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HARPREET SINGH TONI vs SUKHBIR INDER SINGH BASRA & ORS.

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$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 30th October, 2023
+ FAO 215/2023 and CM APPL. 43854/2023 (for delay of 173
days in filing regular first appeal), CM APPL. 43855/2023
(stay), CM APPL. 43856/2023 (Delay of 89 days in re-filing the
appeal)
HARPREET SINGH TONI ….. Appellant
Through: Appearance not given
versus
SUKHBIR INDER SINGH BASRA & ORS. ….. Respondents
Through: Appearance not given
CORAM:
HON’BLE MR. JUSTICE DHARMESH SHARMA
DHARMESH SHARMA, J. (ORAL)

1. This order shall decide an appeal preferred by the appellant
(defendant no.4 in the main suit) under Order XLIII Rule 1(R) of the
Civil Procedure Code, 19081 assailing the impugned order dated
08.08.2022 whereby the Learned Trial Court was pleased to close the
right of the appellant to file written statement in the pending suit in
terms of Proviso to Rule 1 to Order VIII CPC.
2. First things first, the present appeal before us is preferred
against the impugned order dated 08.08.2022 and CM APPL. No.
43856/2023 is moved seeking condonation of delay of 89 days in re-

1 CPC

filing of the application.
3. It is submitted that the delay has occasioned since the file was
misplaced in the chamber of the counsel due to ongoing construction
work. Although the application is accompanied with an affidavit of the
appellant, I am afraid no sufficient grounds are advanced for
condonation of delay, and the appeal merits rejection for having been
filed beyond the period of limitation.
4. Even otherwise, the present appeal is bereft of any merits.
Shorn of all details, respondent no.1 has filed a suit for possession,
mandatory injunction and declaration against the present appellant as
well as respondent nos. 2 and 3 in respect of the property in question
and vide order dated 12.07.2019, the learned Trial Court was pleased
to close the right of the appellant to file a written statement. As the
appellant/defendant no.4 failed to appear during the course of the
proceedings, he has also been proceeded against ex-parte vide order
dated 15.03.2022.
5. The case of the appellant is that he had never received any
summons of the suit from the Court as the respondent no.1/plaintiff
had given a wrong address as 134, Shop No.2, Guru Harkishan Nagar,
Paschim Vihar, New Delhi-110087, whereas he has been residing at
House No. 289, First Floor, Ambika Vihar, Paschim Vihar, New
Delhi. It is submitted that as soon as he came to know about the
pendency of the matter, he moved an application for setting aside the
orders dated 12.07.2019 as well as 15.03.2022.
6. It would be expedient to reproduce the impugned order dated
08.08.2022 passed by the learned Trial Court, which reads as under:-

“Present: Sh. Amardeep Maini, Ld. Counsel for plaintiffs alongwith
SPA, Sh. Karamjeet Singh.
None for defendant no.l.
Sh. Praful Singh Chandel, Ld. Counsel for Sh. Rishi Sood, Ld.
Counsel for defendant no.2.
Ms. Rajni Sharma, Ld. Proxy Counsel for Sh. Praveen Goel,
Ld. Counsel for defendant no.3.
Sh. Manoj Khatri, Ld. Counsel for defendant no.4 alongwith
defendant no.4.
Vakalatnama filed on behalf of defendant no.4 on 27.07.2022
Ld. Counsel for plaintiff submits that he will file fresh SPA before the
next date of hearing.
Ld. Counsel for defendant no.4 moved applications under Order 9 Rule
7 CPC and under Order 7 Rule 11 CPC. Copy supplied.
Arguments heard on application under Order 9 Rule 7 CPC.
Ld. Counsel for applicant /defendant no.4 submits that the defendant
no.4 has not received any summons / notice by this Hon’ble Court till date since
he is residing at House No.289, First Floor, Ambika Vihar, Paschim Vihar, New
Delhi and the plaintiffs have mentioned his wrong address as 134, Shop No. 2,
Guru Harkishan Nagar, Paschim Vihar, New Delhi-110087. Ld. Counsel further
submits that now the defendant no.4 has come to know about the existence of
present case and he wants to contest the case by filing written statement.
On the other hand, Ld. Counsel for plaintiff submits that defendant no.4
has deliberately avoided his appearance before this Court despite service of
summons and present application is nothing but an attempt to delay the
proceedings. He prays for dismissal of the application with costs.
Heard. Perused.
During arguments, defendant no.4 submits that he has shifted to
the new address as mentioned in the application in the year 2019 itself.
As per record, defendant no.4 was served with summons on
04.10.2018 as it bears his signatures which are matching with his signatures
as appended on the summons for 23.10.2018. The date of service is
04.10.2018. The said summons were issued on the address of defendant no.4 as
mentioned in the plaint.
On 23.10.2018, defendant no.4 was directed to file written statement
within the stipulated period. However, as per record, no written statement was
filed till 12.07.2019 by defendant no. 1, 3 and 4 and accordingly, their right to
file written statement was closed.
Vide order dated 15.03 .2022, all defendants were proceeded ex-parte
as none was appearing for the defendants.
Apart from claiming that the address as mentioned in plaint of
defendant no.4 is incorrect and therefore he has not received the summons of the
Court, no other plea has been taken by defendant no.4. However, said plea
cannot be considered in view of the specific report of summons where signatures
of defendant no.4 are appended with the date 04.10.2018.
Accordingly, I am satisfied that no ground is made out to set aside the
order dated 12.07.2019 and 15.03.2022.
Hence, application moved on behalf of defendant no.4 for setting aside
the order dated 12.07.2019 and ex-parte order dated 15.03.2022 stands dismissed
and disposed off.”

7. A bare perusal of the aforesaid order would show that the plea
of the appellant that he was never served with the summons of this
suit at his correct address is palpably wrong. Learned Trial Court
rightly observed that the summons was served upon defendant no.4 on
04.10.2018, which was bearing his signatures whereas he had shifted
to the new address only in 2019. On a perusal of the relevant orders
passed in the matter, it is evident that the appellant/defendant no.4 has
been taking the Court for a ride and has attempted to derail the
proceedings.
8. Before parting with this appeal, it is also borne out from the
record that appellant/defendant no.4 was served with the summons on
04.10.2018 and no written statement was filed within the mandated
period of 120 days in terms of Proviso to Rule 1 to Order VIII CPC
which affords a period of 120 days to the defendant to file a written
statement failing which his right to file a written statement stands
defeated.
9. In view of the following discussion, I find that there is no
illegality, infirmity or perversity in the impugned order dated
08.08.2022 passed by the Learned Trial Court.
10. The appeal is dismissed in limine. All pending applications also
stand disposed of.
11. Copy of this Order be sent to Learned Trial Court for
information and record.

DHARMESH SHARMA, J.
October 30, 2023/sp