MOHD AIJAZ & ORS  Vs NASIR USMAN & ORS -Judgment by Delhi High Court

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 28th November, 2023
% Pronounced on:10th January, 2024

+ CS(OS)1092/2011 & I.As. 5780/2017, 17868/2023

MOHD. AIJAZ & ORS. ….. Plaintiffs
Through: Mr. M.A. Inayati & Mr. Shoaib Khan, Advocates.
Versus
NASIR USMAN & ORS. ….. Defendants
Through: Mr. Brijendra Pratap Singh, Advocate for D-10, 12, 13 & 14.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T
NEENA BANSAL KRISHNA, J.
I.A.3525/2017 (under Order IX Rule 13 read with Section 151 CPC on behalf of Defendants No.16 to 19 for Setting Aside Ex-parte Preliminary Decree dated 14.12.20216)
1. An application has been filed on behalf of defendant No.16 to 19 for setting aside ex-parte Preliminary Decree dated 14.12.2016.
2. It is submitted in the application that defendant No.15 to 19 are co-sharers in the suit properties. They were never served with the summons of the suit and therefore, had no knowledge about the filing of the present suit. Defendant No.15 expired in February, 2013. She along with her sons i.e. defendant No.16 to 18 during her life time were residing at property bearing No.745, Gali Saudagaran, Balimaran, Delhi and after her demise her sons defendant No.16 to 18 have continued to reside therein. Her daughter/defendant No.19 got married in 1999 and is residing since then at 1397, Churiwalan, Delhi-6.
3. The defendant No.18 incidentally met Mohd. Mateen, a common friend of plaintiffs and the said defendant on 22.12.2016, and during the conversation he has come to know that partition of the properties of the parties in the present case has been settled through Court. On further query, defendant No.18 learnt that Mohd. Mateen was informed about these facts by Mohd. Aijaz (plaintiff No. 1).
4. Immediately thereafter, defendant No.18 contacted his counsel and gave a vakalatnama in his favour. The inspection of the Court record was carried out by the Counsel on 24.12.2016 when he came to know that the summons had been issued on 06.05.2011, but as per the Report, defendant No.15 to 19 were not found available as told by the servant.
5. Fresh summons were again issued on 08.07.2011 wherein the Process Server gave the Report that he met one Anjum who refused to accept the summons for defendant No.15, however, she accepted the summons for defendant Nos.16 and 17. Anjum had no knowledge about defendant Nos. 18 and 19.
6. It is asserted by the applicant defendants that it is apparent from the Reports that no summons had been served to the defendant Nos. 15 to 19 and the report has been manipulated by the plaintiffs. Though the Process Server mentions in the report that the plaintiff had accompanied him for dasti service of the summons, but it is not mentioned which of the plaintiff out of the ten plaintiffs had accompanied the Process Server and identified defendant No.15 to 19 on the spot especially because none of the defendants are residing at the given address.
7. The counsel for the defendant then applied for certified copies of the record on 04.01.2017 which was made available on 02.02.2017. The present application has thus been filed for setting aside ex-parte Preliminary Decree dated 14.12.2016.
8. The plaintiffs, in their reply, took the preliminary objection that the present application under Order IX Rule 13 CPC is not maintainable since the order dated 14.12.2016 granting Preliminary Decree, is an appealable order. Moreover, there is no objection taken in respect of the shares granted vide Order 14.12.2016. Therefore, the present application is without merit.
9. It is further submitted that in another litigation inter-se the parties in CS(OS) No.2496/2011 titled Mohd. Aijaz vs. Ahmed Ilyas & Ors., the address of the defendant Nos. 16 to 18 in the Memo of Parties and in their Written Statement was stated to be as mentioned in the present suit i.e. No. 763 Gali Saudagaran, Ballimaran, Delhi. Aside from this, defendant Athar Ilyas/ defandent No. 17 herein filed a Suit bearing No.101 of 2010 before the Tis Hazari Courts against the plaintiff Mohd. Aijaz and Anr. wherein also he had shown himself as resident of the address mentioned in the present proceedings.
10. Furthermore, it is claimed that the summons were duly served upon the defendants and they were aware of the present proceedings. Moreover, plaintiffs have denied that they know any person by the name of Mohd. Matin or had ever interacted with him. The summons served upon the applicants clearly recorded that the summons were tendered to them but had been refused by the named defendants. Learned Joint Registrar in its Order dated 24.10.2011 after being fully satisfied about the proper service, had observed that the defendants stand duly served.
11. It is, therefore, submitted that there is no ground for setting aside the ex-parte Preliminary Decree and the application is liable to be dismissed.
12. Submissions heard.
13. A preliminary objection has been taken on behalf of the plaintiffs that since the Preliminary Decree of Partition is an appealable Order, the application under Order IX Rule 13 CPC is not maintainable.
14. The Supreme Court in the case of Kaushik Mutually Aided Cooperative Housing Society vs. Amina Begum & Anr. 2023 SCC OnLine 1662 had observed that an application under Order IX Rule 13 for the setting aside of an ex-parte decree and an Appeal against the decree under Section 96 CPC are concurrent remedies available to a judgement debtor. However, once an Appeal is preferred by the defendants against the ex-parte Decree and is dismissed, except when it is withdrawn, the remedy under Order IX Rule 13 CPC cannot be pursued. Conversely, if the application under Order IX Rule 13 CPC is rejected, an Appeal as against an ex-parte Decree can still be preferred and continued under Section 96(2) of CPC. Thus, even after the dismissal of the application under Order IX Rule 13 CPC, an Appeal is maintainable against an ex-parte Decree.
15. In the present case, no Appeal against the Preliminary Decree of Partition by any of the parties has been filed and brought to the notice of this court. The defendants No.16 to 19 who had been proceeded ex-parte, therefore, had the right to approach the Court for setting aside the Decree against them. The present application is, therefore, maintainable.
16. The next objection taken by the applicant defendants is that the suit was decreed ex-parte against defendants Nos. 15 to 19 without issuing summons.
17. The suit for Partition and Permanent Injunction was filed by the plaintiffs against the defendants wherein it was asserted that the applicant defendants are also the legal heirs and are entitled to a share of partition in the suit property as mentioned therein.
18. The summons were directed to be issued vide Order dated 06.05.2011, but a Report was received stating that the servant who was available, had reported that defendants were not available at the given address.
19. Thereafter, the summons were again directed to be served on defendant No.15 to 19 and other defendants returnable for 08.07.2011, however the said defendants were not available and the summons were unserved as recorded in Order dated 08.07.2011. Fresh summons were therefore issued for service of the unserved defendants.
20. Thereafter, the record shows that the Process Served accompanied by plaintiff No.1 Mohd. Aijaz had visited the given addresses of defendant No.15 to 19 on 22.09.2011, who were respectively found available at the suit premises and were identified by plaintiff No. 1/ Mohd. Aijaz. The Process Server gave the Report on the summons of each of defendant No.15 to 19 that they refused to accept and also refused to sign on the summons.
21. Thereafter, vide Order dated 24.10.2011 it was noted by this Court that the summons have been refused by defendant Nos.3, 10 to 23 and defendant Nos.25 and 27. They were deemed to be served by way of refusal. The suit was thereafter, proceeded for filing of replications and for admission/denial of the documents against defendants who had put in their appearance. Eventually, an ex-parte Preliminary Decree in respect of the shares as detailed therein was passed on 14.12.2016.
22. The defendant No.15 has since expired and is represented by her legal heirs who are defendant Nos.16 to 19.
23. The record shows that on the first occasion defendant No.15 to 19 were not found present as per the statement given by the servant and recorded on the summons dated 06.05.2011.
24. The second time summons were taken by all prescribed modes, returnable for 08.07.2011, the applicant defendants remained unserved.
25. The third time, dasti summons were taken and plaintiff No.1 Mohd. Aijaz who had accompanied the Process Server as is evident from the Report on the summons dated 22.0-9.2011 and also by the affidavit of service filed by plaintiff No. 1/ Mohd. Aijaz. The Process Server had gone to the residence of defendant No.15 to 19 at 763, Gali Saudagaran, Ballimaran, Delhi, where they were found present but all had refused to accept summons. The Report is duly authenticated by the statement on Oath by the Process Server. This is also supported by the affidavit filed by plaintiff No.1 Mohd. Aijaz.
26. The defendants though have asserted that they were not residing on the given address, have not challenged or disputed that in the earlier suits they have been shown as resident of 763, Gali Saudagaran, Ballimaran, Delhi at which the service had been effected. Except a bald assertion that they were not residing at the given address, there is no cogent facts pleaded to demonstrate that they were not residing at the given address on the specific date or that they had not refused to accept the summons.
27. The other significant aspect is that by way of Preliminary Decree the shares of all the defendants have been determined in accordance with the Muslim Law. Not a word has been spoken about the share as allotted to them, being not in accordance with law.
28. It is evident from the proceedings that there was no contest by these defendants and, therefore, they chose not to appear. Not only have they not asserted in the application that their shares have not been determined in accordance with law, but they have also not been able to show that they were not served with the summons or that they had not refused to accept the same.
29. In the end, it may be observed that this was a Partition suit filed by the plaintiffs against the defendants who are all relatives of each other. If some defendants were appearing, it is difficult to accept that applicant defendants were not aware of the present proceedings or were not informed about the Partition suit.
30. In addition to this, the said defendants have also failed to file the present application with 30 days of their knowledge. While they claim to have received knowledge about the suit in December 2016, the present application has been filed after three months on 17.03.2017.
31. The defendants have not been able to show that they were not served with the summons or that they had not refused the service. There is no merit in the present application which is hereby dismissed.
CS(OS)1092/2011 & I.As. 5780/2017, 17868/2023

List on 22.01.2024.

(NEENA BANSAL KRISHNA)
JUDGE

JANUARY 10, 2024
va/Ek

CS(OS)1092/2011 Page 1 of 7