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LALITA SARKAR vs KIRAN SETHI & ANR.

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$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 4th December, 2023
+ FAO 130/2023 and CM APPL. 29364/2023 (Stay), CM APPL.
30865/2023 (Stay), CM APPL. 41785/2023 (For Directions)
LALITA SARKAR ….. Appellant
Through: Mr. Rishabh Kapur, Adv.
versus
KIRAN SETHI & ANR. ….. Respondents
Through: Mr. Aditya Kapoor and Mr.
Mayur Singhal, Advs.
CORAM:
HON’BLE MR. JUSTICE DHARMESH SHARMA
DHARMESH SHARMA, J. (ORAL)

1. This is an appeal filed by the appellant under Section 104 read
with Order XLIII Rule 1(d) of the Code of Civil Procedure, 19081
assailing order dated 01.05.2023 passed by learned ADJ-01 (South
East), Saket Courts, New Delhi2 in Misc. No. 964/2023, whereby the
application by the appellant herein, under Order IX Rule 13 CPC was
dismissed.
2. Having heard the learned counsel for the parties, at the outset, I
find that the present appeal is bereft of any merits. Briefly stated, a
lease agreement dated 04.10.2019 was executed between the
respondents in the present matter with Mr. Ayan Sarkar, the husband
of the appellant with respect to premises in question property bearing
No. E-24, First Floor, Amar Colony, Lajpat Nagar-IV, New Delhi-
110024, was leased out at a monthly rent of Rs. 29,000/- for three

1 CPC
2 ADJ

years with stipulation to pay increased rent @Rs. 30,000/- w.e.f.
01.10.2020 and lastly to be increased to Rs. 31,000/- w.e.f.
01.10.2021. It appears that the husband of the appellant fell in arrears
and subsequent to issuance of demand notice, a suit for possession
was filed by the respondents, which was not contested and resultantly
an ex parte decree was passed in favour of the respondents/landlords
vide detailed judgment dated 21.02.2023.
3. It appears that the respondents disconnected the supply of
electricity to the tenanted premises upon which the appellant made
certain inquiries and she pleads that it was only then that she came to
know about the ex parte judgment dated 21.02.2023. Thereafter, she
filed an application under Order IX Rule 13 CPC, which came to be
heard by the learned ADJ and the following order was passed:

“Vide present application, it is submitted on behalf of applicant
(who was defendant no.2 in the main suit bearing CS No.418/2022)
that summons of the suit were never received by her and that
plaintiffs and husband of applicant namely, Sh. Ayan Sarkar (who
was defendant no.1 in the main suit) used to restrain people coming
to meet the applicant. It is further submitted by applicant that she is
living separately from her husband for the last one and half years
and various proceedings under D.V. Act and Section 125 Cr.PC are
pending between them. It is further submitted that an FIR
No.32/2021 U/s 498A/406 IPC, PS Women Cell is also registered
against defendant no.1 by her. It is further submitted that the
applicant has no alternate accommodation other than the subject
property bearing no.E-25, First Floor, Amar Colony, Lajpat Nagar-
IV, New Delhi-110024 and has a prima facie case for setting aside
ex-parte judgment and decree dated 21.02.2023 passed against her.

The present application under Order IX Rule 13 CPC is
strongly opposed on behalf of respondents who submit that
judgment and decree date 21.02.2023 was passed on merits by this
Court after perusing the material on record and hearing rival
submissions of both the parties. It is submitted that defendant no.1
contested the present suit and the applicant/defendant no.2 willfully
not joined the proceedings and she was proceeded against ex-parte

vide order dated 01.08.2022. It is further submitted that prayer
made in the present application under Order IX Rule 13 CPC is
contrary to record as the applicant was clearly served by way of
ordinary summons as well as registered post which noted that
applicant/defendant no.2 knowingly refused to accept the summons
of the suit. It is further submitted that plaintiffs themselves, are
senior citizens who are dependent on rental income from the suit
property. It is argued that no rent is being paid by applicant or her
husband since March 2022 and yet she continues to occupy the suit
premises causing loss and annoyance to plaintiffs. It is thus, prayed
that the present application under Order IX Rule 13 CPC should be
dismissed with heavy costs.
Arguments heard. Record perused.
Suffice it to say, Order IX Rule 13 CPC permits the Court
to set aside an ex-parte decree against a defendant on following
two possibilities namely :-
(i) If the applicant satisfies that summons were not duly served
upon him; and
(ii) If the applicant satisfies the Court that he was prevented by any
sufficient cause from appearing when the suit was called on for
hearing.
So far as point (i) is concerned, it is clear from the record of
the case that summons of the main suit bearing CS-418/2022 were
issued against applicant/defendant no.2 vide order dated
04.06.2022 and service report dated 05.07.2022 of the Process
Server clearly reflects that applicant/defendant no.2 was found at
the given premises who refused to accept the summons. Moreover,
summons sent to the applicant/defendant no.2 by way of registered
post also received back with the remarks on envelope that
applicant/defendant no.2 knowingly refused to accept the
summons. Nothing substantial could be brought on record on
behalf of applicant/defendant no.2 to suggest otherwise or to rebut
the presumption of service under Section 27 of General Clauses
Act against her. Thus, the applicant/defendant no.2 miserably
failed to satisfy the point (i) that summons were not duly served
upon her in the main suit.
With respect to point (ii), no sufficient cause could be
disclosed by the applicant which prevented her from appearing in
the Court when the suit was called up for hearing.
In these circumstances, I am not inclined to allow the
present application under Order IX Rule 13 CPC and the same
stands dismissed for being without merit.
The miscellaneous file be consigned to record room.”

4. The main grievance of the appellant is that summons for
settlement of issues were never served upon her in terms of Order V
Rules 17 and 18 of the CPC. It is also vehemently urged that the
matrimonial relationship between her and her husband (the original
tenant) became sour and this led to filing of a spate of litigation
between her and her husband, which matters are pending in other
competent courts.
5. It is also brought out during the course of arguments that the
rent has not been paid by the contractual tenant i.e., husband of the
appellant since February, 2022. Ex facie the impugned order dated
01.05.2023 does not suffer from any illegality, perversity, or incorrect
approach in law. It is clearly brought out in the impugned order that
the appellant was duly served with the summons of the suit in
question, despite which the appellant failed to appear and file written
statement. Consequently, her defence was struck off and eventually
ex parte judgment and decree was passed.
6. During the course of arguments, learned counsel for the
appellant submitted that his client is in no position to pay the arrears
of rent and/or continue to pay the rent on a month to month basis. It
was not disputed that demand notice was duly served upon the
respondent No.2 i.e. the appellant in the present appeal, and mere fact
that the appellant is having marital discord with her husband, does not
legally bind the respondents/landlords to allow her and her children to
continue to reside in the tenancy premises without payment of rent.
Evidently, the appellant does not have any locus standi to file the
present appeal since she was not the contractual tenant. Unfortunate as

it may look, no sufficient grounds or cause have been advanced by the
appellant to entitle her to any relief by this Court.
7. Hence, the present appeal is dismissed.
8. The pending applications also stand disposed of.

DHARMESH SHARMA, J.
DECEMBER 04, 2023
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