DR SURAJ PRAKASH SETH AND OTHERS vs DR. ASHOK KUMAR SETH & OTHERS

2024-04-24 Information

$~49

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: 24th April, 2024
+ CS(OS) 46/2017 & I.A. 9003/2024

1. DR SURAJ PRAKASH SETH AND OTHERS
R/o C-808, HumSub CGHS, Plot No.14,
Sector 4, Dwarka,
New Delhi 110078.

2. MR. HARSH KUMAR SETH
R/o 40-D, Pocket-A,
Siddhartha Extension,
New Delhi-110014.

3. MRS. NEERJA SETH
W/o Dr. Suraj Prakash Seth
R/o C-808 HumSub CGHS, Plot No.14,
Sector 4, Dwarka,
New Delhi 110078.

4. MR. SARITA SETH
W/o Mr. Harsh Kumar Seth
R/o 40-D, Pocket-A,
Siddhartha Extension,
New Delhi-110014.
….. Plaintiffs
Through: Mr. R.K. Dhawan, Ms. Nisha Dhawan, Mr. V.K. Teng, Ms. Shivani Taneja & Ms. Anwesha Singh, Advocates.
versus

1. DR. ASHOK KUMAR SETH
R/o K-44-B, Ground Floor, Kalkaji
New Delhi-110019.

2. MRS. SUDHA SETH
W/o Dr. Ashok Kumar Seth
R/o K-44-B, Ground Floor, Kalkaji
New Delhi-110019.

3. MRS. PUSHPAVATI SETH
W/o Late Sh. Piara Lal Seth
R/o C-808 HumSub CGHS, Plot No.14,
Sector 4, Dwarka,
New Delhi 110078.
4. MRS. SHUKLA UPPAL
W/o Mr. Bharat Kumar Uppal
R/o D-96 Ramprastha,
P.O. Chander Nagar,
Ghaziabad-201011.
….. Defendants
Through: Mr. Ashwini K. Sakhija & Mr. Puneet Saini, Advocates for D-2.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)

I.A. 9004/2024 (u/S 5 of Limiation Act, 1963 r/w Section 151 of CPC, 1908 for condonation of 689 days delay in filing I.A. 9002/2024 under Order IX Rule 13 r/w Section 151 of CPC, 1908 by D-2)

I.A. 9002/2024 (u/O IX Rule 13 read with Section 151 CPC, 1908 on behalf of defendant No.2 for Setting Aside Ex-parte Judgment and Decree dated 18.02.2020)

1. An application has been filed on behalf of defendant No.2 Sudha Seth for setting aside of ex-parte judgment and decree dated 18.02.2020 in the Suit for Partition and Declaration, as well as Order dated 13.12.2017 vide which defendant Nos.1 & 2 were proceeded ex-parte.
2. The applicant/ defendant No.2 has submitted that an ex-parte judgment dated 18.02.2020 has been passed against the defendants for which an Execution Petition No.36/2023 has been filed by the plaintiffs.
3. The defendant No.2 has asserted that the defendants had gone to meet their late mother in the middle of November, 2019, where they also met plaintiff No.1 and 2 in person who informed them that the present suit has been reserved for judgment. However, defendants were not informed that they have been proceeded ex-parte. The defendant No.2 then met her Advocate who applied for inspection which was allowed for 29.11.2019, but the file was not made available for the reason that it had been reserved for Orders.
4. Since the inspection was not permitted, the said defendant through their counsel vide application dated 19.12.2019 Diary No.10883/2019 applied for certified copies of the documents which were made available only on 11.03.2020. Thereafter, on 11.03.2020 an inspection was conducted by Mr. Puneet Saini Advocate for defendant. In the interim, the mother of the parties expired in February, 2020 and the entire family assembled for her last rites. When the plaintiff No.1 and 2 reached out to the defendants for out of court settlement, they became aware of the ex-parte judgment dated 18.02.2020 which had been obtained by showing service of Notice at the address where defendants were not residing.
5. Due to outbreak of Covid-19 Pandemic in March, 2020, the Court proceedings were not being held regularly. The Honble Supreme Court vide Order dated 23.03.2020 extended the period of limitation for all the proceedings w.e.f. 15.03.2020 till 28.02.2022.
6. The defendants have submitted that the ex-parte judgment dated 18.02.2020 could not have been assailed within the limitation period by filing an application under Order IX Rule 13 CPC, on account of ongoing Covid-19 Pandemic and also because the parties were engaged in talks for family settlement.
7. It is submitted by defendant No. 2 that her husband Mr. Ashok Kumar Seth/ defendant No. 1 was serving as an IPS Officer at Patna where he stayed in his official accommodation provided by the Government in Patna. On his superannuation from service in the year 2014, he stayed at Patna in a rented accommodation. Subsequently, in the year 2016, the defendant No. 1/Ashok Kumar Seth was appointed as Senior Consultant at Banaras Hindu University initially for a period of two years which was later extended and he stayed from January, 2016 to January, 2019 at Banaras Hindu University in the accommodation provided by the University.
8. Despite these facts being in the knowledge of the plaintiffs, instead of getting the service effected at his place of posting, the plaintiffs intentionally with mala fide and dishonest intention, gave the wrong address of the defendant Nos. 1 and 2 to manipulate the service.
9. The present Suit has been filed in the year 2017 when neither of the defendants were residing at Kalkaji address as given in the Plaint. However, their son, Shri Manik who was pursuing his MD at Safdarjung College and Hospital, was in fact staying at the Kalkaji address. It has been explained that the schedule of his duty was irregular at the Hospital and most of the time, he was not available at the given address during the day hours. Furthermore, the court summons were never served upon the son of defendant Nos 1 & 2.
10. Admittedly, the defendants at the time of institution of the present Suit on 02.02.2017 was residing at Varanasi, Uttar Pradesh, no Notice either by the Registered Post or the approved courier, was ever issued at the Banaras address. The Notices have been issued only by ordinary process and Speed Post, that too by giving a wrong address thereby making the entire process of service ineffective and inconsequential.
11. As per the Report of the Process Server dated 14.03.2017, he had visited the Kalkaji premises on 18.02.2017 where he met a lady who did not disclose her name or relationship and consequently, the Notice remained unserved. Insofar as the notice sent through Speed Post is concerned, the court record reveals that the addressee was not found available at the given address and was returned unserved. This is a correct report since at that time, the defendant No. 1/Ashok Kumar Seth was residing in Varanasi, Uttar Pradesh. The Joint Registrar in its Order dated 14.03.2017 also recorded that the defendant No. 1 has remained unserved. Therefore, the service was directed to be effected afresh by all modes, returnable on 09.05.2017.
12. The Process Server again attempted to effect the service at the given address on 17.04.2017 at 03:40 P.M. and again on 21.04.2017 at 04:00 P.M. and thereafter, on 27.04.2017 at 04:04 P.M. As per these reports, the Process Server met one person who did not disclose his identity or name but informed that the defendant No. 1/Ashok Kumar Seth lived at another place but later on backtracked from his statement. It is evident from the reports of the Process Server that the defendant No. 1 remained unserved even on 09.05.2017.
13. Learned counsel for the plaintiffs, Ms. Puja Dewan Seth filed an Affidavit dated 04.05.2017 along with the alleged receipts of courier and tracking report stating that the document has been delivered on 27.04.2017. No explanation has been given for a gap of more than 16 days in the service of the summons and there is also no report as to the person to whom the alleged service through courier, has been made.
14. As per the courts record dated 21.04.2017, one Mr. Abhishek Kumar Pathak, Advocate filed his vakalatnama on behalf of defendant No. 3 (mother of plaintiff Nos. 1 &2 and defendant No.1) and defendant No. 4 on 09.05.2017 but none appeared on their behalf too. The summons were directed to be served upon the defendant Nos. 1 and 2 afresh for the hearing fixed for 24.07.2017, but again, the summons sent through Speed Post reported that the addressee could not be served as he was not available despite repeated visits.
15. Dasti summons were then directed to be taken by the plaintiffs and an Affidavit dated 09.06.2017 was filed on behalf of Shri Uday Seth, counsel for the plaintiffs, stating that he had collected the dasti summons on 07.06.2017 and accompanied by Mr. Puneet Sharma, Process Server, they went to the residence of defendant Nos. 1 and 2 about 12:30 p.m. The bell was answered by their son, Shri Manik Seth who did not open the door or allow the Process Server to enter the premises for service of summons. Shri Manik Seth denied that the defendant Nos. 1 and 2 were present at the home and also refused to accept the summons, despite knowing the consequences of refusal of summons by the Process Server. It is stated that since the door was allegedly not opened by Shri Manik Seth, the report of the refusal is unreliable. Moreover, the Process Server was deputed by the District court, Tis Hazari, when, in fact, Kalkaji is in the jurisdiction of District Court, Saket.
16. The Joint Registrar, on the basis of the report of the Process Server and the affidavit of the Counsel, Mr. Uday Seth, vide Order dated 24.07.2017 observed that the defendant Nos. 1 and 2 have avoided to receive the summons and ordered substituted service by way of affixation for 06.09.2017. Consequently, the Notice was pasted on the Notice Board of this Court on 19.07.2017 at 02:30 p.m. as per the hand written report of the Process Server with no date but with only timing mentioned as 02:30 p.m.
17. The Joint Registrar on 06.09.2017 accepted the service through affixation, however, rather than proceeding ex parte against defendant Nos. 1 and 2, granted four week time, to file the Written Statement.
18. Thereafter, on 13.12.2017, the defendant Nos. 1 and 2 were proceeded ex parte by the Court even though no Notice for appearance for that date had been issued or served upon the defendants. The ex parte evidence was recorded and the final Judgment dated 18.02.2020, had been passed.
19. It is submitted in the application that the details as mentioned above including the various reports of the Process Server, clearly establish that the ex parte Decree has been obtained by fraud and concealment of facts as the defendant Nos. 1 and 2 were never served with the summons of the present Suit.
20. It is, therefore, submitted that the ex parte Decree dated 18.02.2020 and Order dated 13.12.2017 vide which the defendants were proceeded ex parte, be set aside.
21. Submissions heard and the record perused.
22. At the outside, it may be observed that though the application states that defendant No.1&2, who are husband and wife, were staying together, present application has been filed only on behalf of Defendant No.2.
23. The basic premise of defendant No.2’s contention to challenge non-service of the summons of the present Suit is that at the relevant time, defendant No. 1 (husband of defendant No.2) was posted as an IPS Officer at Patna and was not residing at Kalkaji address. It is further asserted that on defendant No. 1’s retirement in the year 2014, he was appointed as Senior Consultant at Banaras Hindu University initially for a period of two years which was later extended and he stayed from January, 2016 to January, 2019 at Banaras Hindu University in the accommodation provided by the University. It is, therefore, claimed that any service effected at Kalkaji address where the defendants were admittedly not residing, cannot be deemed to be a proper service.
24. First and foremost, as per the submissions made in the application, the defendant no.1 &2 were in Varanasi from January, 2016 to January, 2019. The present petition has been filed in 2017 and therefore defendants residence prior to 2016 is of no relevance. Further, from the submissions of defendant No. 2 in the Application, it is also evident that even though defendant Nos. 1&2 were generally residing at the place of posting of defendant No.1, their son Shri Manik Seth was residing at the Kalkaji address as mentioned in the Memo of Parties. Therefore, it cannot be said that the permanent address of defendant Nos. 1 & 2 as Kalkaji was not the correct address. Though they were not residing at the said address because of the Service exigency, their son was admittedly residing there.
25. Pertinently, the report of the Process Server dated 18.02.2017 mentions that when he went to serve the summons at the Kalkaji address, he met one lady who did not disclose her identity and refused to accept the summons. This is significant as while it is stated in the application that defendant No. 1 was posted at Varanasi, Uttar Pradesh at the relevant time but there is no such specific averment in regard to the defendant No. 2 (wife of defendant No. 1). Nowhere in the entire application has it been stated that the defendant No. 2 had all throughout been residing with her husband at his place of posting or that she was never available at Kalkaji address during this period.
26. That the defendant no.2 was not available at Kalkaji address but at the place of posting, is fully corroborated by the reports of the Speed Post that the addressee was not found available at the given address. The summons was directed to be taken dasti for service on defendant Nos. 1 & 2. Pursuant thereto, the plaintiffs accompanied by a Process Server had visited the premises at the Kalkaji address on 07.06.2017 where the son of the defendant Nos. 1 & 2 was available, but he refused to take the summons.
27. Faced with the refusal by the son of defendant Nos. 1 & 2 to accept the summons, the Joint Registrar vide Order dated 24.07.2017 directed service to be effected by way of affixation. Accordingly, the summons was issued on 19.08.2017 and the affixation was effected on 23.08.2017 at 02:45 p.m. as reflected in the report of the Process Server. It is thus, clear that the service had also been effected through affixation.
28. Order V Rule 15 of CPC, 1908 provides that the service on defendant may be effected through any adult member of the family whether male or female. The refusal to accept the summons by the son of the defendant No. 1 as stated in the report of the Process Server on 07.06.2017, cannot be deemed as an ineffective or invalid service. Moreover, it has been followed by affixation of the summons on 23.08.2017. The service has been effected in accordance with law on the permanent address of the defendant No. 2. Merely because their son was staying in the said house and the defendant Nos 1& 2 resided at the place of service of defendant No. 1, cannot be a ground to hold that they had not been served. This is more so, as the report was always that they were not available and at no point of time was there any report that the address was incorrect.
29. Further, even if it is assumed that the defendant No. 1 was not served in strict adherence of the Rule, then too the second Proviso to Order IX Rule 13 CPC would apply which provides that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim.
30. The defendant No. 2 has herself stated in her application that during the pendency of the Suit, the family members had assembled in mid-November, 2019 when defendant Nos 1&2 came to know that after hearing the arguments on 06.11.2019, the matter has been reserved for judgment/orders. Not only did the applicant/defendant No. 2 become aware of the pendency of the Suit, but even had applied for inspection of the court records which was allowed for 29.11.2019, though the file could not be made available for the reason that the matter had been reserved for final judgment/order. Again, it is difficult to comprehend that having come to know that the matter has been reserved for judgment, the defendant Nos. 1 & 2 had not appeared to contest the Suit while it was pending. Even the counsel for defendant No. 2 chose not to pursue his inspection application further when the file was not made available to him.
31. Further, the applicant/defendant No. 2 states that on 19.12.2019, the counsel had applied for certified copies of the various documents which were made available only on 11.03.2020 and inspection was done by the counsel on 13.02.2020. While this explanation tendered on behalf of the defendant No. 2 is no explanation; but even if it is accepted, then too, she became about the matter being reserved for judgment on 06.11.2019 itself. Not only this, as per her own submissions, they had gathered on the demise of defendant no.3 (mother Plaintiff Nos 1& 2 and defendant no.1) in February, 2020 and then too she became aware of the pronouncement of judgment and again on 13.03.2020 when the court record inspection was done by the counsel.
32. An application for setting aside of the ex parte Decree ought to have been filed within 30 days of pronouncement of judgment dated 18.02.2020 i.e., 11.04.2020, as per Article 123 of the Schedule of Limitation Act, 1963.
33. It is asserted that the plaintiffs persuaded the defendant Nos. 1 & 2 for an out-of-court settlement on the pretext that neither of the parties should go in for further litigation and they should also not go for execution of the Decree. They prevailed upon the applicants not to go for setting aside of this ex parte Decree and agreed for an out-of-court settlement talks. According to them, several meetings were held for an out-of-court settlement which got suspended for several months on account of COVID-19 Pandemic. Even if this COVID-19 period from 15.03.2020 till 28.02.2022 is excluded, then too, there is a delay of 689 days as admitted by defendant No. 2 herself.
34. Thereafter, the defendant Nos. 1 & 2 were served with the Notice of the Execution petition for hearing on 19.10.2023 despite which the present application under Order IX Rule 13 CPC has been filed after six months on 18.04.2024 which is way beyond 30 days from the date of knowledge. The only explanation being given for condonation of 689 days, is that there were ongoing talks of settlement inter se the family members.
35. When viewed in any manner, it is abundantly clear that the defendant Nos. 1 & 2 were served with the summons of the present Suit in 2017 and thereafter, though they chose not to appear to contest the Suit. They were in the knowledge of the present petition in 2019 i.e. before the pronouncement of the final judgement and thereafter as well when the Execution Petition was filed in 2023. It is abundantly clear that this Suit is interse the family members and they were amenable to settlement for which reason they chose not to contest the Suit. No cogent explanation whatsoever has been given for such inordinate delay in moving the present application.
36. Pertinently, defendant No. 1, husband of defendant No. 2 has not chosen to file any Application under Order IX Rule 13 of CPC, 1908. The applicant/defendant No. 2 has not been able to give any cogent explanation for delay in filing the present application and also has not been able to establish that she was not served with the summons of the Suit after it was instituted.
37. There is no merit in the applications, which are hereby dismissed.
38. All pending applications are hereby disposed of.

(NEENA BANSAL KRISHNA)
JUDGE
APRIL 24, 2024
va

CS(OS) 46/2017 Page 12 of 12