Interim Order 11

Order Details: COPY OF ORDER
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CS No. 162/2023
Saroj Devi Vs. Ram Govind Singh
13.11.2024
ORDER
1. Vide this order, an application u/O 9 rule 7 r/w
Section 151 of CPC filed on behalf of the defendant shall be
disposed off.
2. Before deciding the application in question, it is
imperative to briefly state the facts leading to this application.
3. The plaintiff approached this court by way of a suit
for mandatory and permanent injunction and damages against the
defendant. Summons for settlement of issues were directed to be
issued in the suit on 10.04.2023. As per the report of the process
server dated 01.05.2023, the summons could not be served
because the defendant was stated to have left the given address
by selling the premises. On the submission of the plaintiff that
the process server report was incorrect, summons were given
dasti to the plaintiff for service, as prayed by him and fresh
summons were also directed to be issued to the defendant. As per
process server’s report dated 21.07.2023, the defendant could not
be served as he had left the given address by selling the property.
Further, as per the report on dasti summons dated 24.07.2023,
the premises was found to be locked and when the plaintiff
enquired about the defendant from the neighbours, no
satisfactory answers were given except that the house has been
locked since the last 2-3 months. Subsequently, an application
for serving the defendants by substituted service under Order V
Rule 20 r/w section 151 of CPC was filed by the plaintiff. The
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aforementioned application was allowed vide order dated
16.09.2023. Vide order dated 25.01.2024, the defendant was
proceeded ex-parte as the summons was served by way of
publication in leading daily newspaper “Veer Arjun” and the
defendant had still not appeared despite the same. On
15.04.2024, the defendant appeared and filed the application
being decided today i.e. under Order IX Rule 7 r/w 151 CPC.
The reply to the said application was filed on behalf of the
plaintiff on 20.08.2024.
4. Ld. Counsel for the applicant/ defendant has argued
that the plaintiff got the summons issued in the name of the
defendant by mentioning the wrong address. He further argued
that the defendant has never been served with the summons
because the defendant is residing at Property Khasra No. 1127,
Gali No.15, Block D, Kadi Vihar, Kadipur North-West
Delhi-110036 and not at the address mentioned in the summons
i.e. R/o H.No. 258, Gali No.3, Plot No.39, Prem Nagar, Karawal
Nagar, Delhi-110094. He has annexed the copy of his Aadhar
card wherein the new address is mentioned as proof of his
submission. Further, it is submitted by the ld. Counsel for the
defendant that the plaintiff and the defendant are family
members and the plaintiff very well knew that the defendant had
shifted to the new address. It is further submitted that the
defendant came to know about the pendency of the present suit
on 10.04.2024 through Santosh Sharma as the plaintiff had
lodged a police complaint against him and he was called by the
police to join enquiry at PS Dayal Pur. Thereafter, the defendant
immediately contacted his lawyer, got the court file inspected
and filed the present application for setting aside the ex-parte
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order dated 25.01.2024.
5. Per contra, it is submitted by the ld. Counsel for the
plaintiff that the present application is an abuse of the process of
the court as he has failed to disclose sufficient reason and cause
for non-appearance before the Hon’ble Court on 25.01.2024.
Further, it was argued that the present application is belated and
the day to day delay has not been explained as per law. Further,
during oral arguments the ld. Counsel for the plaintiff argued that
the present application is barred by limitation and no application
under section 5 Limitation Act has been filed to condone the
delay. The ld. Counsel for the plaintiff has also argued that as per
the Aadhar Card the change in the address was made on
04.07.2023 which is after the suit was filed.
6. Arguments have been heard on behalf of both the
parties.
7. In the opinion of this court, the application filed by
the defendant under Order IX Rule 7 r/w 151 CPC deserves to be
allowed and there is no merit in the arguments of the ld. Counsel
for the plaintiff. The defendant has shown that he does not reside
at the address provided by the plaintiff in the memo of parties i.e.
H.No. 258, Gali No.3, Plot No.39, Prem Nagar, Karawal Nagar,
Delhi-110094 and has changed his address to Property Khasra
No. 1127, Gali No.15, Block D, Kadi Vihar, Kadipur North West
Delhi-110036. The fact that the address on his Aadhar card was
changed in July, 2023 does not mean that he shifted in July,
2023. Therefore, it can be inferred that he did not genuinely
receive the summons and therefore could not appear before this
court. The argument of the ld. Counsel for the plaintiff that no
sufficient cause has been shown by the defendant is not correct
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because as per Order IX Rule 7 CPC, only a “good cause” for
non-appearance needs to be shown as opposed to “sufficient
cause” which is the requirement under Order IX Rule 13 CPC1.
The defendant has clearly shown a good cause for non-
appearance before this court. The argument of the ld. Counsel for
the defendant that the application is belated and barred by
limitation also does not hold any force as it is settled law that
under the Limitation Act there is no period prescribed for filing
an application for setting aside the order proceeding ex-parte.
Reliance can be made on the judgment of the Hon’ble High
Court of Delhi in
Delhi Development Authority v. Shanti Devi
and Anr. AIR 1982 DELHI 159. Under Order IX Rule 7 CPC,
the defendant is allowed to file an application at or before the
next date of hearing and if he assigns good cause for his non-
appearance on the previous date of hearing, the court may set
aside the order proceeding ex-parte.
8. In view of the above observations, the application of
the defendant is allowed, the order dated 25.01.2024 is set aside
and the defendant is allowed to participate in the proceedings.
(Saema Jain)
JSCC/ASCJ/G. Judge(N/E)
13.11.2024
1 Karamjit Singh v. Mangli Devi in Civil Revision Appeal No. 835 of 1995 and
Civil Miscellaneous Appeal No. 1785 of 1995.
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