Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 280/2008 & RFA 267/2008
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% 16 May, 2014
1. FAO No. 280/2008
LALITA KHURANA ..... Appellant
Through: None
Versus
HARISH KUMAR KHURANA & ORS. ..... Respondents
Through: Mr. Ali Mirza, Mr. Kulish Tanwar,
Advocates.
2. RFA No. 267/2008
LALITA KHURANA ..... Appellant
Through: None
Versus
HARISH KUMAR KHURANA & ORS. ..... Respondents
Through: Mr. Ali Mirza, Mr. Kulish Tanwar,
Advocates.
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. On 8.5.2014 though this Court was not inclined to grant an
adjournment, yet on the request of the counsel for the appellant this case was
listed for today, making it clear at the same time that no further adjournment
FAO 280/2008 & RFA 267/2008 Page 1 of 9
shall be granted. Today, in my opinion, as a strategy on behalf of the
appellant, one Mr. Sanjay Kumar, who claims to be a relative of the
appellant appears and says that the appellant wants to change her counsel,
and therefore, an adjournment is sought. There is however no application by
the counsel for the appellant to seek discharge and nor is the counsel
personally present for seeking discharge. Learned counsel for the
respondents on the other hand very vehemently opposes the adjournment,
and accordingly, I decline the request for adjournment. I have heard the
counsel for the respondents, perused the record and am proceeding to decide
these appeals. It is also noted here that FAO No. 280/2008 & RFA No.
267/2008 are connected appeals. FAO No. 280/2008 is filed against the
impugned judgment dated 10.3.2008 dismissing the application under Order
9 Rule 13 CPC filed by the appellant for setting aside the judgment and
decree dated 13.7.2007. RFA No. 267/2008 is filed against the ex parte
judgment and decree dated 13.7.2007 by which the suit filed by the
respondents/plaintiffs was decreed under Order 8 (10) CPC.
2. Let us first turn to the facts of the case. Disputes pertain to the
property bearing no. 31/25, West Patel Nagar, New Delhi and which
property was owned by the father of the respondents/plaintiffs, one Sh.
FAO 280/2008 & RFA 267/2008 Page 2 of 9
Khem Chand Khurana. In favour of Sh. Khem Chand Khurana, the
government had executed a lease deed of the suit property, and
consequently, there is no doubt as held by the trial court that the deceased
Sh. Khem Chand Khurana was the owner of the suit property and after his
death the respondents/plaintiffs became owners of the suit property. The
subject suit for possession was filed against the appellant/defendant, and
who is the widow of late Sh. Ashok Kumar Khurana who was the son of late
Sh. Khem Chand Khurana. Possession was sought from the
appellant/defendant of one room, open space, kitchen, latrine and bath room
as shown in red in the site plan filed with the plaint. Respondents/plaintiffs
pleaded that Sh. Ashok Kumar Khurana committed suicide in the year 1994
on account of matrimonial disputes. Sh. Ashok Kumar Khurana being a son
was allowed by late Sh. Khem Chand Khurana to occupy the portion which
is presently in possession of the appellant/defendant. Since the
appellant/defendant failed to vacate the suit property she was served with the
legal notice dated 14.10.1997 to vacate the suit property. The appellant in
response alleged that the suit property was ancestral property and claimed
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1/5 share in the same. Trial court also notes that there were disputes
between the appellant and late Sh. Khem Chand Khurana during the latter’s
life time.
FAO 280/2008 & RFA 267/2008 Page 3 of 9
3. Appellant/defendant appeared in the suit but failed to contest the
same. Appellant/defendant was served for 17.5.2007 and she personally
appeared in the court on 18.5.2007. Case was adjourned for filing of the
written statement and the reply to the injunction application, but, on the date
fixed neither the appellant/defendant nor any authorised advocate on her
behalf appeared and consequently the court below in exercise of powers
under Order 8 Rule 10 CPC though has decreed the suit for possession it has
however declined the relief of damages as claimed by the
respondents/plaintiffs. The court below notices that the appellant/defendant
instead of filing her written statement, sought to file an affidavit along with
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documents claiming that she had sold her 1/5 right for the same property to
one Smt. Aditi Madan and which could not be done till the
appellant/defendant proved that she in fact had a right in the suit property.
The court below has also referred to the registered Will dated 16.5.1996
executed by late Sh. Khem Chand Khurana in favour of the
respondents/plaintiffs. Late Sh. Khem Chand Khurana had various
litigations with the appellant during his life time and consequently the
appellant/daughter-in-law was disinherited. The trial court therefore found
the present to be a fit case for exercise of powers under Order 8 Rule 10
CPC and accordingly the suit was decreed and to which I completely agree.
FAO 280/2008 & RFA 267/2008 Page 4 of 9
4. I note that if the appellant has sold rights in the disputed property by
means of agreement to sell dated 1.5.2007, then it is not understood that how
is she still continuing to litigate and the so called purchaser Smt. Aditi
Madan has not contested the case by getting herself substituted for the
appellant. In my opinion, the object of the appellant in this regard is
basically to complicate the matter and delay and defeat the rights of the
respondents/plaintiffs with respect to entitlement of possession of the
portions which are with the appellant in the suit property bearing no. 31/25,
West Patel Nagar, New Delhi.
5. So far as the issue of whether appellant/defendant has shown
sufficient cause for setting aside the ex parte judgment and decree for which
an application was moved under Order 9 Rule 13 CPC is concerned, the
court below has held that there is no sufficient cause and this is so stated in
paras 6, 6 (repeated) and 7 of the impugned order dated 10.3.2008:
“6. A perusal of the record shows that summons for settlement of
issues were served on the defendant on 17.5.07 for 18.5.07. she
had also appeared in the Court on 18.5.07 and her signatures on
the order sheet were taken by my ld. predecessor. Therefore, it
is not a case of non-service of the defendant. On 18.5.07 she
sought adjournment to engage a counsel. Considering her
prayer, the case was adjourned by my ld. Predecessor to 5.7.07
for filing the written statement and reply. In the meantime she
was restrained from creating any third party interest in the
property. On 5.7.2007 Shri V P.Gulati, Adv. Appeared for the
FAO 280/2008 & RFA 267/2008 Page 5 of 9
defendant but neither the Vakalatnama nor any written
statement was filed. No application was filed but a Passover
was prayed which was allowed and at second call application
for grant of further time was moved on behalf of the defendnat
to file written statement as on that date also it was was
submitted that the defendant has engaged the counsel recently
but filed the Memo of Appearance and, therefore, further time
was required for filing Vakalatnama and written statement and
on written request the case was once again adjourned for filing
written statement and reply on 13.7.07. Interim order was to
continue.
6. However, on 13.7.07 neither Vakalatnama nor written
statement was filed but one proxy counsel appeared on behalf
of the defendant who filed affidavit alongwith photocopies of
some documents and stated that senior counsel was out of
station and documents be taken on record. The documents were
allowed to be taken on record. But ld. Counsel for the
respondent/DH submitted that since no written was filed on
behalf of the defendant the defence of the defendant be struck
off and she be proceeded ex parte. The case was kept pending
but thereafter there was no response from the defendant either
at 1.05 PM. or at 2.20 P.M. Therefore, the defendant was
proceeded ex parte. Ld. Counsel for the plaintiff, however,
submitted that the documents filed on behalf of the defendant
cannot be considered in view of Section 54 of the Transfer of
Property Act. The sale deed was not complete by merely
executing the agreement to sell and otherwise also the
documents appear to be forged and cannot be relied. Ld.
Counsel for the plaintiff submitted that the plaintiff was entitled
to for a decree under Order 8 Rule 10 CPC and after hearing the
submissions and going through material on record. The suit
was decreed vide judgment and decree dated 13.7.2007.
7. As per provisions of Order 8 Rule 1 CPC, after service of
summons the defendant is required to file the written statement
within 30 days from the date of service but no written statement
was filed by the defendants. Adjournments were granted to the
defendant upto 13.7.07 but till that day no Vakalatnama was
filed on behalf of the defendant and the defendant also failed to
FAO 280/2008 & RFA 267/2008 Page 6 of 9
file written statement despite repeated opportunities and on
13.7.07 no authorized person was present on behalf of the
defendant. From the date of service upto 13.7.07 a period of
two months and 26 days had expired but defendant had failed to
file written statement and reply. Since, no autohrised person
was present on behalf of the defendant no.13.7.2007 the
defendant was liable to be proceeded exparte and the plaintiff
was also entitled for decree under Order 8 Rule 10 CPC which
was granted in favour of the plaintiff. The applicant, has not
made any complaint against previous counsel, nor she had
disclosed who had applied for certified copy and who had
collected the certified copies of judgment and decree for her
and, therefore, there appears no bonafide on behalf of the
applicant. The record also shows that the application for supply
of certified copies was applied on behalf of the
applicant/defendant on 8.8.07 and the certified copies were
ready for collection on 10.8.07 but were collected on behalf of
the defendant only on 20.8.07 due to reason best known to the
defendant or her counsel, and even thereafter the application
has been moved on 14.09.2007 beyond the prescribed period of
limitation of 30 days. It is cannot be said that the applicant was
not aware of the proceedings. She has failed to disclose any
sufficient cause which prevented her from appearing in the
Court. No reason has been given why the written statement and
reply was not filed despite repeated opportunities and in my
considered view the defendant had knowledge of the date yet
she did not intentionally appear in the Court on 13.7.2007 when
the judgment and decree was passed. The authorities relied by
DH/plaintiff are fully applicable. Application has no merit, the
same is accordingly dismissed. Case file be consigned to R.R.”
6. I completely agree with the conclusions given in the aforesaid paras as
per which the trial court has dismissed the application under Order 9 Rule 13
CPC inasmuch as the appellant/defendant was admittedly served on
17.5.2007 for 18.5.2007 and she personally appeared on 18.5.2007 and
FAO 280/2008 & RFA 267/2008 Page 7 of 9
sought an adjournment to engage a counsel. Time for this was granted and
the case was fixed for 5.7.2007 and on which date Sh. V.P. Gulati, Advocate
appeared, but did not file the written statement and did not even file his
Vakalatnama. Case was therefore adjourned to 13.7.2007 but even on
13.7.2007 neither any written statement nor any Vakalatnama was filed.
The case was firstly kept pending upto 1.05 P.M. and thereafter after lunch
at 2.20 P.M the appellant/defendant was proceeded ex parte. Trial court also
notes that appellant/defendant was always aware of the case, and therefore,
the application under Order 9 Rule 13 CPC which has been moved on
14.9.2007 much beyond the prescribed period of limitation of 30 days from
the 13.7.2007, is time barred.
7. In view of the above, I do not find any merit in any of the appeals and
the trial court has rightly decreed the suit under Order 8 Rule 10 CPC and
the application under Order 9 Rule 13 CPC inasmuch as actually
appellant/defendant is resorting to strategies to delay and defeat the case of
the respondents. The implementation of strategies by the appellant has
continued even before this Court not only directly but also through counsels
because the counsels in fact appeared on 8.5.2014 and sought for an
adjournment which was granted for today making it clear that no further
FAO 280/2008 & RFA 267/2008 Page 8 of 9
adjournment shall be granted in view of the facts of the present case, but in
spite of the same, no Advocate appears for the appellant although no
discharge is sought by the existing Advocate who was hence bound to
appear in the appeals.
8. In view of the above, the appeals are dismissed, leaving the parties to
bear their own costs.
MAY 16, 2014 VALMIKI J. MEHTA, J
godara
FAO 280/2008 & RFA 267/2008 Page 9 of 9