REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   4960        OF 2009 (Arising out of SLP (C) No.8599 of 2006)

M/s. John Impex (Pvt.) Ltd. & Anr. … Appellants

Versus

Athul Kapur & Ors. … Respondents

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Defendant in the suit is before us aggrieved by and dissatisfied with a  

judgment and order dated 12.01.2006 passed by a learned Single Judge of  

the High Court, Delhi in FAO No.50 of 2005 whereby and whereunder an  

appeal preferred by him under Section 104 read with Order XLIII Rule 1(d)  

of the Code of Civil Procedure was dismissed.  

3. The relationship between the parties hereto was landlord and tenant.  

Respondents-landlord filed a suit for eviction of the appellant from the suit  

premises.  A prayer for recovery of arrears of rent was also made.  The said  

suit  was  filed  in  the  Original  Side of  the  Delhi  High Court.   Appellant,  

indisputably, appeared before the Delhi High Court.  Evidences had been  

adduced in the matter.  The suit was listed for final hearing on 23.10.2003.  

The  said  suit,  however,  consequent  upon  issuance  of  a  notification  

enhancing the pecuniary jurisdiction of the District Courts, was transferred  

to the Court of Additional District Judge, Delhi.  On 13.2.2004, the learned  

Additional District Judge, Delhi passed the following order :

“Present. None.

Fresh suit received by transfer.  It be checked and  registered.  Issue Court Notice to parties and their  counsels for 15.7.2004”

4. Appellants contend that no summon was, in fact, issued as directed by  

the learned Additional District Judge nor the same was served upon them.  

It, however, stands admitted that respondents had also filed an interlocutory  

application on 8.3.2004 purported to be in terms of Order XXXVIII, Rule 5,  

Order XXXIX, Rule 1 and Section 151 of the Code of Civil Procedure.

5. Notice of motion on the said application was issued for service on the  

defendant.   The said notice was undisputedly served upon the appellants.  

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They,  however,  contend  that  they  were  not  conversant  with  the  Hindi  

language  and,  thus,  were  not  aware  of  the  contents  thereof.   The  said  

interlocutory application came up before the Court on 15.7.2004 on which  

date, the court passed the following order :

“15.7.2004  Proxy  Cl  of  Plaintiff.   Court  Notice  issued  to  deft  No.1.   Received after  due  service  called repeatedly.  It  is 11.00 AM.  Be called at  12.30 PM.  There are two defts in all.

15.7.2004 Pr.  :  Sh.  Anil  Airi,  Adv. For the plff.  Plff.  Is  also  present  in  person.   It  is  11.45 AM.  Case has been called repeatedly.  The deft. No.1 is  absent despite service of the Courtnotice.  Ld.Cl.  for plff.  Submits that deft. No.2 has already been  given up on 14.7.95.”

The said suit was, therefore, taken up for ex parte hearing and upon  

consideration of the materials brought on record by the plaintiff-respondent,  

the suit was decreed.  The appellants filed an application for setting aside the  

said  ex  perte  decree  which  by  reason  of  an  order  dated  14.1.2005  was  

dismissed, opining :

“The  argument  of  counsel  for  the  JD/applicant  could  of  the  suit  had  been  served  on  the  JD/applicant, therefore, the JD/applicant could not  have been proceeded ex parte in the main suit.  I  do not agree with him.  Had I preponed the date of  hearing and issued notice of the applicant  to the  JD/applicant  for  any  date  before  15.7.2004,  the  matter would have been different and in that case,  the absence of the JD/applicant on the date fixed  

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would have resulted in proceeding ex parte against  him  so  far  as  the  application  is  concerned.  However,  in  the  present  case,  the  notice  of  the  applicant had been issued to the JD/applicant for  15.7.2004 on which the suit was to be taken up.  Here,  I  would  like  to  further  add  that  the  application  filed  by  the  plaintiff  the  notice  of  which  had  been  served  on  the  JD/applicant,  contained  each  and  every  fact  stating  from  the  various dates and fact that the suit had lie in the  mouth  of  the  JD/applicant  to  Say that  since,  the  court  notice  was  not  issued  for  15.7.2004,  therefore,  even  after  served  of  the  application  moved by the  plaintiff  which was served on the  JD/applicant  for  15.7.2004,  it  (defendant)  should  not have been proceeded ex parte.  The applicant  u/o 9 Rule 13 CPC is meritless and is dismissed.  Consequently,  application  u/s  144  CPC  is  also  dismissed.  Filed be Consigned to record room.”

6. An  appeal  preferred  thereagainst  has  been  dismissed  by  the  High  

Court by reason of the impugned judgment, stating :

“From the record of the Trial Court it is apparent  that this notice for the next date of hearing fixed  before the Trial Court on 15th July, 2004 was duly  received  and  served  upon  the  appellant  on  18th  March,  2004.   There  is  also  a  registered  A.D.  acknowledgement  card  which  shows  that  this  notice  for  hearing  fixed  on  15th July,  2004  was  duly  served  upon  the  appellant  on  20th March,  2004.  A bare perusal of the copy of the said notice  available on the Court shows that the suit number  and the name of the parties has been mentioned.  The said notice did not anywhere indicate that the  notice has been issued only on an application.  The  appellant  has admitted service of this  notice  and  has not disputed service of notice.  The appellant  has  himself  also  enclosed  copy  of  the  notice  

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received by one of its Directors at page 34 of the  paper book filed in this Court.  In any case the plea  taken  by  the  appellant  is  hyper  technical.   The  second proviso under Order IX Rule 13 of Code  makes it clear that an ex parte judgment or decree  passed  by  the  court  is  not  liable  to  be set  aside  merely on the ground of irregularity in service if  the party had notice of the date of hearing and had  sufficient  time  to  appear.   It  is  clear  from  the  notices and it is not a case of the appellant that it  did have sufficient time to appear before the Trial  Court or that he was not aware of the next date of  hearing.  Date of hearing is mentioned in the notice  and  the  notice  was  served  almost  four  months  before the next date of hearing.

The judgment of the Supreme Court in the case of  Sushil  Kumar (supra) relied upon by the learned  counsel for the appellant does not in any manner  support the contention of the appellant.  In the said  judgment,  the  Supreme  Court  has  noticed  distraction between knowledge of mere “pendency  of suit” and knowledge about the ‘date of hearing’.  In the present case, as is clear from the facts stated  above, the appellant was aware and lied notice of  the ‘date of hearing’ i.e. 15th July, 2004.  Rather  than supporting the case of the appellant, the said  judgment supports the impugned order.”

7. Mr. Anoop G. Choudhary, learned senior counsel appearing on behalf  

of the appellant, would contend that the learned Trial Judge as also the High  

Court committed a serious error in passing the impugned judgments in so far  

as  they  failed  to  take  into  consideration  that  the  records  of  the  case  

categorically establish that the appellants had never been served with any  

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notice of transfer of the suit or the fact that the suit was placed for hearing  

on 15.7.2004.

8. Mr.  Devendra  Singh,  learned  counsel  appearing  on  behalf  of  the  

respondent, on the other hand, urged that the suit for eviction having been  

filed  in  the  year  1993  and  the  respondents  having  already  obtained  

possession pursuant  to the decree passed by the learned Trial  Judge, this  

Court should not exercise its discretionary jurisdiction under Article 136 of  

the Constitution of India.

9. The basic fact of the matter is not in dispute.  The appellants were  

tenants.  A suit for eviction was filed by the respondent before the original  

side of the Delhi High Court on 27th March, 1993 which was marked as Suit  

No.767 of 1993.  The appellants in their written statement took the plea of  

their right to continue in the suit premises as statutory tenants.   

The parties adduced evidences in support of their respective case.  The  

matter  was  posted  for  final  argument.   It  is,  at  this  stage,  the  suit  was  

transferred.  The fact that the suits had been transferred from the Original  

Side of the Delhi High Court to the Court of Additional District Judge was  

known to all the litigants.  The appellants, indisputably, had not made any  

endeavour to find out the date on which the suit was likely to be taken up for  

hearing.   

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10. We would proceed on the basis that Mr. Choudhary is correct in his  

submission that notice of transfer of the suit  had not been served but, as  

indicated hereinbefore, the parties are at  ad idem that the respondents also  

filed interlocutory application under Order 38 Rule 5 and Order 39 Rule 1 of  

the Code of Civil Procedure which had indeed been served.  It is also not in  

dispute  that  15.7.2004  was  the  date  fixed  for  hearing  of  both,  the  

interlocutory applicantion as also the suit.   

11. No sufficient or cogent reason has been assigned by the appellants as  

to why despite receipt of the notice, they did not appear before the Court of  

the learned Additional District Judge, Delhi.  The plea taken before us that  

the  appellants  were  not  conversant  with  the  Hindi  language  cannot  be  

accepted.  A copy of the summons produced before us shows that it was  

both  in  Hindi  as  well  as  in  English  language.   We,  therefore,  fail  to  

appreciate  as  to  why  such  an  incorrect  stand  had  been  taken  by  the  

appellants.   

It is furthermore not disputed before us that a finding of fact had been  

arrived at by the learned Additional District Judge that having regard to the  

quantum of rent being above Rs.6,500/- per month,  the provisions of the  

Delhi Rent Control Act will have no application.  It had further been found  

that the tenancy in respect of the premises had legally been determined.   

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12. Order IX Rule 13 of the Code of Civil Procedure provides for setting  

aside ex parte decree passed against the defendants.  The Court, in terms of  

the aforementioned provision, is entitled to exercise its jurisdiction subject  

to its being satisfied that :

1. the summons was not duly served; or

2. he was prevented by any sufficient cause from appearing when the  

suit was called on for hearing.

The second proviso appended thereto which was inserted by Act 104  

of 1976 reads as under :

“Provided further  that  no Court  shall  set  aside a  decree passed ex parte merely on the ground that  there  has  been  an  irregularity  in  the  service  of  summons, if it  is satisfied that the defendant had  notice  of  the  date  of  hearing  and  had  sufficient  time to appear and answer the plaintiffs claim.”

13. The suit was transferred in the year 2004.  It appears that even before  

the  Delhi  High  Court,  an  application  filed  under  Order  IX  Rule  9  was  

dismissed with costs.  An appeal preferred thereagainst was also dismissed.  

The  High  Court  by  order  dated  27.5.2003  directed  the  appellant  to  pay  

arrears  of  ‘Use  and  Occupation’  charges  at  the  rate  of  Rs.24,000/-  per  

month.  The said order was not complied with.  The appellants furthermore  

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did not appear in the suit with effect from 23.4.2002.  Respondents filed an  

application praying for a direction upon the appellants to deposit the ‘Use  

and Occupation’ charges and on their failure to comply therewith to strike  

off the defence.  An application was also filed by the respondent to direct the  

appellants to make payment of rent.  Copies of the said applications were  

served upon the appellants.   But despite the same, the appellants  did not  

appear before the Court.

14. The learned counsel appearing on behalf of the respondents, therefore,  

in our opinion correctly contended that the sole aim of the appellants was to  

delay the disposal of the suit.  The respondents, in terms of the order passed  

by the Delhi High Court directing the appellants to deposit the charges for  

occupying  the  tenanted  premises,  became  entitled  to  receive  a  sum  of  

Rs.24,00,000/- (Rupees twenty four lacs).  

15. The articles  stored  in  the  premises  had been put  on auction.   The  

appellants even did not take part in the auction proceedings.  Indisputably  

possession of the premises in question had been delivered to the respondent.  

Pursuant to the decree passed, a partition has been effected amongst the co-

sharers and the property in question has been physically divided.   

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In a situation of this nature, we are of the opinion that the appellant is  

not entitled to any relief.  We may noltice that this Court in Sunil Poddar &  

Ors. v. Union Bank of India [(2008) 2 SCC 326], held as under :

“14. It  was  further  stated  that  summonses  were  issued to the appellants at the addresses at which  they were earlier served. In fact, according to the  respondent Bank, it  was the same address which  was  given  by  the  appellants  themselves  before  both the Tribunals and before the High Court. But  with a view to deprive the Bank of the legitimate  dues and to delay the proceedings initiated against  them, they did not appear before DRT. Though it  was  not  necessary  for  the  Bank  to  serve  the  appellants  once again, they made a prayer to the  Tribunal  to  get  the  summonses  published  in  a  newspaper  which  was  done  and  in  Nav  Bharat  Times,  Bombay  as  well  as  Nav  Bharat  Times,  Raipur  summonses  were  published.  Nav  Bharat   Times is having very wide circulation at both the  places i.e.  Bombay as well  as  at  Raipur.  It  was,  therefore,  not  open  to  the  appellants  to  contend  that  they  were  not  subscribing  and/or  reading  a  Hindi  newspaper  by  producing  a  bill  from  a  newspaper agent. Such a bill can be obtained from  any  vendor.  No  reliance  can  be  placed  on  such  evidence.  Moreover,  an extremely important  fact  which weighed with both the Tribunals as well as  with  the  High  Court  was  that  in  an  application  under Section 22(2)(g) of the Act for setting aside  ex parte order passed by DRT, the appellants have  suppressed material  and extremely important fact  that they had appeared before the civil court and  had  filed  written  statement.  The  application  proceeded on the footing as if the appellants were  never  aware  of  any  proceedings  initiated  against  them by the plaintiff  Bank.  DRT was,  therefore,  wholly right in dismissing the application and the  said order was correctly confirmed by DRAT and  

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by the High Court.  No case can be said to have  been made out by the appellants to interfere with  those  orders  and  the  appeal  deserves  to  be  dismissed.

15. Having  heard  the  learned  counsel  for  the  parties,  in  our  opinion,  the  appellants  have  not  made  out  any ground on the  basis  of  which  the  order passed by DRT, confirmed by DRAT and by  the High Court can be set aside. From the record, it  is clearly established that the suit was instituted by  the plaintiff Bank as early as in August 1993. The  appellants who were Defendants 7 to 9 were aware  of  the  proceedings  before  the  civil  court.  They  appeared  before  the  court,  engaged  an  advocate  and  filed  a  written  statement.  They  raised  preliminary  objections  as  also  objections  on  merits. They filed applications requesting the court  to raise certain issues and try them as preliminary  issues. It was, therefore, obligatory on their part to  appear before DRT, Jabalpur when the matter was  transferred  under  the  Act.  The  appellants,  however, failed to do so. We are not impressed by  the  argument  of  the  learned  counsel  for  the  appellants  that  they  were  not  aware  of  the  proceedings before DRT and summonses could not  be  said  to  have  been  duly  served.  As  is  clear,  summonses  were  issued earlier  and on the  same  address,  summonses  were  sought  to  be  served  again after the case was transferred to DRT. There  is  substance  in  the  submission  of  the  learned  counsel for the respondent Bank that the appellants  had avoided service of summons as they wanted to  delay the proceedings.”

16. Furthermore, it appears that the appellant had taken an incorrect stand  

in support of their case that the Managing Director of the appellant was ill at  

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the relevant time.  No such plea had been taken before the learned Trial  

Judge.

17. For the aforementioned reasons, there is no merit in the appeal.  It is  

dismissed accordingly with costs.  Counsel’s fee assessed at Rs.10,000/-.

……………………………….J. [S.B. Sinha]

..…………………………..…J.  [Cyriac Joseph]

New Delhi; July 31 , 2009.

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