that Ms. Nina Dayal, sister-in-law of the plaintiff No. 3, informed defendant No. 1 during his visit around 2014-16 about settlement and sale of properties of the defendant No. 1/applicant-Ajay Kumar by the plaintiffs. He found that the plaintiff NO. 3 had connived with her younger brother and forged a Will of Late Smt. Chandra Dayal, plaintiff No. 3’s mother and Late Shri Yogeshwar Dayal plaintiff No. 3’s father. He was further informed that some bank had handed over the Title documents of some of his properties to the plaintiff No. 3. He also heard from his relative about instances where the plaintiff No. 3 had lied under oath before the Courts. Ms. Nina Dayal also informed him that she had learnt from the relatives of her husband that the plaintiffs have received huge amounts by way of compromise from the sale of HUF properties on the basis of sham and forged documents. The fact about Settlement was only confirmed after receiving the digitized copy of the present Suit and the defendant No. 1/applicant-Ajay Kumar reserves his right to file an appropriate application.

24. It is further asserted that upon the limited information received from Ms. Nina Dayal, the defendant No. 1 had filed a complaint for registration of an FIR as his signatures were forged on the General Power of Attorney, for disposing of the property being Factory at 12/1, Mathura Road, Faridabad. The police officials failed to discharge their duty by not registering the complaint. The defendant No. 1 was compelled to file a complaint under Section 156(3) of the Code of Criminal Procedure, 1973, but the same has been dismissed for non-prosecution. The defendant No. 1 has not been able to pursue his case due to paucity of funds and his medical condition.

25. It is further claimed that on 14th August, 2002, this Court directed the Registry to produce all the case files on multiple occasions, but the Order was not complied with and inquiry and disciplinary proceedings were initiated against the concerned officers as the files were untraceable for two years. On 10th December, 2004, the Court was informed that the captioned case file had inadvertently being sent to Karkardooma Courts as decided case and since was returned to the High Court. The mysterious disappearance of files has been given a colour of genuine mistake.

26. It has been claimed by the defendant No. 1 that the summons of the Suit has been sent at incorrect address and he was never served in this case. He had never engaged Mrs. Swarana Mahajan and Associates and no vakalatnama was ever signed by him. Moreover, the defendant No. 1 neither filed the Application bearing No. I.A. 331/1988 nor had he filed any Written Statement dated 02nd

27. It is, therefore, submitted that Order dated 19th May, 1981 and subsequent Order dated 30th April, 2010 vide which the defendant No. 1 has been proceeded ex parte be set aside and he may be permitted to join the proceedings and to file his Written Statement by striking out the alleged Written Statement dated 02nd

28. No formal reply has been filed on behalf of the plaintiffs.

29. Submissions heard.

30. The plaintiffs who are the son, daughter and wife respectively of the defendant No.1 Ajay Kumar had filed a suit for Partition, Declaration and Rendition of Accounts against defendant No.1 and other defendants who are the family members/ subsequent purchasers of the subject properties. The defendant No.1 was directed to be served through ordinary process but was not found available. Eventually, vide Order dated 10th March, 1981, service was directed to be effected through publication, which was carried out in the newspaper ‘Statesman’ Dated 16th April, 1981. Despite service by publication, none appeared on behalf of defendant No.1, who was proceeded ex parte on 19th May, 1981.

31. The Defendant No.1 has assailed the service on the ground that to the knowledge of the plaintiffs, he was not residing at the Jalandhar address at which the summons were sent, but had shifted to Nepal on account of financial exigencies. Moreover, the newspaper ‘Statesman’ in which publication was issued does not have circulation in Nepal.

32. It may be observed that it is a suit for Partition filed by the wife and children against their father and other family members. According to defendant No.1 himself, his daughter/ plaintiff No.2 had come to live with him in Nepal when this case was filed and subsequently plaintiff No.3, the wife had taken the custody of the daughter from him. His own submissions show that there was matrimonial litigation ongoing between the parties and the custody of the child was taken from the defendant No.1 by the plaintiff No.3, during the pendency of this suit. It is difficult to accept that while there was other ongoing litigation between the parties, the defendant No.1 would not have had any knowledge about the present suit.

33. It is pertinent to observe that Order V of CPC, 1908 provides for service of the parties. It provides for various modes of service and ultimately states that in case the defendant cannot be served by regular mode, then the service may be effected by way of publication. In the present case, as per the submissions of the defendant No.1 himself, he was not residing at Jalandhar or at the available address of Nepal with the plaintiffs and, therefore, the service was directed to be effected through publication in the newspaper ‘Statesman’. Even if it is accepted that defendant No.1 was not effectively served through publication, it cannot be overlooked, as already observed above, there was other matrimonial litigation between the parties and the defendant No.1 would have gained knowledge about this suit even otherwise. Any defect in the mode of service cannot be fatal or a deterrent for a party to appear in the Court on coming to know about the pendency of the suit, as has happened in the present case. Defendant No.1 may not have been served as per law by publication, but the fact remains that in the year 1988, he had filed an application under Order IX Rule 7 CPC which was allowed and the Written Statement filed on behalf of defendant No.1 consequent thereto, was taken on record.

34. The defendant No.1 has denied that the application Order IX Rule 7 CPC or on the Written Statement were ever signed by him and has claimed that the plaintiffs pursuant to a conspiracy, got it filed through the counsel engaged by her on his behalf. Significantly defendant no.1 does not assert that the signatures on the application under Order IX Rule 7 CPC or on the written statement are forged or fabricated but has obliquely stated that the signatures are similar to his, though he had never signed the Application or the Written Statement. Again, it may be noted that the Application under Order IX Rule 7 CPC is supported with an affidavit of defendant No.1 which is duly Notarized. Similarly, Written Statement has been filed under the signatures of defendant No.1. Had the signatures been forged or not genuine, the defendant No.1 would have made a definite assertion which he has not done and merely stated that the signatures are similar to his. The averments contained either in the Application or in the Written Statement of defendant No.1 do not reflect any kind of collusiveness or admission of the case of the plaintiffs. There is nothing to suggest that the application and the Written Statement which bear the signatures of defendant No.1 were not filed by and on behalf of defendant No.1. His plea that the documents/ Written Statement do not bear his signatures is, on the face of it, not maintainable. It is only a plea taken to avoid and overcome his appearance and participation in the suit way back in the year 1988.

35. The other plea taken by defendant no.1 is that he had never engaged Mrs. Swaran Mahajan & Associates and Advocate Ms. Anuradha Mahajan who had appeared on behalf of defendant No.1 in the Court was never authorized by him. It is claimed that plaintiffs pursuant to a conspiracy, had engaged Mrs. Swaran Mahajan & Associates on behalf of defendant no.1.This is confirmed by the fact that there is no vakalatnama executed in favour of the Company or the lawyer, on record. Further, Mrs. Swaran Mahajan and Associates has a chamber close the chamber of the counsel for the plaintiffs on the same floor and in fact they were the counsels for plaintiff No.3 and had connived to file the application/ written statement on behalf of defendant No.1. It was argued that Ms. Anuradha Mahajan had appeared in connivance with the plaintiffs to help the plaintiffs against defendant No.1.

36. This argument is also not tenable for the simple reason that merely because the Chambers of the two advocates are in the vicinity or are in the same building, would not give rise to any inference of there being any connivance between the two counsels. Rather, the tone and tenure of the Written Statement and the subsequent conduct reflects that defendant No.1 had engaged an Advocate who had appeared on his behalf and had placed on record the Written Statement containing his defence.

37. The vakalatnama executed in favour of Swaran Majahan and Associates may not be available on record, but it cannot be over looked that this was a suit that got filed in the year 1980. It is also a matter of record that this file had inadvertently been consigned to record room at Karkardooma taking it to be a decided matter and the entire file was not traceable for about two years. It is also a matter of record that eleven parts of the file were not traceable but were retrieved from the record room at Karkardooma. It being an old record, the non-traceability of the vakalatnama cannot be a ground to hold that defendant No.1 had never engaged Swaran Mahajan & Associates as a counsel. This is more so when both, the Application under Order IX Rule 7 CPC and the Written Statement, of defendant No.1 bear the signatures of defendant No.1 himself and the affidavits supporting the application Order IX rule 7 CPC is duly attested by the Notary. The claim of defendant No.1 that no application for setting aside the ex parte Oder had been filed by him in the year 1988 is not tenable. It is brought forth from the record that he had appeared in 1988 and had participated in the proceedings.

38. The record further shows that after the filing of written statement there was minimalistic representation of defendant No.1. During the proceedings, one application I.A.4887/1990 under Section 66 of Indian Evidence Act dated 02nd July, 1990 got filed on behalf of the plaintiffs to which the reply had been filed on behalf of the defendant No.1. Significantly, the reply does not bear the signatures of defendant No.1 and has been submitted under the signatures of the learned counsel. Eventually, the defendant No.1 has been again proceeded ex parte on 30th April, 2010 after which the present application under Order IX Rule 7 CPC has been filed.

39. Another significant aspect is that the defendant No.1 himself has stated that in the year 2014-16 during his visit to India, he was informed about settlement and sale of his properties by the plaintiffs. He also came to know that plaintiff No.3 in connivance with her younger brother had forged a Will of Late Smt. Chandra Dayal and Sh. Yogeshwar Dayal, mother and father of plaintiff No.3. He was also informed that some bank had handed over the title documents of some of the properties of defendant No.1 to plaintiff No.3. He also heard that she had lied under Oath before the Courts. He was further informed that plaintiffs have received huge amounts by way of compromise from the sale of the properties.

40. On this limited information received by him, he had filed a complaint for registration of an FIR as his signatures were forged on the General Power of Attorney for disposing of the property being a Factory at 12/1, Mathura Road, Faridabad, Haryana. No FIR was registered and he was compelled to file an application under Section 156(3) of Cr.P.C, but the same was also dismissed for non-prosecution.

41. These submissions of defendant No.1 further demonstrate that between the year 2014-16 he was in India and had come to know that various properties allegedly belonging to defendant No.1 were being sold by plaintiff No.1. Again, it is evident from the submissions of defendant No.1 himself that he was aware of his properties been sold under a compromise. One such property was of Faridabad which was a subject matter of this suit. Conveniently, while he was aware of his property being sold his assertions that he was not aware of the present suit, is clearly an afterthought. He chose to take recourse to criminal machinery by making a complaint on his signatures being allegedly forged on a General Power of Attorney by virtue of which the Faridabad property was sold but as a matter of choice, he did not take any effective steps for his participation in the present suit. It is borne out from the submissions made by defendant No.1 himself in his application that throughout he was aware of the pendency of the suit, but either by choice or because of his compelling circumstances; he chose not to pursue this litigation diligently. There is nothing on record to show nor is there any circumstance from where it can be inferred that defendant No.1 was not aware of the pending suit or had not filed his earlier application under Order IX Rule 7 CPC in 1988 for setting aside the ex parte Order of 1981 against him.

42. Having held that the defendant No.1 had duly put in his appearance in the year 1988 after the ex parte Order dated 19th May, 1981 was set aside and was again proceeded ex parte in 2010 about which he had the knowledge even in 2014-15. The present application under Order IX Rule 7 dated 29th August, 2022 for setting aside the ex parte Order of 2010 could have been filed within three years of having been proceeded ex parte. However, the application is not supported by any application for condonation of delay and the present application under Order IX Rule 7 CPC dated 29th August, 2022 is clearly barred by limitation.

43. In the light of aforesaid discussion, the ex parte Order of 1981 or of 2010 is not liable to be set aside. It may, however, be noted that according to Order IX Rule 7 CPC any defendant is at liberty to join proceedings at any subsequent stage as the only consequence of the ex parte Order being not set aside is that the proceedings which have taken place in the interregnum cannot be set aside. The present suit is at the stage of defendant’s evidence. The written statement of defendant No.1 is already on record. He is at liberty to now join the proceedings and also lead his evidence.

44. The application under Order IX Rule 7 CPC is hereby dismissed.

45. List this matter before the learned Joint Registrar for completion of evidence of the defendant on 24th January, 2023.

JUDGE NOVEMBER 09, 2022 S.Sharma