Final Order 4

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SH. SAHIL KHURMI, CIVIL JUDGE-01
(CENTRAL) TIS HAZARI COURTS, DELHI
MISC NO.24/2024
MANINDER SINGH
VS.
RITU CHAURATH
12.02.2024
ORDER
1. Vide this Order, I shall dispose off an application u/O IX Rule 13
CPC filed on behalf of defendant to set aside exparte decree dated
13.07.2023.
2. It is stated in the application that the applicant/defendant is a house
wife and proprietor of M/s 3X Fashion situated at H-16/21, Gali No.2, Tank
Road, Karol Bagh, New Delhi-110005 and husband of the
applicant/defendant namely Sh. Arun Chaturath is looking after the entire
business affairs of M/s 3X Fashion. It is further stated that defendant was
informed by her husband on 16.01.2024 that one unknown person
approached the shop of applicant and informed that a case is pending. It is
further stated that the applicant/defendant never received any
summons/notice from the Hon'ble Court and moreover neither husband of
the applicant nor staff are aware of the pendency of the suit as well as final
decision of the case.
3. On merits it is stated that there is no liability of Rs.2,51,567/- in
favour of plaintiff and against the defendant.
4. On the contrary, as per ledger statement mainained by the defendant
firm it is applicant/defendant who has to take money from the plaintiff.
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Moreover, it is also stated that during the Covid period, some payments
were given to the plaintiff in cash against the cheque issued by the
applicant/defendant.
5. Per contra, it is argued by Ld. Counsel for plaintiff that the summons
were received back duly served upon the husband of the
applicant/defendant at the shop of the defendant. Still the
applicant/defendant did not appear before this Court. It is further stated on
behalf of plaintiff that it is not the case of applicant/defendant that her
husband did not inform her of the summons from the Court.
6. It is admitted in the application that the applicant/defendant is
proprietor of M/s 3X Fashion situated at H-16/21, Gali No. 2, Tank Road,
Karol Bagh, New Delhi. It is further stated in the application that husband
of the applicant namely Mr. Arun is looking after the entire business affairs
of M/s 3X Fashion. It is further stated in the application that “shockingly
neither the husband of the applicant not staff are aware of the pendency of
the suit”.
7. It is pertinent to mention that the summons were received back duly
served on 14.02.2023 upon the husband of the defendant at the address of
her shop. The report of summons bear not only the
receiving/acknowledgment of the husband of the defendant but also
mentions the contact number of the husband of defendant i.e.,9911589147.
Thus, the avertment that the husband of the applicant was not aware of the
pendency of the suit is nothing but a bundle of lie. It is also not the case of
the applicant that the husband has estranged relations with the defendant
(wife) so much so that he never informed the defendant(wife) of the suit
after acknowledging the summons. Despite proper knowledge of the suit
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since 14.02.2023, the present application has been filed after one year with
malafide intention to delay the execution of decree. It is unfathomable and
beyond imagination that the husband of applicant/defendant did not inform
her of summons of Court.
8. At thus juncture, it is profitable to mentioned Order V Rule 12 and
13 CPC, which is as follows:
Rule 12. Service to be on defendant in person when
practicable, or on his agent. —Wherever it is
practicable, service shall be made on the defendant in
person, unless he has an agent empowered to accept
service, in which case service on such agent shall be
sufficient.
Rule 13. Service on agent by whom defendant carries
on business.—(1) In a suit relating to any business or
work against a person who does not reside within the
local limits of the jurisdiction of the Court from which
the summons is issued, service on any manager or agent,
who, at the time of service, personally carries on such
business or work for such person within such limits,
shall be deemed good service.
9. It is stated by learned counsel for the non applicant/plaintiff that the
plaintiff and defendant have business dealing of jeans and jackets and the
defendant has supplied the address of her shop of Karol Bagh, which is also
mentioned on the invoices. Having no personal relations with the
defendant, the plaintiff was unaware of the residential address of the
defendant.
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10. As per Order V Rule 12 CPC, as far as practicable, service of
summons shall be made on the defendant in person, unless he has an agent
empowered to accept service, in which case service on such agent shall be
sufficient. In the present application, it is admitted by the applicant that the
applicant/defendant is house wife in true sense and her husband is looking
after the entire business affairs of M/s 3X Fashion. Thus, service of
summons on the shop of the applicant/defendant upon her husband is an
effective service since her husband has been acting as an agent on her
behalf in running her proprietorship firm and admittedly looking after
entire business of that firm.
11. As per Order V Rule 13 CPC, in a suit relating to any business or
work against a person who does not reside within the local limits of the
jurisdiction of the Court from which the summons is issued, service on any
manager or agent, who, at the time of service, personally carries on such
business or work for such person within such limits, shall be deemed good
service. In the present case, the defendant/applicant resides in House no.
30/28, 2nd floor, West Patel Nagar, Delhi which is not within the local limits
of the jurisdiction of the Court and service of summons upon husband of
applicant/defendant who carries on the business of her proprietorship firm
shall be deemed a good service.
12. Moreover, the suit has been filed against the defendant/applicant not
in her personal capacity but in her capacity as a proprietor of M/s 3X
Fashion which carried on business from Karol Bagh (address mentioned on
invoices) where the summons have been received back duly served upon
husband of applicant/defendant.
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13. Ld. Counsel for defendant/applicant has prayed that opportunity
should be provided to the defendant to prove her case and present suit
should be decided on merits rather than on technicalities. If we go by the
submission of the Ld. Counsel for defendant/applicant and in all the cases
allow the application under Order IX Rule 13 of CPC without any rhyme or
reason, then the provision of ex-parte decree will become a dead letter and
it will tantamount to playing in the hands of unscrupulous defendant who
will not appear in the Court on flimsy grounds and will wait for court to
pass ex-parte decree and then will get it set aside after paying some cost, in
this way, they will be successful in delaying the trial and the trial will
become engine of oppression and torture for the plaintiff.
14. For the detailed reasons mentioned above, the Court is not inclined to
allow the application of defendant/applicant for setting aside of ex-parte
decree and same stands dismissed for the above said reasons.
Announced in the open (SAHIL KHURMI)
court today on 12.02.2024 Civil Judge-1, Central District,
Tis Hazari Courts, Delhi
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