Rakesh Nagpal v. Usha Rani

1. The prayer clause in this petition, under Article 227 of the Constitution of India, reads as under: “It is therefore most respectfully prayed that this Hon'ble Court may kindly be pleased to:a. Allow the instant Petition preferred under Article 227 of the Indian Constitution; b. Set aside the impugned orders dated 16.04.2022 titled "Rakesh Nagpal v. Usha Rani" bearing CS NO. 55588/2016 passed by the Ld. Additional District Judge, Patiala House Courts, New Delhi; c. Pass any other and/or further order(s) in favour of the Petitioner, which this Hon'ble Court may deem fit and proper in the interest of Justice and fair play.”

2. The petitioner and the respondents were the plaintiff and the defendant respectively, before the learned Additional District Judge (“the learned ADJ”) in CS 55588/2016 (Rakesh Nagpal v. Usha 2022:DHC:3085 Rani) in which the impugned order has come to be passed.

3. The impugned order dated 16th April 2022 allows an application by the respondent, preferred under Order IX Rule 7 of the Code of Civil Procedure, 1908 (CPC) read with Section 151 thereof. By the said application, the respondent sought setting aside of an order dated 14th December 2016, in which she was proceeded ex parte by the learned ADJ.

4. On the application under Order IX Rule 7, the impugned order dated 16th April 2022 notes that (i) summons of the suit, for 29th November, 2016, were effected on the Respondent 1 through her grandson Tarun Malhotra as Respondent 1 was absent at the premises on the alleged date of service (ii) Tarun Malhotra was a minor, as per his birth certificate, which reflected his date of birth as 28th May, 1999, (iii) service on Tarun Malhotra, therefore, could not constitute valid service of the suit, in view of Order V Rule 15 of CPC[1], and (iv) as such, Respondent 1 could not be treated as having been validly served for 14th December, 2016, when she was proceeded ex-parte.

5. The learned ADJ has also noted that, prior thereto, summons, returnable on 23rd February, 2016 had also been issued to Respondent Order V - Issue and service of summons

15. Where service may be on an adult member of defendant’s family.- Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. Explanation: A Servant is not a member of his family within the meaning of this rule. 1, which were returned unserved with the endorsement that Respondent 1 had left the premises, at the address provided by the petitioner in the suit. The petitioner was, therefore, requested to furnish a fresh address. Instead of doing so, he moved an application dated 12th May, 2016, stating that Respondent 1 was still residing at the same address and, therefore, praying that fresh summons be issued at the said address. Acceding to this prayer, fresh summons were again issued to Respondent 1 at the address provided in the suit, whereupon, as already noted, summons were served on the grandson of the respondent.

6. In these circumstances, the learned ADJ has held that the Respondent 1 could not be treated as having been duly served for 14th December, 2016. He has, therefore, allowed the application of the Respondent 1 under Order IX Rule 7 of the CPC subject to costs to be paid by Respondent 1 to the petitioner.

7. Ms. Indu Kaul, learned Counsel for the petitioner, initially sought to question the correctness of the finding that Tarun Malhotra, on whom summons were served on 29th November, 2016 was a minor. She sought to submit that the date of birth certificate, on which the learned ADJ had placed reliance, was not a reliable document, insofar as the date of birth of Tarun Malhotra was concerned.

8. In exercise of the jurisdiction vested in this Court by Article 227 of the Constitution of India, it is not permissible for this Court to reappraise the evidence or to enter, therefore, into the correctness of the date of birth certificate on which the learned ADJ placed reliance. Nonetheless, to satisfy my conscience, I have examined the date of birth certificate, which was issued by Jeevan Nursing Home & Hospital, 2-B, Pusa Road, New Delhi-110 005, and has been placed on record by the petitioner, with the petition. It reads as under: “JEEVAN NURSING HOME & HOSPITAL 2-B, Pusa Road, New Delhi-110 005 This is to certify that according to records on the file in this office Jeevan Nursing Home, a male Child was born on 28-5-1999 at 4:15 p.m. to Mrs. Seema Malhotra, w/o Mr. Joginder Kumar Malhtora resident of 3202, Gali Dispensary, Paharganj, New Delhi. Report of birth recorded with Delhi Municipal Corporation, Karol Bagh, Area New Delhi on. Birth weight of this child..................... Sd/- Medical Superintendent Jeevan Nursing Home & Hospital, New Delhi”

9. Ms. Indu Kaul’s submission is that the date of birth certificate does not reflect the name of Tarun Malhotra. It is a well-known fact that certificates of date of birth, which are issued by the hospital where infants are born do not reflect the name of the infant as the name is rarely assigned to the infants at that point of time. They invariably reflect the name of the mother and the sex of the child.

10. It does not appear anywhere from the record that the petitioner sought to contend, before the learned ADJ, that the birth certificate in question did not pertain to Tarun Malhotra or that Seema Malhotra, (the mother of the child, as reflected in the said birth certificate) gave birth to some other child on 28th May, 1999. This, therefore, appears merely to be an argument of desperation.

11. Ms. Kaul has also sought to highlight the inequity that her client is suffering as a result of not being able to secure possession of the premises owned by him. She submits that her client is residing in Singapore and that he is unable to come to India as he has no place to stay. She has sought to emphasize the fact that the respondents have – as she would submit – been abusing the legal process before the learned ADJ and have been delaying the matter on one pretext or another, thereby frustrating the attempt of her client to secure possession of his premises.

12. She also sought to submit that, if such practices were permitted, persons such as her client would lose faith in the judicial process. Ms. Indu Kaul, therefore, submits that, even if this Court were not inclined to interfere with the impugned order, the Court should fix a time frame within which the learned ADJ should be directed to complete the proceedings pending before him.

13. Insofar as the scope of interference by this Court under Article 227 of the Constitution of India is concerned, one needs to refer only to the following passage from Sadhana Lodh v. National Insurance Co. Ltd.2, “7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined (2003) 3 SSC 524 only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision.”

14. This Court, exercising Article 227 of the Constitution of India, does not sit in appeal or even in judicial review over the decision of the Courts below. The jurisdiction conferred by Article 227 of the Constitution of India is superintending in nature. Alternatively, it may be said that the Court exercises supervisory jurisdiction. It is only, therefore, where the Court below acts in a manner which calls for correction in its supervisory jurisdiction, that Article 227 can legitimately be invoked.