Full Judgment Text
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CASE NO.:
Special Leave Petition (civil) 4635 of 2001
PETITIONER:
ASHOK NAGAR WELFARE ASSOCIATION & ANR.
Vs.
RESPONDENT:
R.K. SHARMA & ORS.
DATE OF JUDGMENT: 14/12/2001
BENCH:
D.P. Mohapatra & P. Venkatarama Reddi
JUDGMENT:
WITHSPECIAL LEAVE PETITION . No. 4657 OF 2001
J U D G M E N T
P. Venkatarama Reddi, J.
After notice the SLPs have been heard at length.
The common judgment of the Division Bench of the Delhi High
Court in RFA (OS) No. 32/2000 and RFA (OS) No. 35/2000 is being
assailed in these appeals by the plaintiff who instituted two suits Nos. 544 of
1991 and 597 of 1991 in the High Court. The first suit was filed against 48
defendants and the other suit against 52 defendants who were alleged to be
unauthorised occupants of plots/houses located in Khasra No. 393/264
situated in Ashok Nagar (Chilla Village). Inter alia it was alleged in the
plaint that the members of the Association (some of whom are the
defendants) jointly and severally agreed to relinquish their respective rights
in favour of the first plaintiff and further empowered the second plaintiff
to institute requisite legal proceedings in order to safeguard the land in
dispute. It is also alleged that the defendants were inducted into possession
unauthorisedly by certain persons named in the plaint who were said to be
the predecessors in title and therefore the defendants were trespassers of the
disputed land. It is then alleged that the defendants "forcibly dispossessed
the plaintiff-Association from its constructive possession". The suits were
purportedly filed under Section 6 of the Specific Relief Act and decree for
possession/restoration of possession was sought for.
It is not necessary to deal with the history of the litigation pertaining
to the suit land or the other details turning on the merits of the suits. Suffice
it to notice that service on the defendants was treated to be complete and the
Court directed by an order dated 14.5.1992 that the defendants be proceeded
against ex parte. Affidavit evidence was taken on record. Both the suits
were decreed on the finding that the defendants had illegally dispossessed
the plaintiffs from the suit property and they were in the position of
trespassers. Such ex parte judgment and decree was passed on 6.8.1997 in
Suit No. 597of 1991 and on 27.1.1997 in Suit No. 544 of 1991 by a learned
Single Judge in exercise of original jurisdiction. When defendants were
sought to be dispossessed on the strength of the ex parte decrees, appeals
were filed on the allegation that the appellants/defendants were not aware of
the suits and they came to know for the first time of the decrees passed in the
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suits on dt. 8.4.2000 when the police officials came to inspect the area in
order to enforce the court warrants. Petitions for condonation of delay in
filing the appeal were also filed. The Division Bench of the High Court
thoroughly examined the record to ascertain whether the summons were
factually served or deemed to have been served in accordance with law and
having accepted the case of the defendants, set aside the ex parte judgments
and decrees passed by the learned Single Judge and ordered fresh trial of the
suits on merits in accordance with law. The learned Judges found sufficient
ground to condone the delay. The concluding part of the Judgment reads as
under :-
"The appellants, who have put in appearance and who are
defendants in the suit will now will be deemed to have
been duly served. They will be supplied by the plaintiffs
with copies of the plaint and other documents, as are
required to be served on them on or before the day when
the parties will appear before learned Single Judge.
Within a period of six weeks thereafter the said
defendants will file their written statements. Steps will
also be taken by the plaintiffs thereafter to effect due
service on the remaining defendants."
Adverting to the record in Suit No. 597 of 1991, the High Court
noticed inter alia that the acknowledgment-due cards were not filed despite a
requisition in this behalf; summons were therefore not sent through
registered post, but were sent through ordinary process. Even without
verifying whether the summons were served to the unserved defendants, the
Deputy Registrar directed the suit to be posted on 11.11.1991, on the
insistence of the plaintiff. At that stage, application for substituted service
for effecting service on unserved defendants through publication in the
newspaper was moved. The Division Bench then commented :-
"The proceedings, which had taken place till that date
thus would reveal that the summons, which had been
issued to the defendants pursuant to the order dated
4.2.1991 for 10.4.1991 had not been received back in the
Registry of Court. The Court was not aware whether
any or genuine effort had or had not been made to effect
service on the so-called unserved defendants. There was
no reason available to the Court till that date that why the
unserved defendants could not be served personally with
the summons. Though the suit had come up on three
different dates, namely, on 10.4.1991, 23.9.1991 and
11.11.1991, yet no orders were obtained by the plaintiff
for fresh summons to the unserved defendants. Straight-
away two separate applications aforementioned under
Order 5 Rule 20 of the Code were filed.
The first application (1.A. 12267/91) averred that
some of the defendants had not been served till date
despite repeated summons issued to them. As such, it is
not possible to serve the unserved defendants through
ordinary process. On face of it the averments made in
the application were false in as much as the application
stated ’despite repeated summons issued to them’.
Neither the summons, which had been issued had been
received back nor any effort was made by the plaintiff to
obtain fresh summons. Likewise the averments made in
the second application were also false, which also alleged
that repeated summons had been issued to the unserved
defendants. On these sketchy applications, the Deputy
Registrar, who is invested with powers of the Court,
proceeded to pass an order recording his satisfaction that
it was not possible to serve the unserved defendants in
ordinary course. Accordingly, he directed that the said
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defendants be served by means of proclamation in
newspaper, namely, ’The Statesman’.
From what material on record or otherwise the
Deputy Registrar was satisfied with is anybody’s guess.
Nothing is reflected in the order. Neither the contents of
the application nor the previous office reports support
such satisfaction. Contents of the application, as noticed
by us, on the face of it were false. Office reports also
nowhere had stated anything from which it could be
inferred that it was not possible to serve the unserved
defendants in the ordinary course. It was incumbent for
the Deputy Registrar to have at least looked into the
provisions of law before directing substituted service,
which in terms of Rule 20 of Order 5 could be ordered
only on satisfaction that there was reason to believe that
the defendant was keeping out of the way for the purpose
of avoiding service or that for any other reason the
summons cannot be served in the ordinary way. Neither
any explanation of the process server was sought that
why he had not returned the summons, which had been
sent for service, nor any report on any of the summons
was available to the Court since as per the office reports
as reflected in the orders dated 10.4.1991, 23.9.1991 and
19.12.1991, summons which had been ordered to be
issued pursuant to the order dated 4.2.1991 were still
awaited. Thus, even the order for effecting substituted
service by publication on the unserved defendants is bad
in law."
The High Court then specifically referred to the endorsements
of service on certain summons to demonstrate how the summons were
served on unconnected persons.
Adverting to the record in Suit No. 544 of 1991 wherein also
the summons were not sent by registered post, the High Court remarked :-
"Looking at the record of Suit No.544 of 1991 and 571 of
1991 it thus appears that 89 summons are purported to
have been served by the said Tara Chand, Process Server
on 30.3.1991 and the reports on the summons also
appears to have been prepared by him on the same day.
Instead of serving the summons on the person named
therein, he served some unknown persons without taking
the trouble of even mentioning their identity and without
getting these persons duly identified. He could have
even stated on the summons that the persons to whom
summons were delivered were personally known to him.
It was not so mentioned. Had he been asked to appear in
Court definitely he would have stated that personally he
was not acquainted with the said defendants.
There are some of the reports on the summons,
which have been highlighted by us only to show the
manner in which summons are purported to have been
duly served by the process-server. The same were
tendered to persons other than the one to whom the same
were addressed. Another important feature, which we
have noticed in both the suits is the manner in which
summons were addressed to the defendants. Address of
defendants as shown on summons in suit No.544/91 has
been noticed by us above. For all defendants in suit No.
597 of 1991, the summons were addressed as follows :-
’Unauthorised occupant of plots/house Nos. 65 to
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98, out of khasra No. 393/264 in Adarsh Nagar of
village Chilla Saroda Bangar, Delhi 110091."
The High Court then discussed as to how the mandatory
provisions of CPC in regard to service of summons, viz. Order 5 Rule 18,
Order 5 Rule 15 etc. were not complied with. The High Court concluded:-
"As such we have no hesitation in concluding that the
reports on the summons are either fake or purposely
made to give a colour of due service. Summons were not
served at all. These were not handed over to the
defendants named therein, which prevented the
defendants from appearing in Court. Not only there is
violation of the provisions of law, but the provisions have
been defied with impunity."
The above findings/observations of the High Court reveal a
pathetic state of affairs and bring to focus the factum of abuse of the process
of the Court by manipulating the records to show due service while there
was none. Elementary care was not exercised by the concerned officer of
the court in checking up whether the summons were duly served and
whether there was a case for effecting substituted service and whether
mandatory provisions as to the service of summons were complied with.
The entire picture was not placed before the Court and the Court readily
accepted the report of the Deputy Registrar and proceeded on the basis that
service was complete and the defendants failed to respond to the summons.
It is sought to be contended by the learned counsel for the
appellants, on the basis of the proceedings of the Dy. Registrar recorded on
10.4.1991, that in suit No. 597 of 1991 most of the defendants were present
in person and they sought time to file written statement. The names of the
defendants said to be present are found recorded on the order sheet dated
10.4.1991. It is noted in the order that the summons issued to the defendants
by ordinary process were awaited, but the said defendants were present in
person. Nothing is recorded as to how the Deputy Registrar was able to
identify them as the defendants concerned. This is what the High Court very
rightly commented. Obviously, the factum of service of summons on them
was not checked up by the officer of the Court, more so when their identity
was not known to the officer.
We are, therefore, satisfied that the judgment of the Division
Bench of the High Court setting aside the ex parte decree is correct, proper
and just.
However, faced with the above adverse findings of the High
Court which are insurmountable, the appellant’s counsel concentrated on
the point that no intra-court appeal lies by virtue of the bar enacted in
Section 6(3) of the Specific Relief Act. It is contended that the provision
in Section 10 of the Delhi High Court Act providing for appeal against the
judgment of a Single Judge to a Division court will be of no avail to
assume jurisdiction to entertain the appeal in the face of the bar contained
in Section 6(3). This very contention was raised before the High Court.
The learned Judges relying on the decision of this Court in Vanita M.
Khanolkar Vs. Pragna M. Pai and others (AIR 1998 SC 424) held that the
prohibition contained in sub-section (3) of Section 6 of Specific Relief Act
will not come in the way of the appellant in challenging the judgment and
decree of a Single Judge by way of a Letters Patent Appeal. Learned
counsel for the appellant put in the best of his endeavour to distinguish that
judgment and also to question the correctness of that judgment on the
ground that it was decided ’per incuriam’, without regard to the dicta laid
down in larger Bench decisions. It is submitted with considerable force
that the specific bar enacted in Section 6 (3) of the Specific Relief Act
cannot be got over by invoking the provision relating to intra-court appeals.
It is pointed out that if the view taken by this Court in Vanita’s case is
given effect to, the bar under Section 6(3) will operate in all cases where
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the High Court has no original jurisdiction to try the suits, whereas it does
not come into play if the High Court concerned does not have such
jurisdiction. This anomalous position is another reason, according to the
learned counsel, to conclude that the embargo against the entertainment of
appeal incorporated in sub-section (3) of Section 6 of Specific Relief Act is
absolute and is not effaced by the provisions of the Letters Patent or the
relevant High Court Act. These contentions are not without substance.
However, we do not consider it necessary to refer the matter to a larger
Bench as we are of the view that this is not a fit case for interference under
Article 136 of the Constitution even if we proceed on the basis that the
appeal under Section 10 of the Delhi High Court Act was not maintainable.
On a conspectus of the telltale facts of the case and the
considerations germane to the exercise of jurisdiction under Article 136, we
refrain from exercising the jurisdiction and grant leave to appeal. It is well
settled that Article 136 does not confer a right of appeal on any party, but it
confers a discretionary power on the Supreme Court to interfere in suitable
cases vide State of Bombay Vs. Rusy Mistry (AIR 1960 SC 391). The
bar under Article 136 is potential but not compulsive and is undoubtedly
meant to advance the cause of justice. In Taherakhatoon (D) by LRs. Vs.
Salambin Mohammad (AIR 1999 SC 1104), it was pointed out that even in
cases where special leave is granted, the discretionary power vested in the
Court continues to remain with the Court even at the stage when the appeal
comes up for hearing. In that case, the Court having declared the law that
the High Court while dealing with the second appeal erred in not framing a
substantial question of law, declined to interfere with the impugned
judgment in exercise of discretionary power under Article 136. Half a
century back, a Constitution Bench of this Court in Pritam Singh Vs. The
State (1950 SCR 453) made pertinent observations on the scope and nature
of the power under Article 136. It was observed that the jurisdiction under
Article 136 "is to be exercised sparingly and in exceptional cases only, and
as far as possible, a more or less uniform standard should be adopted in
granting special leave in the wide range of matters which can come up
before it under this Article". The Court then observed "the only uniform
standard which in our opinion can be laid down in the circumstances is that
Court should grant special leave to appeal in those cases where special
circumstances are shown to exist." The Constitution Bench further laid
down "Generally speaking, this Court will not grant special leave, unless it
is shown that exceptional and special circumstances exist, that substantial
and grave injusitce has been done and that the case in question present
features of sufficient gravity to warrant a review of the decision appealed
against."
Viewed in this light, we do not think that special leave should
be granted and arguments shall be allowed to be advanced on the question
whether the Division Bench or the High Court could entertain the appeal
under Section 10 of the Delhi High Court Act despite the bar under Section
6(3) of the Specific Relief Act. The High Court, by the impugned
order, followed the judgment of this Court in Vanita’s case (supra) which
prima facie supports its view. That apart, it is pertinent to note that in any
case, the High Court, in exercise of another jurisdiction viz. original
jurisdiction could have set right the illegality and restored the suits to its
file. What the High Court has done is to invalidate the ex parte decrees
which were obtained by questionable means fitting into the description of
abuse of the process of the court. If such decrees were allowed to remain, it
would have resulted in miscarriage of justice. We cannot shut our eyes to
the ground realities and the factual events highlighted by the High Court in
deciding the question whether we should exercise our discretionary power
under Article 136. Incidentally, it may be mentioned that according to the
learned counsel for the respondent, the reason for not filing the application
for restoration under Rule 13 of Order 9 was the bona fide impression
may be a mistaken impression, that the learned Single Judge of the High
Court who allowed the execution of the decree to go on will not be able to
interfere in the matter. Be that as it may, we are not persuaded in the
peculiar facts and circumstances of the case to grant leave as we feel that
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affording an opportunity to the defendants to contest the suits on merits is
well justified and will have the effect of averting serious injustice. We
shall, however, be not understood to have expressed any view on the merits
of the suits.
In the result the Special Leave Petitions stand dismissed. There
shall be no order as to costs.
.J
(D.P. Mohapatra)
.J
(P.Venkatarama Reddi)
December 14, 2001.
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